Pirates, Then and Now

The world's attention was riveted in April 2009 when Somali pirates tried to seize the Maersk Alabama, a U.S. cargo vessel delivering relief supplies to Africa. Although the crew was able to fight off the intruders, the pirates seized the ship's skipper, Richard Phillips, and spent the next five days holding him hostage in a lifeboat bobbing in the Gulf of Aden, until U.S. Navy SEAL snipers killed the three remaining pirates and freed Phillips. There was a sigh of relief back in the United States, but it hardly meant an end to the pirate menace. In fact, within two days of Phillips' rescue, pirates had seized four more merchant ships and more hostages.

Piracy off the coast of East Africa is growing at an alarming rate, with 41 ships attacked in 2007, 122 in 2008, and 102 as of mid-May 2009. The more high-profile captures include a Saudi supertanker full of oil and a Ukrainian freighter loaded with tanks and other weapons. An estimated 19 ships and more than 300 crew members are still being held by pirates who are awaiting ransom payments from ship owners or insurers. Such fees have been estimated to total more than $100 million in recent years, making piracy one of the most lucrative industries and pirates one of the biggest employers in Somalia, a country with a per capita GDP of $600. Reported connections between the pirates and al Shabab -- "the youth," a Taliban-style group of Islamist extremists with ties to al Qaeda -- make the situation even more worrisome, notwithstanding some recent evidence of an Islamic backlash against the marauders in parts of Somalia.

THE SWARMING SEAS

Piracy was once a far more serious problem than it is today. In a history of piracy published in 1907, Colonel John Biddulph, a retired British army officer, wrote of the early 1700s:

        From the moment of losing sight of the Lizard [the southernmost post in England] till the day of casting anchor in the port of destination an East India ship was never safe from attack, with the chance of slavery or a cruel death to crew and passengers in case of capture. From Finisterre to Cape Verd[e] the Moorish pirates made the seas unsafe, sometimes venturing into the mouth of the [English] channel to make a capture. Farther south, every watering-place on the African coast was infested by the English and French pirates who had their headquarters in the West Indies. From the Cape of Good Hope to the Head of the Persian Gulf, from Cape Comorin to Sumatra, every coast was beset by English, French, Dutch, Danish, Portuguese, Arab, Malay or other local pirates.
        There was no peace on the ocean. The sea was a vast No Man's domain, where every man might take his prey.

Biddulph was not exaggerating. In the seventeenth and eighteenth centuries, pirate communities flourished in and around the Atlantic and Indian Oceans. Pirates were also prevalent in East Asia, with the seas around the Malay archipelago -- modern-day Indonesia and Malaysia -- infested for centuries by pirates such as the fierce Dyaks of Borneo and the Ilanun of the Philippines. Koxinga, a Chinese pirate and anti-Manchu rebel, at one point led as many as 100,000 men, and in 1661 he seized Taiwan from the Dutch. In the early eighteenth century, a confederation of 40,000 pirates based in Canton dominated the South China Sea, first under the leadership of Cheng Yih and then, after his death in 1807, under that of his widow, Cheng Shi, a former prostitute better known as Madam Cheng.

The North African corsair Barbarossa -- known as Khayr ad-Din in Arabic -- born to a Turkish father and a Greek mother on the Aegean island of Lesbos, was even more successful. In the early sixteenth century, he conquered Algiers and Tunis and, with the blessing of the Ottoman emperor, turned them into bases for sea raiding, which they would remain for the next three centuries. Although commonly called piracy, this activity was more properly known as "privateering," the term for state-sanctioned piracy. Morocco and Tripoli, the other states along the Barbary Coast, joined in this lucrative business, which involved hijacking ships from Christian nations, selling their cargoes, and either ransoming the passengers and crew back to their families or selling them into slavery.

In the early sixteenth century, Algiers alone was estimated to have a hundred sailing ships manned by thousands of sailors all engaged in privateering. With such a formidable force at its disposal, Algiers was able to hold 30,000 Christian captives (including, at one point, the Spanish novelist Miguel de Cervantes). These Muslim corsairs were matched by Christian adversaries from the Knights of St. John, who used bases first in Rhodes and then in Malta to plunder Muslim ships around the Mediterranean. Europeans also took many Muslims as slaves; Barbarossa's brother served for a time as a galley slave to the Knights of St. John.

Beginning in the 1690s, further south, not far from where today's Somali pirates lurk, the "Red Sea men" attacked not only ships belonging to the British, Dutch, and French East India Companies but also those belonging to wealthy Indians and other Asians. The ships targeted were often full of gold, cash, and jewels -- booty so rich that it drew aspiring pirates from as far away as New York. The most popular base for the freebooters was St. Mary's Island, off the coast of Madagascar. The historian Jan Rogozinski has called the Red Sea men "the most successful criminals in human history." He estimates that a single ship seized in 1695 by the Englishman Henry Every, "the King of Pirates," was worth at least $200 million in modern currency.

The Caribbean Sea was not as lucrative a hunting ground for pirates, but it became better known to posterity because of Charles Johnson's 1724 book, A General History of the Robberies and Murders of the Most Notorious Pirates. More than any other source, A General History has forged the popular stereotype of the peg-legged and eye-patch-wearing pirate that has been mined over the years by artists from Robert Louis Stevenson to Johnny Depp. At their height in the early eighteenth century, the Caribbean pirates employed 2,400 men aboard 25 to 30 ships, many of which flew the Jolly Roger, with its infamous skull and crossbones. Other Caribbean pirate flags had images of cutlasses or bleeding hearts -- all designed to terrify potential victims into surrendering without a fight. The men who sailed under these outlaw emblems were based in the Bahamas, Hispaniola, Jamaica, Tortuga, the Virgin Islands, and other islands. The most successful captain, Bartholomew Roberts, or "Black Bart," was said to have looted 400 ships. The better-known Edward Teach, or "Blackbeard," who operated from a base in North Carolina, was a tyro by comparison.

Caribbean buccaneers not only raided ships but also looted Spanish settlements. In one of their most daring operations, the Welsh privateer Sir Henry Morgan sacked the well-defended city of Panama in 1671. Like the Somali pirates of today, Morgan preferred to attack large ships from small boats, relying on shock to overpower the startled crews.

Morgan tried to stay on the right side of the law by obtaining sanction from the royal governor of Jamaica, which was then a British colony. However, because Morgan's last commission was signed after the conclusion of a peace treaty between England and Spain, he was arrested following the Panama raid and sent back to London. He was not imprisoned, though; in fact, the English government knighted him and returned him to Jamaica as lieutenant governor.

As Morgan's example makes clear, the first step needed in fighting piracy was to change official attitudes toward it. For many years, nations such as England and France had looked on piracy as either a minor nuisance, such as smuggling, or, when directed against their enemies, a potentially useful tactic. Before countries began to develop standing navies, in the seventeenth and eighteenth centuries, the primary way to wage a war at sea was to hand out "letters of marque and reprisal," authorizing privateers to attack enemy ships.

In the late sixteenth century, for example, a group of Dutch privateers known as the Sea Beggars helped liberate the Netherlands from Spanish rule. The French privateer Jean Bart was so effective in attacking Dutch shipping in the late seventeenth century that King Louis XIV ennobled him and gave him a captain's commission in the French navy. In the sixteenth century, English privateers such as Sir Francis Drake, Sir Walter Raleigh, and Sir John Hawkins justified their attacks on Spanish shipping vessels by claiming they were fighting for the Crown. In many instances, their legal authority was dodgy. Their real protection came from sharing the rich proceeds of their journeys with Queen Elizabeth and her officials, which bought them high-level protection. In later years, countless lesser adventurers would emulate this strategy by greasing the palms of colonial officials in such ports as New York City and Port Royal, Jamaica.

But by the seventeenth century, when overseas trade became a primary source of the British Empire's wealth, the state's attitude began to change. Piracy and privateering became less tolerable to a nation that had much to lose from such attacks. Authorities began to remove corrupt officials who were in cahoots with the brigands. Governor Nicholas Trott of the Bahamas was deposed in 1696, followed the next year by Governor Benjamin Fletcher of New York.

Governments also began to hire privateers to root out pirates. Pirate hunters were tempted with generous bounties and told that they could keep all or part of whatever loot they recovered. This led to the capture of some outlaws, such as Blackbeard's associate Stede Bonnet, "the gentleman pirate," who was taken in 1718 after a bloody fight with a privateer ship commissioned by the governor of South Carolina. But some gamekeepers turned poachers. The most notorious "pirate hunter" was William Kidd, who in 1695 received a royal warrant to police the Red Sea and the Indian Ocean. Instead, Captain Kidd began seizing merchant ships for himself. He was ultimately returned to England and hanged.

OF MASTS AND MEN

Harsh penalties that were swiftly and regularly enforced were, not surprisingly, of central importance in suppressing robbery at sea. Pirates had long been regarded as hostes humani generis, "common enemies of mankind." States going back to the days of the Roman Empire reserved the right to capture and summarily execute pirates under what became known as "the doctrine of universal jurisdiction." But in practice, few pirates were executed on the spot, at least not in the modern age.

In the British Empire prior to 1700, pirates were dealt with by common-law courts, although not very effectively. Pirates, like modern mafia dons, could often bribe, intimidate, or otherwise suborn jurors in coastal towns, where many locals were connected to this illegal business. There was also a special Admiralty court in London that could try pirates. But in order be convicted, the pirates had to be transferred for trial to England along with all the necessary evidence and witnesses -- a cumbersome procedure in the age of sail.

In order to speed up prosecutions, in 1700 Parliament set up Vice-Admiralty courts that could convene abroad to try pirates. These courts were composed of seven "commissioners," who were drawn from the ranks of naval officers and colonial officials rather than from ordinary judges or jurors. Defendants were not given any legal representation. The historian Marcus Rediker estimates that between 1716 and 1726 -- the so-called golden age of piracy -- 400 to 600 Anglo-American pirates were executed under the terms of this system, or at least ten percent of all the pirates active at the time. Many were left to dangle in port as a "spectacle for the warning of others." Subsequent laws required the death penalty for those who cooperated with pirates and six months imprisonment for those who failed to defend their ships against pirates.

British justice may have been harsh, but it was not inflexible. A pirate could get off, for example, if he could convince the court that he had been coerced into a life of crime. Others were set free during periodic amnesties designed to thin the ranks of the marauders. In order to get pirates to give evidence against their accomplices, authorities relied on incentives, such as the possibility of leniency, along with rewards for informants.

Passing laws was a necessary step, but applying them was much harder, because pirates were notoriously elusive. A sine qua non for effective enforcement was the expansion of the British navy. In 1600, the British navy was virtually nonexistent, but by 1718, it had swelled to 124 ships, and by 1815, to 214. The lesser powers of the early nineteenth century had smaller but still substantial fleets: France had 80 ships, Spain 25, and the United States 17. In theory, all these ships could have been employed against hostes humani generis; in practice, other tasks, such as fighting one another, usually took precedence.

But gradually, countries began to commit more naval power to policing sea-lanes. The Royal Navy devoted only two ships to this task in the 1670s, but by 1700, it had 24 ships and 3,500 sailors stationed in strategically important outposts, such as Barbados, Cape Verde, Jamaica, Virginia, and West Africa. The Royal Navy also cooperated with other Western forces -- especially, in the years after the American Revolution, the U.S. Navy. After the War of 1812, British and U.S. forces worked closely together to battle pirates from the Caribbean to the East China Sea.

One of the more valuable tasks that naval forces could undertake was to convoy merchant ships. The Spanish took great care to safeguard the fleets transporting treasure back from the New World that sailed twice a year from the 1520s to the 1780s. Although a few were destroyed by bad weather or enemy attack, the only Spanish treasure fleet ever captured in more than 250 years of voyages was taken in 1628 by a Dutch naval squadron, not pirates. But the Spanish navy did not have enough warships to protect other Spanish merchant vessels, which became easy prey for English and French privateers. In 1579, Drake seized a Spanish ship sailing from Lima to Panama whose cargo was said to be worth $18 million in today's money.

Some merchant ships were armed, but usually they did not try to resist attacks from pirate ships that had more cannons and more crew members. Most ship owners, then and now, have been loath to spend what it takes to defend their ships because they know this will cut into their profit margins -- and still not ward off determined attackers. In the end, the task of defense has been left to navies.

As naval forces took a more active role in the pirate wars, there were inevitably some fierce battles. Navy warships usually came out ahead in these confrontations because of the superior discipline and skill of their crews. On April 29, 1700, for example, the H.M.S. Shoreham, a 28-gun frigate, traded fire for ten hours with the 20-gun pirate vessel La Paix, crewed by French and Dutch sailors, which had taken refuge in Lynnhaven Bay, Virginia, after capturing several merchant ships. After killing many of the pirates onboard La Paix, the sailors on the Shoreham forced the survivors to surrender.

Although Blackbeard and Black Bart were both killed in battles with the Royal Navy, most pirates usually shied away from fights to the death. Instead, they preferred to hide ashore or in shallow coastal waters, where large warships could not follow them. Rooting them out required tactics such as those employed by the U.S. Navy in the Caribbean in the 1820s. The navy's Mosquito Fleet was based in Key West, Florida, and included oared barges that would, in the words of the fleet's commander, Captain David Porter, allow his men to pursue "freebooters and murderers" into their "haunts . . . among the roaring of breakers and the scream of sea-birds." Porter's men scoured the inlets and lagoons around Cuba and Puerto Rico, two well-known pirate enclaves. They managed to expel the outlaws but caused an international incident when they came ashore in Spanish-held Puerto Rico to demand an apology at gunpoint for insults leveled against one of their officers. Porter was court-martialed -- and it was precisely to avoid such incidents that the United Kingdom, the United States, and other powers hesitated to pursue pirates onto foreign shores. But doing so was essential if these marauders were to be caught.

Oftentimes, rooting out pirates meant risking not only an international incident but also full-scale war. In its early days of independence, the United States paid large tributes to the Barbary States in exchange for the safe passage of its ships. Under a treaty signed in 1795, Algiers alone received more than $1 million in goods and cash, or one-sixth of the U.S. federal budget at the time. But the Barbary States were never satisfied. Eventually, U.S. President Thomas Jefferson decided that "nothing will stop the eternal increase of demands from these pirates but the presence of an armed force." So in 1801, he sent a U.S. naval squadron to the Mediterranean to wage war on Tripoli.

Over the next four years, the U.S. Navy and the Marine Corps blockaded and bombarded Tripoli, engaged in numerous battles with Tripolitan ships, and even undertook an unsuccessful campaign to overthrow Tripoli's ruler and install a more pro-American regime. The worst disaster of the Barbary Wars was the capture of the U.S.S. Philadelphia in 1803; its luckless captain was William Bainbridge, the namesake of the U.S. Navy destroyer that recently rescued the Maersk Alabama. Following the dispatch of another U.S. naval squadron to the Mediterranean in 1815, the Barbary States agreed to stop attacking American ships and demanding tribute -- a concession they had previously made to Great Britain, France, and the Netherlands after those states waged their own Barbary wars in the seventeenth century.

The threat from Barbary pirates lingered until European colonists began to occupy North Africa, starting with the French conquest of Algeria in 1830. States realized that the surest way to create peace at sea was to impose the rule of law on the land where pirates hid. That still holds true today. Unfortunately, this has usually been a costly and difficult business, as the French learned when they faced an insurgency in Algeria led by the guerrilla leader Abd al-Qadir from 1832 to 1847. Similarly, on the other side of the globe, the threat from Malay pirates was not suppressed until the mid-nineteenth century, when the region fell under the sway of Europeans such as Sir James Brooke, "the White Rajah of Sarawak."

SURF AND TURF

Countries took a dozen or so steps to safeguard the seas during the pirate wars that stretched roughly from 1650 to 1850. These included changing public attitudes, hiring private pirate hunters, rooting out corruption, improving the administration of justice, offering pardons to pirates who voluntarily surrendered, increasing the number of naval ships dedicated to antipiracy duty, cooperating with other nations, convoying merchant ships, blockading and bombarding pirate ports, chasing pirates both at sea and on land, and, finally, occupying and dismantling pirate lairs.

What is striking and depressing about this list is how few of these measures are being implemented today. This is a reflection of the fact that most countries are not taking the problem of piracy all that seriously, notwithstanding some stern pronouncements from political leaders. The existence of other priorities, such as fighting terrorism or preparing for conventional wars, means that countries are reluctant to devote naval resources to combating piracy. Meanwhile, shipping companies and their insurers are willing to pay ransoms that are said to average $1 million per ship because they know that the odds of one of their vessels being seized are slim -- last year less than one-half of one percent of ships transiting the Horn of Africa were attacked, and most of those attacks were not successful. Ship owners would rather take their chances than arm crews or hire guards because they are afraid that this would only lead to an escalation of the violence. Similar concerns once led airlines to tell crews not to resist hijackers. This approach changed after 9/11, and one hopes it will not take a similar disaster at sea for ship owners to reconsider their policies.

Left unchallenged, piracy is spiraling out of control, and now threatens the sea-lanes that transport almost half the world's cargo, including one-third of Europe's oil supplies. In addition, many of the proceeds from this modern-day piracy may wind up underwriting an extreme Islamist movement. This collective inaction is another example of "the tragedy of the commons," in which decisions to pursue individual self-interest result in a public disaster -- not least for the hundreds of sailors held hostage. To make ship owners and insurers take the problem more seriously, the U.S. government could adopt a proposal such as the one made by the retired army officer Ralph Peters, who suggested that any company that pays off pirates should be denied the right to do business in the United States.

The United States and its allies should also increase the number of warships stationed off the Horn of Africa. Naval forces from the United States and more than 20 other countries operate under the aegis of Combined Task Force 151, currently commanded by a Turkish admiral. But although there are as many as 30 warships in the region, most are devoted to antiterrorist missions or other tasks, often leaving no more than 14 warships available for combating pirates. This is a reflection of the shameful decline in the size of Western fleets: the Royal Navy is down to fewer than 100 ships, the U.S. Navy, to fewer than 300, and both will continue to shrink based on current trends. It is incumbent on the United Kingdom and the United States, which for centuries have taken the lead in maritime enforcement, to buy more warships, especially small vessels along the lines of the U.S. Navy's Littoral Combat Ship, which is designed to operate in coastal waters.

In the meantime, these meager national forces could be supplemented by private security companies that could patrol the seas with their own ships or station guards aboard merchant ships -- an option suggested by Claude Berube, of the U.S. Naval Academy, in an article provocatively entitled "Blackwaters for the Blue Waters." Reviving letters of marque is another possible option that is authorized by the U.S. Constitution (Article 1, Section 8). But doing so could cause considerably more problems, because it would be hard to control latter-day Captain Kidds.

Regardless of however many additional warships are sent, it is important that they be allowed to use more effective tactics than currently permitted by their political masters. Most of the naval ships now stationed off the Horn of Africa are not convoying merchant vessels, hunting down pirate ships, or bombarding pirate lairs. Instead, all they are authorized to do is float around in an attempt to deter pirates from striking and respond to distress calls when they do strike. These are fools' errands when undertaken by a dozen or so ships scattered across an area four times the size of Texas. The pirates are equipped with satellite phones and GPS devices and are sophisticated enough to monitor naval movements and strike when and where patrollers are absent.

The problem is twofold: a lack of legal authority and a lack of will to enforce what authority does exist. The UN Security Council has passed a series of Chapter 7 resolutions -- five last year alone -- that authorize military forces to pursue pirates into Somalia's territorial waters and ashore, if necessary. In theory, this gives the United States the right to carry out air strikes and amphibious raids on pirate lairs and to sink pirate ships. But as of this writing, such strikes have not happened -- after 18 U.S. soldiers were killed in a clash with Somali militiamen in 1993, U.S. policymakers are reluctant to send troops back to the region. The only time President Barack Obama has authorized the use of lethal force was when Captain Phillips' life was judged to be in danger.

U.S. and other naval forces stationed off East Africa have not been given the kind of robust rules of engagement that are used in war zones such as Iraq. There, at least until the implementation of the new status-of-forces agreement signed in late 2008, U.S. troops could shoot armed enemy combatants on sight when they felt threatened and detain those deemed a security risk, even if there was not sufficient evidence to convict them of a crime. In contrast, there is not much a U.S. Navy ship can do if it encounters a "fishing trawler" full of armed young men off the coast of Somalia, because under current international rules, these likely pirates are treated as civilians, not combatants, and there is no prohibition against sailors toting guns.

In fact, this very scenario has happened several times. To take only one example, according to The New York Times, in September 2008, "a Danish warship captured 10 men suspected of being pirates cruising around the Gulf of Aden with rocket-propelled grenades and a long ladder. But after holding the suspects for nearly a week, the Danes concluded that they did not have jurisdiction to prosecute, so they dumped the pirates on a beach, minus their guns."

As this incident indicates, naval forces are severely hindered by the lack of an effective mechanism for dealing with captured pirates. Under legal doctrines dating back to the Roman Empire, any state can try suspected pirates in its own court system, even if they did not attack its own ships. But as Eugene Kontorovich, a law professor at Northwestern University, notes in an upcoming article in the California Law Review, legal obstacles to effective prosecution have emerged in recent years from "international humanitarian law, including the Geneva Conventions, a variety of human rights treaties, international refugee law, the UN Convention on the Law of the Sea, and other sources." The result is that Western nations no longer want to try pirates themselves. In an extreme example of this kind of reticence, the British Foreign Office has expressed concern that captured pirates might demand asylum or complain of having their human rights violated.

As a stopgap, the European Union, the United Kingdom, and the United States have entered into agreements with Kenya -- which, in addition to being next to Somalia, is a functioning state with an interest in keeping shipping lanes open -- to turn over suspected pirates to Kenya's justice system. Although this has resulted in some convictions, the Kenyan courts lack the resources to deal with many more malefactors. Other suspected pirates, such as the ten men detained by the Danish navy last year or the nine men seized by the U.S. Navy in February, are simply released due to a lack of "ironclad" evidence. "Somali pirates to date have suffered few consequences, even when they were apprehended," noted Rear Admiral William Baumgartner, of the U.S. Coast Guard.

This question of how to try and process pirates is closely related to the problem of how to deal with terrorists, another species of international outlaw. With the detention policies of former U.S. President George W. Bush generating endless adverse publicity, neither the Obama administration nor any other Western government is eager to hold suspected pirates or terrorists. "No one wants a Guantánamo on the sea," the German defense minister, Franz Josef Jung, said last year. But nor does anyone want to simply set predators loose to strike again. One option would be to negotiate an international agreement that would allow the processing and detention of pirates and terrorists through legal venues such as the International Criminal Court or a specially created UN tribunal. Failing that, the United States and other states should use their national courts to try pirates, much as a U.S. court in New York is now hearing the case of one of the pirates who attacked the Maersk Alabama. Under laws that date back to the nineteenth century, U.S. courts have the authority to try pirates even if they did not attack U.S. vessels.

The entire issue, at least as far as Somali pirates are concerned, could be made largely superfluous if only Somalia had a responsible government capable of policing its own territory. Given that country's long history of chaos, the only sure way to achieve this goal would be through the imposition of an international regency similar to the UN administration in Kosovo. But since U.S. and UN forces were chased ignominiously out of Mogadishu in the early 1990s, there is scant chance they will be willing to return to Somalia and risk another fight.

The odds that Somali piracy will disappear without a robust response from maritime nations are equally remote. Even if bringing law and order to Somalia is beyond the will of the international community, it still should be possible to curb the pirate menace through military and legal initiatives that stop short of actual occupation. All that is required is to apply the lessons of history. If previous generations could defeat the Barbary corsairs, the Caribbean buccaneers, and the Red Sea men, surely this generation can defeat the ragtag sea robbers of Somalia.

More than 20 countries, including China, France, India, Russia, the United Kingdom, and the United States, have responded by sending naval forces to the waters off East Africa. But with an average of only 14 warships focused on combating piracy in the region at any one time, they have been unable to effectively police the more than one million square miles of ocean that is transited by over 33,000 cargo vessels every year. It helps to look at previous plagues of piracy and how they were defeated to understand why these efforts fall short and what type of tactics might prove more effective.