INTRODUCTION

This chapter examines the difficulties in transposing the doctrine of command responsibility from its historic mooring in the laws and customs of warfare into the context of piracy prosecutions. To be clear at the outset, there is no nation on earth that currently incorporates a domesticated analogue to the command responsibility regime into its domestic criminal law for ameliorating the effects of piracy. At the same time, in view of the persistent threats posed by transnational piracy and the demonstrated inability of local law enforcement mechanisms to solve the problem, the question of whether an alternative form of liability is both suited to and sufficient for addressing acts of piracy is wholly appropriate. In the context of an armed conflict, the independent emergence of the principle that the commander's orders operate with the force of law to limit the application of violence in widely disparate cultures and historical periods suggests that a viable theory of command responsibility is more than just a legal technicality; it is fundamental to the nature of warfare itself. By logical extension, commanders or those who exercise de facto military authority may be held accountable and prosecuted for the acts of their subordinates.

As the other chapters in this volume have aptly documented, the status quo with respect to piracy prosecutions provides insufficient leverage to make a lasting dent in the commission of pirate acts. For every lower level perpetrator prosecuted, there are dozens who are ready and willing to take their place because of the financial incentives, the social consciousness of the perpetrators, and simple human greed. Prosecutions using existing mechanisms simply cannot eradicate the threat. Deterrence is, at best, a flimsy aspiration when it comes to the effects of prosecutions on potential low-level perpetrators. Extending the doctrine of command responsibility into the context of piracy could, in theory, provide another tool for targeting the real authority figures who control pirate operations.