Taking The Somali Pirates To Court
blurb:isstoday:150409somalipirate
15 April 2009: Taking The Somali Pirates To Court
Piracy has long been a feature of international crime. Yet there are insufficient legal mechanisms to adequately respond to this emerging threat. This is again demonstrated by the protracted piracy menace off the Somalia coast along the Indian Ocean and the Gulf of Aden. The lack of effective legal mechanisms has now prompted States to try to eliminate the legal gaps by undertaking bilateral or multi-lateral arrangements through the United Nations (UN) as well as alternative arrangements through bilateral agreements. For instance, the United States and European Union signed agreements with Kenya designed to facilitate prompt detention and transfer of suspected pirates to the Kenyan criminal justice system.
Resort by States to bilateral arrangements to prosecute pirates are motivated by the anomalies inherent in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Law of the Sea convention has outlined an international regime for the repression of piracy and effectively recognized universal jurisdiction on the part of all States to suppress pirate acts. However, it does not go far in addressing the emerging concerns in terms of actors and issues surrounding crimes in the high seas and territorial waters. For instance, Articles 101 of the UNCLOS Convention defines an act of ship-based piracy as consisting of acts of violence or detention, or an act of depredation, committed for private ends by the crew of a private ship directed against another ship on the high seas, or outside the jurisdiction of any State. However, by limiting the definition to acts committed for ‘private ends’ any actions taken for political motives are excluded.
In addition, the legal regime only authorises the States to take police action in international waters. Even in this case the legal aspect of the arrest and prosecution of the pirates is quite restrictive. For instance, Article 105 of the 1982 Convention authorises States to seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. It further states that the courts of the State that carried out the seizure may decide upon the penalties to be imposed and the action to be taken with regard to the vessel or property. In this regard, the arrest and the prosecution of pirates fall within the precinct of the national law. Thus successful judicial processes depend on whether the corresponding national legal standard exists and the degree to which the enforcing State has adopted the universal jurisdiction over piracy as an international crime which can be subject to arrest and prosecution anywhere in the world.
The legal dilemma is further compounded by the fact that recent piracy attacks have mostly occurred in territorial waters. In the recent past over 80% of the piracy attacks have occurred in territorial waters. Although the international community have at least tried to police the high seas despite the legal constraints, the key challenge however emanates from the coastal State jurisdiction and sovereignty. The situation is further exacerbated by either absence of national government or when a national government lacks capacity to police its territorial waters as portrayed by the case of Somalia. In a situation of the breach of international peace and security by the pirates off the Somalia waters, the responsibility for the enforcement will predominantly fall upon those members of the international community whose ships are currently patrolling off the coast of Somalia. The legal void is however filled by the series of UN Security Council resolutions on Somalia piracy that were adopted unanimously.
Recognising Somalia’s inability to provide maritime security within its own waters, pursuant to the UN Security Council Resolution 1816, authorised States to intervene in the Somalia territorial waters while resorting to all the necessary means, in accordance with the Law of the Sea. Resolution 1816 was effectively renewed on 2 December 2008 with the adoption of Resolution 1846 which extended the international community’s mandate for a further 12 months. Also, in an unprecedented development, the UN Security Council unanimously adopted Resolution 1851, which for the first time authorized international land operations against audacious, armed pirates hiding in Somalia. The Resolution also permits the international community to operate not only within Somali waters but also within the land territory of Somalia which is used to plan, facilitate or undertake acts of piracy and armed robbery at sea.
However, the current response by the UN is not universally applicable but only focused on micro-management of the piracy crisis in Somalia. Further, the UN has not proactively responded to the factors that have given pirates a source of ‘inspiration’, ‘legitimization’ and ‘justification’ for their actions. These include the unregulated illegal fishing in the Somalia’s territorial sea and the Exclusive Economic Zone contrary to the Law of the Sea. Moreover, the UN has not addressed the concerns expressed by various environmental stakeholders including its own UNEP and the UN Political Office for Somalia, about the dumping of toxic waste off the Somalia coast. The dumping is said to have a profound long term impact on the biodiversity of the marine ecosystem with adverse implications for the lives and livelihood of the Somalia coastal communities and a serious implications for the national wealth.
The successful prosecution of the Somali pirates in Kenya on the basis of the bilateral arrangements portend both opportunities and challenges. Firstly, it is a quick step to supplement the shortcoming of the international law. Secondly, it demonstrates international partnership in fighting piracy as an international crime. Thirdly, it quickens the prosecution of the suspected pirates. On the other hand, however, the practice of bilateral arrangements to prosecute the crime of piracy goes against the international Law of the Sea. Further, the practice could be viewed as part of the international rendition that characterised the infamous war on terror. Moreover, the important question is whether Kenya’s national law sufficiently addresses piracy crimes and the ability of the criminal justice system to undertake effective trials in conformity with the international best practices and international human rights regimes.
Somalia provides a unique legal and security dilemma which is likely to continue as long as there is no effective government in Somalia. This is because piracy is intrinsically linked to the economic and political crisis in Somalia. The policing action by the international community to establish anti-piracy security operations off the coast of Somalia will be of limited significance unless there is restoration of effective governance in Somalia. This will ultimately need to go in tandem with the capacity building of the Somalia state institutions such as the criminal justice system to effectively address concerns of the international community.
Mohamed Guyo, ISS Research Associate, ISS Addis Ababa
