Talking the Talk and Walking the Walk Plank: International Law and Piracy

Today is International Talk Like a Pirate Day. For a lesson in how to do it, we can turn to a real pirate. Here’s Jama Ali, a Somali pirate: “They can’t stop us—we know international law.” According to the 2008 New York Times article from which this was taken:

Even if foreign navies nab some members of his crew, Mr. Jama said, he is not worried. He said his men would probably get no more punishment than a free ride back to the beach.

It seems that international law has walked itself off the plank on real piracy. To see how and why, take a look at “A Guantánamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists [PDF] by Eugene Kontorovich [98 California Law Review 243 (2010)]. Kontorovich says in his conclusion:

…[N]ations think it would be so difficult to bring these criminals to justice that they are not interested in even trying. Or, to put it differently, while the crime is nominally an injury to all countries and the international legal order, individual states perceive few benefits to enforcing the norm themselves. Indeed, nations treat any option as superior to trials in capturing nations’ domestic courts…

Even as international law has progressed, it has developed in such a way
that it cannot respond effectively to an atavism like piracy… [M]any of the foundational instruments of modern international law need retooling to meet changing threats. If international justice fails against “criminal activity by lightly armed thugs deployed from small boats and fishing vessels,” it will be hard for it to deter more formidable wrongdoers. If a small number of robbers cannot be brought to the bar of international justice, the war criminals of the world have little to worry about.