A naval officer overhearing the terms “capture at sea,” “prize,” or “boarding party” in a wardroom today would assume that his shipmates were discussing some historical event or tactic. Capture at sea evokes visions of burly tars and epauletted officers “carrying the day” on the bloody decks of the dismasted enemy man-of-war. The only modern capture at sea that most naval officers recall is the capture of a German U-boat in World War II by a U. S. Navy ASW group in the Atlantic. Capture at sea has declined from an essential part of naval tactics to a historical curiosity. Yet, there are no compelling reasons apparent why this means of controlling the seas has to be abandoned.
The American colonies inherited a legacy of capture-at-sea practices from their European sponsors and perpetuated the concept. The privateers, operating under royal letters of marque, were significant additions to European sea power in times of crisis. Both privateers and naval forces found captures to be profitable.
The American colonies provided an environment of multitudinous authorities, little law enforcement and wide opportunity—all suitable conditions enabling privateering to thrive. The practice became so widespread that by 1683 the British government called on the colonies to pass laws to suppress privateers and pirates. Privateering flourished in spite of the new laws because it was profitable and there was no concerted enforcement action. The skills learned by the privateers in capturing prizes at sea were to be of value to the American colonies when the time came to fight for independence.
During the Revolutionary War, the colonies and the Continental Congress issued 1,591 letters of marque, whereas only 32 ships went to sea as commissioned ships of the government. The privateers’ interest in profitable capture, as opposed to heroic destruction, is reflected in the fact that 96 per cent of the ships surrendered to privateers were manned and sent into port as prizes. Less than one per cent were deliberately destroyed. The commissioned ships also performed captures and prize manning in 60 per cent of the surrenders to them, with about 19 per cent of the surrenders involving intentional destruction. The effectiveness of the captures is reflected in the statement by Admiral Sir H. W. Richmond, that, “Shortage of shipping, due in part to losses from capture, hampered us in the war against the American Colonists.”
The undeclared war with the French between 1789 and 1801 was a sea war conducted within what would now be called limited war concepts. The Congress authorized the capturing of French vessels by U. S. warships, but did not declare war. The authorization was an exercise of the Congressional power granted in Article I, Section 8 of the Constitution “To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” The American ships that operated under the Congressional authorization returned 82 per cent of the surrendered French ships to port as prizes. The emphasis of capture over destruction was in keeping with the mutual interests of France and the United States in avoiding escalation to full war.
The 22 men-of-war of the U. S. Navy were inadequate to the nation’s needs during the War of 1812, and the sea force was supplemented by the issuance of over 500 letters of marque. The British blockade suppressed shipping activity and prevented the return of prizes without great risk of recapture. Although Navy commanders could be ordered to destroy shipping, it was necessary to induce privateers with a payment of bounty on prisoners taken from destroyed ships and a payment of one-half the prize value of any armed vessel destroyed. Navy ships sent in 40 per cent of those ships captured, whereas the privateers made prizes of 69 per cent of their captures.
The Mexican War enabled a relaxation of the destruction policy carried out in the War of 1812. The superior naval power of the United States permitted operations along the enemy coast, allowed safe return of prizes, and precluded the need for privateers. The Navy sent 57 per cent of the surrendered vessels in as prizes, destroying only 8 per cent.
The American Civil War was the last major conflict wherein one of the opposing sides employed privateers to pursue the war at sea. The Confederacy employed privateers during the first two years of the war. The U. S. Congress passed a law in 1863 enabling the President to issue letters of marque, but no letters were ever issued. The Union Navy sent about three-fourths of the ships that surrendered to port as prizes. The Confederate Navy concentrated on destructions, possibly due to the difficulty of returning prizes through the blockade and because of the long distances involved. Confederate privateers succeeded in making prizes of about 60 per cent of their captures and only about 7 per cent were deliberately destroyed. The remainder were “lost” due to conversions, recaptures, escapes, wrecks, releases, cartel, or ransom.
The American Civil War marks an abrupt decline in the practice of capture at sea. Captures in World War I and World War II, by all belligerents, are insignificant when compared to the percentages enumerated above. Although data on true captures in World War II are rather obscure, the Axis may have lost up to 60 ships (nine-tenths of one per cent of total losses) through capture, and the Allies 30 (seven-tenths of one per cent of total losses). The emphasis had shifted to destruction and the methods of destruction had become diverse.
The practice of capture at sea has been affected by two influences that have been felt since the early 19th century—technology and the development of a body of international law concerning the conduct of war.
Prior to the introduction of the weapons that permitted exercise of force from a distance, the fight at sea was basically a person- to-person, land-type fight which commenced as soon as the ships were laid alongside one another. As ships were equipped with weapons that were effective at a distance, the physical contact between ships was avoided, and capture became a less frequent consequence of defeat. By 1814, when the Fulton I was designed to be the first “invulnerable” man-of- war, with steam motive power not dependent on the weather and the power plant protected by armor, the divergence of naval and merchant ship technology was commenced. As early as 1856, the Declaration of Paris, by abolishing privateering, establishing a criterion for blockades, and stating principles governing enemy and neutral goods, began the international recognition of the growing differences between the capabilities of the warship and the merchant vessel.
The Crimean War and the American Civil War brought rapid technological breakthroughs that increased the power of the man- of-war over the merchantman. The ship changes included armor, rams, and sustained speed increases, and, most dramatic of all, a new type of ship—the submarine. Weaponry improved with rifled guns and the ideal submarine weapon—the torpedo. The introduction of the torpedo into naval weaponry had such an impact on prevailing concepts that one British naval tactician called it “this infernal machine” and deemed it truly a pity “it cannot be left out of civilized warfare altogether.”
The hope of “civilizing” warfare was occupying the nations, and although there were unsuccessful attempts in the early 1900s to extend the rules of land warfare to war at sea, there was acceptance of the humanitarian principles that had been adopted in the Geneva Convention. The humanitarian principles of warfare: military necessity, humanity, and chivalry; govern much of the international law applicable to capture and destruction at sea. These principles are not precisely defined legal rules or treaty provisions but rather are “customary rules of warfare” by which other rules may be interpreted and pleaded justifications for actions may be judged. They are defined in the Law of Naval Warfare, NWIP 10-2, as:
Military necessity. The principle of military necessity permits a belligerent to apply only that degree and kind of regulated force, not otherwise prohibited by the laws of war, required for the partial or complete submission of the enemy with the least possible expenditure of time, life, and physical resources.
Humanity. The principle of humanity prohibits the employment of any kind or degree of force not necessary for the purpose of the war, i.e., for the partial or complete submission of the enemy with the least possible expenditure of time, life, and physical resources.
Chivalry. The principle of chivalry forbids the resort to dishonorable (treacherous) means, expedients, or conduct.
World War I was fought with some adherence to the concepts worked out between nations before the conflict. The most notable violation at sea was the German use of submarines for unrestricted warfare on merchant shipping. After the war there were repeated efforts to reassert the prewar concepts. The Washington Conference in 1922 prepared a draft treaty which asserted that merchant vessels could not be attacked unless they refused to obey an order to submit to visit and search, and that if attacked, the crew and passengers must be placed in safety. The draft then noted the practical impossibility for submarines to comply with these conditions, and therefore the signatories were to agree to prohibit the employment of submarines as commerce destroyers. The treaty did not go into effect, and the relationship between the merchant vessel and the submarine was later clarified in the Protocol of London in 1936 wherein the specific provisions were that the submarine must observe the laws of warfare.
The merchant vessels riding at the interface of the water and air environments suffered the new subsurface threat which accounted for 84 per cent of the total British merchant ship losses in World War I. The fledgling aircraft accounted for only 0.1 per cent of shipping losses in World War I, but in World War II this percentage rose to 23 per cent of the total Axis and Allied merchant ship losses. The merchant ship became faced with a threat from above as well as one from below. From the beginning, however, the aircraft, with all its destructive effectiveness, has suffered the same limitation as the submarine —an inability to provide adequately for the welfare and safety of merchant vessel crews and passengers. Ballistic missiles used against merchant vessels would manifest these same limitations.
The improved technology of the surface warship with its high speed, radars, fire control systems, and accurate weapons has given it a capability to wreak destruction without observing the basic rules of warfare. The German battleship, Gneisenau, sank merchant ships in World War II at such long ranges that identification of the victim was not made—not even that of nationality.
In spite of the concentration on destruction rather than capture, capture at sea has survived as a legally permissible act—provided it is performed in accordance with accepted procedure and upon a properly liable vessel.
There is a basic geographical control on capture—it is permitted within the internal and territorial waters of belligerents and upon the high seas.
Another control operative on captures concerns what is subject to capture. Physically, vessels, cargoes, and personnel on board vessels are subject to capture. Within these broad categories there are additional controls by nationality, character, and conduct. Except for a few enemy vessels of a certain character —cartel, medical, hospital, religious, scientific, etc.—all of the enemy's vessels are lawfully subject to capture. The liability to capture, however, does not mean an automatic liability to destruction, except in the case of the warship. The warship is expected to resist capture completely and submit only through destruction or near destruction. In the case of the enemy merchant vessel, nationality and character only establish liability to capture, and it is by conduct that liability to destruction without capture is engendered. The conduct that can add this liability is resisting visit and search, refusing to stop, sailing in convoy, being offensively armed, providing intelligence, or acting as an auxiliary for armed forces.
In contrast to enemy vessels, neutral vessels do not become liable to capture because of any conditions of nationality or character. Conduct, however, can cause a neutral vessel to acquire equivalency to an enemy in its liability. It is only in the case of active and continuing resistance to visit and search that a neutral vessel passes through liability to capture to liability to destruction without capture. In all of the cases and variations, however, the liability of a ship to destruction is an extension of the basic liability to capture. The provisions of international law admit of no liability to destruction without a preliminary lesser included liability to capture.
Certainly the ability to destroy involves power, and in the clutches of a struggle for national survival, the temptations to employ power are great. International law has not yet been able to evolve a satisfactory set of rules to apply specifically to the new weapons. The most that has been constructively done is to reaffirm that the three basic principles of warfare are still valid and that whatever practices are developed for new weapons, as they are to be applied to attrition of enemy merchant shipping, must conform to these principles. The validity or worthiness of the basic controls of capture at sea has not yet been abandoned. What international law is trying to accommodate is the right of sovereign nations to exert power in their national interest but to do so in a manner at least compatible with the level of ethics in warfare that had been attained prior to World War I.
Political entities initiate actions over a large range of intensities as they struggle to realize ambitions and achieve objectives. States have long coerced other states, and the form of coercion has run the gamut of power usage. What is new, however, is the re-emphasis to the Free World that this spectrum of conflict remains one of the facts of international life. Two world wars in succession, and the policy of unconditional surrender, resulted in a general reaction to conflict as being the black and white of peace or total war. The ability to exert just the requisite amount of pressure to achieve a particular national objective is being recognized as a measure of national power.
The attempts to give names and definitions to conflicts and place them in graded categories is something relatively new to international law. Rebellion and insurgency are forms of conflict that have been dealt with previously in international law. Some distinctions between general and limited wars are beginning to be drawn. The United Nations’ recognition of the various forms of regional security arrangements and the hopes that these smaller segments of the world can contain their own conflicts may stimulate continued progress in equating acceptable force to circumstances. The value of capture at sea to the national strategy will be, in part, governed by the number of levels of conflict at which it may be both lawfully and suitably employed.
There are two situations wherein capture at sea is lawful during a period of peace—• piracy and violation of municipal law. Pirates are subject to capture by any state’s forces; they may be captured anywhere they are found. Vessels in violation of a state’s municipal laws may be detained and captured if necessary until the violation is resolved. The American merchant vessel that was boarded and fined by the Russian authorities after it had departed Odessa is an example of this liability.
A blockade resorted to in time of peace as a means of settling an international difference is a pacific blockade. Pacific blockades have been tacitly consented to in sufficient numbers to have established them as acceptable expressions of national power. Although the blockade, per se, is not considered an act initiating war, the blockaded state is free to consider the blockade as a hostile act warranting the initiation of a state of war. The right of capture is operative concurrent with the initiation of the pacific blockade.
The relationships between a state of insurgency and the laws of the sea and naval warfare are defined very sketchily in international law. Until the government of a state admits that an internal state of war exists, and thereby confers the status of belligerency on the insurgents, the government is not bound to deal with the insurgents under the provisions of international law. Relations of foreign states with the insurgents arc acts of intervention in the internal affairs of the state, and in this respect such relations come within the purview of international law. Generally, then, international law holds that insurgents should not be helped, at least not until they become recognized belligerents, and that the recognized government may be assisted at the commencement of insurgency. The United States, for example, is assisting the recognized government of South Vietnam in the suppression of insurgents who are not recognized as belligerents.
The United States has declared, in the Truman and Eisenhower Doctrines, its readiness to assist friendly foreign states in suppressing insurgency supported by the international Communist movement. One of the specific provisions of the Southeast Asia Treaty Organization, and of the Central Treaty Organization, is the objective of suppressing Communist insurgency in member countries. Should any one of these policies or treaties be called into effect for this purpose, the United States may find itself engaged in assisting a friendly nation to preserve the integrity of its coast. The U. S. Navy might then be directed to execute captures at sea in the threatened nation’s territorial waters or upon the high seas.
Throughout the conflict spectrum, and regardless of the neutral or belligerent status of the United States, the armed forces have as one of their functions the upholding and advancing of the national policies and interests. The functions imply no specific limitations on the degree of force that may be needed to support the national needs. In relation to the task of suppressing enemy sea commerce, there are no upper and lower limits of force prescribed for the Navy—just a task that the Navy is supposed to be ready to perform. The same is true of the naval task of controlling vital sea areas. Within the two naval tasks just mentioned we must include missions involving capture at sea, because the opportunities and appropriateness of such capture are especially applicable to the spectrum of conflict short of general war.
The confrontation with the Soviet Union over the offensive missiles in Cuba is the most apparent example. The quarantine, or pacific blockade, with its inherent implications of visit and search culminating in capture if need be, was the physical embodiment of the confrontation. The delicacy of the situation could have been disrupted and escalated had it become necessary to enforce physically the quarantine in the face of resistance. The question that should be asked is whether the Navy forces involved were provided with equipment and weapons of a nature permitting finesse of execution such that the vessels could have been controlled against their will without resorting to destruction. Could they have been captured rather than destroyed? If the answer is that it would have depended upon the submissiveness of the Russian captains, then it means that we were not in control of that portion of the conflict spectrum and that their decision, rather than ours, would have controlled the escalation. Our decision, in the face of non-submission, could only be to back down on the enforcement or escalate to the use of force likely to destroy.
Should any signatory nation attempt to ship in material to the Antarctic that would violate the demilitarized status of that continent, would quarantine or pacific blockade be the most suitable solution to the situation? Would capture without destruction and loss of life be the best enforcement?
Should Indonesia persist in its expansionist aims at the expense of Malaysia and the rest of Southeast Asia, would a blockade of that island nation be the most suitable SEATO course of action? A blockade intended to deprive support and to contain the expansionist must be enforced with capture or destruction. It is easier to arbitrate and confer after a truce if the negotiators’ briefs are not filled with statistics on killed, wounded, and destroyed.
These are only some of the possible Cold War and limited war applications of capture at sea. If capture at sea is a legal action in a variety of circumstances, and if the political environment of this period creates situations wherein capture at sea would be an acceptable solution, then perhaps capture at sea should be revived and given its own technological boost.
A capture entails a particular sequence of actions, and to accomplish it, without in actuality causing a destruction, requires a suitable set of capabilities.
What does the Navy have in its inventory today to accomplish the mission of suppressing the enemy’s sea commerce? There is the nuclear-powered attack submarine, and it still has the submarine’s limitations—it can destroy, but do little toward capturing. There are any number of attack planes armed with spectacular torpedoes and missiles, and they have the same problems and limitations as the submarine. A study of U. S. cruiser armament trends leads to the conclusion that the cruiser of the future is not intended for cruising against enemy commerce. The missile armaments being introduced on cruisers, at the expense of guns, seem to be capable of destroying merchant ships, but could they accomplish a capture within the intent of international law? The trend in destroyer armament is similar to that in the cruisers, and smaller warships have problems of accommodating prisoners taken from a prize. The U. S. Navy appears to have some definite limitations in capabilities to execute captures without near or actual destruction of the ship to be captured.
The execution of a capture at sea represents the solution of a set of component problems. The capturing unit is confronted with these problems from the time of detection until the completion of the capture. They may be stated as:
Notification: to convey to the captain of the ship being challenged that a “belligerent” commissioned unit intends to exercise the legitimate right of visit and search.
Isolation: to prevent any communication with other units or authorities who may then, or later, interfere with the capture, or capturer.
Submission: to gain such control of the movements of the vessel that it will stop on command or proceed as directed.
Investigation: to determine concretely the nationality, character, and conduct status of the vessel and its crew, passengers, and cargo.
Seizure: to take positive control of the vessel and its crew, passengers, and cargo.
Operation: to operate the seized vessel as desired.
Preservation: to preserve the lives and health of the crew and passengers and preserve all pertinent documents.
The solutions to these problems that have been used in the past are varied. Some are accepted as long-standing practices, others have been used but have not been accepted because they violate the principles of war. If capture at sea is to be available as an acceptable means of exercising control of the seas, then some alternate solutions to these problems are necessary.
Notification has been the least troublesome problem of the capture procedure. The traditional shot across the bow; international code signals made by flashing light, semaphore, flag hoists, or radio; radio messages; blank shots; rockets; and low aircraft passes have all been used to convey this meaning.
Isolation of the action requires some means of coping with the radio transmissions of the challenged vessel. Two approaches are immediately evident—physical interference with the capability to emit a signal and electronic interference with the capability to transmit any information on a signal emitted. Physical interference could be accomplished by such devices as antenna cutting rockets or missiles with paravaned grapplers, homing rockets capable of hovering on command to await a transmission attempt, or a torpedo guided in close aboard the challenged ship to await an attempted transmission before firing homing rockets. Electronically, the possibilities of jamming or inducing modulations to interfere with the transmission should be explored with equipment capable of detecting the frequency being used and automatically tuning the jamming or modulating equipment. Isolation must take place at extreme ranges, and any devices should be reliable and controllable at such distances.
Submission is gained through physical and psychological influences on the challenged ship and her captain. If the captain is not convinced of the inevitability of capture upon challenge, then steps will be required to convince him or incapacitate him in order to gain submission to visit and search. One approach is to remove, or threaten to remove, the capability to continue to operate and maneuver the ship. Steering and propulsion could be specifically neutralized, inactivated, inhibited, threatened, damaged, or destroyed. The recent development of ultrastrong permanent magnets of ceramic sandwich design suggests the possibility of combining these with variable speed steerable torpedoes and applying devices to hulls. Submission of personnel by the use of chemicals that induce only temporary incapacity would achieve submission without the onus of taking lives or of damaging the ship to be taken. Whatever the means of improving the ability to achieve nondestructive submission the methods should be usable by ships, submarines, and aircraft.
Investigation in most cases must be done on board, and this means visit and search. Physical means of boarding are difficult from both the submarine, without boats, and the aircraft, operating in a different environment. A helicopter-equipped submarine or a vertical take-off and landing aircraft could gain a boarding capability.
Seizure and operation pose no unique considerations that are not inherent in one of the preceding problems. They will both normally require putting personnel on board, and some means of accomplishing this would be needed for the smaller ships, submarines, and aircraft. A team of submarines, surface ships, and a small carrier equipped with VTOL aircraft could possibly contain all the capabilities necessary to carry out captures rather than destructions. The necessary prize crews could be kept on the carrier until they were needed. A capture might have a submarine doing notification, isolation, and gaining submission; with a crew put on hoard from a surface ship, helicopter, or VTOL to carry out investigation, seizure, and operation. This type of capture has the advantage of inherent provision for preservation—the most critical problem now faced.
The Navy’s operational analysts, researchers, and engineers probably can find entirely different solutions to the capture-at-sea problems than those that have been advanced here. The concern is that preoccupation with ultimate brute force to kill and destroy has allowed these problems to be overlooked.
Capture at sea may sound archaic and historical, but it is frequently legal and appropriate in today’s spectrum of conflict. A navy that is the most powerful in the world should have more than just a choice of letting a merchant ship go free or go down. The technology of today should contain solutions to the problems of executing captures. The challenge to the Navy is to find a means of including capture at sea in its capabilities in a manner in keeping with the humanitarian principles of warfare. To do so would offer a fuller range of naval power to serve the nation while at the same time accomplishing this in a manner that will contribute to the growth of international law and order.