International Law in Crisis: seeking the best prosecution model for Somali pirates.

AuthorHodgkinson, Sandra L.
PositionInternational Law in Crisis
  1. INTRODUCTION II. REGIONAL PROSECUTIONS: KENYA, SEYCHELLES, MAURITIUS, AND OTHERS III. EUROPEAN AND AMERICAN STATE PROSECUTIONS: THE UNITED STATES, NETHERLANDS AND GERMANY IV. THE JACK LANG REPORT: A SPECIALIZED COURT SYSTEM FOR PIRACY CASES V. ASSESSING A VIABLE MODEL FOR PROSECUTIONS OF SOMALI PIRATES VI. CONCLUSION I. INTRODUCTION

    The recent surge in piracy cases off of the coast of Somalia (1) has resulted in the need for effective new approaches to prosecuting pirates. Somali courts have attempted to prosecute these cases, (2) but have largely failed to stop this growing phenomenon. (3) The growth in piracy has not only increased the current instability in Somalia, (4) but has also increased costs at ports throughout Africa and undermined fishing and tourism, threatening the livelihood of many African states. (5) As of June 2011, more than one thousand pirates were being held in twenty countries. (6) To address this growing trend, on October 25, 2011, the U.N. Security Council unanimously passed a new resolution calling for international cooperation on information-sharing for law enforcement and prosecution, and emphasizing the need to create specialized anti-piracy courts in Somalia and other courts in the region. (7)

    This article will address some of the efforts to date to successfully prosecute piracy cases. States like Kenya and the Seychelles have entered into bilateral or multilateral agreements to prosecute pirates in their national court systems, with international funding and support, using universal jurisdiction. (8) Wealthier, more distant states, such as the U.S., (9) Netherlands, (10) and Germany, (11) have prosecuted pirates in their home territories most often when their state's flagged-vessel has been pirated and/or their citizens taken hostage or killed through the act of piracy as a victim state. A separate recent proposal, commissioned by the U.N. Secretary General and authored by Jack Lang, the Secretary General's Special Advisor on legal issues related to piracy, now proposes establishing specialized piracy tribunals in Somalia and Tanzania. (12) After assessing the State-led prosecution efforts, this article will also examine this new proposal for specialized piracy courts, and offer additional recommendations for successful prosecutions.

  2. REGIONAL PROSECUTIONS: KENYA, SEYCHELLES, MAURITIUS, AND OTHERS

    There exists sufficient legal authority under international law via the U.N. Convention on the Law of the Sea for nations to exercise criminal jurisdiction over pirates captured on the High Seas. (13) In addition, a series of U.N. Security Council Resolutions have set forth legal authorities for nations to exercise criminal jurisdiction over pirates captured in the territorial waters of Somalia. (14) Kenya was the first third-country nation to actively begin prosecuting pirates picked up by other countries using universal jurisdiction, developing a Memorandum of Agreement with the U.S., and a Memorandum of Understanding with the U.K., to take on these responsibilities in late 2008 and early 2009. (15) Under these agreements, Kenya would agree to conduct the investigations and prosecute the cases, using support and evidence from the U.S. or the U.K. (16) Kenya was able to successfully prosecute a significant number of piracy cases, (17) however, in 2010 the government formally announced its plan to stop prosecuting pirates unless other countries increased their burden of prosecutions, and to cancel its agreements with their countries due to overcrowding in the Kenyan prison system and burdening of the criminal justice system. (18) Nonetheless, the Kenyan government has continued to prosecute piracy cases, (19) and as of June 2011, had 119 pirates in custody awaiting trial, and fifty convictions. (20) The long-term viability for Kenya to prosecute large numbers of additional pirates, however, remains very much in question. (21)

    The Republic of Seychelles signed a similar Exchange of Letters, but with the European Union, in August 2009, allowing the E.U. Naval Force (EUNAVFOR) to transfer to it pirates captured in Seychelles' exclusive economic zone, territorial sea, archipelagic waters and internal waters. (22) In support of piracy prosecutions in both Kenya and the Seychelles, in May 2009, the U.N. Office of Drugs and Crime (UNODC) (23) provided $2.3 million to cover 18 months. (24) In July 2010, the Seychelles successfully completed their first piracy case, resulting in a ten year sentence for eleven pirates who tried to pirate and hijack the Topaz patrol boat. (25) The Seychelles government has expressed concern about its capacity to imprison new convicts, and has passed a law facilitating transfers back to Somalia. (26) Long-term, given the size of the Seychelles judicial system, and its concerns over detention capacity, the capacity of the Seychelles to take on a large load of these cases is questionable.

    Similar to both Kenya and the Seychelles, the European Union and UNODC have recently looked to Mauritius for additional support for piracy prosecutions. In July 2011, Mauritius and the European Union entered into an agreement for the transfer of suspected pirates for investigation, prosecution, trial and detention in Mauritius. (27) The agreement includes a new court and prison for these piracy cases, and the government must pass new legislation. (28) The Maldives are another possible forum for prosecuting piracy cases, and as of June 2011, had 34 pirates in detention awaiting trial. (29) The UNODC Counter Piracy Programme as a whole aims to provide assistance to nations exercising universal jurisdiction to try Somali pirates captured off of the coast of Africa, in support of U.N. Security Council Resolution 1851 by: providing funding (such as the funding provided to Kenya and the Seychelles); training for police, judges and prosecutors; and improvements to prison systems (including refurbishments, health and educational services, and training for staff). (30) While many states have resisted turning pirates over to Somalia, due to both capability and humane treatment concerns, (31) the UNODC Counter Piracy Program has been supporting transfer arrangements from third countries prosecuting Somali nationals back to Somalia's prison system so they can be closer to their homes and to alleviate the burden on third states. (32) Beginning in 2010, UNODC began a Somaliland and Puntland prison program to help strengthen their capacity. (33) While a continuation of the various efforts to strengthen the domestic capacity of regional host nations will result in additional prosecutions, it is unlikely that these small countries with limited judicial and corrections capacity will be sufficient to address the ever-growing numbers alone.

  3. EUROPEAN AND AMERICAN STATE PROSECUTIONS: THE UNITED STATES, NETHERLANDS AND GERMANY

    In addition to the various regional piracy prosecutions using universal jurisdiction (as incorporated into their domestic statutes), a few wealthier Western states have prosecuted piracy cases, primarily when they have been victimized. The first U.S. prosecution was against Abduwali Abjukhadir Muse for his role in the attack on the Maersk Alabama and taking its captain hostage in April 2009; marking the first time a pirate was in U.S. custody for an attack on an American. (34) In May 2010, Muse pled guilty to the crimes of maritime hijackings, kidnappings and hostage-taking, but not to piracy itself. (35) The second U.S. prosecution concluded on August 27, 2010, when six Somalis pled guilty to attacking a vessel, engaging in violence against persons on a vessel, and using a firearm during a crime of violence committed against the USS Ashland, (36) after a judge had concluded that the crime of piracy could not take place unless there was a "robbery at sea." (37) A few months later, on November 24, 2010, the U.S. had its first jury conviction for the crime of piracy since 1820, when five Somali men were convicted of piracy and other crimes for their attack on the USS Nicholas. (38) Piracy cases continued in 2011, with the ongoing prosecution of the surviving Somalis who pirated the Quest yacht, killing four Americans. (39) To date, several have pied guilty. (40) While these cases were successfully prosecuted on U.S. soil, they were expensive, (41) and demonstrated some challenges in applying the international law of piracy uniformly.

    In June 2010, the Dutch government became the first European country to try and convict a case involving Somali piracy; the victim was a Turkish-owned (not Dutch) freight ship named Samanyolu. (42) Of note, the judge took into account the difficult living conditions in Somalia, in deciding to sentence the pirates to only five years (43) (at which point...

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