Legal Challenges and Responses
Edited by Douglas Guilfoyle
Chapter 7: Capture and disruption operations: the use of force in counter-piracy off Somalia
Warships, uniquely, have positive authorisation to intervene pro-actively against pirates. The purpose of this chapter is to discuss one of the most visible and discussed aspects of such counter-piracy operations off Somalia: what happens when a naval vessel encounters a suspect pirate craft which is either engaged in an attack on a merchant vessel or which uses (or threatens to use) force against a naval vessel or personnel? In such a situation, how much force can a naval vessel or personnel use either to deter or disrupt an attack, capture resisting suspects, or protect life and what law governs those events? This issue of the use of force against pirates by warships was touched on in Chapter 6.11 but is examined in more detail here. In particular, some further consideration is given to the legal reasons for concluding counter-piracy must be con- ducted under the law of law-enforcement, not the laws applicable to war. While the focus of this chapter will be on maritime capture and disruption operations, the law applicable to counter-piracy operations ashore is briefly noted. Chapter 8 goes on to consider more generally the impact of (and rationale for) conducting counter-piracy operations within a law-enforcement paradigm, and explores some of the practical legal difficulties for navies at the moment they do capture pirates and have to consider the options for prosecuting them. This involves sometimes difficult questions of mutual legal assistance between states, a key question often being the delay between the capture of pirates and the decision either to transfer them for prosecution
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