April 13, 2009

Piracy, Laws, History - clearing up the Piracy Question

As with everything I say on the blog I encourage everyone to look these things up for themselves. It is a fact of international law that at times war is legal and justified. In such cases of legal war there are international rules of engagement. Part of these international rules of engagement of legal war are things that people are familiar with such as the Geneva Conventions, but there are many other treaties that also come into play.

There is difference in something being legal, and being moral, or being justified. These are three different standards. I am speaking of legality.

Logic tells us that if there are times when war is legal then there are times when war or acts of war are illegal. The only agencies that can declare war are Countries. I cannot as an individual declare a legal war on Mexico. In our Country our States cannot declare war against a foreign nation; our consitution says this is a power reserved to the Federal Government.

Going back centuries there are certain activities by groups of people that have been considered illegal acts of war.

Definition of Piracy:

"Piracy is a war-like act committed by a nonstate actor, especially robbery or criminal violence committed at sea, on a river, or sometimes on shore, either from a vessel flying no national flag, or one flying a national flag but without authorization from a national authority."

"Non state actor" - this means it is not done with the sanction of a legitimate Government. Piracy with government support is called Privateering, similar to mercenaries.

Piracy is notable in international law as it is commonly held to represent the earliest example of the concept of universal jurisdiction. The crime of piracy is considered a breach of jus cogens,(concepts recognized by the bulk of the international community as being fundamental to the maintenance of an international legal order) Those committing thefts on the high seas, inhibiting trade, and endangering maritime communication are considered by sovereign states to be "hostis humani generis" (enemies of humanity). Other similar crimes are Slavery and Genocide.

Since piracy often takes place outside the territorial waters of any nation, the prosecution of pirates by sovereign nations represents a complex legal situation. The prosecution of pirates on the high seas contravenes the conventional freedom of the high seas (meaning usually anything goes in international waters). However, because of universal jurisdiction, action can be taken against pirates without objection from the flag state of the pirate vessel (meaning no country is going to jump to the defense of pirates).

Ships sailing the high seas are generally under the jurisdiction of the flag state and, since due to cases of piracy and slave trade, any nation can exercise jurisdiction under the doctrine of hostis humani generis presuming they enter the nation's sovereign waters. "Mare Liberum" or the 'Freedom of the High Seas' (waters outside territorial waters) still applies to this day (exception see UNCLOS). The 'Freedom of the High Seas,' basically means all jurisdictions are set aside in modern legal systems (exception see Universal Declaration of Human Rights).

So... what does all that mean. Simply, my understanding of it is, Any nation would be justified stopping an act of Piracy in International Waters, because Piracy is a Crime Against Humanity, recognized for centuries as a crime that supersedes jurisdictions.

In my understanding, Piracy is also an act of war committed by people who do not have the legal authority to wage acts of war. Which means, to use an incredibly un-politically correct term, they are unlawful combatants. Which is precisely what that term means. Meaning they fall under the jurisdiction of the state to which the crime was committed.

Like it or not, the pirates who attacked our ship were ours to deal with, and as much as I hate to admit it, the one we captured has to be tried in civillian court.

And as much as it bothers me to admit this (because I proved myself mistaken in a long held assumption), there is no "in between" limbo status of a prisoner, either they are a POW, or they are an Unlawful Combatant. Which means they are treated under the rules normally associated under the Geneva Convention, or they are treated as regular criminals.
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