Refusing to Negotiate: Analyzing the Legality and Practicality of a Piracy Ransom Ban

摘要

In sum, the legal and practical issues surrounding any potential ban on piracy ransom payments are substantial. Legally, a ban is likely inconsistent with the retributive principles of the criminal law, because such a ban would punish those who pay money to pirates under duress without any actual intent to further criminal activity. Further, from an international law standpoint, banning piracy ransoms would be impractical because any such ban would pose collective action problems. Our analysis suggests that states should not even continue to consider a piracy ransom ban unless they are prepared to act in a coordinated fashion. States have little or no hope of deterring maritime piracy unless all states are prepared to criminalize the payment of ransoms to pirates. One state's ban is not only unlikely to have a general deterrent effect, but it is also unlikely to protect its own citizens from being taken hostage. Without total cooperation, a piracy ransom ban could put innocent lives at risk without providing deterrence. Absent a universal ban, governments, of course, can proceed with the status quo and permit individuals to pay ransoms to pirates without any risk of being criminally sanctioned. Governments can also explore other ways to facilitate deterring acts of maritime piracy. For example, governments could become more involved in ransom negotiations. This is not to say that governments should pay ransoms directly. But if national law enforcement agencies were more deeply involved in the negotiation process, they may be able to more effectively gather information that could be used to prosecute the financiers and enablers of piracy, an oft-stated goal of the international community. If those "larger fish" are captured and prosecuted, the result may be that some pirate gangs are deprived of their leaders or the funds they need to stage attacks, thereby deterring some acts of piracy.