Wait a Minute: Don't We Want the Royal Navy to Detain Pirates?

Slate's blog on legal issues.
April 26 2008 8:25 AM

Wait a Minute: Don't We Want the Royal Navy to Detain Pirates?

Diane’s post highlights an excellent example of the often perverse consequences of human-rights policies for, well, human rights.

There is no doubt that modern pirates commit horrible crimes against civilians; that's their chosen profession. Yet because of the combination of British asylum law and the international obligation not to return people to countries that may mistreat them, the Foreign Office has apparently instructed the Royal Navy not even to detain them on the high seas. Diane acknowledges that this solicitude for the human rights of pirates "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.' " But it seems to me it should also trouble those concerned with the human rights of the civilians whom these pirates kill, rob, and terrorize.

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The basic problem is that while we evaluate government actions in human rights terms, we generally don’t evaluate government inactions in human rights terms. So the decision to detain a pirate we see as potentially infringing on his human rights in any number of ways. The decision, however, willfully to ignore him—knowing full well what he is doing to innocent people—we perversely see as a victory for human rights. The government, after all, has declined to detain him. In the example Diane cites from the Sunday Times of London, it has declined to return him to Somalia, where he could "face beheading for murder or having a hand chopped off for theft." But the result is a disregard for the human rights of the civilians unlucky enough to be terrorized by non-state, as opposed to state, actors. This is not a good trade in human-rights terms.

This is not a problem limited to piracy. We consistently talk about releases from Guantanamo as a human-rights good—without much consideration for the human-rights consequences of releasing admitted combatants (as many detainees there are) who may then go on to kill civilians (as some have). Such releases should present a human right puzzle, not an easy call. In Afghanistan, some European militaries go so far as to generally decline to detain Taliban fighters for any length of time—the result being that unless the Afghan government or the U.S. military takes custody of them, people committed to killing Afghan civilians get turned loose to do so. I can’t see by what calculation—moral, legal, or pragmatic—such human-rights policies represent a simple net human-rights gain.

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