In response to continuing pirate attacks off the lawless coast of Somalia, “lawhawk” proffers a military solution:

Blockade the Somali coast and allow the navies of the world to destroy any pirate ships that attempt to cross it. At the same time, those same navies should continue to move towards the ports where the pirates operate from and conduct operations to destroy the boats used. Eliminate the means for the pirates to operate, and the piracy will end.

But leaving aside lawhawk’s surprisingly un-legalistic emotionalism about the moral need to stop pirates, the problem is simply that the costs of acting to stop them outweigh the benefits.

First, the tools available are no where near as immediately and absolutely effective as lawhawk assumes.  The area roamed by pirate ships is vast, encompassing thousands of miles of open ocean with thousands of ships.  Covering these areas with an ad hoc collection of naval forces contributed a few at a time by Britain, India, and the United States is a daunting challenge.  Furthermore, it is difficult on face to differentiate pirate “motherships” from regular freighters.  These pirate ships do not fly the skull-and-crossbones and they are often just frieghters that were previously seized.  By the time they strike and the targeted ship sends out a distress signal, it is too late for a warship dozens or hundreds of miles away to respond effectively.  By the time that a response can be mounted, hostages have already been seized.

Second, the immediate costs of piracy are the same even if a response is mounted.  The costs are expressed in terms of elevated insurance rates for shipping.  Since the financial risk to insurers (the loss of some or all of the targeted ship and its cargo) is the same whether or not a response is attempted and since the cost of extended military operations vastly exceeds the ransom demands of the pirates, the net cost of mounting a response is always greater than simply paying the ransom.  The greater risk to the lives of the hostages that comes along with mounting a military response exacerbates this “risk deficit”.  The reason for the relative non-response from the international community can be reduced to a simple rational choice model in game theory.

Rather than reflexively going for a macho military solution, then, a more effective reaction might be to take a more careful diagnosis of the problem.  The key enabling conditions underlying the growing problem of piracy off Somalia are the lawless and economically depressed conditions in the areas from whcih the pirates are operating and the unclear features of international law regarding piracy.  The lack of effective government and the lack of available employment makes piracy attractive as an economic option.  Indeed, piracy is the best available path to wealth in some areas of Somalia right now.  Trying to cut it off purely militarily would face the challenge of a nearly endless supply of new pirates to replace every one killed.  Furthermore, the willingness of major states to respond themselves is constrained by ambiguities in what to do with pirates once they are captured.  Who has jurisdiction?  What courts could be used to try and punish pirates?  What is the nature of the punishment options and how could they be made effective in deterring pirate activity?  Traditionally, pirates are considered to be “unlawful combatants” in international law, a term that has become quite controversial in international legal circles since 2001.  Where responding to piracy used to be legally uncontroversial in an earlier age, the spillover political effects of the “global war on terror” has introduced an unforeseen problem now.  Few countries want to wade into that political/legal morass for little foreseeable gain.  And a purely military option does nothing to resolve these ambiguities.

Responding to piracy thus requires revisiting some old themes in international relations.  First, it is necessary to clarify international law as it relates to piracy and bring it out of the 1800s.  By definition, piracy often occurs outside of the territorial jurisdiction of states.  Therefore, a global “Convention on Piracy” enacted as an addendum to either the Geneva Conventions or, somewhat more problematically due to extant U.S. non-ratification, the United Nations Convention on the Law of the Sea, could help clarify issues of jurisdiction and the legal status of captured pirates.  Second, the old classic “root causes” need to be addressed by promoting viable economic alternatives for potential pirates in Somalia and elsewhere.

Building an effective legal framework to support military operations will increase the risk of engaging in piracy more than a reflexive military response would.  And providing alternatives to piracy as employment would help reduce incentives at the same time.