Pirates v. Mercenaries: Purely Private Transnational Violence at the Margins of International Law...

Pirates Versus MercenariesPurely Private Transnational Violence at the Margins of International Law

Ansel HalliburtonJ.D. Candidate, 2011

UC Davis School of [email protected]

April 22, 2011

mailto:[email protected]

Agenda

1. Scare you

2. Figure out how to stop piracy

3. Explore international law

4. Clarify a tough decision

April 22, 2011 Halliburton 2

Agenda

1. Scare you






Pirates are scary!

Pirates are expensive!Kind Impact

Ransom payments $150M in 2009

Avoidance(re-routing)

$2–3B17–26% fewer trips per ship rerouted

War-risk insurance 40X increase (net $400M annually)

Indirect costs

• Lost revenue to Suez Canal (Egypt) because of re-routing (up to $600M annually)

• Price increases for commodities (inflation)• Reduced foreign investment and tourism

Armed guards $40–130K per voyage, including gear

Military operations $2B annually

Criminal prosecution $31M in 2010


Data: Gilpin, Counting the Costs of Somali Piracy, U.S. Inst. Peace, Working Paper, 2009;Bowden, et al., The Economic Cost of Maritime Piracy, 2010.

$7–12 billion

Impact on Shipping

Source: Kaluza et al., The complex network of global cargo ship movements, J. Royal Soc. Interface (Jan. 19, 2010)

April 22, 2011 6Halliburton

Somali piracy is large-scale transnational organized crime.

• Organized market for financing• Clan-based organization• Rumors of tip-offs from moles in shipping

industry• Specialization (financier, boarding party,

negotiator, hostage guard, etc.)• Repeat players• Capital assets (captured motherships)• Sophisticated laundering of ransom money, e.g.,

investment in Kenyan real estate


Agenda

1. Scare you





How to Stop Piracy(or any other crime)

• DiversionIncrease the anticipated reward for legal activities

rewardlegal > rewardillegal

• DeterrenceIncrease the anticipated risk for illegal activities

riskillegal > rewardillegal

• IncapacitationPut criminal in jail to make it impossible to do the crime

April 22, 2011 9Halliburton

Current approach is failing.

• Piracy is:– still increasing

– more violent

– more expensive

• Why?– Lack of will to rebuild Somali state (diversion)

– Lack of appetite or capacity to bear cost of criminal process (deterrence)

– Jail isn’t so bad, comparatively (deterrence)

– Unlimited labor supply (incapacitation)


How about mercenaries?

• Mostly an economic problem, so let economic actors solve it.

• Direct costs of piracy are concentrated in shipping and insurance industries—so let them pay for stopping it.

• Mercenaries are cheaper than government military power.


Agenda

1. Scare you





Law

1. Prohibition on the use of force

2. Law of the sea

3. Law of war

4. Human rights law

5. Treaties on mercenaries

6. Domestic law


But do these laws even apply to private transnational violence?

(N/A)

(N/A)

(weak)

Law of the Sea:UNCLOS Definition of Piracy

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).


Mercenary offensive against pirates = piracy!

Human rights law:The right to life

• Universal Declaration of Human Rights (1948)– “Everyone has the right to life, liberty and security of person.”

• International Covenant on Civil and Political Rights (1966)– “Every human being has the inherent right to life. This right

shall be protected by law. No one shall be arbitrarily deprived of his life.”

• American Convention on Human Rights (1969)– “Every person has the right to have his life respected. This right

shall be protected by law...No one shall be arbitrarily deprived of his life.”


States killing civilians (even criminals) without legal process =

violation of the human right to life

Domestic law:Alien Tort Statute (1789)

• Allows claims by aliens for torts “committed in violation of the law of nations or a treaty of the United States.”

– Usually applied in human-rights cases for treaty violations, e.g. official torture

– Piracy: a universal crime under the law of nations

• US v. Smith (US Supreme Court, 1820)


Relatives of pirates could sue mercenaries in US federal courts for wrongful death from acts of piracy!

Agenda

1. Scare you





What to do about it?

Option 1: Accept the status quo.

• Quantitatively, piracy is still not that expensive or dangerous compared to other world problems.

• Current levels of resource allocation provide:– ineffective deterrence (risk < reward)

– insufficient diversion (Somalia is still broken)

• Maintain some military presence for containment.


What to do about it?

Option 2: Start killing pirates.

• If diversion and deterrence fail, all that remains is incapacitation

• Go big or go home: major assault on pirate bases on land to seriously disrupt networks

• Civilian casualties unavoidable (both hostages and innocent locals)

• Likely escalation of violence by surviving pirates

• Repeat in a few years because of unlimited labor supply


How would a counter-pirate offensive be made legal?

• Expressly treat piracy as a special case

• Establish that pirates are NOT entitled to the human right to life and due process

– Favored by older historical precedent

–Reverses trend of 20th–21st century human rights law


Serious moral and legal problems

• Piracy is largely an economic crime

• Due process

• Setting precedent

• Social justice and development


A tough decision

1. Accept the status quo

$7–12B annual costs

700+ hostages and some fatalities

OR

2. Roll back significant advancements in human rights law


Thanks!

Ansel HalliburtonJ.D. Candidate, 2011

UC Davis School of [email protected]

mailto:[email protected]

Pirates v. Mercenaries: Purely Private Transnational Violence at the Margins of International Law...

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Transcript of Pirates v. Mercenaries: Purely Private Transnational Violence at the Margins of International Law...