Assessing current trends and efforts to combat piracy.

AuthorBeekarry, Sulakshna
PositionEnd Game: An International Conference on Combating Maritime Piracy

The sudden rise of piracy incidents in the Gulf of Aden in 2008 presented the international community with immediate and unique legal challenges. In particular, the legal regimes of most states were not equipped to deal with detention, prosecution, and other post-trial procedures for pirates. To effectively address these various issues, legal reform through regional and international cooperation was required. This article propounds the view that in order to face these on-going difficulties, states should engage in novel mechanisms such as pre- and post-trial transfer agreements, adoption of domestic piracy-specific legislation, and revision of procedural rules used in prosecutions. It specifically looks to practices in Mauritius and Seychelles, which have already successfully adopted and implemented such measures to facilitate extraterritorial prosecutions. While a long-term solution to piracy ultimately demands socioeconomic and political reform in Somalia, confronting the current state of piracy necessarily involves innovative changes to the existing legal regime.

CONTENTS I. INTRODUCTION II. MECHANISMS FOR PROSECUTION III. POST-TRIAL TRANSFER AGREEMENTS IV. PIRACY-SPECIFIC LEGISLATION V. HANDOVER GUIDANCE VI. CONCLUSION I. INTRODUCTION

Until recently piracy found its place in international law textbooks only as an exception to the general rules on territorial jurisdiction. In 2008 Antonio Cassese, in his international criminal law textbook, referred to piracy as "a practice that was widespread in the seventeenth and eighteenth centuries, and has recently regained some importance, albeit limited to one area of the world--East Asia." (1) Discussion on the subject was scarce. Other well-known textbooks on international law had at best half a chapter devoted to the law relating to piracy as part of a discourse on the international law of the sea. (2)

The usual principles put forward by textbook authors suggested that piracy under international law is a very old offence. Piracy was defined in the 1982 U.N. Convention on the Law of the Sea (UNCLOS) as: (1) an act of violence, detention or depredation; (2) on the high seas; (3) committed for private ends; and (4) by the crew or passengers of one private vessel against those of another vessel. (3) This definition was accepted as customary international law. Moreover, it was generally accepted that since the time of international legal pioneer Hugo Grotius, a pirate has been considered to be hostis humanis generis, an enemy of mankind. (4)

This was, in essence, the body of the law when the rise in piracy attacks off the coast of Somalia took the world by surprise, and the international community awoke to the realization that the scourge needed to be robustly addressed. (5) Piracy-specific legislation (of the kind now enacted in countries like Seychelles and Mauritius) was virtually non-existent then. In many countries, a country's criminal code or merchant shipping legislation would contain a few provisions on piracy elaborated in the abstract and never put to the test. Further, not all states had incorporated UNCLOS into their domestic legislation, and even fewer had incorporated the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Convention 1988 ("SUA"). Anti-piracy missions were conducted under the U.N. Security Council's authority, through Resolutions 1816 (2008), 1838 (2008), 1846 (2008), and 1851 (2008), giving cooperating states the right to pursue and capture pirates in Somali waters and on Somali land. (6) Even though the international legal community acknowledged that it faced a crime as old as humanity, it also recognized that it was not fully equipped to address piracy in its new form as it arose off the coast of Somalia a few years ago. While piracy was defined in UNCLOS, there was a lack of national laws designed to implement the powers of international law. (7) Too often the problems encountered were more practical than jurisdictional: Where to prosecute? How to investigate? How to overcome language barriers? How to judge the sufficiency of evidence?

Piracy off the coast of Somalia had more than doubled by 2008; pirates had attacked over sixty ships and regularly demanded and received million-dollar ransom payments. (8) The international community expressed fears that money from ransoms was helping to pay for the war in Somalia, including funding to the U.S. terror-listed Al-Shabaab. (9) Aid deliveries to the then drought-stricken Somalia became more difficult and costly. By November 2009, 104 pirate attacks had been reported in the Gulf of Aden for that year alone, with fifty-four attacks in the Indian Ocean during the same period. (10)

This was thus a time for action and rethinking. Mauritius, for instance, had a few provisions in its Merchant Shipping Act 2007 criminalizing piracy, but it had never in its history captured or prosecuted suspected pirates. (11) Although piracy is a universal crime, certain states--the flag state, the interdicting state, the state of nationality of the crew or owner of the victim vessel--may have particular national interests in the investigation and prosecution of suspects and may be regarded as "affected states." The notion that such states could also have transfer agreements with other states that are not "affected," but have expressed a willingness to contribute to the international community's efforts in combating piracy by prosecuting in their national courts, was a novel one which materialized as part of this rethinking process. (12)

This article will address the current trends and efforts to combat Somali piracy. (13) It puts forward the proposition that the resurgence of piracy off the coast of Somalia heralded a new legal era, one in which existing international law is revisited and rebuilt to construct a modern regime. The time has come for new mechanisms such as transfer agreements for prosecution and post-trial transfer agreements to relieve the burden of prosecuting states that are often reluctant to accept long periods of incarceration on their soil. Moreover, piracy-specific legislation has become necessary. It is also time to review prosecution techniques, as foreign navies at sea prepare more and more evidence for onward transmission to regional courts.

  1. MECHANISMS FOR PROSECUTION

    The international community as a whole has acknowledged that capturing and prosecuting pirates is an essential component of efficient combat against piracy. Without this aspect, impunity is inevitable. UNCLOS allows all states to exercise universal jurisdiction over piracy, and Article 100 requires states to cooperate in the repression of piracy "to the fullest possible extent." (14) However, only certain states have prosecuted pirates to date, and very often, some states have done so only in situations where there was a nexus with their jurisdiction. (15)

    Considerable thought has gone into looking at different prosecution models that could be adopted in this situation. On January 25, 2011, Minister Jack Lang's report (in his capacity as Special Adviser to the U.N. Secretary General on Legal Issues Related to Piracy off the Coast of Somalia) put forward a proposal for the establishment of a court system comprising: a specialized court in Puntland, a specialized court in Somaliland and an extraterritorial Somali specialized court. (16) The recommendations were for the Puntland specialized court and the extraterritorial court to be given priority and for them to be operational within eight months. (17)

    However, in spite of the above recommendations and the given time frame, there does not appear to be consensus so far on the establishment of an international piracy court. Dissenting voices have made themselves heard, and a number of reasons have been invoked to argue that an international piracy court is "not the right direction." (18)

    Many authors and policymakers alike consider that an international court or tribunal is not appropriate for the crime of piracy. International tribunals have traditionally been established to deal with egregious crimes that are beyond the capacity of national jurisdictions. National governments may be unwilling or unable to exercise jurisdiction over the accused, especially when the accused includes government officials. (19) Often these tribunals cover particular types of events, such as war crimes during armed conflict. (20) These characteristics are often seen as irrelevant to piracy, which can be, and is, successfully prosecuted in national courts. (21)

    Further, the costs...

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