Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
$3.25 for Key Lime in Havana; $5.25 for Chocolate Crème in St. Maartens; $4.00 for Cherry in the Virgin Islands. The these are the pie rates of the Caribbean.
Caution: this article is rated “Arrrgh”. The rest of the article is about piracy.
The attack on drug-carrying boats has recently been in the news. The U.S. has been dealing with pirates since its founding. One of our first naval heroes – John Paul Jones – was called “that pirate Jones” by the British after he raided their shores. True, his crew stole the silver plate from the Lord of one of the places he raided (his birthplace), but Jones returned it all once he found out. Funny aside, Jones’s real last name was Paul. He added Jones to avoid a murder charge. That would make his mother Mrs. Paul, but not of fish stick fame.
At the turn of the century (1800), pirates from North Africa (the “Barbary pirates”) captured American and European merchant ships and enslaved their crews. We paid their rulers tribute to stop piracy but it continued. They even captured a U.S. warship, the Philadelphia. Charles Pickney, fed up with the treachery, said “millions for defense, but not one cent for tribute”. President Jefferson dispatched the Navy and proto-Marines to stop the piracy. The Navy set fire to the Philadelphia in the harbor of Tripoli and rescued captured sailors. Napoleon called the raid on Tripoli by Stephen Decatur, the most daring of that century. Meanwhile, the small group of Marines traversed the desert to attack Tripoli leading to the first stanza of the Marine Corps hymn “from the Halls of Montezuma to the shores of Tripoli”.
A ship in international waters is required, under the United Nations Conference of the Law of the Seas (“UNCLOS”) to sail under the flag of a specific nation. If a ship does not, it is legally considered a stateless vessel. A ship in international waters that is not flying a national flag is categorized in international law the same way a pirate is. These ships have absolutely no national or international protections, and no immunity from interference by other states. You cannot commit a war crime against them.
UNCLOS Articles 92, 94, 110, and customary maritime law spell out the consequences clearly:
- A flagged ship is an extension of its flag-state’s sovereignty. A stateless vessel is not. This matters because “war crimes” presuppose protected persons or protected property. A stateless vessel is legally unprotected.
- Any state may stop, board, search, seize, or disable, a stateless vessel. UNCLOS Article 110 explicitly authorizes boarding and seizure. The law does not require states to risk their own personnel or assets while doing so. Disabling a vessel that refuses inspection, including firing on it, is legally permitted under both UNCLOS and long-established state practice.
- War crimes require an armed conflict. You cannot commit a “war crime” outside an armed conflict. War crimes occur only within the context of international humanitarian law. Enforcing maritime law against a stateless vessel is a law enforcement action, not an armed conflict.
- Lethal force may be used when a vessel refuses lawful orders. The International Maritime Organization’s “Use of Force” guidance for maritime interdiction recognizes that disabling fire, even lethal force, is lawful when a vessel refuses lawful boarding, attempts to flee, poses a threat, or engages in illicit activities such as piracy or narcotics trafficking.
- Sinking a stateless vessel is not prohibited by UNCLOS. UNCLOS permits seizure of a stateless vessel and leaves the means entirely to the enforcing state so long as necessity and proportionality are respected. If the vessel flees, attacks, or refuses lawful commands, sinking it is legally permissible. Many states routinely do this to drug-smuggling vessels (e.g., semi-submersibles) without it ever being treated as a war crime.
- No flag: no jurisdictional shield. The entire reason international law requires ships to fly a flag is to prevent this exact situation. Flagless vessels are legally vulnerable by design.
Because a stateless vessel has no protected status, because UNCLOS authorizes interdiction of such vessels, because lethal force may be used in maritime law enforcement when necessary, and because war crimes require an armed conflict that is not present here, sinking an unflagged ship in international waters is not a war crime.
That is not to say we should go about sinking boats willy-nilly. But we should look at the context. Is it an open top, high speed boat in international waters carrying plastic bags coming from an area known to produce or refine drugs or does it have nets and fishing poles?
Do you know why you can’t play cards with a pirate? They are always standing on the deck!
This article ignores relevant facts both about the administration’s position and about UNCLOS.
First, the administration has explicitly claimed that we are in an armed conflict with the drug dealers. That is how they have justified immediate lethal force rather than the boarding and seizure set out by UNCLOS. You can’t have it both ways: that it is an armed conflict when we want to justify immediate lethal strikes without any warning or attempt to board and seize, but gosh, no, not an armed conflict at all when we want to dodge the question of war crimes.
Second, a close reading of UNCLOS Article 110 shows that the failure to fly a physical flag does not automatically create the presumption of statelessness. “1. [A warship] is not justified in boarding it unless there is reasonable ground for suspecting that: … (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.” Note the “refusing to show its flag” language in (e), meaning no physical national piece of cloth is waving, is separate from the clause (d) about being without nationality. They told us they have solid intelligence on the boats. The first boat struck was known to have come from Venezuela, and they say they knew the identities of all the people – which would include the owner of the boat, a Venezuelan who was long involved in smuggling both drugs and people. Therefore there was no reason to presume the boat was genuinely stateless as defined by law despite the lack of a piece of cloth.
For more information, see: https://lawpublications.barry.edu/cgi/viewcontent.cgi?article=1120&context=facultyscholarship
The above cites the 1994 3rd Circuit Court of Appeals case United States v Rosero, which deals with the question of statelessness.