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Capturing pirates is not the critical problem. Rather, the issue is how to handle those in captivity. Traditionally, pirates fell within that category of illegitimate hostiles that once included slave traders, brigands on the roads and, in wartime, unprivileged or "unlawful" enemy combatants. As Judge Nicholas Trott, presiding over as a pirate trial, explained in 1718: "it is lawful for any one that takes them, if they cannot with safety to themselves bring them under some government to be tried, to put them to death." This law, of course, has changed since the 18th century. Pirates, brigands and unlawful combatants must be now tried before they can be punished.
One solution would be for the capturing state to press charges based on the much misunderstood and abused principle of "universal" jurisdiction. This is the notion that any state may criminalize and punish conduct that violates certain accepted international law norms. Although its application in most circumstances is dubious -- there is very little actual state practice supporting the right of one state to punish the nationals of a second for offenses against the citizens of a third -- piracy is one area where a strong case for universal jurisdiction can be made (if only because piratical activities often take place on the high seas, beyond any state's territorial jurisdiction).
Moreover, given the nature of naval operations, discerning who is a pirate is usually a much easier task than separating Taliban and al Qaeda members from innocent bystanders. This fact, all things being equal, should make the task of prosecuting captured pirates an easier process, both from the legal and public relations perspective.
The key problem is that America's NATO allies have effectively abandoned the historical legal rules permitting irregular fighters to be tried in special military courts (or, in the case of pirates, admiralty courts) in favor of a straightforward criminal-justice model. Although piracy is certainly a criminal offense, treating it like bank robbery or an ordinary murder case presents certain problems for Western states.
To begin with, common criminals cannot be targeted with military force. There are other issues as well. Last April the British Foreign Office reportedly warned the Royal Navy not to detain pirates, since this might violate their "human rights" and could even lead to claims of asylum in Britain. Turning the captives over to Somali authorities is also problematic -- since they might face the head and hand-chopping rigors of Shariah law. Similar considerations have confounded U.S. government officials in their discussions of how to confront this new problem of an old terror at sea.
