International shippers and insurance companies have been confronted with international piracy in the past, but the spike in piracy activities off the east African cost has created new challenges. For the ship owners, its crew, and the many companies that operate behind the scenes to keep international commerce moving, an act of piracy is not just about money, but lives.
From a cost-benefit view, negotiating with these pirates has made the most sense. As long as the pirates get their money, no one gets hurt and the cargo untouched. But are these private entities exposing themselves to potential legal liabilities by negotiating ransoms with some of these modern-day pirates?
By way of example, can U.S. companies negotiating ransoms with pirates unwittingly trigger U.S. sanctions? Consider this language, the “making or receiving of any contribution of funds, goods, or services to or for the benefit” of individuals deemed terrorists is illegal. Furthermore, any transaction by any United States person or within the United States that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate” U.S. counter-terrorism laws prohibited.
Most U.S. government officials will tell you that it is the policy of the U.S. not to negotiate ransoms with pirates. The law does not ban negotiations with pirates, at least not explicitly. Yet, what happens when a pirate is not just a pirate, but an individual or group that is a terrorist or is supporting a terrorist organization? When does an act of piracy cease being an act of piracy and become an act of terror or activity done on behalf of terrorists?
According to Robert Spencer at the popular website Jihad Watch, the Somali captors of the MV Maersk Alabama were “Islamic jihadists, dedicated to the same goals as Osama bin Laden and other jihadists around the world.” He adds that “counterterror analysts and the mainstream media would do well to widen their narrow focus upon maritime piracy, and consider the role that this piracy is playing in the larger jihadist initiative.”
A broader view of the piracy issue is also warranted because unlike our murky piracy laws that are in much need of being updated, U.S. laws and regulations are quite clear that it is illegal for any U.S. person to support terrorists. A U.S. person usually includes U.S. residents, citizens, corporations, and other entities no matter where located.
The links between piracy and terrorism off the east coast of Africa are not unreasonable. It is highly probable that many of these pirates are guns for hire for radical Islamist groups or are part of a network of terrorists that need money to conduct land operations in places such as Somalia. They are not going away anytime soon.
The U.S. merchant fleet, their crews, and the shipping and insurance companies that support American shipping around the world, need clear guidance from the U.S. Government on these matters. In addition to protecting Americans who work on the commercial merchant fleet, companies do not want to expose themselves to legal liability for saving lives – but sometimes that may be the only choice that they have.
Finally, it is worth noting that under international law the punishment for piracy is death. The punishment can be administered by the military, say, on board of a military vessel. The U.S. military, or that of any other country in the region, if they were to capture these people could try them and impose the death penalty.
Read a related post on this issue that includes one way to start addressing this issue, here (at it does not involve the U.S. as a primary means to combat this issue). And, if you think this new wave of piracy is a passing thing, be sure to read this brief piece, “Can We End Piracy?,” by David Rivkin and Lee Casey at National Review Online.