Transnational piracy: to pay or to prosecute?

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 9:00 a.m., Saturday, March 26, by its moderator, Milena Sterio of Cleveland-Marshall Law School, who introduced the panelists: Douglas Guilfoyle of University College London; Jennifer Landsidle of the U.S. Department of State; and Thomas Winkler of the Foreign Ministry of Denmark.

INTRODUCTORY REMARKS BY MILENA STERIO

The Somali pirates are dangerous sea robbers. Their operations off the coast of Somalia, in the Gulf of Aden, and elsewhere in the Indian Ocean have terrorized the shipping industry, as well as individuals aboard private vessels. (1) The international community has been actively seeking the most appropriate tools both to prevent pirate attacks, and to punish individuals who engage in such attacks.

The pirates' modus operandi has been simple: they congregate on mother ships and then launch attacks using tiny skiffs, armed with weapons such as AK-47s and rocket-propelled grenades. After a successful attack, pirates hijack the victim vessel and hold its passengers hostage for ransom. (2) In most instances, ransoms have been paid and hostages released, but over the last few months, incidents involving violence and even deaths have increased in number. (3) Pirates have also become more brazen in the style of their operations: they have gone after larger ships, including oil tankers, and they have expanded the geographic scope of their activity throughout the Indian Ocean.

In Somalia, pirates enjoy almost absolute impunity. A failed state without a functioning central government for two decades, Somalia does not have the political, judicial, or law enforcement capacity to fight pirates. (4) Moreover, for some Somalis, pirates are heroes--modern-day Robin Hoods fighting against western nations, which have dumped environmental waste in the Somali waters and depleted them of fish and other natural resources. (5) Pirates have "contributed" to the local economy in Somali coastal towns. Reports indicate that villages live off the proceeds of piracy, and that a pirate stock exchange has developed, where potential investors will buy a "share" of a future pirate attack. (6) In fact, a successful pirate attack will net individual pirates a prize of several tens of thousands of dollars. Compared to the meager $600 that an average Somali earns in a year, the proceeds of piracy may appear worth the risk to those living in dire poverty. (7)

THE SECURITY COUNCIL'S ACTIVISM: EIGHT RESOLUTIONS ON PIRACY

Piracy-fighting nations faced significant restrictions prior to 2008. First, while they could pursue pirates on the high seas, they had no authorization to do the same in the 12-mile stretch of Somali territorial waters. Moreover, piracy-fighting nations could not pursue pirates anywhere on Somali territory; to do so would have been viewed as an encroachment upon Somali territorial integrity and political independence. Finally, because pirates are treated as civilians under the rules of international humanitarian law, piracy-fighting nations were prohibited from pursing them outside of the scope of self-defense law.

The Security Council passed five different resolutions on the issue of Somali piracy in 2008 in attempt to resolve some of these issues; it has passed three additional resolutions since then. The first five resolutions allow patrolling nations to enter Somali territorial waters in their efforts to fight pirates; moreover, these nations have authorization to enter Somali land if they are pursuing pirates. Patrolling nations are also authorized to engage in hot pursuit of pirates. These resolutions also urge states to consider various options for prosecuting captured pirates. One of these resolutions led to the creation of a Contact Group on Piracy off the Coast of Somalia, composed of experts from piracy-fighting states who are working to identify the best preventive options to deter pirates from striking, as well as the best punitive options to punish those who do.

INTERNATIONAL PATROLS IN THE INDIAN OCEAN

In order to increase the safety of commercial ships passing through the Gulf of Aden, piracy-fighting countries have formed patrols that routinely sail through these waters. Such patrols have managed to chase off pirates and prevent numerous attacks. For example, in November 2008, the European Union countries formed Operation Atalanta, and in January 2009, a global task force composed of representatives from major maritime nations created a coalition of patrolling nations in the Gulf of Aden. NATO countries have patrolled pirate-infested waters as well, and some U.S. naval ships have exerted a forceful presence in the Indian Ocean and have successfully warded off pirate operations. (8)

PROSECUTION OPTIONS FOR CAPTURED PIRATES

Piracy is the original universal jurisdiction crime. Nonetheless, the issue of where to prosecute captured Somali pirates has sparked significant controversy. Because of the difficulty associated with modern-day pirate prosecutions, some pirates have been released back to Somalia. (9)

Under the United Nations Convention on the Law of the Sea (UNCLOS), any nation may capture pirates on the high seas--waters defined as comprised of everything but the 12-nautical-mile stretch of littoral states' territorial seas--and prosecute them in its domestic courts. (10) However, nations that capture pirates are often unwilling to prosecute them because of the political, diplomatic, jurisdictional, and financial hurdles associated with such prosecutions. Notably, UNCLOS only provides that the capturing nation may prosecute pirates in its courts. Some scholars have argued that UNCLOS thus prohibits transfers to third countries for prosecution purposes, although a plausible argument exists that UNCLOS, while not contemplating this option, allows for the possibility of transfers. (11)

Even accepting the argument that UNCLOS allows for transfers to third countries for prosecution purposes, such transfers are marred by other problems. First, countries bound by human rights conventions, such as the European Convention on Human Rights, are prohibited from transferring pirates to countries that do not respect fundamental human rights norms. Second, finding third countries willing to accept pirates and to prosecute them in domestic courts is difficult. It appears that piracy-fighting countries have found a stable regional ally in Kenya, which has signed several agreements with transferring countries. If Kenya remains willing to accept large numbers of pirates, this may constitute an attractive option. However, it is uncertain that Kenya will continue to accept large transfers of pirates. In addition, some have criticized the Kenyan system for its unfair treatment of captured Somali pirates. (12)

An additional option is to rely on other conventions, which may provide broader options for the prosecution of Somali pirates. One such convention is the Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA). (13) SUA provides for the possibility of pirate prosecutions in both the capturing nation and in other nations that are willing to prosecute. (14) Other possible conventions include anti-terrorist conventions such as the International Convention Against the Taking of Hostages, the International Convention for the Suppression of the Financing of Terrorism, and the United Nations Convention Against Transnational Organized Crime. (15)

Another option for the prosecution of Somali pirates would be the reliance on international tribunals as venues for such trials. However, none of these options are appealing. It would be logistically and politically difficult to create a new international tribunal, and with pirate attacks occurring on an almost daily basis in the Indian Ocean, waiting for a new tribunal to be launched seems an unattractive idea. Prosecution in the International Criminal Court would require that the Statute be amended to include the crime of piracy--something that would require significant political and diplomatic undertaking, and that does not appear feasible in the near future. Finally, some have discussed the possibility of prosecuting pirates in the International Tribunal for the Law of the Sea (ITLOS). While ITLOS judges are experts on the law of the sea, they are not experts in criminal matters, and may not be the best arbiters of pirate defendants.

MILENA STERIO, Assistant Professor of Law, Cleveland-Marshall College of Law.

(1) Some of the more spectacular pirate attacks include the 2008 attack on the Faina, carrying Russian tanks and ammunition; the attack on the super-tanker Sirius Star, carrying two million barrels of oil; the attack on the U.S. ship, Maersk Alabama, resulting in a day-long standoff in the Indian Ocean between the pirates and the U.S. navy; and the attacks on a Danish yacht and on an American yacht in 2011. James Kraska & Brian Wilson, Fighting Pirates: The Pen and the Sword, 25 WORLD POL'Y J. 41, 42 (2009); James Kraska & Brian Wilson, Piracy Repression, Partnering and the Law, 40 J. MAR. L. & COM. 43 (2009).

(2) See, e.g., Milena Sterio, The Somali Piracy Problem: A Global Puzzle Necessitating a Global Solution, 59 AM. U. L. REV. 1449, 1450 (2010).

(3) For example, in February of this year, Somali pirates hijacked a private yacht with four Americans onboard; all four Americans were killed by the pirates in the ensuing days.

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