Threatening to undo Johnny Depp’s public relations efforts, Somali pirates have gone on a hijacking spree. Even freighters carrying food aid for their fellow Africans are not immune to their ransom efforts.
A Canadian warship, HMCS Winnipeg, is in the thick of it and has successfully thwarted a number of pirate attacks. On several occasions, the Canadians seized pirates. But after relieving them of their weapons, they actually let the pirates go, to attack again another day.
Canada’s Department of National Defence says it is legally and logistically impractical to try the pirates, but that’s not true. Legal responses to piracy are almost as old as seafaring itself. And Canada’s Criminal Code gives our courts jurisdiction over piracy, wherever it’s committed.
Some countries are trying captured pirates in their home countries; others have handed them to Kenya. British, Russian, and American forces have killed Somali pirates in military operations. Canada says it’s looking into the Kenyan solution, but continues its policy of catch-and-release.
It is more convenient for HMCS Winnipeg to let the pirates go than detain and transfer them to Kenya or Canada. But if convenience was the deciding factor, the ship could have stayed in Esquimalt, B.C. It is lawful under Commonwealth precedent for pirates to be executed summarily if the situation does not permit a more rococo trial. In 1830, British ship HMS Falcon, with 30 crew, seized a pirate ship with 250 men. One report said: “the little crew was in no small difficulty, after the capture of their disproportioned antagonist, what to do with their prisoners, who, as soon as they had an opportunity, showed symptoms of an attempt to overpower them.”
When they reached Ascension Island, the pirates were hanged in batches of 20, with only the pirate captain and first mate spared, to be taken to Bermuda to be tried — all completely lawful, given the exigencies of the case.
Pirates are a special legal class: hostis humani generis, or enemies of all mankind. They are legally similar to terrorists under the Geneva Convention — literally outlaws. We tend to think of the word “outlaw” to mean someone who himself ignores the law. It actually means the opposite: someone who is beyond the pale so far that the law will provide him no protection, and vigilantes, mercenaries, and anyone else who hunts him will be unstopped by the law.
Canada’s namby-pamby approach is much the same that allowed piracy to flourish in the Caribbean in the century after the discovery of America. At first, pirates were tried by an Admiralty court, but under civil law: to be convicted, the pirate had to confess, or be condemned by two eyewitnesses who weren’t his accomplices. In 1536, the Offences at Sea Act permitted the testimony of accomplices and common law procedures, such as a jury. Still, pirates had to be tried in England, and many colonies simply chose to release them.
By 1700, piracy was in full bloom in the Caribbean, and the U.K. responded with a beefier naval presence and a dramatically tougher law, the Act for the More Effectual Suppressing of Piracy. Not only was the requirement of a trial in England (or a jury) abandoned, but a bounty of half of a pirate’s wealth was issued for any mercenary willing to fight him. And any sailor who was armed but didn’t fight off pirates, and any sailor who tried to discourage other sailors from fighting back, forfeited his entire wage and was sentenced to six months in jail.
According to Peter Leeson, author of The Invisible Hook: The Hidden Economics of Pirates, it wasn’t just the increased military presence that turned the tide against the pirates. They were also undone by the economic costs imposed by the new anti-piracy laws. Leeson points out Caribbean pirates, like today’s Somali pirates, are rational economic beings at heart. For example, they had an incentive to treat surrendering sailors gently and to be absolutely brutal with those who resisted — all the better to encourage a culture of surrender among merchant sailors. It’s more economical and less risky. Some 300 years later, that’s the same calculus the Somalis have made — and the insurers of today’s superfreighters, too. It’s cheaper to pay a ransom note than to fight.
That may be a sound economic law, but it’s awful criminal law. Canada shouldn’t be playing the pirates’ game. We should be taking a page from the old HMS Falcon.
Ezra Levant is a Calgary lawyer. He can be reached at [email protected]
