The seizure of Maersk Alabama is but the latest episode in a tremendous contemporary upsurge in piracy. While pirate activities are certainly rampant off the Somali coast, pirates have been active worldwide. The reasons are obvious — given the lame performance of the world’s navies, including the U.S. and British navies (that in the 19th century substantially eradicated piracy) — piracy pays. Since most commercial ships and their crews are unarmed, there is precious little risk in going apirating; large ransoms are being routinely paid to pirates and even if pirates are apprehended (which is very rare), they are virtually never prosecuted. The consequences are all bad, although some are more obvious than others. The most obvious ones are that the risks to mariners have increased, the insurance and transportation rates are up, delivery schedules have been disrupted, and global trade, already buffeted by the winds of the global economic recession, has been affected.
The less obvious, but probably even more deleterious, consequences are that, in the 21st century, the forces of chaos and disorder are flourishing on the world’s oceans at levels unseen for more than a century, and the forces of civilization and law and order are manifestly not up to the task of pushing back. The world’s navies outgun and outperform today’s pirates by greater margins than ever before in naval history; what is lacking is the willingness to use deadly force, manifested through enormously restricted and impractical rules of engagement, backed up by a general refusal to treat captured pirates as hostis humani generis — enemies of mankind — subject to harsh sanctions, up to and including the death penalty. It should also be recalled that the harshness of traditional punishments for piracy was, at least partially, grounded in the nature of their operations on the high seas — a vast area that is not, and cannot be, policed in the same manner as the territory of states. The law-abiding are simply at greater risk in those areas where pirates operate. However, instead of pursuing today’s pirates into their lairs, and destroying these outposts of lawlessness, powerful warships stand by as pirates collect ransoms and sail away, content to view these episodes as something akin to a humanitarian rescue operation, instead of a military-style engagement against hostile forces. Given these realities, we can unfortunately expect that piracy will continue to flourish.
— David B. Rivkin Jr. & Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush Sr. administrations.