Child pirates: rehabilitation, reintegration, and accountability.

Author:Drumbl, Mark A.
Position::End Game: An International Conference on Combating Maritime Piracy

Denounced by customary international law and recognized as a breach of jus cogens, maritime piracy also is defined and proscribed by a number of international treaties. Piratical attacks off the coast of Somalia, which peaked several years ago, have triggered considerable international attention. While incidents of Somali piracy are sharply decreasing, attacks persist elsewhere, for example off the Gulf of Guinea in Western Africa.

The U.N. Security Council endorses a criminal justice model in response to acts of piracy. The Security Council thereby promotes a mechanism of judicialization and penalization. So, too, do the U.N. General Assembly, many states, international organizations (such as the International Maritime Organization), trade groups, and the shippers lobby. In the recent past, many detained pirates were perfunctorily captured and released. With the spread of the criminal justice model, however, pirates are increasingly facing prosecution in national courts, mainly in Kenya, Seychelles, and Maldives, but also in Germany, the U.S., India, France, Spain, Japan, and Somalia--among others.

It has been estimated that approximately one-third of captured pirates are minors, that is, persons under the age of eighteen. This article explores issues of accountability, reintegration, deterrence and rehabilitation in the context of child pirates. It recommends modalities of restorative and reintegrative justice for child pirates that avoid the careless superficiality of immediate release and the retributive heavy-handedness of criminal trials. Regrettably, prevailing imagery that cloaks juveniles enmeshed in international crimes, for example child soldiers, does not favor this middle ground. Instead, this narrative imagery facilitates either perfunctory release (the faultless passive victim image) or criminal trials regardless of age (the demon and bandit image). Unlike the case with child soldiers, however, the position of U.N. entities when it comes to child pirates tends toward greater punitiveness--assuredly, a concerning development. In response, and after examining why juveniles may end up in pirate gangs, this article proposes a new path, namely one that leads toward restorative justice initiatives.

As [his lawyer] is leaving, Abdiwali [a juvenile pirate criminally prosecuted in Germany] says to him: 'You are father and brother to me. Your rule of law is a miracle on earth. All the expense, and two lawyers fighting just for me, and I don't have to pay any money at all! I have rights--I didn't know that. I am grateful that I have the chance to learn this. It all seems like a fairy tale to me.' And then he says to the interpreter: 'But one thing is still a mystery to me: What do they get out of it?' (1) CONTENTS I. INTRODUCTION II. JUVENILE PIRACY: FACTS AND FIGURES III. CRIMINAL PROSECUTIONS OF JUVENILE PIRATES: AN OVERVIEW IV. WHY DO JUVENILES JOIN PIRATE GANGS? V. TOWARD RESTORATIVE JUSTICE VI. CONCLUSION I. INTRODUCTION

Maritime piracy is among the original universal jurisdiction crimes. (2) Persons "committing thefts on the high seas, inhibiting trade, and endangering maritime communication are considered by sovereign states to be hostis humani generis (enemies of humanity)." (3) Denounced by customary international law and recognized as a breach of jus cogens, piracy also is defined and proscribed by a number of international treaties, notably, the 1982 U.N. Convention on the Law of the Sea (UNCLOS), as follows:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). (4)

UNCLOS, which calls upon all states to cooperate to the fullest extent possible in the repression of piracy, provides a jurisdictional basis for the prosecution of acts of piracy. (5) Resolutions of the U.N. Security Council and of the U.N. General Assembly, codes of conduct, and recommended best practices additionally round out the international regime applicable to piracy. The adoption of a number of these instruments was prompted by the frequency of piratical activity off the coast of Somalia in the late 2000s; (these particular instruments, moreover, remain limited in effect to the Somali situation).

Many states have domesticated piracy, including at times with explicit reference to international law, (6) although not always in language identical to the UNCLOS definition. (7) Other states have not domesticated piracy per se or have done so in a manner that may not apply to certain categories of offenders (i.e., juveniles). In these jurisdictions, conduct tantamount to piracy could be prosecuted as cognately related ordinary crimes. On rare occasion, states have invoked universal jurisdiction under UNCLOS as a basis for piracy prosecutions. (8)

Modern maritime piracy is much more than just a financial crime. In addition to the force they deploy to subdue the ship, pirates have in some instances traumatized their captives through mock (or actual) executions, psychological torture, sexual assault, and the use of crewmembers as human shields or slaves. (9) In recent hijackings and attacks in West Africa, pirates based in the Niger delta inflicted harm directly on crewmembers. (10) That said, the gravity of piracy typically is not comparable to the atrociousness of other international crimes such as genocide, crimes against humanity, and widespread war crimes. (11) Piracy's "defining characteristic," after all, "is not its heinousness, but that it occurs outside any nation's sovereign territory." (12)

In recent years, anti-piracy patrols have reportedly released over 90 percent of captured suspects. (13) This means that, upon capture, the vast majority of pirates never come to face any official process of accountability for their alleged conduct. For those suspects who are not summarily released, however, the central impulse among international lawyers and policymakers is to pursue criminal prosecutions. The U.N. Security Council endorses a criminal justice model as a responsive mechanism to acts of piracy connected to the situation in Somalia. (14) The Security Council thereby promotes a model of judicialization and penalization. So, too, has the U.N. General Assembly, which in Resolution 66/231 generally calls for the apprehension and prosecution of persons alleged to have committed acts of piracy. (15) Since the International Criminal Court (ICC) and all other international criminal tribunals lack jurisdiction over piracy, these criminal prosecutions are to be conducted nationally, either in the accused's state of nationality or extraterritorially (i.e., in a state with connection to the victims, in a state that has agreed to hear piracy cases, or in the vessel's flag state). (16) The criminalization model also has been explicitly propounded by the 2009 Djibouti Code of Conduct concerning the Repression of Piracy and Armed Robbery Against Ships in the Western Indian Ocean and the Gulf of Aden. Pursuant to this regional instrument, conducted under the aegis of the International Maritime Organization (IMO), signatories agree to cooperate in the investigation, arrest, and prosecution of piracy suspects and also to ensure that there are domestic laws in place to criminalize piracy. (17) Twenty of the twenty-one eligible states in the region have signed the Djibouti Code of Conduct. (18) The IMO also propounds a prosecutorial model in various resolutions it has adopted. (19) This push has led to the adoption of agreements between states with the military capacity to capture pirates (for example, the U.K. and members of the EU) and certain states that have developed piracy courts to receive these defendants (notably, Seychelles, Kenya, (20) and Mauritius).

Although much of the recent flurry of international legal activity on the subject of piracy is expressly limited to the situation in Somalia, (21) the international law and policy community's endorsement of penal law, criminal prosecutions, and imprisonment for offenders is of a much broader cadence. U.N. Resolution 66/231, for example, is general in scope in its discussion of prosecutions; treaties such as UNCLOS are obviously of general application as well. Part of the motivation of limiting the effect of certain Security Council resolutions only to the Somali situation, moreover, derives from the fact that these resolutions, adopted under Chapter VII of the U.N. Charter, call upon states to use all necessary means, such as deploying naval vessels and military aircraft, to repress acts of piracy. (22)

Essentially, regardless of where piratical activity originates, punitive justice measures would very likely inform the best practices that the international community would envision as suitable to combat such activity. The Security Council sees a link between criminal prosecutions and deterrence of piratical conduct in the Somali situation, as does the IMO, and there is no reason to believe that either would see things differently in other situations. (23) Tellingly, the prosecutorial model infuses the newly drafted Code of Conduct adopted at the maritime conference held in Yaounde, Cameroon. (24)

In this article, within the context of child (25) pirates (who I define as pirates under the age of eighteen), (26) I recommend a new path, namely, modalities of restorative and reintegrative justice that avoid the careless superficiality of immediate release and the retributive...

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