Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations

Abstract

On January 21, 2006, a guided missile destroyer accomplished the U.S. Navy's first capture of suspected pirates in recent memory. As the Staff Judge Advocate for the NASSAU Strike Group, the Author advised the seizure, led the onboard investigation, oversaw the shipboard detentions, and testified at the trial in Kenya. Drawing upon this experience, the Author constructs a comprehensive legal and strategic theory for piracy. He defines the legal status of pirates and derives the due process rights that should be afforded them. The Article also analyzes the evolution of customary and positive international law to demonstrate that, contrary to conventional wisdom, sufficient international law exists to counter the reemergence of piracy. It is also sufficient to tackle the growing threat of piratical terrorism as well. Finally, given the state of international law and the status of pirates as international maritime criminals, the Author argues that the United States should initiate seven domestic reforms and two regional reforms to achieve optimal deterrence, a naval posture sufficiently robust to minimize the economic, environmental, and humanitarian costs of piracy through strong multi-lateral and unilateral deterrence efforts, while maximizing the due process rights for detained individuals.

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