Status of Pirates: Combatants Under International Humanitarian Law Or Criminals Under Human Rights Law?
Abstract:The purpose of this article is to clarify whether under current international law, pirates are to be treated as combatants or criminals. It also considers implications of treating pirates as combatants. Under international law, piracy is a private act perpetrated by private individuals for private gains and accordingly pirates are considered as criminals. They are required to be treated under human rights rules applicable in peacetime. International law rules applicable to the repression of piracy are contained in the United Nations Convention on the Law of the Sea (UNCLOS), 1982. Under UNCLOS every state has the right to arrest, capture and prosecute pirates under its domestic law. UNCLOS did not consider pirates as combatants. Combatant is a status under the laws of war which is to be determined by the application of certain rules and criteria. These rules and criteria are contained in the Geneva Conventions of 1949 and their Additional Protocol I. The rules apply only when an armed conflict exists while the status is available only if a conflict is international. Currently, the status is restricted to regular armed forces, resistance movements and militias belonging to the armed forces who have complied with obligation to distinguish themselves and carry their arms openly, and persons participating in levée en masse (civilians who took up arms against the invading forces). Combatants are entitled to directly participate in hostilities and have right to be treated as prisoners of war if captured. Currently, international law does not view acts of piracy as acts of armed conflict and pirates do not satisfy combatant status criteria hence laws of war do not apply. Analysis of Security Council resolutions which authorized the use of all necessary means to repress piracy demonstrated that pirates are still considered as criminals and are to be treated under human rights rules applicable in peacetime. Treating pirates as combatants would be counter-productive and would defeat the purpose of the fight against piracy because it would entail giving them the right to participate in hostilities, the right not to be prosecuted for taking up arms and the right to be treated as prisoners of war with all its attendant consequences
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