pageok
pageok
pageok
"[Don't] Detain Pirates Because Doing So May Breach Their Human Rights"?

The Times (London) reports (thanks to Overlawyered for the pointer):

The Royal Navy ... has been told by the Foreign Office not to detain pirates because doing so may breach their human rights.

Warships patrolling pirate-infested waters, such as those off Somalia, have been warned that there is also a risk that captured pirates could claim asylum in Britain.

The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.

In 2005 there were almost 40 attacks by pirates and 16 vessels were hijacked and held for ransom. Employing high-tech weaponry, they kill, steal and hold ships' crews to ransom. This year alone pirates killed three people near the Philippines....

Britain is part of a coalition force that patrols piracy stricken areas and the guidance has troubled navy officers who believe they should have more freedom to intervene....

A Foreign Office spokesman said: "There are issues about human rights and what might happen in these circumstances. The main thing is to ensure any incident is resolved peacefully." ...

Can this possibly be a correct summary of the Foreign Office directive? It's one thing not to return the pirates to Somalia, but it's quite another to instruct the Navy "not to detain" them. (They may, after all, be tried in places other than Somalia.) Can anyone point me to a more complete summary of the situation, or to the text of the Foreign Office directive? If the story is reasonably accurate, then this is just appalling.

Also, can it really be the case that "[t]he main thing is to ensure any incident is resolved peacefully"? I would think that the main thing should be to minimize harm caused by this incident and the others that are likely to follow. If resolving each incident as peacefully as possible leads to an increase in the number of incidents (some of which will inevitably not be resolved peacefully, and all of which will involve robbery, kidnapping, and other harms even if they don't lead to death or serious injury), and modestly increasing the risk of violence in any particular case will help kill off some pirates, capture others, and deter still more for future cases, then the "resolve[] peacefully" principle may do more harm than good.

Related Posts (on one page):

  1. "Captain Kidd, Human-Rights Victim":
  2. "[Don't] Detain Pirates Because Doing So May Breach Their Human Rights"?
Nessuno:

Julian Brazier MP, the Conservative shipping spokesman. . . said: "The convention on human rights quite rightly doesn't cover the high seas. It's a pathetic indictment of what our legal system has come to."

A Foreign Office spokesman said: "The main thing is to ensure any incident is resolved peacefully."


That about sums up the two sides in my mind. It's really a pathetic situation. And it actually quite sad how drastically Britain has declined as a great nation over the last couple of decades.

A commenter on the Times site has what I think is an elegant solution, though. He notes that the Royal Navy should heed the Foreign Office's directive to a tee by sinking every pirate vessel on sight with all hands on board. This would live up to the Foreign Office's "no detention" directive and is perfectly compatible with maritime law's treatment of pirates.
4.20.2008 4:34am
LM (mail):
Aargh....
4.20.2008 4:40am
K Parker (mail):
Nessuno's got it right: blow them out of the water.
4.20.2008 5:05am
Jack S. (mail) (www):
There must be some logic here and perhaps it would explain the same absurd situation between the asylum seekers housed in France near the Eurotunnel and the fight of the British to keep them from getting to the the other side of the channel. Looks like this problem has been somewhat resolved since 2002 but asylum in the UK must still be attractive for some reason.
4.20.2008 5:08am
cubanbob (mail):
If this is truly the British position, better that they withdraw altogether from patrolling these waters. The F.O. directive would make the RN worse than useless.
4.20.2008 5:56am
TribalPundit (W&M 1L) (mail) (www):
And this is the same nation that used the might of the Royal Navy to stamp out the slave trade?
4.20.2008 7:57am
Transformer:
Legal argument of UK government seems OK to me.

Perhaps, then, instead of blood sucking foreign nations, Gordy et al realize that poverty is at the core of mass crime (including piracy). Perhaps, investing overseas for the good of local people is cheaper then runnig at home The Prison Industry.
4.20.2008 9:07am
Black Bellamy:
What a sad example of bad reactive government :)

Hey look here the French are having some pirate trouble. It's right here in the paper! Hmmm, you know, this is a good time to issue some guidance on piracy.
4.20.2008 9:20am
Alan Gunn (mail):

Also, can it really be the case that "[t]he main thing is to ensure any incident is resolved peacefully"?

When my son was in high school, one of his textbooks (for a religion class) had a question about what to do when hijackers demanded money to release captives. The "right" answer, according to the book, was to pay, so that no one got hurt. I believe another option was to risk harm to the hijackers with no danger to the captives. (The same book had a story about prison life in which convicts put on plays and poetry readings, while mean guards watched.) The book was published by Ave Maria press, which I think specializes in religion textbooks for Catholic schools. I don't think any of the students took it seriously, but it does show that there really are people who think that peace in the short run is all that matters.
4.20.2008 9:22am
UK Person (mail):
The problem is that the European Court of Human Rights has extended the ECHR protection in article 3 to deportation even for nonpolitical crimes. In its Soering judgment the court essentially held that extradition or deportation (refoulement) of persons to potential death row phenomena in the US violates human rights.
Legally speaking the Foreign Office policy makes sense, but the ECHR is really unsound and should be scrapped.
4.20.2008 9:27am
advisory opinion:
Given that Somalia has no functioning government, I'm not sure how the Soering test applies. What death row? What phenomena? Under Soering, the death penalty per se does not give rise to an Art. 3 violation. The Foreign Office is just erring on the side of frivolity here.
4.20.2008 10:16am
Sean O'Hara (mail) (www):
This is a transparent ploy to counter the bad publicity surrounding Commodore Norrington's unjust persecution of Captain Jack Sparrow.

(Really, do you have a better explanation?)
4.20.2008 11:41am
Tracy Johnson (www):
Sounds like an episode of "Yes, Minister."
4.20.2008 11:43am
TerrencePhilip:
With this idiocy coming right after the Mr. Bean humiliation, it is clear that things have never been worse for the Royal Navy.
4.20.2008 12:02pm
H Bowman, MD:
Hmm. So if I was to equip a pirate vessel and sail up Spithead and Solent to London I could loot and plunder to my hearts content, and the (not so) Royal Navy wouldn't do a thing to stop me?

"Oh, better far to live and die, under the brave black flag I fly"
4.20.2008 12:05pm
Bill Poser (mail) (www):

The problem is that the European Court of Human Rights has extended the ECHR protection in article 3 to deportation even for nonpolitical crimes. In its Soering judgment the court essentially held that extradition or deportation (refoulement) of persons to potential death row phenomena in the US violates human rights.
Legally speaking the Foreign Office policy makes sense, but the ECHR is really unsound and should be scrapped.


The Foreign Office is correct that refoulement to Somalia would violate the ECHR, but that is not the only alternative. Piracy is a crime of universal jurisdiction, so Britain can try the pirates itself. Or, as suggested above, save the trouble of a trial and sink pirate ships on sight.
4.20.2008 12:22pm
Teh Anonymous:
I'm so confused. If Mehdi Kazemi and Pegah Emambakhsh can be denied asylum, how could it possibly be granted to pirates?
4.20.2008 12:33pm
TomHynes (mail):
Britain needs a Gitmo.
4.20.2008 12:40pm
UK Person (mail):
advisory opinion,
The principle enunciated by the court in its Soering judgment is not fact specific to the death row phenomena. The court in Soering enunciated a broad rule under which a contracting state could breach Article 3 (prohibition on torture and inhuman or degrading treatment and punishment) by extradition or deportation of any person to a situation where it would be foreseeable that he would suffer treatment or punishment forbidden by Article 3. That principle is absolute and is not subject to any derogation by the contracting state, and is applicable regardless of the conduct or culpability of the individual.
The principle first outlined in Soering v. United Kingdom was subsequently extended by the court in its Chahal judgment. In Chahal, the British government sought to extradite an Indian national on the assurance of the Indian government that he wouldn't be tortured, but the court was not impressed.
Whether Somalia has a functioning government is not material to the applicability of the Soering principle, because the protection of Article 3 is not subject to any state action like limitation. The ECTHR has in fact ruled on other occasions that a contracting state must provide some minimal protection to individuals against third party private conduct violative of Article 3.
And the court has even ruled that the government may breach the human rights of respect for private and family life by not restricting private speech by third parties, see CHAMBER JUDGMENT IN THE CASE OF VON HANNOVER v. GERMANY [Newspaper publication of facts about applicant breached right to respect for private and family life under Article 8], and Chamber judgment in the case of PFEIFER v AUSTRIA [Publication of defamatory facts about applicant breached applicant's right to reputation under Article 8].
4.20.2008 12:42pm
UK Person (mail):

The Foreign Office is correct that refoulement to Somalia would violate the ECHR, but that is not the only alternative. Piracy is a crime of universal jurisdiction,
so Britain can try the pirates itself. Or, as suggested above, save the trouble of a trial and sink pirate ships on sight.

Well, even putting the pirates on trial wouldn't change the outcome under ECHR, the only result after completion of sentence I can imagine would be asylum granted on humanitarian grounds and likely lifetime welfare , of course paid by the taxpayer.
Sinking pirate ships on sight is a nice idea, but since it's not an armed conflict, it's likely that a deliberate take no prisoners policy might equally violate the proportionality principle under Article 3 limiting the permissible circumstances for the depirvation of human life.
And even if the court is willing to accept sinking of a pirate ship is taking place in the context of an armed conflict, other caselaw has applied usual Article 3 proportionality to armed terrorists,
see judgment in the case of McCann and others v. The United Kingdom. It's therefore unlikely that the British government could avoid the human rights quandary simply by instituting a take no prisoners policy which would either subject pirates to refoulement in violation of the Soering principle or to depirvation of life in violation of other aspects of Article 3.
The government is really stuck in the mess created by the ECHR. Norway has a similar problem with mullah Krekar whom a court has ruled constitutes a threat to national security, but can't nonetheless be deported to Iraq, because deportation would violate the ECHR.
4.20.2008 1:23pm
UK Person (mail):
In the comment above I erroneously referred to Article 3 and the depirvation of life.
the permissible circumstances for the deprivation of life and its correlary proportionality principle is of course not found in Article 3 but in Article 2.
4.20.2008 1:38pm
wuzzagrunt (mail):
UK Person wrote:

Sinking pirate ships on sight is a nice idea, but since it's not an armed conflict, it's likely that a deliberate take no prisoners policy might equally violate the proportionality principle under [Article 2] limiting the permissible circumstances for the depirvation of human life.

Haven't you heard? Dead men tell no tales. Arrr!
4.20.2008 1:50pm
Lonetown (mail):
The obvious answer is to return the pirates to the land of their origin and hang them on the beach. Piracy is a capital offence (or should be).
4.20.2008 2:35pm
martinned (mail) (www):
L.S.,

@Alan Gunn: I'm not a Christian myself, but that textbook seems to make sense from a "What would Jesus do?" POV:


{6:27} But I say unto you which hear, Love your enemies,
do good to them which hate you, {6:28} Bless them that
curse you, and pray for them which despitefully use you.
{6:29} And unto him that smiteth thee on the [one] cheek
offer also the other; and him that taketh away thy cloke
forbid not [to take thy] coat also. {6:30} Give to every man
that asketh of thee; and of him that taketh away thy goods
ask [them] not again.


As for the legal problem, the correct answer seems to be to try them in the UK, since, indeed, piracy is a crime of universal jurisdiction. I can imagine, though, that the UK government would rather not have that hassle, since these pirates could most likely never be returned to Somalia, not even after they've served any prison sentence they might receive.
4.20.2008 3:47pm
Gaius Marius:
Apparently, Winston Churchill was correct when he stated that England's finest hour was in the summer of 1940.
4.20.2008 3:57pm
Gaius Marius:
Britain needs a Gitmo.

Military policy against pirates and Jihadists should be to take no prisoners.
4.20.2008 3:59pm
Gaius Marius:
On further thought, I guess one should not be surprised by Britannia's inclination to surrender to piracy since it would have negotiated settlement terms with Adolf Hitler back in 1940 were it nor for one man -- Winston Churchill.
4.20.2008 4:02pm
Elliot123 (mail):
Is there some paticular reason not to hang them from the yardarm at sea? It might stop the hearts of some folks in London, but would pobably also stop the piracy.
4.20.2008 8:13pm
DiverDan (mail):
I have to agree with the British on this one - the Pirates should not be detained, or returned to Somalia. After firmly attaching a 20 pound weight to each ankle, they should be released over the side of the ship and allowed to swim where ever they desire to go.
4.20.2008 10:13pm
Norseman:
Posers. Any true pirate won't ask for quarter or asylum. Arrgh, half of England's DNA comes from pirates, and it looks like they may need to up that ratio...
4.20.2008 11:34pm
Smokey:
UK Person:
In the comment above I erroneously referred to Article 3 and the depirvation of life. the permissible circumstances for the deprivation of life and its correlary proportionality principle is of course not found in Article 3 but in Article 2.
Thanx for making that clear.

Hey, this is fun!

[i keed!]
4.21.2008 12:42am
Lewis Maskell (mail):
There are many reasons the armed forces dislike the Foreign Office. This would be one of them.

Referencing an earlier point above - it is probably just coincidence that Lord Halifax was Foreign Secretary in 1940 (though Gaius Marius, your history is seriously deficient if you think Churchill was on the only politician in Britain willing to fight on in 1940 - hyberbole tends to fall flat when it is utterly inaccurate).
4.21.2008 10:37am
jdege (mail):
Wasn't the traditional punishment for piracy summary execution?
4.21.2008 12:07pm
H. Tuttle:

Sinking pirate ships on sight is a nice idea, but since it's not an armed conflict, it's likely that a deliberate take no prisoners policy might equally violate the proportionality principle under [Article 2] limiting the permissible circumstances for the depirvation of human life.


Not an armed conflict? Pirates are often armed, frequently heavily so (e.g., with RPGs, heavy machine guns, etc.) See ICC Commercial Crime Services, Weekly Piracy Report, at http://icc-ccs.org/prc/piracyreport.php.

The bearing of such heavy arms in a demonstrated manner with hostile intent on the high seas should be cause enough to summarily sinks those ships. The British Navy use to be some of the toughest sea dogs on the waves; today they've apparently been virtually neutered by political patsies back on land.
4.21.2008 12:26pm
An American Father (mail):
I don't know these men, the circumstances, the stories, or anything else about them so I will not base judgment on them simply for the reason they have been labeled "sex offenders".
Sex Offenders are the other form of terrorist according to the government, because you don't know who they are or where they are. So the government says to protect us and our children they will implant V Chips, not only in us, but in our cars, passports, identification, and run surveillance on our streets, homes, friends, and conversations
96.5% of sex offenders are family members or friends to the victim, 97% are male, and only 3.5% of convicted sex offenders reoffend sexually... Therefore the odds are YOU are more of a threat to commit a sex offense than a "sex offender". So what will the government do next???
How can we prosecute people for life knowing how easy it is to be charged and convicted of a sex offense? Do you realize how many death row inmates and sex offenders have been found innocent due to D.N.A. every year? They convict sex offenders every day with merely ones word against anothers, today, a simple lie can wreck your life!
How do V Chips, satellites, surveillance, and treating us like criminals stop our children from having a sexual encounter, or save us from terrorists?
I have lost confidence in our system and I will not judge a man because of the ugly pictures they paint of sex offenders by means of using horrible crimes other men committed in the past.
Common sense should tell us you can't judge a person with something someone else has done, it doesn't even make sense, and to let them "bend" or ignore our rights in order to punish better or protect us is equally absurd.
I've had enough of these laws that can only work if Americans rights are ignored!
4.21.2008 1:38pm
Jiminy (mail):
Methinks either American Father had a bad pirate-sex-offense experience previously, or he's supposed to be in Abuse, two threads down on the right.
4.21.2008 1:59pm