About pirates: why we no longer “hang them high”

Summary: The first chapter described modern-day piracy, and why our “catch and release” response makes it an attractive low-risk, high-return business. This describes the legal basis for their capture, trial, and punishment.

Journalist Bret Stephens asks “Why Don’t We Hang Pirates Anymore?” (op-ed in the Wall Street Journal, 25 November 2008). His answers:

No controlling legal authority, providing a basis on which to fight, capture, try, and punish pirates.
International law (e.g., the Law of the Sea Convention) makes action against pirates difficult.
UN authorization is necessary for most effective actions against pirates, such as attacking their bases.

All of these things are true, but they secondary factors (discussed in the next chapter). The vast majority of articles about piracy concentrate on these minor things. This post will attempt a clearer and more comprehensive explanation.

Pirates were hung for two reasons.

They routinely killed people during the course of their raiding.
During their years of infamy in the 17th and early 18th century, capital punishment was routine for many crimes.

The last point is widely ignored in discussions of piracy, such as Stephen’s. Consider the laws of England.

In the years after 1660 the number of offences carrying the death penalty increased enormously, from about 50, to 160 by 1750 and to 288 by 1815. You could be hanged for stealing goods worth 5 shillings (25p), stealing from a shipwreck, pilfering from a Naval Dockyard, damaging Westminster Bridge, impersonating a Chelsea Pensioner or cutting down a young tree. This series of laws was called (later) “The Bloody Code.” (source: UK National Archives)

In 1769 the great jurist William Blackstone wrote in his Commentaries on the Laws of England (Book IV, chapter 1; source, Wikipedia entry):

YET, though in this instance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than 150 have been declared by act of Parliament to be felonies without benefit of clergy ; or, in other words, to be worthy of instant death.

Conclusion: we do not hang pirates today because:

Modern pirates seldom kill passengers or crew, or commit the other crimes for which their predecessors were infamous (e.g., rape, ransom). See these Wikipedia lists: piracy, somali pirates.
Developed nations today have few or no capital crimes. Theft is seldom one, and rarely for first-time offenses.

Modern piracy is a powerful demonstration of what Martin van Creveld calls “non-trinitiarian conflict” — often (IMO misleadingly) called 4th generation warfare. In this the moral dimension becomes decisive. As in what was one of the most despised and fircely punished form of crime becomes a low-risk, profitable enterprise. The ferocity — murder, rape, pillage – are unnecessary trappings to the profitable core activity of piracy.

But pirates are enemies of all humanity (hostis humani generis)!

Stephens — like a thousand others writing about pirates — cites Cicero’s immortal words about pirates. And its Latin, so it must be true. But it is probably not true. As explained in this excerpt from Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, Joshua Michael Goodwin, Vanderbilt Journal of Transnational Law, Vol. 39, 2006 (source):

The Romans did not use the phrase hostis humani generis. The phrase may be a shortening of a phrase used by Cicero. He claimed that pirates were the common enemies of all communities. But the pirates that Cicero was referring to were not the same as the pirates of the 17th century and today. As noted above, the Romans used their word for pirate to describe a community who, without formally declaring war before attacking, practiced what would today be considered piracy or land-based banditry. Cicero was not necessarily talking about pirates like Edward Teach.

This is not to say that the Romans may not have considered pirates the enemies of all mankind. It only says that they never used the phrase hostis humani generis to describe pirates. When the Romans thought of piracy, they may have considered the pirates to be “enemies of all mankind” because they never declared war before they attacked. As shown earlier, this failure to declare war formally before attacking is why the Romans felt the pirate communities were in a constant and permanent state of war.

From this, it is clear that the concept of hostis humani generis cannot be said to be of Roman origin. Further, the Romans, while they may have considered pirates the enemies of all mankind, were not thinking necessarily of pirates like Blackbeard but of communities whose way of life conflicted with the Roman way of life. They were also thinking of people who plundered on both land and sea.

In 1612, Gentili wrote about the problem of piracy and how states may deal with pirates. He did not use the phrase hostis humani generis to describe pirates, but he did speak of pirates as the “common enemies of all mankind” using language similar to Cicero. Unlike Cicero and the Romans, Gentili felt that a state of war could not exist with pirates and brigands because, even though they may act as pirates, individuals are still the citizens of a state. As citizens, they are still subject to the laws of their state of citizenship. Therefore, pirates do not come under the laws of war and states need not treat pirates in accord with the laws of war because only sovereigns fall under the laws of war. By engaging in piracy, pirates do not free themselves from the law of their country.

… England did not initially share Gentili’s view that pirates were the common enemy of mankind and anyone had the right to seize them. Lord Coke {1552-1634} was the first to use the phrase hostis humani generis to describe pirates. Originally, according to Lord Coke, piracy was a form of treason. Coke does not cite to another source for this phrase, though his use of the Latin phrase in an English text suggests that he was borrowing it from some older source with some speculating that it was from Cicero. This would be a shortening of the passage by Cicero mentioned above. Coke declared that piracy was a form of treason because pirates were hostis humani generis. Unfortunately, he does not explain why the pirates are hostis humani generis or why this makes piracy treason.

… Within a century, England would replace the view of piracy as a form of treason, limited to instances where there was a connection to England, with something similar to universal jurisdiction.

A brief look at the legal basis for capture, trial, and punishment of pirates

1. The US Constitution. Article I, section 8 says:

Congress shall have power … To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.

2. Under U.S. Law, there is already authority for Civilian Mariners to defend against pirates and seize pirated vessels.

33 U.S.C. 383: Resistance of pirates by merchant vessels (source)

The commander and crew of any merchant vessel of the United States, owned wholly, or in part, by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States.

3. U.N. Convention on the Law of the Sea (UNCLOS)

Part VII – High Seas; Section One — General Provisions; articles 100 – 107 (source):

100. Duty to cooperate in the repression of piracy
101. Definition of piracy
102. Piracy by a warship, government ship or government aircraft whose crew has mutinied
103 . Definition of a pirate ship or aircraft
104. Retention or loss of the nationality of a pirate ship or aircraft
105. Seizure of a pirate ship or aircraft
106. Liability for seizure without adequate grounds
107. Ships and aircraft which are entitled to seize on account of piracy

The key section is 105, giving broad authority to States for seizure and trial of pirates. However Section 106 says:

Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

What are “adequate grounds”? Who gets to decide, and esp determine any resulting liabilities?

The US has not ratified this treaty. See the Wikipedia entry for background and additional links.

An interview with a pirate

American Morning, CNN, 26 November 2008 (transcript) — Scroll to the section by David McKenzie. Excerpt:

BOYAH, SOMALIA PIRATE (THROUGH TRANSLATOR): Since the ocean is our government, we go into the deep ocean and hijack unarmed cargo ships. That is what forced us. There is no law that allows us to hijack traveling ships. But what motivates us is life, since we are the people who used to work at sea.

MCKENZIE: Many of these pirates used to be fishermen, who have now traded their nets for their weapons — a subsistence way of life for the high life. Pirates have the best houses, the fanciest cars, the prettiest women, say the people here.

The pirate haven is on the coastline of Puntland, part of Somalia. Piracy has made Eyl a boomtown. In a territory of extreme poverty, the Puntlandgovernment is ineffective and widely considered corrupt. With the government unable to improve lives, piracy begins to look like an attractive option.

BOYAH (THROUGH TRANSLATOR): We work together and our ranks grow because there is more hunger and more skills. That is what causes more people to join piracy. Piracy is growing faster, but it is not something that is lessening. The world cannot do anything about it.

Other interesting articles about modern piracy

“The Law of Piracy in Popular Culture“, Jonathan M. Gutoff, Journal of Maritime Law and Commerce, October 2000.
“Blackwater Plans Effort Against Piracy“, Wall Street Journal, 3 December 2008

For more information from the FM site

Reference pages about other topics appear on the right side menu bar, including the Naval warfare and strategy reference page.

Posts on the FM site about pirates: