This NYT story is nonsense. Various rightwing barkies have taken the opportunity of the French armed forces’ deliciously 007-esque mission to rescue the sailing yacht Le Ponant to tout the following story around the media: the Royal Navy has been ordered not to detain pirates under any circumstances, for fear that they might something or other, because of the Human Rights Act. The details are opportunely left open; the usual formation of the story makes only two testable claims, one of which is that landing a captured pirate in Somalia would likely be illegal because the local authorities might cut their head off, and the other being that the pirate might claim political asylum aboard ship.
What the story does not actually say is why this would stop anyone from detaining pirates, or for that matter why the same doesn’t go for the French. After all, as a State party to the European Convention on Human Rights, France has the same legal obligations. Now, the first claim is obviously true in the sense that yes, Virginia, Somalia is a nasty failed state run by a mix of more-or-less Islamist warlords and Ethiopian army officers. Handing someone over to this lot for trial might well be illegal. But has nobody else noticed that it would also be intensely, profoundly stupid?
Who on earth would want to return captured pirates to the state, or rather un-state, that permitted them to operate openly from their territory? Even if the Somali authority they were returned to actually wanted to try them, you’ve got to assume there’s a significant chance of them getting away. In fact, the French mission gives us all the information we need; the pirates collected the ransom, went ashore, and seem to have planned just to drive off with it, which doesn’t inspire confidence in local law enforcement.
Further, there is no legal reason whatsoever to give pirates captured off Somalia to the Somali police. Pirates have a special status in international law they share with slavers, torturers and those responsible for genocide; they are hostes humanae generis, enemies of all humanity, which in practice means that any state that can catch them has effective jurisdiction in the case. Once the pirates are caught, there is absolutely no reason not to take them to a proper court back in London, or wherever. That given, why should we need to even think about handing them over to a jurisdiction where they might escape, be tortured, or be put to death?
The second testable claim is that a captured pirate might claim political asylum. This is true. A longstanding principle of the law of the sea is that of exclusive flag state jurisdiction, which means that a warship of state A is for all intents and purposes part of A’s national territory. The principle holds in a weaker form for merchant vessels. Americans really ought to be conscious of this, because they fought a war against Britain in part over the principle.
Now, a story. When I took my MSc in 2003-2004, my International Law course was taught by Commander Steven Haines, who had just resigned from his post as a senior legal adviser to the Royal Navy, round about the same time Elizabeth Wilmshurst walked out of her similar post at the Foreign Office. In fact, I heard Wilmshurst’s name for the first time from him. He didn’t give his reasons, but do I need to draw you a fucking diagram? (He’s also the only person I know who ever had control of a nuclear weapon. Cool, eh? Pity he took so bloody long to mark essays.)
Haines took part in the 2000 intervention in Sierra Leone, where he was involved in the decision as to what to do with limb-choppin’ war criminal Foday Sankoh after his capture. The military were keen to fly him straight out to Illustrious, as he’s not known for being a great swimmer and would be very unlikely to escape; Haines opposed the idea on the grounds that he might claim political asylum, which would have been politically more than problematic. Instead he was confined at the airport and then in the Freetown police station with a guard reinforced with British troops, but later cheated the courts by dying before he could be brought to trial.
So the problem is not new, but it’s not like it helped Sankoh any. And there is no reason why some one can’t spend their political asylum in prison; it doesn’t confer immunity for one’s crimes, and piracy is a crime. (That is both bathetically and pathetically obvious, but there is an important point here which we’ll come back to.)
To recap: yes, it would be illegal to hand over a pirate to Somali warlords for trial. No, this does not constrain anyone in catching pirates, because anyone who can catch them can try them. And frankly, not handing prisoners to the Somali “government” is a feature, not a bug. Yes, you can claim asylum aboard a foreign warship; no, this is no deal-breaker.
So what did those thrillingly tough and macho Frenchmen do with their six captured buccaneers? They, after all, aren’t letting themselves have their national essence sapped by do-gooding lawyers and bickering parliamentarians’ quibbles, right? Up to the yard-arm? Walk the plank? Hand them to the fun-loving fellas from Ethiopian Military Intelligence? Er, no.
Six pirates sont transférés à bord de la frégate Jean Bart et ils seront remis à la justice pour être jugés en France.
So yes, the six pirates were brought aboard the Jean Bart and will be tried in France.
Far too many people who should know better have swallowed this transparent bollocks at face value, or indeed, at a considerable premium. For example: here’s Information Dissemination getting it wrong. Here’s Abu Muqawama getting it wrong. Here’s Abu Muq getting it wrong again after initial treatment. I don’t have the stomach to look into the fever swamp.
So why, do you think, is this story being pushed so hard? The ur-text is this Times article, which consists of pure assertion – there is no information in there implying the central claim, that the RN has been ordered not to detain pirates – and a quote from swivel-eyed Tory Julian Brazer MP apparently reacting to the Times reporter. Repeat it a few times, and voila; new facts.
But who, pray, is keen on demonising the very idea of law as a constraint on state action? Try this comment at AM:
Ultimately the very notion of law itself may be bought into disrepute. As it is already in the ranks of the American forces.
See? It’s those bastard lawyers who MADE us torture them. Indeed it was; just not the same ones. This kind of embrace of raison d’etat has something of the power of all the ideas of a liberation from freedom about it.
By the way: as well as the Reuters report, Liberation has photos and commentary from the guy who runs Secret Defense.
Update: I’d forgotten that the original Captain Kidd was commissioned by the Navy to hunt down other pirates. He was a countergang that went wrong. Now there’s a far better lesson for you.