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Justa piratica: the ethics of piracy

  • JAMES PATTISON
Abstract

There has been widespread and vociferous condemnation of Somali piracy and several states have used force against the pirates. This reflects the prevailing view of pirates as belligerents and aggressors who act wrongly. In this article, I challenge this view by defending the conditional moral permissibility of piracy. More specifically, I first argue that piracy can be morally permissible when certain conditions are met. These are what I call the principles of ‘justa piratica’, that is, the principles of just piracy. Second, I claim that these conditions are likely to apply to some Somali pirates. Third, as a corollary, I argue that the case of piracy shows that one of the shibboleths of Just War Theory – that a war cannot be just on both sides – is mistaken.

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1 International Maritime Bureau, ‘Piracy Attacks in East and West Africa Dominate World Report’, ICC Commercial Crime Services (19 January 2012), available at: {www.icc-ccs.org/news/711-piracy-attacks-in-east-and-west-africa-dominate-world-report} accessed 31 May 2013.

2 ICC International Maritime Bureau, Piracy and Armed Robbery against Ships: Report for the Period, 1 January–12 December 2012 (London: ICC International Maritime Bureau, 2013), p. 24.

3 Ban Ki-Moon, ‘Remarks at Launch of World Maritime Day Theme for 2011: “Piracy: Orchestrating the Response”’, UN News Centre (4 February 2011), available at: {www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID=1065} accessed 31 May 2013.

4 This orthodoxy is also noted by Oliveira, Gilberto Carvalho, ‘The “New Wars” at Sea: A Critical Transformative Approach to the Political Economy of Somali Piracy’, Security Dialogue, 44:1 (2013), p. 5.

5 Andersen, Lars Erslev, ‘Piracy in the Gulf of Aden: Reflections on the Concepts of Piracy and Order’, in Hvidt, Nanna and Mouritzen, Hans (eds), Danish Foreign Policy Yearbook 2009 (Copenhagen: Danish Institute for International Studies, 2009), p. 80.

6 Shashank Bengali, ‘Suspected Pirates Face Unprecedented Trial in U.S. Court’, Los Angeles Times (1 June 2013).

7 On the problematic use of PMSCs for anti-piracy, see Fitzsimmons, Scott, ‘Privatizing the Struggle against Somali Piracy’, Small Wars & Insurgencies, 24:1 (2013), pp. 84102; Carolin Liss, ‘Privatising the Fight against Somali Pirates’, Murdoch Working Paper No.152 (2008); and Spearin, Christopher, ‘Against the Current? Somali Pirates, Private Security, and American Responsibilization’, Contemporary Security Policy, 31:3 (2010), pp. 553–68. I consider the more general ethical problems raised by the use of PMSCs in various publications, including Pattison, James, ‘Just War Theory and the Privatization of Military Force’, Ethics & International Affairs, 22:2 (2008), pp. 143–62; Pattison, James, ‘Deeper Objections to the Privatisation of Military Force’, Journal of Political Philosophy, 18:4 (2010), pp. 425–47; and Pattison, James, The Morality of Private War: The Challenge of Private Military and Security Companies (Oxford: Oxford University Press, under contract).

8 Hayes, Peter, ‘Pirates, Privateers and the Contract Theories of Hobbes and Locke’, History of Political Thought, 29:3 (2008), p. 461.

9 Grotius, Hugo, Commentary on the Law of Prize and Booty, ed. van Ittersum, Martine Julia (Indianapolis: Liberty Fund, 2006), p. 449.

10 McMahan, Jeff, Killing in War (Oxford: Clarendon Press, 2009) is essentially a defence of this view.

11 See Articles 100–10 of UNCLOS, available at: {www.un.org/depts/los/convention_agreements/texts/unclos/part7.htm} accessed 31 May 2013.

12 Schmitt, Carl, ‘The Concept of Piracy’, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 2:1 (2011, 1937), pp. 27–9. This point is noted by Rech, Walter, ‘Rightless Enemies: Schmitt and Lauterpacht on Political Piracy’, Oxford Journal of Legal Studies, 32:2 (2012), p. 252.

13 Jane Mayer, ‘Outsourcing Torture: The Secret History of America's “Extraordinary Rendition” Program’, The New Yorker (8 February 2005).

14 See, for example, Klein, Axel, ‘The Moral Economy of Somali Piracy – Organised Criminal Business or Subsistence Activity?’, Global Policy, 4:1 (2013), pp. 94100; and Samatar, Abdi Ismail, Lindberg, Mark, and Mahayni, Basil, ‘The Dialectics of Piracy in Somalia: The Rich versus the Poor’, Third World Quarterly, 31:8 (2010), pp. 1377–94.

15 Mabee, Bryan, ‘Pirates, Privateers and the Political Economy of Private Violence’, Global Change, Peace & Security, 21:2 (2009), p. 140.

16 There may potentially be other just causes for the resort to piracy, such as to obtain some of the conditions that are necessary to enjoy a decent life. In this article, I leave such causes aside and concentrate on basic needs since this seems least controversial.

17 Note here that I draw a distinction, common in other fields (for example, criminal law), between an agent's intentions and their motives. An agent's intention is the objective or purpose that they wish to achieve with their action. On the other hand, their motive is their underlying reason for acting. See Pattison, James, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene? (Oxford: Oxford University Press, 2010), pp. 154–6.

18 To some extent, I build upon here Lango, John, ‘The Just War Principle of Last Resort: The Question of Reasonableness Standards’, Asteriskos: Journal of International and Peace Studies, 1:1–2 (2007), pp. 723.

19 Note that I revise this principle below.

20 Note that I claim below that this is not a strict principle.

21 Lazar, Seth, ‘Responsibility, Risk, and Killing in Self-Defense’, Ethics, 119:4 (2009), p. 706.

22 I consider this point further at the end of this section.

23 See Murphy, Martin N., Somalia: The New Barbary? Piracy and Islam in the Horn of Africa (London: Hurst & Co., 2011), p. 18.

24 David Axe, Somali, Redux: A More Hands-Off Approach, Cato Institute (2009), available at: {www.cato.org/pubs/pas/pa649.pdf} accessed 31 May 2013, p. 6.

25 Lehr, ‘A Western Armada’.

26 Percy, Sarah and Shortland, Anja, ‘The Business of Piracy in Somalia’, Journal of Strategic Studies, 36:4 (2013), p. 545, fn. 27.

27 See Murphy, Somalia, p. 21. Also see Jonathan Clayton, ‘Somalia's Secret Dumps of Toxic Waste Washed Ashore by Tsunami’, The Times (4 March 2005). Claims of toxic dumping are also made by the pirates and the local community. See Bahadur, Jay, The Pirates of Somalia: Inside their Hidden World (rev. edn, New York: Vintage Books, 2011), p. 183.

28 Clayton, ‘Somalia's Secret’.

29 Andrew Harding, ‘Postcard from Somali Pirating Capital’, BBC News, (16 June 2009), available at: {news.bbc.co.uk/1/hi/world/africa/8103585.stm} accessed 31 May 2013. See, further, Bahadur, The Pirates of Somalia, who details discussions with numerous pirates where they claim that responding to illegal fishing is their rationale. Also see Murphy, Somalia, p. 25.

30 Peter Lehr, ‘A Western Armada is Not the Way to Sink Somalia's Pirates’, The Guardian (19 November 2008).

31 Murphy calls this ‘defensive piracy’, Somalia, p. 17. Also see Axe, Somali, Redux, p. 6; Murphy, Martin N., ‘The Troubled Waters of Africa: Piracy in the African Littoral’, Journal of the Middle East and Africa, 2:1 (2011), pp. 6583; and Samatar, Lindberg, and Mahayni, ‘The Dialectics of Piracy in Somalia’.

32 Hansen, Stig Jarle, ‘The Dynamics of Somali Piracy’, Studies in Conflict & Terrorism, 35:7–8 (2012), p. 523. Also see Hansen, Stig Jarle, ‘Debunking the Piracy Myth: How Illegal Fishing Really Interacts with Piracy in East Africa’, The RUSI Journal, 156:6 (2011), pp. 2630.

33 Indeed, fishing vessels are not reported to be the main attack of pirates in general (with only five reported attacks in 2012). ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships, p. 14.

34 As Justin Hastings puts it, ‘cargo ships attacked hundreds of miles from Somalia's coast have little to do with illegal fishing’, ‘Understanding Maritime Piracy Syndicate Operations’, Security Studies, 21:4 (2012), p. 687.

35 Hansen, ‘Debunking the Piracy Myth’, p. 30. Bahadur, The Pirates of Somalia, also generally doubts the genuineness of several pirates’ claims to be acting in response to illegal fishing.

36 Monkhaus, Ken, ‘Dangerous Waters’, Survival: Global Politics and Strategy, 51:1 (2009), p. 23.

37 Murphy, ‘The Troubled Waters of Africa’, p. 78. Chalk, Peter and Hansen, Stig Jarle suggest that underreporting may be by as much as 50 per cent, ‘Present Day Piracy: Scope, Dimensions, Dangers, and Causes’, Studies in Conflict & Terrorism, 35:7–8 (2012), p. 499. The point about embarrassment is made by Hansen, ‘Debunking the Piracy Myth’, p. 28.

38 Murphy, Somalia, p. 18.

39 Ibid., p. 25.

40 Stig Jarle Hansen, Piracy in the Greater Gulf of Aden: Myths, Misconception and Remedies, Norwegian Institute for Urban and Regional Research (2009), p. 35. It should be noted that, in various publications, Hansen rejects strongly the suggestion that poverty is the sole cause of piracy. For instance, he argues that the areas in which piracy has been concentrated are ‘comparatively rich’, ‘The Dynamics of Somali Piracy’, p. 527. Rather, he argues that, in general, piracy is explained mainly by six factors, one of which is poverty (the others are culture, exclusion and relative deprivation, organisational sponsorship, failure of counter-strategies, and weak/weakening state/institutional structures), Piracy in the Greater Gulf of Aden, p. 7.

41 To be sure, when the just cause is others’ dire situation, there is a weaker case for presuming that the pirate will meet the requirement of right intention and right motive.

42 Klein, ‘The Moral Economy of Somali Piracy’, p. 96.

43 Ibid., pp. 96, 98.

44 Hansen, Piracy in the Greater Gulf of Aden, p. 34.

45 See Percy and Shortland, ‘The Business of Piracy’ for the organised criminal activity claim. This is contested by Klein, ‘The Moral Economy of Somali Piracy’, and Hansen, Piracy in the Greater Gulf of Aden, p. 41, who argues that pirate groups lack the advanced structures suggested by many observers.

46 Hansen, Piracy in the Greater Gulf of Aden, p. 12.

47 The Economist, ‘Piracy: No Stopping Them’, The Economist (3 February 2011), available at: {www.economist.com/node/18061574/} accessed 31 May 2013.

48 Frank Gardner, ‘‘Growing Risk of Deaths’ at the Hands of Somali Pirates’, BBC News (4 October 2010), available at: {www.bbc.co.uk/news/world-africa-11470238} accessed 31 May 2013.

49 Bahadur, The Pirates of Somalia, p. 19.

50 Ibid., p. 61.

51 Ibid., pp. 205–21.

52 Percy and Shortland, ‘The Business of Piracy’, pp. 556–7. Also see Murphy, Somalia, p. 106.

53 Percy and Shortland, ‘The Business of Piracy’, p. 557.

54 This is not to deny that the pirates can be violent. Perhaps the incident that has captured most media attention was the killing of four Americans on a yacht (it is unclear whether this was in response to a US attack to free the hostages). See Ewen MacAskill and Xan Rice, ‘Somali Pirates Kill Four US Hostages’, The Guardian (22 February 2011). It has also been widely reported that the pirates have become more violent since 2010.

55 Marchal, Roland, ‘Somali Piracy: The Local Contexts of an International Obsession’, Humanity: An International Journal of Human Rights, Humanitarianism, and Development, 2:1 (2011), p. 47. Also see Channel 4 News, ‘The “Benefit” of Somalia's Pirates’, Channel 4 News (25 October 2009), available at: {www.channel4.com/news/articles/world/Africa/the+aposbenefitapos+of+somaliaaposs+pirates/3399027.html} accessed 31 May 2013.

56 Liss, ‘Privatising the Fight’, p. 6. To the extent that the pirates enjoy the support of the local community, they may be viewed as similar to Eric Hobsbawm's notion of social bandits, in that they act illegally but are admired and revered by the local population. Hobsbawm, Eric, Bandits (London: Weidenfeld & Nicolson, 2000), p. 20.

57 Anja Shortland, Treasure Mapped: Using Satellite Imagery to Track the Development Effects of Somali Piracy, Chatham House Africa Programme Paper, AFPPP 2012/01 (2012). Several others make similar points. See, for example, Oliveira, ‘The “New Wars” at Sea’, p. 8. For an alternative view, see Beloff, Jonathan, ‘How Piracy Is Affecting Economic Development in Puntland, Somalia’, Journal of Strategic Security, 6:1 (2013), pp. 4754.

58 Pogge, Thomas, ‘World Poverty and Human Rights’, Ethics & International Affairs, 19:1 (2005), p. 5.

59 Pogge, ‘World Poverty’; Pogge, Thomas, World Poverty and Human Rights (2nd edn, Cambridge: Polity, 2008).

60 Bronwyn Bruton, ‘Somalia: A New Approach’, Council on Foreign Relations, Special Report No. 52 (March 2010).

61 International Shipping Industry, ‘Key Facts: Overview of the International Shipping Industry’, available at: {www.ics-shipping.org/shippingfacts/home/} accessed 31 May 2013.

62 The ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships, p. 24.

63 Ibid., p. 5.

64 Von Hoesslin, Karsten, ‘Piracy and Armed Robbery at Sea in Southeast Asia: Organized and Fluid’, Studies in Conflict & Terrorism, 35: 7–8 (2012), pp. 542–52.

65 de Montclos, Marc-Antoine Pérouse, ‘Maritime Piracy in Nigeria: Old Wine in New Bottles’, Studies in Conflict & Terrorism, 35: 7–8 (2012), p. 535.

66 ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships, p. 21.

67 Percy and Shortland, ‘The Business of Piracy’, p. 546. Samatar, Lindberg, and Mahayni suggest that Somali piracy differs from piracy elsewhere, given that Somalia is a failed state, ‘The Dialectics of Piracy in Somalia’, p. 1381.

68 It is unclear whether piracy elsewhere is likely to meet the requirements of proportionality and so do not consider this condition here.

69 Kiourktsoglou, George and Coutroubis, Alec argue that Filipinos comprise 26 per cent seajacked crews, despite being only 6 per cent of the seafarers. (Indian, Chinese, Thai, and Ukrainian seafarers are the next most seajacked nationalities), ‘Is Somali Piracy a Random Phenomenon?’, Journal of Maritime Affairs, 11:1 (2012), p. 59.

70 That said, the threat of Somali piracy has meant that ship owners reportedly doubled the wages of crews. Paul Betts, ‘Somali Pirates on Private Sector Radar’, Financial Times (15 June 2009). Bahadur also claims that crewmembers receive hazard pay of an extra 25 to 100 per cent for serving in areas at risk of piracy, The Pirates of Somalia, p. 148.

71 For instance, Filipino officers reportedly earn about $2,400 per month, with captains sometimes earning more than $10,000 per month, with lower-ranking seafarers receiving a much lower wage, ‘Philippines Becomes Supply Line for World's Fleets’, Asahi Shimbun (9 October 2011).

72 See Bahadur, The Pirates of Somalia, pp. 140–1; Hansen, Piracy in the Greater Gulf of Aden, p. 36.

73 See, for example, May, Larry, ‘Contingent Pacifism and the Moral Risks of Participation in War’, Public Affairs Quarterly, 25:2 (2011), pp. 95111.

74 See McMahan's discussion of the conscientious driver in Killing in War, pp. 165, 177. As noted above, I do not intend here to endorse (or deny) McMahan's account of agent-responsibility. The point about the distribution of harms could also be made (although may apply to fewer individuals) about those who are to some extent morally culpable. I leave aside the issue of the proper distribution of harm when it is divisible, as well as the question of post facto compensation.

75 Øverland, Gerhard, ‘602 and One Dead: On Contribution to Global Poverty and Liability to Defensive Force’, European Journal of Philosophy, 21:2 (2013), pp. 285–8. Øverland claims that this point holds even if the threat is overdetermined.

76 Satz, Debra, ‘What Do We Owe the Global Poor?’, Ethics & International Affairs, 19:1 (2005), pp. 50–1.

77 Pogge, Thomas, ‘Severe Poverty as a Violation of Negative Duties’, Ethics & International Affairs, 19:1 (2005), pp. 7883.

78 Pogge, ‘Severe Poverty’.

79 See Quong, Jonathan, ‘Killing in Self-Defense’, Ethics, 119:3 (2009), pp. 507–37.

80 Quong, ‘Killing in Self-Defense’, p. 516.

81 By contrast, McMahan, Killing in War, pp. 170–1, asserts that, other things being equal, reasons of partiality do not render it permissible to kill threats who are not culpable or agent-responsible. It would not, he claims, overcome the presumption against intentional killing and there is ‘nothing’ that relevantly distinguishes such threats from Innocent Bystanders. Space precludes evaluating McMahan's argument here, but Quong, ‘Killing in Self-Defense’, pp. 527–32, presents a robust reply. It should also be noted that the pirates who act on the agent-relative prerogative might themselves be subject to permissible defensive force by Innocent Threats.

82 The most well-known defence of the relevance of this distinction is Quinn, Warren, ‘Actions, Intentions, and Consequences: The Doctrine of Double Effect’, Philosophy & Public Affairs, 18:4 (1989), pp. 334–51.

83 Quong, ‘Killing in Self-Defense’, p. 525.

84 See, McMahan, Jeff, ‘Who is Morally Liable to be Killed in War?’, Analysis, 71:3 (2011), p. 556.

85 Bueger, Christian, Stockbruegger, Jan, and Werthes, Sascha, ‘Pirates, Fishermen, and Peacebuilding: Options for Counter-Piracy Strategy in Somalia’, Contemporary Security Policy, 32:2 (2011), pp. 356–81. Piracy also has been claimed to lead to the corruption of Puntland's governance, Percy and Shortland, ‘The Business of Piracy’, p. 560, and ‘bad habits’ in certain towns such as inflation, prostitution, and alcoholism, Oliveira, ‘The “New Wars” at Sea’, p. 8.

86 See Rothe, D. L. and Collins, V. E., ‘Got a Band-Aid? Political Discourse, Militarized Responses, and the Somalia Pirate’, Contemporary Justice Review, 14:3 (2010), pp. 329–43.

87 Percy and Shortland, ‘The Business of Piracy’, p. 545.

88 Beloff, ‘How Piracy Is Affecting Economic Development’, p. 51.

89 Bahadur, The Pirates of Somalia, pp. 226–33.

90 In one report, the split is noted as 30 per cent to the pirates involved in the actual hijacking, 10 per cent to the ground militia, 10 per cent to the local community, 20 per cent to the financer, and 30 per cent to the sponsor. Mary Harper, ‘Chasing the Somali Piracy Money Trail’, BBC News (24 May 2009), available at: {news.bbc.co.uk/1/hi/world/africa/8061535.stm} accessed 31 May 2013. There are also several accounts of different splits in Bahadur, The Pirates of Somalia.

91 Hansen, Piracy in the Greater Gulf of Aden, pp. 34, 40.

92 Wenar, Leif, ‘Property Rights and the Resource Curse’, Philosophy & Public Affairs, 36:1 (2008), pp. 232.

93 For a different sort of defence of the legitimate authority (for non-state entities), see Finlay, Christopher, ‘Legitimacy and Non-State Violence’, Journal of Political Philosophy, 18:3 (2009), pp. 287312.

94 For an account of why the anti-piracy norms of the international system developed, see Thomson, Janice, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe (Princeton: Princeton University Press, 1994). Thomson emphasises states’ desires to exert control over force, which necessitated the limiting of piracy. For alternative accounts, see Mabee, ‘Pirates, Privateers and the Political Economy of Private Violence’; and Murphy, Martin, ‘Counter-Piracy in Historical Context: Paradox, Policy, and Rhetoric’, Studies in Conflict & Terrorism, 35:7–8 (2012), pp. 507–22.

95 For an interesting discussion of these issues in relation to gun ownership, see LaFollette, Hugh, ‘Gun Control’, Ethics, 110:2 (2000), pp. 263–81.

96 See, further, Wheeler, Nicholas J., Saving Strangers (Oxford: Oxford University Press, 2000). Wheeler highlights the constraining and enabling significance of perceived legitimacy in the context of humanitarian intervention.

97 There is a third option: ‘Restriction’ maintains that piracy is permissible when certain conditions are met. The problem, however, with Restriction is that it would be difficult to develop a set of criteria to govern piracy that would be practicable. For instance, it is likely to be difficult to develop criteria that, first, distinguish accurately and clearly between those pirates who act permissibly and those who do not and, second, would encourage only permissible piracy and not impermissible piracy as well. As such, Restriction would face similar problems to the (numerous) attempts to develop formal criteria to govern humanitarian interventions. On these problems, see Pattison, Humanitarian Intervention and the Responsibility to Protect, pp. 219–27.

98 Marchal, ‘Somali Piracy’.

99 Holmes, Robert, On War and Morality (Princeton: Princeton University Press, 1989), p. 151.

100 Primoratz, Igor, ‘Michael Walzer's Just War Theory: Some Issues of Responsibility’, Ethical Theory and Moral Practice, 5:2 (2002), p. 228.

101 To be sure, McMahan also notes at one point that wars can be just on both sides, although his point is different to mine: he argues that both sides can possess causes that are just and unjust. McMahan, Jeff, ‘Just Cause for War’, Ethics & International Affairs, 19:3 (2005), pp. 121.

102 See, further, Quong, ‘Killing in Self-Defense’, pp. 520–1, who argues that it can be permissible for individuals to fight back, that is, to kill someone who is about to kill them.

103 It might be thought that it is preferable to have PMSCs, rather than navies, engage in anti-piracy since the latter engage in offensive force (such as naval patrols on the hunt for pirates) whereas the latter use defensive force (such as providing armed guards for ships to deter pirates and to respond to attacks). For an engaging account of the difference in the type of force in anti-piracy, see Spearin, Christopher, ‘Private Military and Security Companies v. International Naval Endeavours v. Somali Pirates: A Security Studies Perspective’, Journal of International Criminal Justice, 10:4 (2012), pp. 823–37. More generally, Ulrich Petersohn interestingly considers how the use of PMSCs is integrated in, and legitimated by, the defensive force frame, ‘Reframing the Anti-Mercenary Norm: Private Military and Security Companies and Mercenarism’, unpublished paper on file with author.

However, the difference between offensive and defensive force is of limited moral significance in this context. What seems to be most worrying about offensive force against pirates is that it may harm those who are not liable to attack, such as certain pirates, certain crewmembers, and innocent bystanders. Yet, PMSCs’ defensive force may also be problematic in this regard. According to Fitzsimmons, there is a worry that using armed guards on ships could lead to escalation by provoking firefights with determined pirates. This could in turn lead to morally problematic harm to certain non-liable crewmembers (and, it can be added, to certain non-liable pirates), as well as to potentially serious ‘safety and environmental hazards if a vessel transporting flammable or toxic cargo’ is damaged (which could, in turn, harm non-liable third parties), ‘Privatizing the Struggle against Somali Piracy’, p. 93. Moreover, he notes that even though offensive, navies often limit the amount of harm inflicted on pirates, since they tend not to kill pirates but instead confiscate their weapons and then later release them (despite some notable exceptions).

104 See, for example, Lehr, ‘A Western Armada’.

* An earlier version of this article was presented as part of the MANCEPT Seminar Series, University of Manchester, October 2011. I would like to thank the participants for their suggestions, as well as Jon Quong, Milla Vaha, and the three anonymous reviewers for their very helpful written comments. The author can be contacted at: {}.

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