- The Washington Times - Sunday, January 11, 2009

ANALYSIS/OPINION:

COMMENTARY:

“Hurray for the Pirate King! And it is, it is a glorious thing to be a Pirate King.” Indeed, this passage in “The Pirates of Penzance” opera by Gilbert and Sullivan fits the jolly good life of today’s pirates in Somalia. With their ransom money, the pirates in ungoverned Somalia buy expensive automobiles, build luxurious villas and purchase weapons for attacking more ships.

Yet, the cheerfulness will end. Unless the ransom payments stop, the continuing influx of millions of dollars will lead to a catastrophic empowerment of global terrorism. Somalia is already well-nigh impossible to control by counterterrorist forces. With a continuing influx of millions in ransom money, it will become a fortress for launching global terrorism. It is high time that governments seeking to fight terrorism begin to grasp this menacing dynamic.

Money is essential to fuel international terrorism. Without Osama bin Laden’s wealth it is unlikely the Sept. 11, 2001, attacks would have succeeded. Those attacks required complex training to achieve the near simultaneous hijacking of four airplanes.

To block financial transfers to terrorist organizations, the U.S. Treasury Department and its foreign counterparts have established systematic programs in accordance with United Nations Security Council mandates. But if the shipping companies keep paying ransom to Somali pirates, this program will be bypassed. The pirates conspire with the ship owners to keep the size of the ransom payments secret and avoid bank transfers by having the payments made in cash.

Our strategies to fight piracy are inept and ill-informed. A significant naval force in the Red Sea and the Gulf of Aden has been trying to end the piracy, but it has been largely useless because of the reluctance of participating nations to use effective force. This cowardice is masked by frivolously imagined legal constraints. For example, the British Foreign Office warned the Royal Navy not to detain pirates, lest it violate their human rights and provoke claims for asylum in Britain. What an appalling lack of political will - fearing claims for asylum by criminals caught in flagrante delicto!

The British were not the only coddlers of pirates. A German frigate, in order to help other ships about to be attacked by pirates, used its helicopter to shoo away the speedboats of the pirates. Yet all the pirates escaped safely, because the German rules of engagement did not provide for fighting pirates.

Recently, Germany and France tried to implement more effective measures, but they still have not found a solution for punishing captured pirates. Thus, last week a French warship captured pirates before they could attack a Panamanian freight ship. But the French turned these captives over to the Somalian “authorities,” which means the pirates were set loose and are now free to plan their next attack.

In December, Secretary of State Condoleezza Rice promoted an even more absurd initiative. She urged the U.N. Security Council to adopt a resolution authorizing nations to pursue pirates into the territory of Somalia, provided Somalia’s government gives its approval. But as U.N. Secretary-General Ban Ki-moon warned, Somalia’s government might soon collapse. And indeed, it did collapse and no nation has been willing to send forces into Somalia.

Somalia has become the best base in the world for global terrorism. In Somalia terrorists will be better protected than in Afghanistan. After Sept. 11, 2001, U.S. forces rapidly conquered Afghanistan and closed bin Laden’s terrorist training sites. By contrast, in Somalia U.S. forces in 1993 tried to support relief operations but had to withdraw after painful setbacks. Mark Bowden’s book “Black Hawk Down,” made that humiliating episode hard to forget.

Thirteen years later, in 2006, Islamic extremists captured Somalia’s capital Mogadishu and established a new government, the strangely named Islamic Courts Union. With U.S. support, Ethiopian forces drove out these Islamic extremists. But Ethiopia has now abandoned this mission because the continuing violence and guerrilla warfare made it too costly. Meanwhile a new fundamentalist movement with links to al Qaeda, the Shabaab militia, seeks to impose a ruthless, Taliban-like order in Somalia.

Our military leaders have not forgotten the humiliating way in which the Somalis defeated U.S. forces in 1993. And every foreign policy expert who keeps an eye on Somalia will recall the recent failure of the American-supported Ethiopian intervention in Somalia. With these memories, it is hard to imagine that senior officials in Europe and in the U.S. Defense Department would recommend another military intervention in Somalia.

Should international terrorists acquire both a safe haven in Somalia and ready access to millions in pirate-generated money, we would suffer a catastrophic setback in the global war against terrorism. Somalia has a 2,400-mile coastline, stretching from south of Mogadishu on the Indian Ocean all the way to Djibouti on the Red Sea. Its proximity to such countries as Kenya and Saudi Arabia makes it a much better location for terrorism than the land-locked Afghanistan or mountainous western Pakistan.

To prevent this, we must quickly put an end to piracy. We must not shrink from using force commensurate to the threat. This, in turn, will require a clearheaded understanding of the applicable principles of international law, not the pettifoggery that has characterized the approach of many countries up until now.

In fact, two principles of international law vest the international community with all the authority it needs to respond to pirate attacks: the right of self-defense, and the long-established principle of universal jurisdiction to prosecute and punish pirates.

The right of self-defense is available to shipowners themselves. They have an absolute right to defend themselves, and the pirates who attack commercial shipping must know they risk being killed. There is no legal requirement that defensive measures be nonlethal.

The right of self-defense is also available to governments, both on an individual and a collective basis. This means the naval forces of one nation can defend not only their own commercial flag vessels, but also, with the approval of another nation, that other nation’s flag vessels.

The prospect that pirates may surrender when confronted by acts of self-defense is no reason not to exercise that right. Piracy is the one and only context in which there is no legal doubt about the availability of universal jurisdiction to prosecute and punish offenders. Under this principle, all nations have jurisdiction to punish piracy, irrespective of any connection between the pirates and their nation.

This principle has been implemented in the domestic criminal law of most nations. In the U.S. Code, section 1651 of title 18 says: “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”

Therefore, should the Royal Navy capture rather than kill a pirate, the United Kingdom would not have to offer asylum. That absurdity would be overruled by the unquestioned legal authority to punish the offender. Should the U.K. not wish to be bothered to do so, it could turn the pirate over to any other government, which would be equally empowered to punish the offender. A number of Somalia’s neighbors benefit from the freedom of navigation through the Red Sea and might be persuaded to make their criminal justice systems available to punish Somali pirates. Djibouti, Egypt and Kenya come to mind. The pirates should be given long prison terms; and, of course, be treated correctly so there can be no objection on human rights grounds.

Beyond these measures, the U.N. Security Council should prohibit the payment of ransoms to pirates, an initiative compatible with U.N. Security Council Resolution 1373 regarding terrorist financing. The current practice of paying ransom to pirates merely encourages more piracy and undermines worldwide efforts to restrict terrorist financing. If the pirates could no longer expect to be paid each time they capture a ship, they would become much less interested in piracy. Further, concerned nations could establish a quarantine and inspection regime off the coast of Somalia, under which vessels found to be engaged in piracy are seized or destroyed. The right of self-defense provides a sufficient legal basis for such a regime, and if necessary to increase international participation. An additional Security Council resolution could also be sought.

Through such efforts, we can change piracy from “a glorious thing” into an unprofitable enterprise with deadly consequences. This will put an end to piracy. And the international community will have taken the right fork in the road. It will have kept terrorists from ensconcing themselves in a haven almost impossible to control, where they would have received a steady inflow of money to make themselves so much stronger.

Fred C. Ikle is affiliated with the Center for Strategic and International Studies. He was undersecretary of defense for policy in the Reagan administration. Stephen G. Rademaker is senior counsel to the Washington firm of BGR Holding LLC and served as assistant secretary of state for arms control and nonproliferation during the George W. Bush administration.

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