Who should prosecute the Somali pirates?

24th July 2009 By: South African Institute of International Affairs

Until recently, the common view was that maritime piracy had been relegated to history with its muskets, parrots and the Captain Hook personas, but it captured the attention and interest of the world in 2008 following its dramatic resurgence primarily off the coast of Somalia. Piracy off the Horn of Africa continues to threaten global commerce, despite unprecedented international focus and co-operation to contain the problem. Naval presence in the Gulf of Aden (GOA) has increased with the deployment of warships by the US, Russia, the UK, China, India and France to the Gulf in an attempt to contain the human and economic costs on ships and crews. The UN Security Council has also passed two resolutions, binding on all member states, authorising the pursuit of pirates into the territorial waters of Somalia and, even further, onto the mainland. These measures have caused increased contact with the alleged perpetrators and prompted a burning question: who should be responsible for prosecuting those captured for piracy? Is it a domestic, regional or international concern?
Piracy is the first crime in international law to be subject to universal jurisdiction, which gives any state authority to assert jurisdiction over an act, regardless of the nationality of the perpetrator or the victim, and regardless of where the act took place. Universal jurisdiction developed in response to the crime of piracy because it has no fixed geographic location and transcends national boundaries. On the high seas, any nation may seize a pirated ship, arrest the pirates, seize their property and transfer the matter to its civil or criminal courts. Only warships, military aircraft or government vessels may exercise this authority. The rationale is that the crime of piracy is the quintessential crime for the application of universal jurisdiction: it is a threat to the international community at large and therefore everyone has an interest in combating it; and because it takes place beyond the jurisdiction of every state it is not necessary to establish a nexus between the prosecuting state and the victim or perpetrator.
Usually universal jurisdiction is a measure of last resort. In the context of Somalia there is no option of deferring prosecution based on territoriality or nationality. Somalia has lacked an effective government since General Siad Barre was violently ousted in 1991. For the past 18 years Somalia has been ‘governed' by successive tribal factions, warlords and Islamist groups. The reality of domestic government enforcement action as a deterrent of piracy is therefore extremely low. Can the problem be combated through regional co-operation?
Earlier this year at a summit in Djibouti, Ethiopia, Kenya, Madagascar, Maldives, Seychelles, Tanzania, Yemen and representatives of the Somali transitional authorities, signed a code of conduct strengthening their anti-piracy co-operation in the ‘arrest, investigation and prosecution' of suspected pirates. The Djibouti Code of Conduct allows one signatory country to send armed forces into another signatory's territorial waters to pursue pirates. While such regional efforts are commendable, the reality is that these states are constrained by limited capacity and resources to make a meaningful contribution to contain piracy.
Despite widespread public condemnation of Somali piratical activities, developed states with established legal systems have been largely reluctant to undertake any extensive prosecutions and investigations within their domestic legal systems. The modus operandi has been to deploy warships into the Gulf region with no commitment to transferring suspects to their domestic courts. For example, US naval ships board suspected pirate vessels with the goal of preserving evidence for Kenya to carry out their prosecution. This action is in line with the agreement entered into between the EU and the US with the Government of Kenya, delegating to the latter the responsibility of receiving suspects and transferring them to its competent authorities for purposes of investigation and prosecution.
While there is a good argument to be made for the region to deal with the Somali problem, there is a contradiction in developed states with established judicial systems, handing over offenders for prosecution to the Kenya courts, especially as they are bogged down by administrative back-logs and inefficiencies. Even within Kenya there is dissatisfaction among some in the legal fraternity who question whether there is enough legal experience to effectively litigate largely untested crimes of piracy.
The Russian navy has reportedly been holding approximately 29 suspected pirates aboard one of its warships while it determines whether to prosecute them or transfer them to a third country. The Netherlands insists that they be tried either in Africa or by a special piracy tribunal under the umbrella of the UN. An attorney representing a suspected pirate has reportedly warned that ongoing trials in the Netherlands, France and the US will encourage pirates to commit crimes for the purposes of being captured ‘because anything is better than Somalia.'
There have also been incidents of ‘catch and release' whereby naval ships have merely confiscated the weaponry of pirates and then released them to avoid transferring suspected pirates to their domestic judicial systems. In mitigation of their reluctance, developed countries have also argued that there are tremendous logistical and investigatory challenges that flow from conducting a prosecution from afar. The witnesses are not immediately available to testify, gathering evidence is cumbersome and costly given the distance from the ‘scene of the crime.' But these are challenges that even Kenya would face, particularly with limited resources to carry out an investigation and prosecution.
What is the real motivation behind the reluctance of developed states to conduct investigations and prosecutions? Asylum applications are a looming concern - countries are not enthused at the prospect of pirates and their families as a long-term presence. International prosecution will also highlight the issue of illegal fishing and illegal dumping of toxic waste in the waters of Somalia. This issue has been largely ignored by the UN and implicated countries, some from the developed world.
The Contact Group on Piracy off the Coast of Somali (CGPCS) made up of 24 countries tasked with investigating the best way to proceed on the prosecution and punishment of the pirates has called on state parties to implement their obligations under the relevant treaties and international law, including establishing jurisdiction and accepting delivery of suspected pirates.
Combating piracy requires a coordinated approach from the international community but efforts are undermined when states transfer large numbers of perpetrators to an inefficient and over-loaded judicial system.
Ultimately, Kenya should not be the dumping ground for suspected pirates in an attempt to circumvent the bureaucratic and financial burdens of prosecutions. Developed countries have a responsibility and the authority to act and are able to strengthen their domestic legal frameworks to address the crime of piracy.

Written by: Lyle Cupido of the South African Institute of International Affairs