IV. Strengthening the Legal Response
What to do with captured pirates and confiscated ships has always been a problem, at least in theory. There are a variety of national legal approaches to the piracy problem, and diverse views among nations on international law regarding piracy. Some governments have been leery of imprisoning and trying pirates themselves; others have transported captives to Kenya. (A prison in Mombasa holds about 119 pirates, 10 of whom have been convicted.) The catch-and-release policy adhered to by many naval forces has not deterred continued piracy. Indeed, many countries have not yet updated their own legal systems to incorporate the current reality of piracy and its penalties. Doing so will make it easier for such a state’s naval patrols to capture and deposit pirates in a jurisdiction ready to try them but will not necessarily overcome the reluctance of some patrolling naval vessels to bother transporting pirates to a readily available jurisdiction.
Despite these potentially conflicting interpretations, the international lawyers who met as the Cambridge Coalition saw no international or domestic legal impediments to trying pirates locally or regionally, in existing or especially created tribunals. (Some saw no efficacy in the creation of a special court for piracy and dissented from the next recommendation.) Most of the participants believed that there were ample legal recourses for the trial for piracy of captured miscreants. Indeed, there was no excuse to do otherwise, i.e. not to prosecute pirates. The Coalition recommended:
33 – Creating an Extra-Territorial Court, utilizing Somali law, and based in Somaliland, in Djibouti, or elsewhere in the region, to handle all pirate cases. The AU or the UN would have to authorize the court, and its judges be appointed and paid internationally. Together with the court, a prison system would have to be established. Although both a court and a prison system would be expensive, if they helped to deter piracy, carriers and patrolling navies would save funds overall.
34 – The existing use of Kenya as a court of first jurisdiction for piracy cases could continue, despite the backlog of cases, procedural shortcomings, legal questions, and the short-handedness of the Kenyan prosecutorial and judicial staffs. The eleven Kenyan prosecutors in Mombasa, for example, are not trained in maritime matters and deal with all criminal cases throughout eastern Kenya. The international community should continue its training and assistance to build Kenya’s court capacity, both to address the piracy problem and for Kenya’s long-term benefit.
35 – Tanzania, Seychelles, Mauritius, and other countries should be encouraged to volunteer to receive pirates to be tried in their own court systems.
36 – The UN should be encouraged to expand upon and update Resolution 1897 to make the existence of equipment capable of being employed for purposes of piracy prima facie evidence of piratical intent. In that matter, mother ships and other pirate vessels could be confiscated at sea. In addition to grappling hooks and ladders, specialized equipment should specifically include outboard motors of certain (large) sizes, rocket-propelled grenade launchers, and machine guns.
37 – The battle against piracy at sea would also be assisted if the UN Security Council and countries around the Red Sea, the Gulf of Aden, the Arabian Sea, and the Indian Ocean harmonized their rules regarding bringing weapons abroad merchant vessels into ports. If weapons are going to be available aboard vessels at sea to deter pirates, those ships will want to be able to keep those arms legally while in a refueling or a cargo discharge harbor.
38 – Both of these last two recommendations could helpfully update the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and expand upon the Djibouti Code of Conduct Concerning the Repression of Piracy and Armed Robbery Against Ships in the Western Indian Ocean and the Gulf of Aden in order to strengthen international legal codes concerning and permitting the prosecution of pirates and pirate financiers.
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Endnotes
[1] The numbers in this Policy Brief have been collated from official International Maritime Bureau statistics, compilations of the East African Seafarer’s Assistance Program, news reports, and naval task force estimates.
[2] Participants included Sam Bateman, Maritime Security Program, Institute of Defence and Strategic Studies, Nanyang Technological University; Bronwyn Bruton, Council on Foreign Relations; Peter Contostavlos, National Security Program, Harvard Kennedy School; Thomas Countryman, Bureau of Political-Military Affairs, U.S. Department of State; Leticia Diaz, Dwayne O. Andreas School of Law, Barry University; Richard Downie, Africa Program, Center for Strategic and International Studies; Barry Hart Dubner, Dwayne O. Andreas School of Law, Barry University; Erik Franckx, Department of International and European Law, Vrije Universiteit Brussels; David Gerber, U.S. Joint Chiefs of Staff Working Group, Pentagon; Graeme Gibbon-Brooks, Dryad Maritime Intelligence Service; Jon Helmick, Logistics and Intermodal Transportation Program, United States Merchant Marine Academy; Eugene Kontorovich, Northwestern School of Law; James Kraska, Naval War College; Peter Lehr, Centre for the Study of Terrorism and Political Violence, University of St. Andrews; Patrick Lennox, Canadian Defence and Foreign Affairs Institute; Michael McNicholas, Phoenix Group; Stuart Merrill, National Security Program, Harvard Kennedy School; Martin Murphy, Center for Strategic and Budgetary Assessments, Washington; Andrew Mwangura, East African Seafarer’s Assistance Program; Thymaya Payne, Species Being Films; J. Peter Pham, National Committee on American Foreign Policy; Robert Rotberg, President, World Peace Foundation and Harvard Kennedy School; David Shinn, Elliott School of International Affairs, George Washington University; Karl Sörenson, FOI, Swedish Defense Research Agency; and Richard Williams, U.S. Joint Chiefs of Staff Working Group, Pentagon.
Please note that some of the participants disagree with one or more of the recommendations. Parent organizations are listed for identification purposes only, and they do not necessarily subscribe to any of the views expressed in this Brief. Participants from the United States Government do not endorse the recommendations herein to the extent that they are inconsistent with United States Government policy.
[3] Assistance should be tied to Somalia rescinding its claim to a 200 nautical mile territorial sea, which is inconsistent with the Law of the Sea Treaty. The study suggested should dovetail well with a Food and Agriculture Organization “Agreement on Port State Measures to Prevent, Deter and Combat Illegal, Unreported and Unregulated Fishing,” just concluded and about to be formalized.
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