Juvenile pirates: 'Lost Boys' or violent criminals?

AuthorSterio, Milena
PositionEnd Game: An International Conference on Combating Maritime Piracy

Piracy off the coast of Somalia has flourished, over the past decade, and has both caused a global crisis in maritime shipping and destabilized regional security in East Africa. In addition, piracy attacks have spread more recently to the coast of West Africa, and in particular, the Gulf of Guinea. Thus, piracy is an ongoing global issue that should continue to occupy many maritime nations in the near future, and one that should command continuous scholarly attention. This article will examine the issue of juvenile piracy, with a specific focus on the treatment of juvenile piracy suspects by both the capturing as well as prosecuting nation. After describing the pirates' modus operandi and their employment of juveniles, this article argues that states are obligated to treat juveniles with dignity and in a manner that is conducive to their rehabilitation. It further reviews several recent national prosecutions involving alleged juvenile pirates in order to ascertain how different nations have addressed age determinations and treatment of juveniles. This article concludes that juvenile piracy suspects must be treated distinctly and recommends the following guidelines that arresting and prosecuting nations should follow to fulfill their international legal obligations: each suspect's age must be determined pursuant to medical and scientific procedures; any incarceration of juvenile suspects should occur in appropriate juvenile detention facilities; each juvenile's young age should play an important sentencing factor; and each juvenile's post-conviction incarceration should provide not only a correctional, but also an educational and rehabilitative opportunity.

CONTENTS CONTENTS I. INTRODUCTION II. SOMALI PIRACY: USING JUVENILES TO PERFORM PIRATICAL ACTS. III. INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL CRIMINAL LAW PROVISIONS ON THE TREATMENT OF JUVENILE SUSPECTS IV. RECENT NATIONAL PROSECUTIONS OF JUVENILE PIRATES V. RECOMMENDATIONS: THE APPROPRIATE TREATMENT OF JUVENILE PIRACY SUSPECTS A. States Should Use Medical and Forensic Tests to Determine the Suspected Pirates' Ages B. If Forensic and Medical Tests Are Inconclusive as to a Suspected Pirate's Age, That Defendant Should Be Treated as a Juvenile C. If the Apprehending or Prosecuting State Determines That a Suspected Pirate Is a Juvenile, That State Should Ensure That the Suspect Is Treated in Accordance with International Human Rights Law Standards on the Treatment of Juveniles D. A Suspect Apprehended Onboard a Pirate Vessel with Juvenile Pirates Should Be Sentenced More Harshly VI. Conclusion I. INTRODUCTION

Piracy off the coast of Somalia has flourished over the past decade. (1) The International Maritime Bureau (IMB) reported that 439 piracy attacks occurred worldwide in 2011, 237 of which took place off the coast of Somalia. (2) In 2010, the IMB reported a similar figure of 445 attacks, and in 2009, a total of 406 piracy attacks took place. Over the past several years, the number of crewmembers taken hostage significantly increased--from 188 in 2006 to 1,181 in 2010. (3) While the number of piracy attacks off the coast of Somalia has decreased since 2011, most commentators have attributed the decline to the large presence of patrolling vessels in the Indian Ocean and to the frequent use of private armed guards onboard merchant vessels. (4) Most agree, however, that piracy incidents could become more frequent once again if patrolling vessels and private armed guards departed these piracy-infested waters. According to IMB Director Pottengal Mukundan:

Although the number of acts of piracy reported in Somalia has significantly decreased, there can be no room for complacency. The drop in reported attacks is due to proactive naval actions against suspect Pirate Action Groups, the employment of privately contracted armed security personnel and the preventive measures used by the merchant vessels (as per latest Best Management Practices recommendations). The attacks will rise to past levels if the naval presence is reduced or vessels relax their vigilance. (5) Thus, piracy is an ongoing global issue that should continue to occupy many maritime nations in the near future, and one that should command continuous scholarly attention. This article will examine the issue of juvenile piracy, with a specific focus on the treatment of juvenile piracy suspects by both the capturing as well as the prosecuting nation. In Part II, this article will briefly describe the pirates' modus operandi, as well as the employment of juvenile pirates onboard pirate vessels. Part III will analyze international human rights law and international criminal law provisions on the issue of juveniles who have been incarcerated, have entered the criminal process, or have become a part of an armed conflict. This part will conclude that international law, as a general matter, obligates states to treat juveniles with dignity, taking into account their young age and the necessity for their rehabilitation. Part IV will analyze several recent national prosecutions involving juvenile suspects of piracy, in order to ascertain how different nations have dealt with both determining the correct age of a piracy suspect as well as appropriately treating a suspect of juvenile age. Part V will then issue a set of recommendations to any states involved in capturing or prosecuting juvenile piracy suspects. This article will conclude that prosecuting all pirates, adult or juvenile, is tremendously important in the global fight against piracy. However, all juvenile piracy suspects need to be treated distinctly. To accomplish this, suspects' ages must be ascertained pursuant to medical and scientific procedures, their incarceration should only take place within appropriate juvenile detention facilities, their young age should play an important sentencing factor, and their post-conviction incarceration should provide not only a correctional, but also an educational and rehabilitative opportunity.

  1. SOMALI PIRACY: USING JUVENILES TO PERFORM PIRATICAL ACTS

    Somali pirates launch attacks using small boats or "skiffs," which can surprise a target vessel sailing through the Indian Ocean. Pirates may at times quickly overpower the target vessel's crew, as pirates typically possess powerful weapons such as AK-47's and rocket-propelled grenades whereas merchant vessel crews typically travel unarmed. (6) After a successful piracy attack, pirates will haul the captured vessel and its crew to the Somali shore, from where they will begin negotiations for a hefty ransom. (7) Within Somalia, piracy has thrived due to lawlessness throughout the country's territory and a poor economic situation. Somalia has been a failed state since 1991, and pirates have operated off its coast with a high degree of impunity. (8) Most law enforcement operations geared to combat piracy have been led and organized by powerful maritime nations, as well as by regional and international organizations, but not Somali forces. (9) Within Somalia, pirates have faced very few repercussions. In addition, piracy in Somalia is fueled by a poor economic situation. An average Somali person earns as little as $600 per year. (10) Piracy is thus a crime of opportunity for young Somali men: a successful vessel seizure, which had until recently been viewed as not particularly risky, can yield each pirate thousands of dollars. (11)

    Piracy attacks are financed and organized by "businessmen" who often reside abroad, in places such as Dubai or London. (12) In order to execute an attack, piracy organizers will often recruit young men and boys, prone to participating in a criminal enterprise for lack of better job or schooling options. Sadly, pirates as young as twelve have been detained and prosecuted in places such as New York, Germany, Spain, India, Italy, Malaysia, and the Seychelles. (13) In many instances, juvenile pirates play the same role as adult pirates on a pirate vessel: they may engage in violent acts such as shooting, manhandling captured victims, helping to operate the vessel, or providing other types of assistance on board. In many piracy prosecutions, all suspected pirates detained onboard a single pirate vessel will be prosecuted together, under a joint criminal enterprise-type legal theory, which allows prosecutors to charge all suspects involved in a single piracy incident with the same crime. (14) Prosecutors thus do not have to distinguish between the different roles played by different piracy actors on board a skiff; instead, they can charge everybody with the crime of piracy. For juvenile pirates, this essentially means that they will be charged with the crime of piracy, even though their role in the attack may have been minor. Convicting all those involved in a violent crime, such as piracy, of the most serious crime (piracy) is advantageous, as it provides prosecutors with powerful legal tools in the global fight against piracy; however, such an approach poses problems in terms of handling juvenile suspects appropriately. Most countries' domestic criminal systems distinguish between adult and juvenile criminal suspects, and most countries treat juveniles differently. Thus, juvenile piracy suspects should be separated from their adult partners-in-crime and should be prosecuted and detained separately. (15) The section below will examine international treaties that impose such a duty on all member states.

  2. INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL CRIMINAL LAW PROVISIONS ON THE TREATMENT OF JUVENILE SUSPECTS

    Major human rights treaties recognize that juvenile suspects need to be treated distinctly within any criminal investigation or prosecution. Article 10 of the International Covenant on Civil and Political Rights (ICCPR) provides that "[a]ccused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication." (16) Article 14 of the same treaty stipulates that any procedures...

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