Challenge #4: How can pirates be held to account for their actions?
Taken from Captain Charles Johnson.
A General History of the Robberies and Murders of the Most Notorious Pirates.
Edited by David Cordingly USA: Lyons Press, 1724.
Pirate history is written by suppressors, not the pirates themselves. Naval records and courtroom documentation often provide the only historical evidence of a pirate's existence but for every pirate prosecuted, most pirates never encountered either a navy or a courtroom.
Hundreds more succumbed to disease and alcoholism, or escaped consequences entirely: either slipping back into legitimate society as authorised sea-raiders, leaving the business after a successful raid, or disappearing from public and private records.
Even today, the most prominent form of legal intervention is not prosecution, but amnesty.
‘A merry Life and a short one’
At the heart of the challenge of holding pirates to account for their actions lay the deeply engrained anti-authority persona of many pirates. In his study of Atlantic pirates in the early 18th century, Marcus Rediker wrote, ‘everything pirates did reflected their deep alienation from most aspects of European society.’ Said one pirate at his 1718 hanging:
‘Yes, I do heartily repent; I repent I had not done more Mischief, and that we did not cut the Throats of them that took us, and [addressing the authorities] I am extreamly sorry that you an’t hanged as well as we.’
Historical prosecution case study: Captain William Kidd (1645 - 1701)
In British piracy history, one of the most infamous pirate trials was for Captain William Kidd.
Kidd’s case exposes one of the key historical challenges in prosecuting pirates in British courts before the 18th century: the thin line between authorised sea-raiding and piracy.
Kidd was undoubtedly a highly accomplished Scottish sea-captain, but there is no historical consensus on whether he was a pirate or a legitimate pirate hunter.
According to historian Richard Zacks, long before he was charged with piracy, the combination of his belligerent personality, his ill-treatment of crew members (standard practice for sea-captains at the time) and his cantankerous attitude towards naval commanders had encouraged the spread of rumours of his ‘real’ identity as a pirate by those he put offside.
His ill-gotten reputation fed into the eventual decision by the English Admiralty to prosecute Kidd for piracy and murder. His defence hinged on the production of evidence of the legitimacy of his capture of the Quedagh Merchant, an Indian ship carrying Armenian merchants and a lucrative cargo, but licensed by France: England’s enemy.
His personality made Kidd ill-equipped to defend himself, but to his bewilderment, the French documents that proved the ship was the enemy of England had inexplicably disappeared. Unable to provide evidence of his innocence nor mount a convincing self-defence, Kidd was convicted and executed. His body hung above the Thames for three years after his execution as a warning of the consequences of piracy.
A historian found the French documentation that would have exonerated him in 1901.
A 19th century woodcut showing William Kidd's body hanging in an iron cage. The body was tarred to preserve it as long as possible.
Published in Margarette Lincoln. British Pirates and Society, 1680-1730. London, UK: Ashgate Publishing, 2014, pg 43.
Exerting authority over pirates: Captain Bartholomew Roberts (c. 1682-1722)
Kidd's execution for piracy proved the exception, not the rule when it came to piracy suppression in the early 18th century. Captain Bartholomew Roberts was part of a large wave of Atlantic piracy that began affecting maritime trade after the War of Spanish Succession (1701-13). Between 1716 and 1726, up to 5,000 pirates were thought to cruise these waters.
Most of what we know about Roberts is from Captain Charles Johnson’s book: A General History of the Pyrates. Like Kidd, he was a real person – trial records of his crew are kept in the National Archives in London. Before his death at the hands of pirate suppressors in the Gulf of Guinea in 1722, he was one of the most successful pirates of his age. Roberts represented the anti-authority persona that epitomises the way pirates a viewed in popular culture today.
The limitations of naval resources and personnel meant that in the prime pirate havens of the Caribbean, the Royal Navy failed to capture any pirate ships in 1715 or 1716 and only one in 1717. During this time, British King George I offered amnesty to former pirates, on condition they ‘transport themselves to the West Indies’ and work on the plantations but of course, the absence of effective authority there meant they soon ‘returned to their former Wickedness’.
Under pressure from merchants and new allies to do more, in 1717 King George changed piracy law, shifting it away from an act of treason (sea-raiding without a commission) towards a crime against property. This severed the thin line between authorised sea-raiding and piracy, setting piracy law on the path it sits today. However, without sufficient naval resources to enforce the new law, the piracy epidemic showed no sign of abating.
as depicted in
A General History of the Robberies and Murders of the Most Notorious Pirates
In 1718, King George offered a pardon to all pirates who surrendered before 5 September 1718 for all piracy offences, including murder. This coincided with an increasing sophistication in naval strategy. The increased potential for capture and the absence of adverse consequences for accepting the pardon saw several competent pirate captains choose to leave the trade with several hundred of their men.
But not Captain Bartholomew Roberts.
According to Captain Johnson, Roberts ran his pirate operation along a set of articles. These articles established democratic governance on his ship where every man received ‘a Vote in affairs of the Moment’ and ‘equal Title’ to ‘fresh provisions’ and ‘strong liquors’.
This might seem quite normal to us today, but at that time it was extraordinary. Eighteenth century seamen lived at the lower end of the hereditary system of occupation, social status and political influence that maintained order on land. This meant they had little access to education, no say in the affairs of government, little prospect of owning land, limited upward mobility, and were beholden to the vicious whims of their employers. So as an alternative to these stagnant prospects, Roberts’ articles offered the seaman turned pirate some say in how he lived his life.
Piracy as an act of protest
Historians like Marcus Rediker say the empowerment of Roberts’ pirates’ and those of his successor, Ned Low, heralded a complete rejection of the oppressive authority of the time. And this is the heart of the famous quote often attributed to Roberts:
‘In an honest service there is thin commons, low wages, and hard labour. In this, plenty and satiety, pleasure and ease, liberty and power; and who would not balance creditor on this side, when all the hazard that is run for it, at worst is only a sour look or two at choking? No, a merry life and a short one shall be my motto.’
Roberts epitomised the role of the anti-authority identity in piracy. For men like him, piracy was an act of protest at the societal and cultural constraints placed upon him. While the authorities eventually caught up with him, this construct of the pirate identity is why stopping people from becoming pirates in the first place is a more effective piracy suppression response.
Despite the passing of centuries, prosecuting suspected pirates in the late 20th century was still fraught with difficulty. From 1982, piracy was now part of international law (Article 100 of UNCLOS) but it was still largely theoretical - nobody had actually prosecuted pirates for 200 years. The legal precedents set by the trials of Kidd, Roberts’ crew, and many others had faded into obscurity and despite the well-known problems of pirates in the Malacca Strait, as the story below shows, nobody wanted to prosecute them.
In April 1998, twelve Indonesian pirates hijacked the Malaysian-flagged Petro Ranger. Chinese authorities found the ship in Haikou a month later and took twelve Indonesians into custody. The Royal Malaysian Police requested the extradition of the Indonesians to Malaysia to stand trial but on 29 October 1998, Chinese officials freed the men and repatriated them to Indonesia.
The release of suspected pirates occurred again after the September 1998 hijack of the Panama-flagged Tenyu. Found in Chinese waters in December without its crew of two South Koreans and ten Chinese, the ship was under a new name and with sixteen Indonesians aboard. A Korean investigation found these men were legitimate crew hired after the hijacking. With no sign of the original crew, the investigators suspected murder. Local court involvement in China only determined the return of the ship to its original owner. With the new crew repatriated back to Indonesia, the trail went cold.
Faced with international criticism over the release of suspected murderers and pirates, the Chinese faced increasing pressure to hold the pirates to account by prosecuting. While the Chinese were adamant they did not want to invoke international law, their real problem was the absence of domestic piracy laws. Article 9 of the Criminal Law of the People’s Republic of China stipulated that criminal jurisdiction may be exercised over crimes within international treaties acceded by China (such as piracy in UNCLOS), but there is no crime of ‘piracy’ within Chinese law beyond ‘robbery at sea’. In addition, China could not extradite the Indonesians in the Petro Ranger case to Malaysia because it had no bilateral extradition agreement with Malaysia at the time.
The game changed in November 1998, when a gang of Chinese pirates led by an Indonesian man hijacked the Panama-flagged Cheung Son. The pirates slaughtered the 23 crew. Two months later, Chinese authorities found the ship. Seven men confessed to hijacking the ship, murdering the crew and collaborating with an international pirate group led by an Indonesian. The men and 36 other Chinese nationals were tried in December 1999 under criminal charges of murder and robbery. Thirteen of the suspects received death sentences, one to life in prison and the others to prison sentences of varying lengths from 10 months to 12 years. In January 2000, China executed the thirteen men, including the Indonesian.
All 1998 reports to the IMB-PRC of maritime crime in the South-east Asia region indicating the locations of the Cheung Son, Petro Ranger and Tenyu.
NB: Red dots indicate an individual attack. The proximity of most reports to land meant the incident was not a pirate attack and fell under the laws and jurisdiction of the relevant country.
The Chinese could pursue this case because the participation of Chinese nationals and the presence of the ship in Chinese waters gave the Chinese court jurisdiction, including over the Indonesian. China conducted another two trials including non-Chinese nationals, but always with a Chinese territorial connection to avoid setting precedents under international law.
In the case of the Panama-flagged Marine Master, the hijackers abandoned the crew in inflatable rafts at sea but the hijacked ship was found in a Chinese port. The fourteen Burmese men aboard were detained and prosecuted. The leader was sentenced to death, with the others sentenced between five and thirteen years. The second case concerned the similar hijack of the Siam Xanxai, a Thai cargo vessel. Again the crew were set adrift and the vessel was later found in Guangdong province of southern China. This time the hijackers were Indonesian and were imprisoned for 10 to 15 years.
In August 1999, the United Nations called on Southeast Asian nations, particularly Indonesia, to respond immediately to the growing piracy problem off their coastlines. But the same historic challenges of piracy suppression emerged again.
Indonesia was preoccupied with dozens of more immediately critical matters, such as suppressing terrorism and separatism, alleviating poverty, and implementing sustainable democracy. Its minimal maritime forces suffered from critical shortages of equipment, fuel and funding. In the wider region, maritime forces in the region rarely captured offenders and when they did, often released them without detention or charge, particularly if they were not nationals of the country that apprehended them.
Southeast Asian states placed little priority on stopping the maritime crime off their coastlines because the financial and human cost of piracy seemed significantly less than other threats.
Then in 2008, the Somali piracy epidemic began and everything changed.