This chapter discusses two issues that are likely to arise as a result of international efforts to combat piracy. First, whereas Chapter 5 examined the use of force by states against pirates, this chapter explains the law that controls the use of force by private actors, including the international and domestic legal constraints governing the use of force that private armed guards and other individuals may exercise against Somali pirates. Second, this chapter explores the potential ramifications for criminal prosecutions of piracy that may result when suspected pirates are mistreated by capturing authorities.

THE LEGALITY AND LIMITS OF USE OF FORCE BY PRIVATE ACTORS AGAINST PIRATES

Most commentators agree that states may not use force against pirates because pirates are not participants in armed conflicts. Any force used must fall within the constraints of the force permissible within a law enforcement framework. Customary international law (CIL) also forbids sovereigns from using letters of marque to authorize private actors to use force against pirates. But attacked private vessels may almost certainly use reasonable, proportionate force against pirates as a means of self-defense.

This section proceeds in four parts. First, it examines the modern use of private armed guards to ward off the threat of piracy. Second, it asks whether states can authorize private armed guards to use force against pirates. Third, it explores the limits of the defensive use of force by private actors who face attack by pirates. And fourth, it discusses the potential for civil liability of both private actors and the United States government.

Modern Piracy and the Use of Private Contractors to Repel Pirate Attacks

Piracy is an issue of international concern. Between 2008 and 2012 alone, Somali pirates attacked 800 ships and took 3,400 hostages. Perhaps driven by a combination of the government's inability or unwillingness to police its shores and the challenging economic situation of so many Somalis, pirates from Somalia have turned to ravaging the busy shipping trade along Africa's eastern coast.