Since the time of Grotius, a pirate has been considered to be hostis humanis generis, an enemy of mankind.
So write Ilias Bantekas and Susan Nash in their book International Criminal Law (2003). As a global enemy, the pirate was subject to prosecution in any country that managed to exercise jurisdiction over him -- or, in the case of pirates like my IntLawGrrls transnational foremother Grace O'Malley -- her. (credit)
Thus it's a bit of a surprise to read that Britain, the country that once claimed to rule the waves, is shirking from seizure of the 21st C. pirates about whom IntLawGrrl Naomi Norberg posted earlier this month. London's Sunday Times of London reported that the Foreign Office has instructed the Royal Navy "not to detain pirates because doing so may breach their human rights." The Times' Marie Woolf reports of the further concern regarding the "risk that captured pirates could claim asylum in Britain." This fear of inability to return the captives likely stems from Britain's non-refoulement obligations, explicit in treaty provisions such as Article 33 of the Convention relating to the Status of Refugees and Article 3 of the Convention Against Torture, and deemed implicit in provisions such as Article 3 of the European Convention on Human Rights and Article 7 of the International Covenant on Civil and Political Rights:
The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.
Not all Britons share this view. The Times quoted Julian Brazier, a Conservative Member of Parliament:
'These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.'
No doubt the notion that even hostes humanis have human rights also will trouble those who would use the old rule of free-rein-to-fight-pirates as a template for today's treatment of persons caught up in what the Bush Administration calls its "Global War on Terror."
(Cross-posted at Slate's Convictions blog. Subsequently, co-bloggers Benjamin Wittes posted this response, and Deborah Pearlstein this reply. Thanks to Berkeley Law student Lindsay M. Harris for the head's up on the Times story.)