- The Washington Times - Friday, October 14, 2011

The recent kidnapping of a handicapped French woman from a Kenyan resort, initially attributed to Somali pirates, was the second such kidnapping in a month. Kenyan authorities now blame al-Shabab, the Somali terrorist group affiliated with al Qaeda.

Under prevailing international law theories, the kidnappings are law enforcement matters, subjecting the culprits to full criminal due process, trial and imprisonment if found guilty. By contrast, characterized as international terrorism, the abductions could be handled much differently, as Anwar al-Awlaki recently found out unpleasantly in Yemen.

But why should we treat the growing menace of Somali piracy differently from terrorism? Numerous sources already indicate that al-Shabab derives revenues from the pirates, or perhaps al-Shabab is engaging in piracy directly. Especially if the line between terrorists and pirates is becoming even further blurred, why not bring piracy to heel? Even in America’s infancy, we knew what to do: Where is today’s Stephen Decatur?

For more than 20 years, Somalia has been a broken country without effective national government. Famine is widespread, and delivering aid is dangerous. Successive Security Council resolutions have recognized that Somalia’s pervasive anarchy constitutes a threat to international peace and security, starting in 1992 with Resolution 733’s arms embargo and Resolution 794’s authorization of American-led military intervention to open channels for humanitarian assistance. Recent council actions, such as Resolution 1816, explicitly link piracy to Somalia’s continuing collapse.

The International Maritime Bureau reports a record 266 pirate attacks globally in the first half of 2011 (compared to 196 last year), with Somali pirates conducting 60 percent. By this summer, they held 22 ships and 464 seafarers hostage. Particularly given the volume of oil cargoes passing through Somali waters, the impact on worldwide insurance rates and oil prices is high and rising.

The pirates have expanded their depredations at sea and on land despite a substantially increased multinational naval presence off Somalia, the use of military force to rescue hostages, and the creative resort to Kenyan jurisdiction to prosecute and incarcerate pirates in a nearby judicial system. But the pirate bases so far remain effectively immune from decisive military force, as both the pirates and the al-Shabab terrorists fully understand.

Politically and legally, we have allowed the academic excesses of international law theory to constrict our survival instincts. A now-infamous 2008 British Foreign Office directive cautioned against detaining pirates who might claim asylum in Britain to avoid Shariah law in Somalia and such penalties as having hands chopped off or, shockingly for Brits, the death penalty. This malaise also has infected America, masquerading behind the argument that military force is not appropriate against criminal law violators.

But we are not simply considering shoplifting from the corner store. The contemporary expansion of Somali piracy is a far cry from criminal activity within a functioning civil society. Because the Somali pirates are effectively stateless, normal law enforcement techniques will not be sufficient. Military force has always been justifiable against the “common enemies of mankind,” or hostis humani generis, such as pirates.

We must break through our theory-induced ennui. Force may be unattractive, but piracy’s continuing scourge, especially combined with terrorism and spreading starvation in Somalia, is unacceptable. All that is required, at least for now, is one step up the escalation ladder, striking militarily against their bases and infrastructure. Because pirates act from pecuniary motives rather than terrorist ideology, we must supersize their operating costs. We should have acted before, but failing to act now will simply facilitate piracy’s merger with terrorism, making the combination even harder to destroy.

If international law prevents effective self-defense, its theories are morally flawed, not acting to protect innocent maritime crews and passengers. Somali piracy fits far better (although admittedly imperfectly) into the war-against-terror paradigm than into law enforcement. Both, for example, encounter the same crippling evidentiary and procedural constraints when applying criminal-justice rules. It is nonsensical to engage in legal contortions, cramming piracy or terrorism into inappropriate criminal-justice models suitable within civil societies but not the state of nature prevailing in Somalia.

Nor is this a call for pre-emption - the long list of pirate attacks is already far too real. This is classic self-defense, exactly what Thomas Jefferson did against the Barbary pirates, legitimate then and equally so today.

Obviously, we will not stoop to the pirates’ level, thereby corrupting our own integrity and ideals. We should strive mightily to avoid unnecessarily endangering pirate families, but the bases must be destroyed, the hostages and captured ships released and as many pirates as possible apprehended, dispersed or, if necessary, killed in action.

Destroying pirate bases, repeatedly if necessary, may not end piracy, but the lessons and the costs for the pirates will be far higher and clearer than at present.

John R. Bolton, a former U.S. ambassador to the United Nations, is a senior fellow at the American Enterprise Institute and author of “Surrender Is Not an Option: Defending America at the United Nations and Abroad” (Simon & Schuster, 2007).

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