Article

The laws of war and the fight against Somali piracy : combatants or criminals ?

Douglas Guilfoyle

• Melbourne journal of international law, Vol. 11, issue 1, May 2010, p. 1-13

English

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Despite its codification in treaty law, the law applicable to the repression of high seas piracy remains a subject of unnecessary confusion and speculation. It is sometimes suggested that because pirates were described by classical authors as hostes humani generis (‘enemies of humankind’), or because the United Nations Security Council has authorised the use of ‘necessary means’ in repressing Somali piracy, that we are at war with pirates. Alternatively, it might be thought that because the current counter-piracy operations in the Gulf of Aden are being conducted by naval forces, the appropriate law governing their actions should be the laws of armed conflict. On the contrary, this commentary confirms the view accepted by all governments involved in counter-piracy operations: that this is a law-enforcement operation to which the laws of armed conflict have no application. This follows from the fact that pirates are not in any relevant legal sense engaged in an armed conflict. Further, it is far from obvious that deeming the laws of armed conflict to be applicable would make the task of navies any easier on the one hand, or provide any greater human rights protection to suspect pirates on the other. There is already a clearly established framework for law-enforcement operations at sea; not only is this the correct law to apply as a matter of doctrine, it is hard to see what advantages would follow from applying the laws of war as a matter of policy.

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