What would happen if shipping companies hired mercenaries to attack Somali pirates? Find out in these slides for a talk given at the UC Davis Interdisciplinary Graduate & Professional Student Symposium in 2011.

1. Pirates Versus Mercenaries
Purely Private Transnational Violence
at the Margins of International Law
Ansel Halliburton
J.D. Candidate, 2011
UC Davis School of Law
ansel@alum.berkeley.edu
April 22, 2011

2. Agenda
1. Scare you
2. Figure out how to stop piracy
3. Explore international law
4. Clarify a tough decision
April 22, 2011 Halliburton 2

3. Agenda
1. Scare you
2. Figure out how to stop piracy
3. Explore international law
4. Clarify a tough decision
April 22, 2011 Halliburton 3

4. Pirates are scary!
April 22, 2011 Halliburton 4

5. Pirates are expensive!
Kind Impact
Ransom payments $150M in 2009
Avoidance
(re-routing)
$2–3B
17–26% fewer trips per ship rerouted
War-risk insurance 40X increase (net $400M annually)
Indirect costs
• Lost revenue to Suez Canal (Egypt) because of re-routing
(up to $600M annually)
• Price increases for commodities (inflation)
• Reduced foreign investment and tourism
$7–12
billion
Armed guards $40–130K per voyage, including gear
Military operations $2B annually
Criminal prosecution $31M in 2010
Data: Gilpin, Counting the Costs of Somali Piracy, U.S. Inst. Peace, Working Paper, 2009;
Bowden, et al., The Economic Cost of Maritime Piracy, 2010.
April 22, 2011 Halliburton 5

6. Impact on Shipping
Source: Kaluza et al., The complex network of global cargo ship movements, J. Royal Soc.
Interface (Jan. 19, 2010)
April 22, 2011 Halliburton 6

7. Somali piracy is large-scale
transnational organized crime.
• Organized market for financing
• Clan-based organization
• Rumors of tip-offs from moles in shipping
industry
• Specialization (financier, boarding party,
negotiator, hostage guard, etc.)
• Repeat players
• Capital assets (captured motherships)
• Sophisticated laundering of ransom money, e.g.,
investment in Kenyan real estate
April 22, 2011 Halliburton 7

8. Agenda
1. Scare you
2. Figure out how to stop piracy
3. Explore international law
4. Clarify a tough decision
April 22, 2011 Halliburton 8

9. How to Stop Piracy
(or any other crime)
• Diversion
Increase the anticipated reward for legal activities
rewardlegal > rewardillegal
• Deterrence
Increase the anticipated risk for illegal activities
riskillegal > rewardillegal
• Incapacitation
Put criminal in jail to make it impossible to do the crime
April 22, 2011 Halliburton 9

10. Current approach is failing.
• Piracy is:
– still increasing
– more violent
– more expensive
• Why?
– Lack of will to rebuild Somali state (diversion)
– Lack of appetite or capacity to bear cost of
criminal process (deterrence)
– Jail isn’t so bad, comparatively (deterrence)
– Unlimited labor supply (incapacitation)
April 22, 2011 Halliburton 10

11. How about mercenaries?
• Mostly an economic problem, so let economic
actors solve it.
• Direct costs of piracy are concentrated in
shipping and insurance industries—so let
them pay for stopping it.
• Mercenaries are cheaper than government
military power.
April 22, 2011 Halliburton 11

12. Agenda
1. Scare you
2. Figure out how to stop piracy
3. Explore international law
4. Clarify a tough decision
April 22, 2011 Halliburton 12

13. Law
1. Prohibition on the use of force
2. Law of the sea
3. Law of war
4. Human rights law
5. Treaties on mercenaries
6. Domestic law
(N/A)
(N/A)
(weak)
But do these laws even apply to private
transnational violence?
April 22, 2011 Halliburton 13

14. Law of the Sea:
UNCLOS Definition of Piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation,
committed for private ends by the crew or the passengers of a private
ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons
or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an
aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in
subparagraph (a) or (b).
Mercenary offensive against pirates = piracy!
April 22, 2011 Halliburton 15

15. Human rights law:
The right to life
• Universal Declaration of Human Rights (1948)
– “Everyone has the right to life, liberty and security of person.”
• International Covenant on Civil and Political Rights (1966)
– “Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived
of his life.”
• American Convention on Human Rights (1969)
– “Every person has the right to have his life respected. This right
shall be protected by law...No one shall be arbitrarily deprived
of his life.”
States killing civilians (even criminals) without legal process =
violation of the human right to life
April 22, 2011 Halliburton 17

16. Domestic law:
Alien Tort Statute (1789)
• Allows claims by aliens for torts “committed in
violation of the law of nations or a treaty of
the United States.”
– Usually applied in human-rights cases for treaty
violations, e.g. official torture
– Piracy: a universal crime under the law of nations
• US v. Smith (US Supreme Court, 1820)
Relatives of pirates could sue mercenaries in US federal
courts for wrongful death from acts of piracy!
April 22, 2011 Halliburton 18

17. Agenda
1. Scare you
2. Figure out how to stop piracy
3. Explore international law
4. Clarify a tough decision
April 22, 2011 Halliburton 20

18. What to do about it?
Option 1: Accept the status quo.
• Quantitatively, piracy is still not that expensive
or dangerous compared to other world
problems.
• Current levels of resource allocation provide:
– ineffective deterrence (risk < reward)
– insufficient diversion (Somalia is still broken)
• Maintain some military presence for
containment.
April 22, 2011 Halliburton 21

19. What to do about it?
Option 2: Start killing pirates.
• If diversion and deterrence fail, all that remains is
incapacitation
• Go big or go home: major assault on pirate bases
on land to seriously disrupt networks
• Civilian casualties unavoidable
(both hostages and innocent locals)
• Likely escalation of violence by surviving pirates
• Repeat in a few years because of unlimited labor
supply
April 22, 2011 Halliburton 22

20. How would a counter-pirate offensive
be made legal?
• Expressly treat piracy as a special case
• Establish that pirates are NOT entitled to
the human right to life and due process
– Favored by older historical precedent
– Reverses trend of 20th–21st century human
rights law
April 22, 2011 Halliburton 23

21. Serious moral and legal problems
• Piracy is largely an economic crime
• Due process
• Setting precedent
• Social justice and development
April 22, 2011 Halliburton 24

22. A tough decision
1. Accept the status quo
$7–12B annual costs
700+ hostages and some fatalities
OR
2. Roll back significant advancements in
human rights law
April 22, 2011 Halliburton 25

23. Thanks!
Ansel Halliburton
J.D. Candidate, 2011
UC Davis School of Law
ansel@alum.berkeley.edu