To expand on GFs [timing of self defence] point, there's a risk that lawyers will try to make the obviously righteous legal defender into the guilty party, usually to push their own agenda, using terms like "excessive force occasioning death" Thus turning the whole notion of right and wrong on its head. Pirates it seems have rights too, even when heavily armed with assault weapons and trespassing on your private property, with obvious intent.
Mac, can we please not over-simplify the discussions on legal concepts (such as, 'reasonableness' and 'proportionality')? I would loath to malign the legal profession in advising the various maritime forces deployed in support of the counter-piracy mission (via generic lawyer bashing, as is the norm in many forums), given that we have members on this forum who are legally trained and also have a military service record. BTW, some of the more astute bloggers informing the public on the issue of Somali pirates are, in fact, lawyers. To give one example, Eagle1, is an attorney and a retired Navy Reserve Captain (Surface Warfare) officer (see
link to his blog provided).
The issues that arise in counter-piracy are complex and at times may be a lacuna involved due to fact that many of the issues involved are complex and multi-faceted. I also choose not to deal with the conflict of laws issue (as this is a matter for legal experts) for piracy matters within territorial waters as that is fairly complex.
To start, let us deal with the applicability of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) and it's conflicting provisions relative to the 1982
United Nations Convention on the Law of the Sea (1982 UNCLOS). If you are interested, please read
paragraphs 42 to 49 of the link for some basic information. I'll try my best to state the issues accurately without going too much into the complex legal details that is frankly dry and boring.
At the risk of repeating myself (as I have previously posted some of the information below), please note that the 1982 UNCLOS provides the legal framework setting out which States have jurisdiction over illegal activities at sea. Dr Bev Mackenzie has written a guide explaining '
What is UNCLOS' and he provides an explanation of the key provisions.
(1) As of 5 Feb 2009, 156 States and EU are parties to the 1982 UNCLOS. Other than the US, all other States with warships in the area are parties to the 1982 UNCLOS. BTW, the piracy provisions in 1982 UNCLOS are identical to those in the 1958 Convention on the High Seas.
(2) Article 58(2), provides that the
piracy provisions are applicable in the exclusive economic zone (EEZ) and under Article 107, the navy ships on patrol are entitled to seize the pirate ships. If a vessel is hijacked by pirates and remains under their control, it is a pirate ship.
(3) The right of all States to seize pirate ships on the high seas and arrest persons on board is also an exception to the principle of exclusive jurisdiction of the flag State and these rules regarding piracy also apply to ships in the EEZ of any State.
Under the United Nations Charter, the Security Council (SC) has primary responsibility for the maintenance of international peace and security. If the SC acts under Chapter VII of the Charter, its decisions are legally binding on all UN members and they prevail over obligations in other conventions. And under SC Resolution 1816 of 2 June 2008 (whose authority has been renewed in other resolutions), States cooperating with the Transitional Somali Federal Government (TSFG) in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TSFG to the Secretary‐General, may:
(1) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and
(2) Use, within the territorial waters* of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery.
Just having a warship presence in the area is insufficient, there must be facilities for intelligence collection, a law enforcement detachment to preserve evidence and holding facilities issues must also be addressed as part of the counter-piracy naval logistics.
Let me give another example. When a Singapore naval officer, RADM Miranda, took command of CTF-151 last year, he deployed with a Singaporean military lawyer as part of his command team. That Singapore military lawyer (CPT Kim Jixian), as part of his pre-deployment preparations was even attached to Singapore's MINDEF Legal Services for two-weeks on top of pre-deployment meetings with legal advisers in Combined Maritime Force (CMF). CMF is commanded by USN's VADM William Gortney and the USN has law enforcement type of resources in place to enable the US Government to prosecute pirates where appropriate. In the case the the sole surviving pirate in the Maersk Alabama hijacking incident, he is being tried in New York. To quote Singapore Navy's CPT Kim, who was interviewed in Issue No. 1 2010 of "Navy News" (page 11):
"Balancing our legal obligations under international law with operational realities is a key challenge that I have to overcome on a daily basis. This requires us to be creative in discussing the various options available to ensure compliance with our legal obligations, in a way that minimises operational impact.”
The above quote is indicative of the mindset of the military lawyers at work. And I know that Australian generals when deployed for coalition operations do seek legal advice. The older closed thread on '
Pirates' discusses some of the legal issues and you might want to take a look at some the links provided. In particular, there is an
ISEAS viewpoint published in Nov 2008 on how the nations in maritime South East Asia acted together to reduce the pirate scourge in the Malacca Straits.
As gf0012-aust has mentioned before, "a couple of the people in here have direct experience in either track managing pirates, engaging them, protecting unarmed vessels and or have done VBSS - so they certainly have direct experience in the things that matter - to them."
*Note: Territorial waters is waters within the 12 nautical miles limit (22 km) of the Somalia coast.
