Relationship between LOAC and IHRL

Readings: "Using Force on Land to Suppress Piracy at Sea," by Steven R. Obert

By Kenneth Anderson
Saturday, February 1, 2014, 5:00 PM

Although piracy in the Indian Ocean by Somali pirates is sharply down in the last year or two, threats remain and an increase in attacks is far from impossible.  After all, little has been done to disrupt the land-based organizational, logistical, and financial structures of  Somali piracy.  Nearly all anti-piracy use-of-force actions have taken place at sea, without direct repercussions for the pirates ashore.  Not all, however; on May 14, 2012, a helicopter gunship belonging to the European Union Naval Force attacked a Somali pirate base on land, destroying several fiberglass skiffs.

Although quite a lot of discussion has taken place around legal issues of piracy and piracy suppression at sea, relatively little has taken place regarding the law applicable to attacks against pirates in their bases on land, either as regards jus ad bellum, jus in bello, or international human rights law, and as regards which might apply and in what ways.  Given this lacuna, Lt. Cmdr. Steven R. Obert's article is a welcome addition to the legal literature:  "Using Force on Land to Suppress Piracy at Sea: The Legal Landscape of a Largely Untapped Strategy."

Covering both the jus in bello and jus ad bellum issues - the section on the Security Council's Resolution 1851 (2008), authorizing "all necessary measures," is especially good - the article is well-written and skillfully researched.  Anyone looking at long-run law and policy for addressing Somali piracy would benefit from reading it.   That's so even if, like me, you don't agree with all the framings of the legal alternatives or their interpretations.  I don't think, for example, that the applicable legal regimes are sharply binary - meaning that if it's not within the definition of an armed conflict (IAC or NIAC), it must therefore be governed by human rights law.

The article treats this binary as its fundamental legal framework for analysis, however - a view congenial to some, but not to others.  As a consequence, however, it has to wrestle with why such an operation, even if not rising to the definitional level of an armed conflict or not part of a pre-existing one, should nonetheless should be governed by reference to the laws of armed conflict.  The article says that law of armed conflict "should" apply to what it terms a "gray zone" of conflict - but in framing the question this way, it tacitly accepts that the law does not now regard it this way. 

Whereas the US government's long-held position (as I understand it), avoids having to engage in such legal contortions because it has always regarded these "gray zone" uses of force as governed by the conduct rules of hostilities insofar as they are conducted by means of ... hostilities.  Small-scale hostile actions (such as an attack on a Somali pirate base on land) have traditionally been regarded by the United States as cognizable categories of hostilities short of "armed conflict" or "war" - but still governed as a legal matter as hostilities under the conduct rules of armed conflict.  The rules of engagement might be far more restricted than that - ROE calling for US forces to seek to detain and deliver suspected pirates for trial, for example - but that's policy, not the applicable law of hostilities.

It's a practical and pragmatic position, and follows the traditional fact-based assessment in which who's right or wrong as a matter of jus ad bellum is neither here nor there, and formalities such as declarations of war likewise.  If you are the forces of a state, and start using the tools of hostilities then, as a matter of fact, hostilities are underway. Whether legal or illegal under jus ad bellum, if the armed forces of a state start firing a high calibre machine gun or missiles from a helicopter gunship at targets on the ground, it's the conduct of hostilities as a matter of fact and governed by that law.  The article largely reaches this position, as a matter of pragmatism.  Locked into the binary framework, however, it has to go through many more layers of argument - which are not as convincing, to my mind, as the US government's traditional, practical position.

But of course that recapitulates a much, much larger argument running far beyond forcible responses to piracy on land or at sea; this paper is about the particular issues of pirate bases on land and not about settling fundamental legal frameworks.  Within the paper's legal framework, "Using Force on Land to Suppress Piracy at Sea" offers a welcome analysis of how issues particular to pirates and their land bases might be treated under international law.   Abstract below the fold.

Abstract: 

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.

Dated December 31, 2013; number of pages in PDF file: 34.  Biographical footnote 1 of the paper:

Lt. Cmdr. Steven R. Obert, Judge Advocate General’s Corps, U.S. Navy. LL.M., Columbia Law School (2013); J.D. (with honors), The George Washington University Law School (2007); B.A. (with honors in Economics), Northwestern University (1999). Lt. Cmdr. Obert currently serves as the staff judge advocate to Commander, Carrier Strike Group TWELVE, embarked in USS Theodore Roosevelt (CVN 71). He recently served as international law attorney on the staff of U.S. Naval Forces Europe/Africa in Naples, Italy, and earlier deployed twice and qualified nuclear engineer officer in the fast-attack submarine USS Hampton (SSN 767). The views expressed in this article are those of the author and do not necessarily reflect the views of the United States Government, the Department of Defense, the United States Navy, or any other governmental or nongovernmental entity. All information obtained for this Article was gathered through open sources or unclassified interviews and briefings. He would like to thank Professors Lori Damrosch and Gabor Rona for their helpful comments on previous drafts.