Using Force on Land to Suppress Piracy at Sea: The Legal Landscape of a Largely Untapped Strategy

by Sabrina I. Pacifici on January 3, 2014

Using Force on Land to Suppress Piracy at Sea: The Legal Landscape of a Largely Untapped Strategy, Steven R. Obert, Government of the United States of America – U.S. Navy Judge Advocate General’s Corps. December 31, 2013

“On May 14, 2012, a combat helicopter operated by European Union Naval Forces (EUNAVFOR) struck a pirate base ashore in Somalia, destroying several fiberglass skiffs. It was the first time the use of force ashore to suppress piracy at sea had been publicly acknowledged.  Though recently receding, piracy off the coast of Somalia has had a destabilizing effect on maritime commerce since at least 2008. Five years later, this paper looks at a strategy that has not been attempted on any great scale – the use of military force ashore in Somalia to disrupt and deter piracy off its coast. This analysis is important for two reasons. First, piracy might only temporarily be receding. Little has been done on land in Somalia to disrupt the pirates’ core infrastructure and capabilities. Indeed, as recently as August 2013, 57 hostages and 4 vessels were still being held for ransom. Second, piracy is not a new phenomenon. A close look at the unique legal frameworks that developed in this recent flare-up could yield important lessons for dealing with future problems. This paper analyzes the international legal framework underlying the use of force on land in Somalia to eliminate the pirates’ means of carrying out lethal attacks at sea. Part I addresses the fundamental question of whether the use of military force against pirates and their bases ashore is legally supportable. I argue that because the Security Council has authorized “all necessary measures” pursuant to Somali government consent, the use of force in Somalia to accomplish the goal of suppressing piracy at sea is authorized, consistent with the limitations set forth in the applicable Resolutions. After concluding that the Security Council’s mandate includes military force, Part II examines what body of law would apply to the practical implementation of that mandate. I conclude that even if this unique scenario does not rise to the level of an armed conflict, there are significant reasons why International Humanitarian Law (IHL), also known as the Law of Armed Conflict (or LOAC), should be found to apply to the limited use of force in Somalia. It is true that pirate attacks off the coast of Somalia continue to recede. At the same time, reports indicate that suspected pirates and even innocent fisherman are being killed by overeager and untrained security guards embarked on vessels transiting pirate-infested waters. If the recent ebb of maritime piracy off the coast of Somalia is due to private embarked security teams using unlawful force against pirates, it may be time to rethink any assumption that the use of targeted force ashore is too risky, or less humane. My goal is to propose a framework for how operations can be planned and conducted to satisfy international legal frameworks if the use of force ashore meets desired policy ends.”

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