A Somali pirate and a former US defense secretary are flying to London for vacation. One of them is stopped at immigration at Heathrow airport and arrested on suspicion of committing war crimes. Which one do you think it was?
On Tuesday, Somali pirates, sailing in little more than motorized bathtubs, armed with automatic rifles and rocket-propelled grenades, and sustained by raw fish and narcotics, successfully hijacked the Sirius Star, a Saudi-owned oil tanker the size of a US aircraft carrier. The tanker was carrying some $100 million worth of crude oil. News of its capture caused global oil prices to rise by a dollar a barrel.
The next day, Somali pirates attempted to hijack the Trafalgar, a British frigate, but were forced to flee by a German naval helicopter dispatched to the scene. They did manage to hijack a Chinese trawler and a cargo ship from Hong Kong. They nearly got control of an Ethiopian ship, but it, too, was saved by the German Navy that heeded its call for help in time.
Piracy is fast emerging as the newest old threat to stage a comeback in recent years. Over the past week and a half alone, 12 vessels have been hijacked. And according to the International Maritime Bureau, in the three months that ended on September 30, Somali pirates attacked 26 vessels, capturing 576 crew members. Britain's Chatham House (the Royal Institute of International Affairs) assesses the ransoms they netted at between $18m. and $30m.
And with financial strength comes increased military sophistication. The US Navy expressed shock at the pirates' successful hijacking of the Sirius Star. The pirates staged the hijacking much farther from shore than they had ever done previously.
Beyond the personal suffering incurred by thousands of crew members taken hostage in recent years, piracy's potential impact on global economic stability is enormous. In the Gulf of Aden, where the Somali pirates operate, US shippers alone transport more than $1.5 trillion in cargo annually.
One of the unique characteristics of pirates is that they appear to be equal opportunity aggressors. They don't care who owns the ships they attack. On August 21, Somali pirates hijacked the Iran Deyanat, a ship owned and operated by the Iranian Revolutionary Guards-linked Islamic Republic of Iran Shipping Line (IRISL). In September, the US Treasury Department designated IRISL as a company that assists Iran's nuclear weapons program and placed it under stiff financial sanctions.
Iran Deyanat's manifest asserted that its cargo included minerals. Yet shortly after the pirates went on board they began developing symptoms such as hair loss that experts claim are more in line with radiation exposure. According to reports, some 16 pirates died shortly after being exposed to the cargo. Just this week, a second Iranian ship – this one apparently carrying wheat – was similarly captured.
Then, too, in September, pirates seized the Faina, a Ukrainian ship carrying 33 Russian-made T-72 tanks. The Ukrainians and Russians claimed that the tanks were destined for Kenya, but it later emerged that they may have been seized en route to Sudan. So, ironically, in the case of both the Faina and the Deyanat, pirates may have inadvertently saved thousands of lives.
THE INTERNATIONAL community is at a loss for what to do about the emerging danger of piracy. This is not due to lack of capacity to fight the pirate ships. On Monday an Indian naval frigate, the INS Tabar, sank a pirate "mother ship" whose fleet members were attacking the Tabar in the Gulf of Aden. NATO has deployed a naval task force while the American, French, German and other navies have aggressively worked to free merchant ships under attack by pirates.
As David Rivkin and Lee Casey explained in The Wall Street Journal on Wednesday, the problem with contending with piracy is not so much military, as legal and political. Whereas customary international law defined piracy as a threat against all nations and therefore a crime for which universal jurisdiction must be applied to perpetrators, in today's world, states are unwilling to apprehend pirates or to contend with them because they are likely to find themselves in a sticky legal mess.
In centuries past, in accordance with established international law, it was standard practice for naval captains to hang pirates after capturing them. Today, when Europe has outlawed capital punishment, when criminal defendants throughout the West are given more civil rights than their victims, and when irregular combatants picked off of battlefields or intercepted before they attack are given – at a minimum – the same rights as those accorded to legal prisoners of war, states lack the political will and the moral clarity to prosecute offenders. As Casey and Rivkin note, last April the British Foreign Office instructed the British Navy not to apprehend pirates lest they claim that their human rights were harmed, and request and receive asylum in Britain.
THE WEST'S perverse interpretations of human rights and humanitarian law, which bar it from handling one of the most acute emerging threats to the international economy, is a consequence of the West's abdication of moral and legal sanity in its dealings with international terror. In the 1960s and 1970s, when international terrorism first emerged as a threat to international security, the West adopted international treaties and conventions that tended to treat terrorism as a new form of piracy. Like piracy, terrorism was to be treated as an attack on all nations. Jurisdiction over terrorists was to be universal. Such early views were codified in early documents such as the Convention for the Suppression of Unlawful Seizure of Aircraft from 1970 that established a principle of universal jurisdiction over aircraft hijackers.
Similarly, in the wake of the September 11 attacks on the US, the UN Security Council passed binding Resolution 1373, which also compelled member states not only to treat terrorists as illegal combatants who must be universally denied any support of any kind, but to take action against anyone involved with or supporting terrorists in any way. That is, as in piracy, the tendency of states contending with terrorism has been to view it as an act requiring universal jurisdiction, compelling all UN member states to prosecute offenders.
And yet, over the years, states have managed to ignore or invert international laws on terrorism to the point where today terrorists are among the most protected groups of individuals in the world. Due to political sympathy for terrorists, hostility toward their victims, or fear of terrorist reprisals against a state that dares to prosecute terrorists found on its territory, states have managed to avoid not only applying existing laws against terrorists. They have also refrained from updating laws to meet the growing challenges of terrorism. Instead, international institutions and "enlightened" Western states have devoted their time to condemning and threatening to prosecute the few states that have taken action against terrorists.
The inversion of international law from an institution geared toward protecting states and civilians from international lawbreakers to one devoted to protecting international menaces from states and their citizens is nowhere more evident than in the international community's treatment of Hamas-controlled Gaza.
One of the reasons the international community has failed so abjectly to take reasonable measures to combat terrorism is because international terrorism as presently constituted is the creation of Palestinian Arabs and their Arab brethren. Since the 1960s, and particularly since the mid-1970s, Europe, and to varying degrees the US, have been averse to contending with terrorism because their hostility toward Israel leads them to condone Palestinian Arab terrorism against the Jewish state.
IONAL community's treatment of Hamas-controlled Gaza epitomizes this victory of politics over law. Both the US and the EU have labeled Hamas a terror group. That designation places Gaza, which is controlled by Hamas, under the regime of UN Security Council Resolution 1373.
Among other things, Resolution 1373 requires states to "freeze without delay funds and other financial assets or economic resources of… entities owned or controlled directly or indirectly by [terrorists]."
That is, the resolution requires UN member states to end all financial and other support for Hamas-controlled Gaza.
The resolution also requires UN member states to "cooperate [with other states] to prevent and suppress terrorist attacks and take action against perpetrators of such acts."
This means that states are required to assist one another – and in the case of Hamas, to assist Israel – in combating Hamas and punishing its members and supporters.
While it can be argued that given the absence of a binding legal definition of terrorism, states that do not designate Hamas as a terrorist organization are not required to abide by the terms of 1373 in dealing with Hamas, it is quite clear that for states that do recognize Hamas as a terror group, 1373's provisions must be upheld.
And yet, the EU and the US have willfully ignored its provisions. They have steadily increased their budgetary support for the Palestinian Authority while knowing full well that the Fatah-led PA in Judea and Samaria is transferring money to Hamas-controlled Gaza to pay the salaries of Hamas employees.
More disturbingly, the US and the EU as well as the UN demand that Israel itself sustain Hamas-controlled Gaza economically. The UN, EU and the US have consistently demanded that Israel provide Gaza with fuel, food, water, medicine, electricity, telephone service, port services and access to Israeli markets, in spite of the fact that international law actually prohibits Israel from providing such assistance, and in fact arguably requires Israel to deny it.
Recently, supported by the UN, and in connivance with Hamas, European leaders began supporting illegal moves to end Israel's maritime blockade of Gaza, which was established to block weapons and terror personnel from entering and exiting the area. Expanding this trend, this week Navanethem Pillay, the UN's High Commissioner for Human Rights, called for Israel to end its blockade of the Gaza Strip, perversely calling the blockade a breach of international and humanitarian law.
This inversion of the aims of international law – from protecting states and innocent civilians from attack to protecting aggressors from retaliation – has brought about the absurd situation where terrorist ideologues and commanders such as Sheikh Yusuf Qaradawi are feted in Britain while retired Israeli and American generals are threatened with arrest. Germany welcomed Iranian President and genocide proponent Mahmoud Ahmadinejad to visit and indicted former US defense secretary Donald Rumsfeld for crimes against humanity. Belgium allows Hamas and Hizbullah supporters like Dyab Abu Jahjah, who calls for attacks against Jews, to operate freely, but indicted former prime minister Ariel Sharon for crimes against humanity.
The consequence of this absurd state of affairs is obvious. The international law champions who argue that international humanitarian law provides a nonviolent means for nations to defend themselves against aggressors have perverted the purpose and meaning of international humanitarian law to such a degree that the only way for nations to protect themselves against pirates, terrorists and other international rogues is to ignore international law aficionados and secure their interests by force.
Originally published in The Jerusalem Post.