You're a Crook, Captain Hook! Navigating a Way Out of the Somali Piracy Problem With the Rule of Law

• Jurisdiction: United States,Federal
• Citation: Vol. 40 No. 3
• Publication year: 2012

You're a Crook, Captain Hook! Navigating a Way out of the Somali Piracy Problem with the Rule of Law

Andrew Michael Bagley^*

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Table of Contents

I. Introduction...............................................................................716

II. Background of Piracy and the Framework of International Piracy Law........................................................720

A. The Rise of Piracy in Somalia..................................................720
B. The International Legal Framework........................................722

III. Problems Prosecuting Piracy Under the Current International Framework.......................................................727

A. The Cost of Prosecuting Piracy................................................728
B. Confusion over a Pirate's Legal Status....................................730
C. The Intersection of Domestic and International Law...........................................................................................734
D. Evidentiary Issues....................................................................736

IV. Solutions......................................................................................737

A. Current State Practice..............................................................737
B. Navigating a Way Forward......................................................743

V. Conclusion...................................................................................748

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I. Introduction

In 1718, Robert Maynard sailed into Hampton Roads, Virginia with the severed head of Captain Edward Teach, better known as the legendary Blackbeard, proudly displayed on the bowsprit of his vessel.¹ Almost three hundred years later, six suspected Somali pirates stood for trial in a U.S. district court in Norfolk, Virginia, not far from Hampton Roads.² The USS Ashland found the suspects on April 10, 2010, floating in a small boat in the Gulf of Aden with AK-47 style firearms, apparently lying in wait for passing ships.³ Though these men were clearly not fishing,⁴ the judge dropped the piracy charges on August 17, 2010, finding that "the Government . . . failed to establish that any unauthorized acts of violence or aggression committed on the high seas constitutes piracy" under U.S. or international law.⁵ On one hand, the due process enjoyed by these suspected pirates illustrates the advancements made in criminal justice since the days of Blackbeard.⁶ On the other hand, the case underscores one of the greatest challenges faced in the fight against modern maritime piracy—how to effectively and fairly prosecute a Somali pirate.⁷

With the recent resurgence in piratical activities off the eastern coast of Africa,⁸ finding an answer to this question remains crucial. Despite heightened attention from the international community, efforts to quell the

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rise in piracy have achieved only qualified success.⁹ By increasing the multinational naval presence in the region, for example, the rate of successful pirate attacks declined from 63% in 2007, to 21% in 2009.¹⁰ Thus far, however, the world's naval forces have failed to pursue or apprehend those responsible for piratical activities, "which may not be sufficient to deter piracy motivated by outsized financial gains."¹¹ Arguably, by only interrupting the attacks and allowing the criminals to go unpunished, pirates are not deterred from committing acts of piracy; they are merely interrupted and delayed.¹² In fact, the increase in the frequency of attacks in the region continues, in spite of the decrease in successful attacks.¹³ A new approach that includes apprehension, prosecution, and incarceration must be implemented to meaningfully deter acts of piracy while preserving some form of due process.

The difficulties of designing and implementing such a plan, however, continue to frustrate the international community.¹⁴ The United Nations Convention on the Laws of the Sea (UNCLOS) assigns universal jurisdiction to the crime of piracy.¹⁵ Universal jurisdiction "allows States to arrest pirates, seize their ships and cargo, and bring them to trial in the State's domestic judicial system."¹⁶ Despite this broad grant of jurisdictional

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authority, UNCLOS does not require any state to actually take judicial action.¹⁷ Therefore, the decision to try piracy is left entirely to the arresting state.¹⁸ As a result of this legal structure and the difficulties involved in trying pirates, which will be discussed in greater detail below, many countries exercise a catch and release policy, where pirates are simply let go rather than apprehended for trial.¹⁹ Even countries that choose to apprehend and prosecute suspected pirates, such as the United States, France, and the Netherlands, face complex legal and administrative challenges that make prosecution difficult, if not impossible.²⁰

The multinational naval forces patrolling near Somalia can now send captured pirates to Somalia's neighbors to stand trial.²¹ Reports of procedural abuse, however, lead observers to question whether these trials are fair and in accordance with international law.²² Further, the expense of prosecuting Somali pirates weighs heavily on neighboring countries.²³

As these problems illustrate, the current state-centric framework is unsustainable. It creates a disjointed approach that fails to provide meaningful deterrence, and therefore fails to solve the problem. To reverse this trend, the international community must better facilitate the apprehension, trial, and incarceration of pirates in accordance with recognized international principles of fairness and criminal justice.²⁴ The

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efforts taken to lower the pirates' rate of success are encouraging. The growing number of attacks, however, will continue to drain resources until the international community takes steps to bring these criminals to justice. Moreover, on the rare occasion when a state actually decides to try a pirate under its own, unique judicial system, problems of cohesion and consistency arise.²⁵ Thus, this approach frustrates the ultimate goal of fairly and effectively handling piracy. Universal jurisdiction should entail some degree of universal rules of process. Therefore, the international approach to piracy must be modified to enable vigorous prosecution of these criminals. To achieve this goal, many scholars argue for including piracy within the jurisdiction of existing international courts, such as the International Tribunal for the Law of the Sea, which currently has no jurisdiction to hear criminal trials.²⁶ While this option is attractive, it may be impracticable in the immediate future since multilateral treaties can take years to enact or amend.²⁷ As a long-term solution, the United Nations should modify one of these international bodies to accommodate piracy. To provide the necessary immediate relief, however, a temporary regional tribunal should be adopted.

Part II of this Note explores the rise of Somali piracy and the legal tools currently in place to apprehend and prosecute pirates. Part III exposes the many flaws inherent in this legal framework in an effort to understand why nations often choose not to prosecute apprehended Somali pirates. Part IV analyzes current state practice once a pirate is actually brought to court. Part IV ultimately concludes that the current legal framework is ineffective, and that an ad hoc criminal tribunal dedicated to piracy is necessary to remedy the situation in Somalia.

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II. Background of Piracy and the Framework of International Piracy Law

A. The Rise of Piracy in Somalia

Piracy is one of the world's oldest crimes.²⁸ The Romans confronted the unique challenges of piracy by famously calling the ocean's thieves "hostis humani generis," or enemy of all mankind, arguably establishing the world's first doctrine of universal jurisdiction.²⁹ Despite incredible evolution in technology, law enforcement, and international legal theory over the last two millennia, groups of individuals continue to exploit the high seas and engage in acts of piracy.³⁰ Moreover, in recent years, the number of attacks appears to have grown.³¹ Between 2000 and 2006, approximately 2,400 reports of piracy were received, roughly doubling the previous six-year total.³² On March 19, 2012, the IMO reported that acts of piracy and armed robbery against ships rose 11% over 2010.³³ Some analysts even believe these statistics underestimate the actual number of pirate attacks, as shipping companies fear reporting incidents will result in increased insurance premiums and drawn-out investigations.³⁴

Most of this growth can be traced to the incredible surge of piratical activity off the coast of Somalia.³⁵ The region accounts for over half of the world's reported acts of piracy and armed robbery at sea.³⁶ Somali pirates operate out of numerous small camps dotting the beaches of the expansive Somali coast.³⁷ They use small, fast skiffs to prey upon slow-traveling cargo ships,³⁸ and are becoming increasingly sophisticated, using larger "mother ships" to extend the range of their operations farther out to sea.³⁹ When

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successful, Somali pirates hijack a ship, guide her to one of several camps along Somalia's eastern shore, and demand a ransom for the crew and cargo.⁴⁰

Disruption of the global supply chain by Somali pirates causes an economic ripple effect throughout the international community.⁴¹ For example, insurance rates per voyage for ships traveling through the region escalated to around $20,000 in 2009, forty times the 2008 rate of $500.⁴² Companies that reroute ships around the southern tip of Africa for fear of attack, avoid the region completely but add an additional 3,500 miles to their shipping routes.⁴³ Although the complex nature of international trade makes the increased costs difficult to quantify, these costs have a negative impact on the regional, if not global, economy.⁴⁴ Of even greater concern is the physical...