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Piracy in a legal context Middelburg, M.J.
Publication date: 2011
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Piracy in a Legal Context Prosecution of Pirates Operating off the Somali Coast
Annemarie Middelburg
a
Piracy in a Legal Context: Prosecution of Pirates Operating off the Somali Coast Annemarie Middelburg
ISBN: 978‐90‐5850‐634‐4
Published by: aolf Legal Publishers (WLP) P.O. Box 31051 6503 CB Nijmegen The Netherlands Tel: +31 24 355 19 04 Fax: +31 84 837 67 00 E‐Mail: [email protected] www.wolfpublishers.com
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© WLP 2011 / the author
TABLE OF CONTENTS
List of Abbreviations
Introduction ...... 1
1. Definition of Piracy under International Law ...... 5 §1.1 The Concept of Piracy ...... 5 §1.2 Definition UNCLOS ...... 5 §1.3 Definition SUA ...... 9 §1.4 Definition IMB ...... 11 §1.5 Piracy as Terrorism? ...... 12 §1.6 Definition of piracy ...... 15
2. Background of Piracy in Somalia ...... 17 §2.1 Pirate’s New Paradise ...... 17 §2.2 The Somali Civil War ...... 18 §2.3 Roots of Somali Piracy ...... 21 §2.4 Causes of Somali Piracy ...... 23 §2.5 Modus operandi ...... 25
3. Universal Jurisdiction and Somali Piracy ...... 29 §3.1 The General Principles of Universal Jurisdiction ...... 29 §3.2 The Scope of Universal Jurisdiction ...... 31 §3.3 Universal Jurisdiction Cases ...... 33 §3.4 Universal Jurisdiction: International Courts and Tribunals ...... 35 §3.5 Provisions Universal Jurisdiction in UNCLOS ...... 36 §3.6 Provisions Universal Jurisdiction in UN Resolutions ...... 39 §3.7 Anti‐Piracy Efforts of the International Community ...... 42
4.1. Prosecution Solutions, Option 1: Prosecution in Somalia ...... 47 §4.1.1 Jurisdiction of Somalia ...... 47 §4.1.2 Human Rights Concerns ...... 48 §4.1.3 Somalia’s Incapability ...... 49 §4.1.4 Conclusion ...... 50
4.2. Prosecution Solutions, Option 2: Prosecution in the ICC ...... 51 §4.2.1 Jurisdiction of the ICC ...... 51 §4.2.2 Conclusion ...... 53
4.3. Prosecution Solutions, Option 3: Prosecution in the Flag State ...... 55 §4.3.1 Lack of Political Will ...... 55 §4.3.2 The Interest of the State ...... 55 §4.3.3 Inadequate Domestic Legal Structures ...... 56 §4.3.3 Asylum Claims ...... 57 §4.3.4 Pirates Facing Trial ...... 58 §4.3.5 Conclusion ...... 63
4.4. Prosecution Solutions, Option 4: Prosecution in Third Countries ..... 65 §4.4.1 Agreements With Kenya ...... 65 §4.4.2 Agreements With Seychelles, Tanzania and Mauritius ...... 67 §4.4.3 Problem with Article 105 UNCLOS? ...... 69 §4.4.4 Human Rights Concerns ...... 70 §4.4.5 Shipriders ...... 72 §4.4.6 Conclusion ...... 73
4.5. Prosecution Solutions, Option 5: Prosecution in an International Piracy Tribunal ...... 75 §4.5.1 The Creation of an Ad Hoc Piracy Tribunal ...... 75 §4.5.2 Advantages of an Ad Hoc Piracy Tribunal ...... 78 §4.5.3 Disadvantages of an Ad Hoc Piracy Tribunal ...... 79 §4.5.4 The Creation of a ‘Hybrid’ Tribunal ...... 80 §4.5.5 Advantages and Disadvantages of a ‘Hybrid’ Tribunal ...... 81 §4.5.6 Other Prosecution Options? ...... 82
4.6. Practical Prosecution Implications ...... 85 §4.6.1: Evidence Gathering ...... 85 §4.6.2: Witness Problem ...... 86
5. Conclusion ...... 87
Bibliography ...... 91
List of Abbreviations
ARPCT Alliance for the Restoration of Peace and Counter‐Terrorism CGPCS Contact Group on Piracy off the Coast of Somalia CTF Combined Task Force EC European Commission ECHR European Convention of Human Rights ECJ European Court of Justice EEZ Exclusive Economic Zone ESDP European Security and Defence Policy EU European Union ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICTR International Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia ICU Islamic Courts Union ILA International Law Association IMB International Maritime Bureau IMB‐PRC International Maritime Bureau Piracy Reporting Centre IMO International Maritime Organization ITLOS International Tribunal for the Law of the Sea MSO Maritime Security Operations NATO North Atlantic Treaty Organization NM Nautical Miles PCIJ Permanent Court of International Justice ReCAAP Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships SNM Somali National Movement SNMG Standing NATO Maritime Group SSDF Somali Salvation Democratic Front SUA Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation TFG Transitional Federal Government UN United Nations UNCAT United Nations Convention Against Torture UNCLOS United Nations Convention on the Law of the Sea UNGA United Nations General Assembly UNITAF Unified Task Force UNODC United Nations Office on Drugs and Crime UNOSOM United Nations Operation in Somalia UNSC United Nations Security Council WFP World Food Programme
Introduction
This book examines piracy off the Somali coast and focuses on the possibilities for prosecution of suspected pirates within the framework of international law. The aim of this study is to paint a picture of the most preferable way to proceed on the prosecution and punishment of Somali pirates, in order to combat the international crime of piracy and to find a solution for impunity at national and international level.
The waters off Somalia, including the Gulf of Aden have recently become a dangerous place. According to the International Chamber of Commerce's International Maritime Bureau’s Piracy Reporting Centre (IMB‐PRC), hijackings off the Somali coast accounted for 92% of all ship seizures in 2010 with 49 ships hijacked and 1,016 crew members taken hostage.1 The pirates have been demanding million‐dollar ransoms for release of the hostages, ships and cargoes.2
Piracy is a major international problem and States face a lot of problems regarding the prosecution pirates operating off the Somali coast. In December 2009, naval officers from the Dutch frigate HMS Evertsen arrested and disarmed 13 pirates.3 But after two weeks they were returned to their own boat and released near the Somali coast with “sufficient stocks of fuel and food”, former Dutch Minister of Defence Eimert van Middelkoop, said in a statement.4 In March 2010, the Dutch navy frigate HMS Tromp disarmed again a group of 19 Somali pirates in the Gulf of Aden and released them afterwards.5 In
1 ICC IMB‐PRC, ‘Hostage‐Taking at Sea Rises to Record Levels, Says IMB’, 17 January 2011
1 ANNEMARIE MIDDELBURG
May 2010, the Liberian flagged oil tanker Moscow University was seized by Somali pirates. A Russian naval ship captured the pirates but they were released after a couple of days, with Russian officials saying there was “insufficient legal basis to keep them in detention”.6 In December 2010, the Belgium frigate Louise‐Marie also released six Somali pirates.7 The federal prosecutor in Brussels said that a Belgium court would not prosecute the pirates, because “there were no injuries and the frigate has not been damaged.”8 Over the last two years, hundreds of Somali pirates have been arrested, disarmed and released. Secretary‐General's Top Legal Adviser warned the Security Council in January 2011: “the fact that 90 per cent of captured pirates were released, is a serious flaw in the international approach to combating piracy.”9
The first chapter of this book describes the various definitions of piracy and explains which definition will be used in this book as the legal definition for the act of piracy. The second chapter briefly describes the background of piracy in Somalia. This chapter analyses the Somali civil war and shows that Somali piracy has its roots in the fishing industry. Other causes for the rise of piracy off the Somali coast will be given, as well as the modus operandi of the pirates. The third chapter looks into the notion and scope of universal jurisdiction. Important cases will be presented and provisions of UNCLOS regarding universal jurisdiction will be examined, as well as recent UNSC Resolutions. This chapter will also evaluate the anti‐piracy efforts of the international community, such as NATO operations, EU Operation ATALANTA,
6 Telegraph.co.uk, ‘Somali Pirates Captured and Released by Russian Navy ‘Have Died’, 12 May 2010
2 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST
U.S. operation Combined Task Force, the IMO Djibouti Code of Conduct and the Contact Group on Piracy off the Coast of Somalia. The fourth chapter considers and examines five options to prosecute suspected pirates operating off the Somali coast. The following options will be looked at: prosecution in Somalia, prosecution in the ICC, prosecution in flag States, prosecution in third countries and prosecution in an international piracy tribunal. Chapter 4 also includes a short remark about practical prosecution implications. Finally, conclusions about the most preferable option to prosecute Somali pirates are put forth in the conclusive chapter.
3
1. Definition of Piracy under International Law
§1.1 The Concept of Piracy
Originally, the word ‘pirate’ derives from the Greek and Latin words ‘peirates’ and ‘pirata’ and refers to an adventurer who attacked a ship.10 While many people might think of piracy as something from history books or movies, piracy has never been eliminated and is big threat for the international community these days.11 Over the years, there has been a shift towards more advanced, sophisticated and professional forms of piracy.12 Modern day pirates carry satellite phones, global positioning systems and are armed with automatic weapons, antitank missiles and grenades.13 The following question emerges: what is the definition of piracy in international law? Three definitions of piracy will be looked at in this chapter: Article 101 United Nations Convention on the Law of the Sea (UNCLOS), Article 3 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) and the International Maritime Bureau’s (IMB) definition will be shortly looked at as well, although it is not legally binding.14
§1.2 Definition UNCLOS
The first attempt to codify the law of piracy was in 1958 when the Convention on the High Seas (or ‘Geneva Convention’) was adopted.15
10 D. Johnson and M.J. Valencia, ‘Piracy in Southeast Asia: Status, Issues, and Responses’, IIAS/ISEAS Series on Maritime Issues and Piracy in Asia, Institute of Southeast Asian Studies, 2005, p x. 11 M.H. Passman, ‘Protections Afforded to Captured Pirates Under the Law of War and International Law’, Tulane Maritime Law Journal, Volume 33, No. 1, Winter 2008, p. 5. 12 H. Pak, ‘The Law of the Sea and Northeast Asia: a Challenge for Cooperation’, Publications on Ocean Development, Volume 35, Martinus Nijhoff Publishers, 2000, p. 106. 13 G. Luft and A. Korin, ‘Terrorism Goes to Sea’, Foreign Affairs, Volume 83, 2004, p. 61‐ 62. 14 A.J. Young, ‘Contemporary Maritime Piracy in Southeast Asia: History, Causes, and Remedies’, IIAS/ISEAS Series on Maritime Issues and Piracy in Asia, Institute of Southeast Asian Studies, 2007, p. 4. 15 Convention on the High Seas, opened for signature 29 April 1958, entered into force on 30 September 1962, United Nations, Treaty Series, Vol. 450, p. 11.
5 ANNEMARIE MIDDELBURG
Article 14 till 21 of this Convention addressed piracy directly.16 Piracy was also incorporated in the United Nations Convention on the Law of the Sea (UNCLOS I) and during the 1960 UNCLOS II negations.17 In 1982, these articles were subsequently included in UNCLOS III and were put into force.18 Somalia ratified the Convention on 24 July 1989.19 Article 101 UNCLOS defines piracy as follows:
“Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”
The UNCLOS definition has been generally accepted as a reflection of pre‐existing customary international law and it is recognized as the most authoritative codification of piracy law.20 The definition contains five elements. First and foremost, piracy must include criminal acts of
16 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies Paper No. 09‐178, 4 September 2009, p. 10. 17 A.J. Young, ‘Contemporary Maritime Piracy in Southeast Asia: History, Causes, and Remedies’, IIAS/ISEAS Series on Maritime Issues and Piracy in Asia, Institute of Southeast Asian Studies, 2007, p. 8. 18 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, entered into force 16 November 1994, ratified by 160 countries. 19 UN, ‘Chronological Lists of Ratifications of, Accessions and Successions to the Convention and the Related Agreements as at 1 March 2010’, Division for Ocean Affairs and the Law of the Sea
6 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST violence, detention or depredation. In the second place, the acts must be committed for solely private aims. Attacks on ships for public or political motives are not piracy (but nevertheless unlawful in International law under the United Nations Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation).21 Thirdly, pirates must commit their acts using a private ship. Another State’s warship cannot be a pirate ship.22 There is an exception in Article 102 UNCLOS which reads the following: “The acts of piracy, as defined in article 101, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft.” When a public ship, which through mutiny is no longer under the discipline and effective control of the State or party that owns it, the act still consists piracy.23 The fourth element is the ‘two ship requirement’, which means that piracy must include at least two ships: pirates need to use a ship to attack another ship.24 An act committed by a crewmember or passenger aboard a ship and not against another ship is not piracy.25 The fifth and last element is that the act must be committed on the high seas or in a place outside the jurisdiction of any State. The high seas are defined in Article 86 UNCLOS as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.”
Unfortunately, the UNCLOS definition and provisions on piracy has in the past proved problematic.26 There is a lack of effectiveness in dealing with attacks on ships, because the definition contains several limitations.27 The most significant limitation is that the UNCLOS
21 M.H. Passman, ‘Protections Afforded to Captured Pirates Under the Law of War and International Law’, Tulane Maritime Law Journal, Volume 33, No. 1, Winter 2008, p. 12 22 Ibid. 23 Z. Keyuan, ‘Seeking Effectiveness for the Crackdown of Piracy at Sea’, Journal of International Affairs, 1 October 2005, p. 2. 24 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies Paper No. 09‐178, 4 September 2009, p. 10. 25 M.H. Passman, ‘Protections Afforded to Captured Pirates Under the Law of War and International Law’, Tulane Maritime Law Journal, Volume 33, No. 1, Winter 2008, p. 13. 26 D. Anderson, R. de Wijk, S. Haines and J. Stevenson, ‘Somalia and the Pirates’, Working Paper No. 33, European Security Forum, December 2009, p. 21. 27 R. Herbert‐Burns,S. Bateman and P. Lehr, ‘Lloyd's MIU Handbook of Maritime
7 ANNEMARIE MIDDELBURG provisions are only concerned with piracy on the high seas or in an Exclusive Economic Zone (EEZ) and they do not address piracy in territorial, coastal or inland waters.28 The majority of piracy incidents in the world take place in territorial or coastal waters,29 but they are legally speaking no acts of piracy at all.30 The IMO and other bodies commonly classify these attacks as ‘armed robbery at sea’.31 The consequence is that the special jurisdictional rules on piracy are not applicable because the attacks take place in the wrong geographic area. Another limitation of the UNCLOS definition is the ‘two ship requirement’. When members of the Palestinian Liberation Organization (PLO) hijacked in October 1985 the Italian flag cruise ship Achille Lauro in the Mediterranean Sea, the act did not constitute piracy under UNCLOS because the members of the PLO had boarded the ship in a port. No second ship was involved and the fourth element of the UNCLOS definition was not fulfilled.32 Thus, ‘internal seizure’ within the ship is not regarded as an act of piracy.33 The last important limitation is the ‘private ends requirement’. Although it is argued that these wordings must be understood broadly,34 acts of violence are committed for religious, ethnic or political reasons, such as acts of maritime terrorism, are generally excluded.35
Security’, CRC Press, 2008, p. 188‐189. 28 P. Lehr, ‘Violence at Sea: Piracy in the Age of Global Terrorism’, Routledge, 2007, p. 155. 29 D. Anderson, R. de Wijk, S. Haines and J. Stevenson, ‘Somalia and the Pirates’, Working Paper No. 33, European Security Forum, December 2009, p. 10. 30 D. Johnson and M. J. Valencia, ‘Piracy in Southeast Asia: Status, Issues, and Responses’, IIAS/ISEAS Series on Maritime Issues and Piracy in Asia, Institute of Southeast Asian Studies, 2005, p xi. 31 P. Lehr, ‘Violence at Sea: Piracy in the Age of Global Terrorism’, Routledge, 2007, p. 155. 32 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies Paper No. 09‐178, 4 September 2009, p. 11. 33 K. Zou, ‘Seeking Effectiveness for the Crackdown of Piracy at Sea’, Journal of International Affairs, 1 October 2005, p. 3. 34 Castle John v. NV Mabeco (Belgium, Court of Cassation, 1986), 77 ILR 537 and C. Warbrick, ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter‐Piracy Efforts’, International and Comparative Law Quarterly, Volume 57, Cambridge University Press, July 2008, p. 693‐694 and T. Garmon, ‘International Law of the Sea: Reconciling the Law of Piracy and Terrorism in the Wake of September 11th’, Tulane Maritime Law Journal, Volume 27, 2002‐2003, p. 265. 35 K. Zou, ‘Seeking Effectiveness for the Crackdown of Piracy at Sea’, Journal of International Affairs, 1 October 2005, p. 3.
8 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST
Because of the limitations outlined above, scholars have advised revising the definition.36 Already in 1970, before UNCLOS III, the International Law Association (ILA) suggested that piracy should be defined as: “unlawful seizure or taking control of a vessel through violence, threats of violence, surprise, fraud or other means”, but this suggestion was not taken into account.37
§1.3 Definition SUA
The Achille Lauro incident in 1985 led indirectly to the adoption of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Convention (SUA Convention), adopted at a conference held in Rome in March 1988. SUA entered into force in March 1992.38 Despite wide acceptance, Somalia has not (yet) signed the Convention.39
The SUA Convention is one of the global instruments for the prevention and suppression of international terrorism. The preamble of the Convention expressed deep concern about “the worldwide escalation of acts of terrorism in all its forms, which endanger or take innocent human lives, jeopardize fundamental freedoms and seriously impair the dignity of human beings.” While the SUA Convention does not use the term ‘piracy’ at all, the Convention includes piracy and armed robbery within the scope of its application. Article 3, paragraph 1 reads as follows:
36 A.P. Rubin, ‘Is Piracy Illegal?’, American Journal of International Law, Volume 70, No. 1, January 1976, p. 95. 37 K. Zou and S. Wu, ‘Maritime Security in the South China Sea: Regional Implications and International Cooperation’, Corbett Centre for Maritime Policy Studies Series, Ashgate Publishing Ltd., 2009, p. 139. 38 R. Herbert‐Burns,S. Bateman and P. Lehr, ‘Lloyd's MIU Handbook of Maritime Security’, CRC Press, 2008, p. 172. 39 IMO, ‘Status of Conventions by Country’
9 ANNEMARIE MIDDELBURG
“Any person commits an offence if that person unlawfully and intentionally: 1. seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or 2. performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or 3. destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or 4. places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to en‐danger the safe navigation of that ship; or 5. destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or 6. communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or 7. injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).”
The main purpose of the SUA Convention is to “ensure that appropriate action is taken against persons committing unlawful acts against ships.”40 Although the Convention is being propagated as an anti‐piracy document, it was not designed to address the law of piracy but was rather meant to address international terrorism.41 The SUA Convention is also listed on the UN website as an anti‐terrorist convention.42
The SUA Convention might be an attempt at addressing the inadequacies of the UNCLOS definition. In the first place, this convention fills the geographical gap because it applies to ships in all
40 IMO, ‘Convention Aims’, Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988
10 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST maritime waters, including the territorial sea, archipelagic waters and internal waters.43 Article 4 of the SUA Convention confirms that: “This Convention applies if the ship is navigating of is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States.” In the second place, the definition in the SUA Convention includes public and political motives and there is no ‘two ship requirement’.44 Therefore, ‘internal seizure’ within the ship is regarded as an act of piracy.45
Despite the fact that the SUA Convention is able to sidestep some of the problems inherent in UNCLOS, SUA also raises problems. The first problem is the possible infringements upon national sovereignty. Implementation of the SUA Convention could mean that foreign ships will be allowed to exercise jurisdiction in another country’s territorial waters.46 Secondly, the very broadness of the definition and the vague terms in the SUA Convention makes it less than ideal for addressing the threat of piracy.47
§1.4 Definition IMB
The International Chamber of Commerce's International Maritime Bureau (IMB) has defined piracy as "the act of boarding or attempting to board any ship with the intent to commit theft or any other crime and with the intent or capability to use force in furtherance of that act".48 This definition is much broader in comparison to the UNCLOS and SUA definition and includes almost every violence at sea. It is
43 H. Pak, ‘The Law of the Sea and Northeast Asia: a Challenge for Cooperation’, Publications on Ocean Development, Volume 35, Martinus Nijhoff Publishers, 2000, p. 106. 44 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies Paper No. 09‐178, 4 September 2009, p. 11‐12. 45 K. Zou, ‘Seeking Effectiveness for the Crackdown of Piracy at Sea’, Journal of International Affairs, 1 October 2005, p. 3. 46 A.J. Young, ‘Contemporary Maritime Piracy in Southeast Asia: History, Causes, and Remedies’, IIAS/ISEAS Series on Maritime Issues and Piracy in Asia, Institute of Southeast Asian Studies, 2007, p. 81. 47 Ibid. 48 D. Anderson, R. de Wijk, S. Haines and J. Stevenson, ‘Somalia and the Pirates’, Working Paper No. 33, European Security Forum, December 2009, p. 10.
11 ANNEMARIE MIDDELBURG accepted by the shipping industry and it is very common in the media and security literature.49 The IMB uses this definition for collecting their information, which means that the incidents reported by the International Maritime Bureau Piracy Reporting Centre (IMB‐PRC) are based exclusively on this definition.50 Nevertheless, this definition has not been recognized under international law. It is not legally binding and they do not conform to international legal definitions like Article 101 UNCLOS and Article 3 SUA.51
§1.5 Piracy as Terrorism?
Piracy parallels terrorism in many aspects: both are forms of organized crime, both exist on a supra‐national level and both seem to take place in lawless regions.52 Therefore, some scholars argue that pirates are sea‐terrorists and should be treated that way.53 They say that the scourges of piracy and terrorism are intertwined and that piracy on the high seas is becoming a key tactic of terrorist groups.54 It is an advantage that pirates could be more effectively prosecuted if they were treated as terrorists. In that case, States could rely on a variety of anti‐terrorist conventions55 to justify the capture and prosecution of pirates.56 But not only piracy, also terrorism is a complicated concept.
49 A.J. Young, ‘Contemporary Maritime Piracy in Southeast Asia: History, Causes, and Remedies’, IIAS/ISEAS Series on Maritime Issues and Piracy in Asia, Institute of Southeast Asian Studies, 2007, p. 4. 50 K. Zou, ‘Seeking Effectiveness for the Crackdown of Piracy at Sea’, Journal of International Affairs, 1 October 2005, p. 3. 51 A.J. Young, ‘Contemporary Maritime Piracy in Southeast Asia: History, Causes, and Remedies’, IIAS/ISEAS Series on Maritime Issues and Piracy in Asia, Institute of Southeast Asian Studies, 2007, p. 10. 52 Ibid, p. 20‐23. 53 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies Paper No. 09‐178, 4 September 2009, p. 1‐3. 54 G. Luft and A. Korin, ‘Terrorism Goes to Sea’, Foreign Affairs, Volume 83, 2004, p. 61 55 Examples are the Convention for the Suppression of Unlawful Seizure of Aircraft, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, the International Convention against the Taking of Hostages and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf. 56 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies
12 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST
The international community has not posited a comprehensive or generally accepted definition of ‘terrorism’.57
Piracy and terrorism have indeed many similarities, but there are also important differences. In the first place, the goals of pirates and terrorists are different. Piracy is a crime motivated by greed and thus pirates seek immediate financial gain through robbery.58 Terrorism is a crime motivated by political goals beyond the immediate act of attacking a ship and thus terrorists seek to make a political point (by causing murder and chaos).59 The second difference is that terrorists want to call attention on their acts and try to harm and damage as much as possible, while pirates want to avoid attention and will only harm and damage what is necessary to complete their mission.60 Thirdly, the root causes are different. The motivating factor for pirates is economics and for terrorists it is political and religious ideology.61 Therefore, terrorism and piracy require different approaches.
The following two examples of maritime terrorism illustrates that an act of terrorism is different compared with an act of piracy. In October 2000, suicide terrorists attacked the war ship USS Cole while it was harbored and refueling in the port of Aden in Yemen. Seventeen U.S. sailors were killed and Al‐Qaeda claimed responsibility for the attack.62 The motive was a protest against American involvement in the Middle
Paper No. 09‐178, 4 September 2009, p. 23. 57 T. Garmon, ‘International Law of the Sea: Reconciling the Law of Piracy and Terrorism in the Wake of September 11th’, Tulane Maritime Law Journal, Volume 27, 2002‐2003, p. 269. 58 A.J. Young and M.J. Valencia, ‘Conflation of Piracy and Terrorism in Southeast Asia: Rectitude and Utility’, Contemporary Southeast Asia, Volume 25, Issue. 2, Augustus 2003, p. 269. 59 L. Diaz and B.H. Dubner, ‘On the Problem of Utilizing Unilateral Action to Prevent Acts of Sea Piracy and Terrorism: A Proactive Approach to the Evolution of International Law’, Syracuse Journal of International Law and Commerce, Volume 32, 2004‐2005, p. 1. 60 A.J. Young and M.J. Valencia, ‘Conflation of Piracy and Terrorism in Southeast Asia: Rectitude and Utility’, Contemporary Southeast Asia, Volume 25, Issue 2, Augustus 2003, p. 269. 61 A.J. Young and M.J. Valencia, ‘Conflation of Piracy and Terrorism in Southeast Asia: Rectitude and Utility’, Contemporary Southeast Asia, Volume 25, Issue 2, Augustus 2003, p. 269. 62 F. Bolz, K.J. Dudonis and D.P. Schulz, ‘The Counterterrorism Handbook: Tactics, Procedures, and Techniques’, CRC Press, Taylor & Francis Group, 2005, p. 259.
13 ANNEMARIE MIDDELBURG
East.63 In October 2002, terrorists in the Gulf of Aden off the shore of Yemen attacked the French supertanker MT Limburg. A small speedboat filled with explosives rammed into the tanker causing extensive damage.64 An audiotape believed to have been made by Osama bin Laden claimed responsibility for the suicide attack.65 He said that these terrorists were interested in “cutting the economic lifelines of the world’s industrialized societies.”66
If we translate this to piracy in Somalia, Somali pirates do not have the intention to make a political point. Instead, they hunt for profit.67 Interviews with pirates operating off the Somali coast confirm that profit is the most important factor in motivating pirates: “the local people coming back home with huge amounts of money also attracted me.“68 Some argue that there is a link between Somali piracy and the militant Somali Islamist group Harakat Al‐Shabaab (‘the youth’).69 Some form of connection between Somali pirates and terrorist groups is likely,70 but there is (so far) no evidence that this link exist.71
63 B. Whitaker, ‘The Attack on the USS Cole: The Motive’, Al‐bab,
14 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST
§1.6 Definition of piracy
Definitions are important, but defining the crime of piracy has proven problematic.72 The SUA Convention may not be the appropriate instrument that defines the act of piracy off the Somali coast. In the first place, the effectiveness of the SUA Convention depends upon all of the States within a region becoming parties.73 Since Somalia is not (yet) a party of the SUA Convention, Article 3 is not a useful tool. Other reasons why the definition of the SUA Convention is problematic are the broadness and vagueness of the definition and concerns about national sovereignty. Above all, the SUA convention is not designed to address the law of piracy but was rather meant to address international terrorism. The definition of the International Maritime Bureau may not be an appropriate instrument either, because the definition has not been recognized under international law. It is not legally binding and therefore not a useful tool either in this book.
In my view, the current framework of the UNCLOS convention is in general not really able to cope with modern day piracy. The piracy definition in UNCLOS and its relevant provisions need to be reconsidered in the future.74 But although the UNCLOS definition has a lot of shortcomings, this definition will be used in this book as the legal definition of piracy. The UNCLOS definition does not cause a lot of limitations in case of piracy off the Somali coast. Regarding the IMB‐ PRC, the vast majority of attacks committed by Somali pirates occur on the high seas.75 Somali pirates commit their acts for private ends (immediate financial gain) and they use small fishing boats to attack ships (‘two ship requirement‘).76 To conclude, terrorism is not included
72 D. Anderson, R. de Wijk, S. Haines and J. Stevenson, ‘Somalia and the Pirates’, Working Paper No. 33, European Security Forum, December 2009, p. 21. 73 R. Herbert‐Burns,S. Bateman and P. Lehr, ‘Lloyd's MIU Handbook of Maritime Security’, CRC Press, 2008, p. 197. 74 K. Zou, ‘Seeking Effectiveness for the Crackdown of Piracy at Sea’, Journal of International Affairs, 1 October 2005, p. 12. 75 D. Anderson, R. de Wijk, S. Haines and J. Stevenson, ‘Somalia and the Pirates’, Working Paper No. 33, European Security Forum, December 2009, p. 22 and ICC IMB‐ PRC, ‘IMB Piracy Map 2009’,
15 ANNEMARIE MIDDELBURG under the terms of Article 101 UNCLOS. Piracy is clearly limited to private ends, all public or political seizures (including terrorism) are ruled out.77 Terrorist attacks do not fit in the definition of piracy given by international law.
77 S.P. Menefee, ‘The New Jamaica Discipline: Problems with Piracy, Maritime Terrorism and the 1982 Convention on the Law of the Sea’, Connecticut Journal of International Law, Volume 6, 1990‐1991, p. 143.
16
2. Background of Piracy in Somalia
§2.1 Pirate’s New Paradise
The Gulf of Aden and the east coast of Somalia became the most pirate‐infested water in the world. Piracy activity in this region accounts for 92% of all the acts of piracy reported in the 2010 Annual Piracy Report of the IMB. Off the Somali coast, 49 vessels were hijacked and 1,016 crewmembers were taken hostage in 2010. As of 31 December 2010, Somali pirates were still holding a total of 28 ships and 638 hostages for ransom. Captain Pottengal Mukundan, director of the IMB’s Piracy Reporting Centre78 reported that “These figures for the number of hostages and vessels taken are the highest we have ever seen and the continued increase in these numbers is alarming.”79
Throughout the 1990s and the early 2000’s, the vast majority of piracy attacks were not committed off the Somali coast, but in an area which is known as ‘Maritime Asia’ (the region from the Red Sea, the Persian Gulf, the Arabian Sea, from the Bay of Bengal through the Strait of Malacca and the South China Sea).80 This chapter will answer the question why the act of piracy became so successful off the Somali coast.
Regarding the Failed States Index 2010, Somalia has been the most failed State.81 Somalia is incapable of providing good governance, enforcing respect for the rule of law, maintaining effective control and providing security of its citizens.82 It is not possible to address and to understand the wave of attacks by Somali pirates, without addressing the history of the State.
78 The ICC IMB‐PRC has monitored piracy worldwide since 1991. It is the world’s only manned centre to receive reports of pirate attacks, 24 hours a day from all over the world. The PRC is located in Kuala Lumpur, Malaysia. 79 ICC IMB‐PRC, ‘Hostage‐Taking at Sea Rises to Record Levels, Says IMB’, 17 January 2011
17 ANNEMARIE MIDDELBURG
§2.2 The Somali Civil War
Somalia was created in 1960 by merging British Somaliland Protectorate and the colony of Italian Somaliland.83 In the first nine years, the United Republic of Somalia was a parliamentary democracy until Major General Mohamed Siad Barre took power by a military coup. He was the President of Somalia from 1969, but his government collapsed after 22 years by clan‐based forces.84 Barre’s departure left a power vacuum and Somalia immediately broke down into clan‐based militia warfare. The clan‐based militias turned on each other in pursuit of control and created widespread violence in an intra‐State war.85 The civil war disrupted agriculture and food distribution and killed hundreds of thousands and led to widespread starvation across Somalia.86 Another result of the collapse was that it created an emptiness of legitimate institutions that was filled in different ways in different regions. The central part of Somalia, where the Somali Salvation Democratic Front (SSDF) had more support, achieved kind of stability. The Somali National Movement (SNM) gained control in northwest Somalia and declared its independence in May 1991, calling itself the Republic of Somaliland. It is relatively stable in comparison with other parts of Somalia, but no foreign government has recognized its independence.87 Lawlessness, anarchy and famine (an estimated 300.000 people died, including many children) were mostly found in southern Somalia.88 The situation in Somalia caused the United Nations Security Council (UNSC) in April 1992 to authorize the peace keeping operation United Nations Operation in Somalia I (UNOSOM I). UNOSOM I was set up “to facilitate humanitarian aid to
83 P.N. Lyman and P. Dorff, ‘Beyond Humanitarianism: What You Need to Know About Africa and Why it Matters’, Council on Foreign Relations, 2007, p. 113. 84 P. Lennox, ‘ Contemporary Piracy off the Horn of Africa’, Canadian Defence & Foreign Affairs Institute, December 2008, p. 5. 85 The Fund for Peace, ‘Country Profile Somalia’
18 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST people trapped by civil war and famine.”89 UNOSOM was limited to self‐defence and initially formed to monitor “heavy fighting in the Somali capital of Mogadishu between armed elements allied to General Mohamed Farah Aidid, or to Mr. Ali Mohamed Mahdi, the appointed "interim President", and yet other factions.” 90 The failure of UNOSOM I was that the UN did not address the fundamental problem, namely the collapse of State authority. The UN behaved as Somalia was a sovereign government and the UN troops became hostages instead of peacekeepers.91
Faced with a humanitarian disaster in Somalia, on December 1992, the UNSC unanimously adopted Resolution 794(1992) approving a coalition of the UN peacekeepers led by the United States to form the Unified Task Force (UNITAF). They allowed a military force to use "all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia as soon as possible."92 UNITAF was charged with ensuring humanitarian aid be distributed and peace be established in Somalia. The UN humanitarian troops landed in 1993 and started a two‐year effort (mainly in the southern part of Somalia). UNITAF had a positive impact on the security situation in Somalia and delivered effectively humanitarian assistance. But on the other hand there had not been a secure environment established and incidents of violence continued.93 There was no functioning government in Somalia, neither an organized civilian police nor a disciplined national army. Therefore, in May 2003, UNITAF was replaced by United Nations Operation in Somalia II (UNOSOM II) which was established by UNSC resolution 814(1993). However, General Mohamed Farah Aidid saw UNOSOM II as a threat to his
89 D.J. Francis, ‘Dangers of Co‐Deployment: UN Co‐Operative Peacekeeping in Africa’, Ashgate Publishing Ltd., 2005, p. 93. 90 UN, ‘United Nations Operation in Somalia I’, Department of Public Information, December 1996
19 ANNEMARIE MIDDELBURG power and in June 1993 his militants attacked Pakistan troops who were part of UNOSOM II in Mogadishu which led to escalating fighting and killed 24 Pakistani peacekeepers.94 In October 1993, 18 American soldiers and more than 1000 Somalis were killed.95 In response, the UNSC passed Resolution 837(1993) and condemned the attacks.96 After several violent incidents and the rule of government still not restored, UNOSOM II withdrew in March 1995.97
Somalia has repeatedly failed to establish a functioning central government. As a result, criminal activity, including piracy is rampant throughout the country. Somalia became a playground for the pirates.98 In 2004, the Transitional Federal Government (TFG) was formed in Kenya and Colonel Abdullahi Yusef Ahmed won the vote for president.99 Despite several efforts to manage the conflict, the rivalry between different warlords, religious factions and other tribes worsened the violence and humanitarian crisis in the country. In 2006 there was an increase of the conflict in Mogadishu and clashes resulted in some of the worst violence in Somalia.100 The Alliance for the Restoration of Peace and Counter‐Terrorism (ARPCT) was formed, but the Shari’a law oriented Islamic Courts Union (ICU) rapidly consolidated power. The ICU succeeded in overtaking the capital from the ARPCT during the Second Battle of Mogadishu. They continued to expand their control over (mainly the southern part of) Somalia.101 It
94 M. V. Ecklund, ‘Task Force Ranger vs. Urban Somali Guerrillas in Mogadishu: An Analysis of Guerrilla and Counterguerrilla Tactics and Techniques used during Operation Gothic Serpent’, Small Wars and Insurgencies, Volume 15, Issue 3, Winter 2004, p. 50. 95 L. Thomas and S. Spataro, ‘Peacekeeping and Policing in Somalia’, the Institute for National Strategic Studies (INSS) and the National Defense University (NDU), October 2002
20 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST led to increasingly open warfare. Since 2006 the violence and other abuses against civilians has risen and was worse than at any time.102 Ethiopian troops, African Union peacekeepers and air support by the United States ensured that the capital Mogadishu was retaken from the ICU in December 2006. This intervention led to more chaos and instability in the country, with humanitarian, political and security conditions continuing to worsen across south‐central Somalia.103 The Ethiopian troops completed their withdrawal from Somalia by 2009,104 but they left a fragile coalition government behind and a faltering African Union peacekeeping force to assist the TFG troops.105 After the Ethiopian withdrawal, the conflict worsened when the rebels and Islamic insurgency groups, dominated by the militant Somali Islamist group Harakat Al‐Shabaab extended their power. They established strict Islamic rule in areas under their control in line with their long‐ term goal to “turn Somalia into an Islamic State.”106 They captured in May 2009 most of the capital city Mogadishu, but failed to overthrow the government. It won’t surprise anybody that the lack of central authority for 19 years has resulted in widespread lawlessness, violence and socio‐economic deprivation and a tremendous increase of piracy attacks off the Somali coast.
§2.3 Roots of Somali Piracy
The Somali piracy phenomenon started in the period as early as 1989‐ 1991, in parallel with the State collapse.107 The first piracy attacks occurred when boats from the Somali National Movement (SNM)
110. 102 E.A. Kennedy, ‘Somalia Crisis Deepened by Ethiopia’, Associated Press, 24 September 2008
21 ANNEMARIE MIDDELBURG hijacked an oil tanker and two other ships off the Somali coast.108 The pirates took their goods and re‐sold them for profit to prevent them from reaching government‐controlled areas.109 In 1992 and 1993 there were only a few recorded piracy attacks in Somalia. The frequency of attacks went up in 1994‐1995 and increased towards the year 2000.110 It is widely believed that the rise of piracy off the Somali coast must be seen in relation to the Somali fishing industry. Somalia had run a successful large‐scale fishing industry from the early 1960s, but slowly felt into disrepair and disuse due to the civil war.111 European and Asian ships took the advantage of the chaos and aggressively invaded the waters of Somalia.112 Somalia was not capable to patrol its territorial waters and EEZ.113 Angry Somali fishermen secured weapons and began firing on foreign ships to protect the territorial waters from illegal fishing and dumping of toxic wastes.114 But at the same time, militia leaders and young fishermen saw an opportunity to earn easy money by asking fees from foreign fishing ships for ‘licenses’ to fish in the territorial waters and they called themselves ‘Coast Guards’.115 The foreign ships that failed to pay the fees, ran the risk of being captured and kidnapped. The Somali militia leaders and young fishermen learned quickly that it was more lucrative and less dangerous to attack large and unarmed commercial ships.116 The amount of attacks
108 D. Anderson, R. de Wijk, S. Haines and J. Stevenson, ‘Somalia and the Pirates’, Working Paper No. 33, European Security Forum, December 2009, p. 6. 109 S. J. Hansen, ‘Piracy in the Greater Gulf of Aden: Myths, Misconceptions and Remedies’, Norwegian Institute for Urban and Regional Research, October 2009, p. 20. 110 Ibid, p. 23. 111 D. Anderson, R. de Wijk, S. Haines and J. Stevenson, ‘Somalia and the Pirates’, Working Paper No. 33, European Security Forum, December 2009, p. 6. 112 M. Silva, ‘Somalia: State Failure, Piracy and the Challenge to International Law’, Virginia Journal of International Law, Volume 50, No. 3, 2010, p. 557. 113 A. Khalif, ‘How Illegal Fishing Feeds Somali Piracy’, The Somaliland Times, 15 November 2005
22 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST exploded towards the end of 2008 after the massive Saudi oil tanker M/V Sirius Star was successfully hijacked in November 2008.117 In January 2009 the supertanker was released in exchange for a $3.000.000,‐ ransom which was parachuted onto its deck. This high profile attack led to new insights into Somali piracy. Pirates became more professional and ransom money was invested in new pirate attacks. The largest crime wave in the modern history of the Western Indian Ocean and Gulf of Aden was a fact and led to media attention all over the world.118
§2.4 Causes of Somali Piracy
The first cause of Somali piracy originates from the start‐up phase in the early 1990’s and has already been discussed in the previous paragraph, namely the illegal fishing.
Another cause often mentioned is the widespread poverty and lack of employment in Somalia as a result of the civil war.119 Generally speaking, people engage in piracy because the potential gains from piracy are higher than the potential costs.120 In other words: they benefit more from it than other alternatives (for example being a fishermen) and piracy offers the opportunity for increased income. Taking into account the geographical location of Somalia at the Horn of Africa at the crux of all major regional shipping lanes, the fact that weapons are easily available, the fact that most young men have seagoing experience and that they live in a war torn land with little to lose, piracy became a career path open to youth.121 They have gone to the waters in search for fortune and they fight for their own financial salvation. Greed became the driving force behind most acts of
117 N.O. Booker, ‘Piracy off the Somali Coast’, Kenya Engineer, Volume 30, No. 3, 2009, p. 1. 118 S.J. Hansen, ‘Piracy in the Greater Gulf of Aden: Myths, Misconceptions and Remedies’, Norwegian Institute for Urban and Regional Research, October 2009, p. 33. 119 W. Minter and D. Volman, ‘Piracy and Washington: The Somalia Crossroads’, Toward Freedom, 13 July 2009
23 ANNEMARIE MIDDELBURG piracy.122 It worked, because the shipping firms and governments were prepared to pay massive ransoms since they are relatively low compared to the value of the ship, let alone the life of crew members.123
Another cause of piracy off the Somali coast touches upon the main question of this book and includes the lack of legal and maritime counterstrategies. More and more ships passing through the Gulf of Aden and the Indian Ocean use barbed wire, water‐hoses, private security and other countermeasures. But pirates hunt for the easiest target and pirates go for ships that fail to have self‐defense arrangements.124 The problem is that a lot of ships (mostly from poor countries) lack the necessary resources for enforcement of those self‐ defense arrangements. But even for Western States the expense might be too high and that makes those ships and an easy target for the pirates.125
The Somali government doesn’t take the responsibility for securing their own coastline and suppressing piracy in their territorial waters. In the last decade, there has been a dramatic reduction in pirate attacks in Southeast Asia. Following the conclusion of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships (ReCAAP), governments in the Southeast Asia region have begun to implement a system for coordinating anti‐piracy efforts which were very effective.126 However, East African and Middle Eastern States fail to have the financial and legal resources for a similar agreement to cope with the piracy threat.127 Therefore, international
122 P. Lennox, ‘ Contemporary Piracy off the Horn of Africa’, Canadian Defence & Foreign Affairs Institute, December 2008, p. 2. 123 R. Middleton, ‘Piracy in Somalia: Threatening Global Trade, Feeding Local Wars’, Africa Programme, Briefing Paper, October 2008, p. 5. 124 S.J. Hansen, ‘Piracy in the Greater Gulf of Aden: Myths, Misconceptions and Remedies’, Norwegian Institute for Urban and Regional Research, October 2009, p. 16. 125 S.J. Hansen, ‘Modern Piracy as a Subject of Academic Enquiry’, e‐International Relations, 19 December 2008
24 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST naval forces are present in the Gulf of Aden and the Indian Ocean to protect maritime traffic. But some argue that the presence might be too weak. Roger Middleton even claims that “this effort may well turn out to be more symbolic than practical”.128 He argues that the range of pirates operating in Gulf of Aden and the Indian Ocean is too large to adequately patrol. Regarding the legal countermeasures one can say that they have limited impact.129 There are no onshore legal institutions that can deal with the acts of piracy and a lot of countries have returned pirates to the beach without taking any legal action.130
§2.5 Modus operandi
In the beginning of the piracy era, pirates were only armed with knives and pistols and were operating in small rubber or wooden motorboats. In the majority of cases, violence was limited to assault and threatening of the victims.131 But over the last several years, piracy has become more sophisticated and there has been an increase in the levels of violence. Pirates started to use heavier firearms such as AK‐47 automatic machine guns, rocket‐propelled grenades and even dynamite to commit their attacks and threaten crewmembers. They also employ new technologies such as GPS devices, satellite phones and advanced money counting machines.132
The small groups of pirates (who are usually ex‐fishermen, ex‐ militiamen or technical expert coming from northeastern region of Somalia),133 operate using small speedboats with powerful engines that can be pulled up onto the beach. The advantage is that these boats are fast and maneuverable, but a disadvantage is that they lack
128 R. Middleton, ‘Piracy in Somalia: Threatening Global Trade, Feeding Local Wars’, Africa Programme, Briefing Paper, October 2008, p. 8. 129 S.J. Hansen, ‘Piracy in the Greater Gulf of Aden: Myths, Misconceptions and Remedies’, Norwegian Institute for Urban and Regional Research, October 2009, p. 16. 130 J. Kraska and B. Wilson, ‘Fighting Pirates: The Pen and the Sword’, World Policy Journal, Winter 2008/2009, Volume 25, No. 4, p. 46. 131 D. Anderson, R. de Wijk, S. Haines and J. Stevenson, ‘Somalia and the Pirates’, Working Paper No. 33, European Security Forum, December 2009, p. 11. 132 K. Menkhaus, ‘Dangerous Waters’, Survival, Volume 51, No.1, February‐March 2009, p. 23. 133 R. Hunter, ‘Somali Pirates Living the High Life’, BBC News, 28 October 2008
25 ANNEMARIE MIDDELBURG the necessary range.134 Therefore, pirates use so‐called ‘mother ships’ as staging posts for attacks further out to sea. The ‘mother ships’ are generally Russian fishing trawlers that the pirates hijacked closer to shore.135 The use of the ‘mother ships’ explains how the pirates have managed to increase the ‘threat zone’ in the Gulf of Aden and the Indian Ocean so dramatically. A few years ago this zone was approximately 50 nautical miles (NM) off the coast, but that it increased last year already around 1000 NM136 off the Somali coast.137
In the past, pirates only hijacked unguarded, low crew numbers, low speed and low sides cargo ships because they were an easy target and easy to board from their own speedboats. Nowadays, pirates tend to favor larger vessels because they have larger crewmembers on board, meaning a higher ransom. Most cargo ship crewmembers are not equipped with defensive weapons, nor trained to fight pirates.138 The boarding of the ship takes most of the time only fifteen minutes.139 After the ships are hijacked, the pirates order the crew to sail for one of the Somali ports or coastal towns/pirate villages. It is said that the pirates treat the hostages relatively humane.140 From there, the negotiators take over the lead, bargaining for ransoms: the only objective of the Somali pirates. They have earned more than millions of dollars ransom and piracy is believed to be Somali’s biggest industry.141 Individual pirates in Somalia are among the wealthiest persons: “Young men are attracted to piracy by aspirations of big
134 R. Middleton, ‘Piracy in Somalia: Threatening Global Trade, Feeding Local Wars’, Africa Programme, Briefing Paper, October 2008, p. 4. 135 N.O. Booker, ‘Piracy off the Somali Coast’, Kenya Engineer, Volume 30, No. 3, 2009, p. 1. 136 In May 2009, the Malta‐flagged Greek tanker Ariana, carrying soy from Brazil to Iran was attacked by Somali pirates in the Indian Ocean, approximately 950 NM of Mogadishu. 137 D. Anderson, R. de Wijk, S. Haines and J. Stevenson, ‘Somalia and the Pirates’, Working Paper No. 33, European Security Forum, December 2009, p. 12. 138 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies Paper No. 09‐178, 4 September 2009, p. 9. 139 K. Menkhaus, ‘Dangerous Waters’, Survival, Volume 51, No.1, February‐March 2009, p. 23. 140 N.O. Booker, ‘Piracy off the Somali Coast’, Kenya Engineer, Volume 30, No. 3, 2009, p. 2. 141 M. Silva, ‘Somalia: State Failure, Piracy and the Challenge to International Law’, Virginia Journal of International Law, Volume 50, No. 3, 2010, p. 557.
26 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST houses, fast cars and pretty women that the life affords.”142 It has not been proven that government officials or clan leaders are directly involved in piracy, but it is widely believed that they receive some form of compensation for their activities.143
142 A. Mohammad, ‘Pirate Nation’, Mostly Legitimate News Network, 17 May 2009
27
3. Universal Jurisdiction and Somali Piracy
This chapter will answer the question what is meant by ‘universal jurisdiction’. The concept of universal jurisdiction will be explained and applied to piracy off the Somali coast.
§3.1 The General Principles of Universal Jurisdiction
States began to exercise universal jurisdiction over piracy on the high seas as early as the sixteenth century.144 Hugo de Groot (Grotius) propounded in 1609 the idea of the open sea (Mare Liberum) and he considered the sea to be the joint property of humankind (Communis) as the basis of free trade between nations.145 The pirate was an outlaw, endangered the Mare Liberum and an enemy of all mankind (Hostis Humani Generis).146
Universal jurisdiction became most apparent in State practice with regard to the crime of piracy and therefore piracy is also called the ‘original universal jurisdiction crime’.147 But what is meant by ‘universal jurisdiction’? In general, the principle of universal jurisdiction allows a State to prosecute individuals who have committed certain international crimes, even if the State has no link to the crime in question other than “the bonds of common humanity.”148 But judge Van den Wyngeart suggested in her dissenting opinion in the Arrest Warrant case that “there is no generally accepted definition of
144 M. Lattimer and P. Sands, ‘Justice for Crimes Against Humanity’, Hart Publishing, 2003, p. 50. 145 D. Johnson and E. Pladdet, ‘An Overview of Current Concerns in Piracy Studies and NewDirections for Research’, Position Paper for the Piracy Panels and Roundtable at the Conference: People and the Sea II: Conflicts, Threats and Opportunities, International Institute for Asian Studies and the Centre for Maritime Research, Amsterdam, 1 August 2003, p. 3. 146 E.D. Dickinson, ‘Is the Crime of Piracy Obsolete?’, Harvard Law Review, Volume 38, No. 3, January 1925, p. 334‐335. 147 M. Inazumi, ‘Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes Under International Law’, School of Human Rights Research series, Volume 19, Intersentia, 2005, p. 49‐50. 148 D.F. Orentlicher, ‘Universal Jurisdiction After Pinochet: Prospects and Perils’, War Crimes Research Office, Symposium ‘Prosecuting Perpetrators: International Accountability for War Crimes and Human Rights Abuses’, Washington College of Law, American University, 21 February 2003, p. 2.
29 ANNEMARIE MIDDELBURG universal jurisdiction in conventional or customary international law.”149 The understanding of the concept is debatable.150
Unlike other principles of jurisdiction,151 universal jurisdiction does not require any nexus between a State and a particular crime.152 But there are two rationales why universal jurisdiction was recognized for piracy under international law: the gravity of the crime and the lack of effective jurisdiction.153 Piracy is characterized as a crime that damages the common interests of the members of the international community. Pirates do not discriminate among targets based on nationality and thus endanger the trade of all countries.154 Piracy attacks raises the prices of commodities and even States suffer which are not directly involved in shipping. On top of that, “cargo ships are often owned by a corporation in a State, fly the flag of a second State, carry cargo destined for multiple other States and ships are often crewed by people from still other States.”155 Modern day pirates are not an enemy of all mankind (Hostis Humani Generis) any more. That is the old concept of piracy. Piracy of today is not seen as a crime against all nations and any State.156 Nevertheless, pirates still commit their crimes on the high seas where no State has territorial sovereignty. Therefore universal jurisdiction applies to the crime of piracy.
149 Democratic Republic of the Congo v. Belgium (Arrest Warrant of 11 April 2000 Case) International Court of Justice, 14 February 2002, diss. op. Van den Wyngaert, para. 44. 150 R. O’Keefe, ‘Universal Jurisdiction, Clarifying the Basic Concept’, Journal of International Criminal Justice, Volume 2, 2004, p. 735. 151 For example territorial jurisdiction and nationality jurisdiction. 152 M. Inazumi, ‘Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes Under International Law’, School of Human Rights Research series, Volume 19, Intersentia, 2005, p. 49. 153 N.J. Arajärvi, ‘Universal Jurisdiction: End of Impunity or Tyranny of Judges?’, Master Thesis, University of Helsinki, 2006, p. 7‐8. 154 E. Kontorovich, ‘A Guantanamo on the Sea: The Difficulties of Prosecuting Pirates and Terrorists’, California Law Review 234, Volume 98, 2010, p. 251‐252. 155 Ibid. 156 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies Paper No. 09‐178, 4 September 2009, p. 14.
30 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST
§3.2 The Scope of Universal Jurisdiction
The first case where the principles of international jurisdiction were outlined and presented was the Lotus case.157 In short, in August 1926 there was a collision on the high seas between the French steamship the Lotus and the Turkish collier Boz‐Kourt. The Boz‐Kourt split in two and sank involving the death of eight Turkish nationals.158 Turkish authorities launched joint criminal proceedings in pursuance of Turkish law against the French and Turkish commanders and the Turkish court found both guilty of involuntary manslaughter.159 France challenged Turkey’s jurisdiction before the Permanent Court of International Justice (PCIJ) with the question: “Has Turkey acted in conflict with the principles of international law?”160 The Court ruled in favor of Turkey and it held that “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co‐ existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.”161 The ‘Lotus principle’ was born and held that sovereign States have a right to extend their jurisdiction as long as it is not prohibited by an international convention or custom.162 In other words, as judge Loder wrote in his dissenting opinion: “under international law, every door is open unless it is closed by treaty or by established Custom.”163 It is debatable if this is still true, because the new international order is governed and protected by new values such as humanity, human dignity and human rights.164
157 France v. Turkey (Lotus case), 7 September 1927, PCIJ Rep., Series A, No. 10. 158 H. Handeyside, ‘The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat?’, Michigan Journal of International Law, Volume 29, No. 71, 2008, p. 73. 159 L. Reydams, ‘Universal Jurisdiction: International and Municipal Legal Perspectives’, Oxford University Press, 2003, p. 11. 160 France v. Turkey (Lotus case), 7 September 1927, PCIJ Rep., Series A, No. 10, para. 5. 161 Ibid, para. 18. 162 L. Reydams, ‘Universal Jurisdiction: International and Municipal Legal Perspectives’, Oxford University Press, 2003, p. 13. 163 France v. Turkey (Lotus case), 7 September 1927, PCIJ Rep., Series A, No. 10, para. 34. 164 M. Rotter, ‘The International Legal Order’, Vienna Symposium, Keynote speech, 21
31 ANNEMARIE MIDDELBURG
Beside piracy, the trading of slaves has also been recognized as an offense subject to every State’s jurisdiction, referring to Article 110, para. 1(b) UNCLOS, Conventions about slavery165 and customary law.166 After the Second World War, the scope of universal jurisdiction has been expanded, influenced in the Nuremberg and Tokyo Tribunals, by the ratification of the Genocide Convention, the Geneva Conventions and the Convention against Torture.167 The expansion of the scope of universal jurisdiction began at the postwar trials of individuals who committed war crimes and crimes against humanity. Since Israel’s prosecution of Adolf Eichmann in 1961, universal jurisdiction was no longer an unnoticed principle in the international public law arena.168 Jurisdiction of the Israeli Court in the Eichmann case169 was founded on the universality principle (but referred also to both the passive personality and protective principles).170
Afterwards, universal jurisdiction continued to expand and also certain terrorist activities and human rights violations were covered. As Randall noted: “terrorists and human rights offenders are comparable to pirates, slave traders and war criminals, because their offenses involve particularly reprehensible acts that often indiscriminately endanger human lives and property interests.”171 These modern offenses are the concern of the international community rather than individual States and should therefore be subject to universal jurisdiction, according to some scholars.
November 2002, para. 3‐4. 165 For example the Convention to Suppress the Slave Trade and Slavery, the Protocol amending the Convention and the Supplementary Convention of the Abolition of Slavery. 166 K.C. Randall, ‘Universal Jurisdiction under International Law’, Texas Law Review, Volume 66, 1987‐1988, p. 798. 167 N.J. Arajärvi, ‘Universal Jurisdiction: End of Impunity or Tyranny of Judges?’, Master Thesis, University of Helsinki, 2006, p. 8‐9. 168 D.F. Orentlicher, ‘Universal Jurisdiction After Pinochet: Prospects and Perils’, War Crimes Research Office, Symposium ‘Prosecuting Perpetrators: International Accountability for War Crimes and Human Rights Abuses’, Washington College of Law, American University, 21 February 2003, p. 1. 169 A‐G Israel v. Eichmann, Supreme Court Judgment, 29 May 1962, (1968) 36 ILR 227. 170 K.C. Randall, ‘Universal Jurisdiction under International Law’, Texas Law Review, Volume 66, 1987‐1988, p. 811. 171 K.C. Randall, ‘Universal Jurisdiction under International Law’, Texas Law Review, Volume 66, 1987‐1988, p. 815.
32 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST
§3.3 Universal Jurisdiction Cases
Judge Kaufmann wrote in the United States Filártiga v. Peña‐Irala case that “the torturer has become, like the pirate and slave trader before him, Hostis Humani Generis, an enemy of all mankind.”172 In the Pinochet case,173 universal jurisdiction was brought to the attention of European States. Spain asserted universal jurisdiction over dictator Augusto Pinochet for his commission of crimes against humanity against the people in the wars against Argentina and Chile.174 In the Guatemala case,175 Spain limited its application of universal jurisdiction,176 but the Spanish court relied on universal jurisdiction in the Scilingo case177 again. The case concerned crimes against humanity and genocide committed during the Guerra Sucia between 1976 and 1982.178 In Belgium, also called the ‘world capital of universal jurisdiction’,179 national law was amended after the Arrest Warrant case.180 In 2000, an arrest warrant was issued under a Belgium ‘national law of universal jurisdiction’ against the Minister of Foreign Affairs of the Democratic People's Republic of the Congo. The Democratic People's Republic of the Congo filed in the Registry of the Court an application
172 Filártiga v. Peña‐Irala, United States Court of Appeals, Second Circuit, 30 June 1980, 630 F.2d 876, Part IV. 173 In Re Pinochet, Spanish National Court, Criminal Division, 4 November 1998, Case 19/97. 174 P.W. Scott, ‘The Guatemala Genocide Cases: Universal Jurisdiction and Its Limits’, Chicago‐Kent Journal of International & Comparative Law, Volume 9, 2009, p. 103. 175 Guatemala Genocide Case, Spanish Supreme Court, 25 February 2003, 42 ILM 686, Decision No. 327/2003. 176 N.J. Arajärvi, ‘Universal Jurisdiction: End of Impunity or Tyranny of Judges?’, Master Thesis, University of Helsinki, 2006, p. 19. 177 Graciela P de L and Others v. Scilingo, Spanish High Court (Audiencia Nacional), 19 April 2005, ILDC 136 (ES 2005). 178 H. van der Wilt, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’, International Criminal Law Review, Volume 8, 2008, p. 235 and C. Tomuschat, ‘Issues of Universal Jurisdiction in the Scilingo Case’, Journal of International Criminal Justice, Volume 3, Issue 5, November 2005, p. 1071‐ 1072. 179 D.F. Orentlicher, ‘Universal Jurisdiction After Pinochet: Prospects and Perils’, War Crimes Research Office, Symposium ‘Prosecuting Perpetrators: International Accountability for War Crimes and Human Rights Abuses’, Washington College of Law, American University, 21 February 2003, p. 3. 180 Democratic Republic of the Congo v. Belgium (Arrest Warrant of 11 April 2000 Case) International Court of Justice, 14 February 2002.
33 ANNEMARIE MIDDELBURG instituting proceedings against the Kingdom of Belgium in respect to the international arrest warrant.181 The ICJ ruled that “the issue violated international obligations in that they failed to respect the immunity from criminal jurisdiction and the inviolability which a foreign minister enjoyed under international law.”182 Reading the Arrest Warrant case, the wide range of views concerning universal jurisdiction among the judges of the ICJ is very remarkable. President Guillaume suggested in his separate opinion that “International law knows only one true case of universal jurisdiction: piracy.”183 He concluded that universal jurisdiction only exists in relation to piracy. On the other hand, judge Oda recognized in his dissenting opinion that “the scope of extraterritorial criminal jurisdiction has been expanded over the past few decades to cover the crimes of piracy, hijacking, etc. Universal jurisdiction is increasingly recognized in cases of terrorism and genocide.”184
In the Ariel Sharon case, Belgium filed a criminal complaint on behalf of a group of witnesses and survivors against Israeli Prime Minister Ariel Sharon and others for their roles in the massacre at the refugee camps Sabra and Shatila in Beirut in 1982.185 They were charged with war crimes, crimes against humanity and genocide.186 In 2002, the Belgian Appeals Court dismissed the case because Sharon was not present on Belgium soil,187 The Belgian Court of Cassation reversed that decision determining that Ariel Sharon enjoyed personal immunity for the duration of his term as Prime Minister of Israel.188 Those rulings made clear that universal jurisdiction expanded to other crimes than piracy and slave trade, but also has its limits.
181 Democratic Republic of the Congo v. Belgium (Arrest Warrant of 11 April 2000 Case) International Court of Justice, 14 February 2002, Judgment, para. 1. 182 Ibid, Judgment, para. 2. 183 Ibid, sep. op. Guillaume, para. 12‐13. 184 Ibid, diss. op. Oda, para. 11. 185 C. Rijken, ‘Trafficking in Persons: Prosecution From a European Perspective’, Cambridge University Press, 2003, p. 40. 186 J. Borneman, ‘The Case of Ariel Sharon and the Fate of Universal Jurisdiction’, Princeton Institute for International and Regional Studies Monograph Series, Number 2, Princeton University, 2004, Introduction. 187 Y. Shany and K.R. Michaeli,’ The Case Against Ariel Sharon: Revisiting the Doctrine of Command Responsibility’, New York University Journal of International Law and Politic, Volume 34, No. 797, 2001‐2002, p. 799. 188 Ibid, p. 800.
34 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST
§3.4 Universal Jurisdiction: International Courts and Tribunals
The ICC was created to have jurisdiction over “the most serious crimes of concern to the international community as a whole.”189 Article 5 of the Rome Statute describes that “the Court has jurisdiction in accordance with this Statute with respect to the crime of genocide, crimes against humanity, war crimes and the crime of aggression.”190 The Rome Statute rejected universal jurisdiction for the ICC.191 Article 12, paragraph 2 of the Rome Statute provides that the ICC may exercise its jurisdiction in relation to crimes that have taken place on the territory of the State party or the person accused of the crime is a national of the State party. The UNSC, acting under Chapter VII of the UN Charter, can refer a situation to the Prosecutor of the ICC to initiate an investigation192 and the UNSC is involved in any situation through a resolution adopted under Chapter VII of the UN Charter.193
The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) were established by respectively UNSC Resolutions 827(1993) and 955(1994). The tribunals do not base their jurisdiction on universal jurisdiction either, but gain their powers from the UNSC.194 If States join the UN and agree to the UN Charter, States delegate certain powers to the UN. On the basis of these powers, the UNSC implied the competence,195 acting under Chapter VII (Article 39) of the UN Charter, to establish criminal tribunals in order to maintain or restore international peace and security.196 The only exception is the hybrid East Timor Tribunal
189 Rome Statute of the International Criminal Court, 17 July 1998, Preamble, para. 4 190 Ibid, Article 5, para. 1. 191 M.H. Morris, ‘Universal Jurisdiction in a Divided World: Conference Remarks’, New England Law Review, Volume 35, No. 2, 2000‐2001, p. 350. 192 Rome Statute of the International Criminal Court, 17 July 1998, Article 13, para. b. 193 Ibid, Article 16. 194 N.J. Arajärvi, ‘Universal Jurisdiction: End of Impunity or Tyranny of Judges?’, Master Thesis, University of Helsinki, 2006, p. 15. 195 The SC implied the competence using a creative reading of Chapter VII and therefore, a number of legal issues concerning the legality of the establishment of this Tribunals and the SC competence in this regard is debatable. See for example Y. Aksar, ‘Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court’, Routledge, 2004, p. 18‐ 25. 196 M.R. von Sternberg, ‘A Comparison of the Yugoslavian and Rwandan War Crimes
35 ANNEMARIE MIDDELBURG
(Special Panels of the Dili District Court) where the panels had universal jurisdiction over the serious crimes of genocide, war crimes and crimes against humanity: “With regard to the serious criminal offences listed under Section 10.1 (a), (b), (c) and (f) of UNTAET Regulation No. 2000/11, as specified in Sections 4 to 7 of the present regulation, the panels shall have universal jurisdiction.”197 However, as far as I know, the panels haven’t used this provision of universal jurisdiction in practice.
§3.5 Provisions Universal Jurisdiction in UNCLOS
Let us go back to the ‘original universal jurisdiction crime’: piracy. The first chapter of this book focused upon the international law definition of piracy (Article 101 UNCLOS). But piracy under international law is not necessarily the same as piracy under the domestic law of States. States may define piracy more broadly under domestic law than under international law.198 But the State can only obtain universal jurisdiction over persons committing acts constituting piracy under international law. As judge Moore says in his dissenting opinion in the Lotus case: “I say ‘piracy by law of nations’, because the municipal laws of many States denominate and punish as ‘piracy’ numerous acts which do not constitute piracy by law of nations, and which therefore are not of universal cognizance, so as to be punishable by all nations.”199 Article 19 of the 1958 Geneva Convention200 and Article 105 UNCLOS affords the right to exercise universal jurisdiction over pirates and reads the following:201
Tribunals: Universal Jurisdiction and the Elementary Dictates of Humanity’, Brooklyn Journal of International Law, Volume 22, No. 1, 1996‐1997, p. 111. 197 United Nations Transitional Administration in East Timor (UNTAET), Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 June 2000, para. 2.1. 198 K.C. Randall, ‘Universal Jurisdiction under International Law’, Texas Law Review, Volume 66, 1987‐1988, p. 795. 199 France v. Turkey (Lotus case), 7 September 1927, PCIJ Rep., Series A, No. 10, diss. op. Moore, para. 2. 200 Convention on the High Seas, done at Geneva on 29 April 1958, entered into force on 30 September 1962, United Nations, Treaty Series, Volume 450, p. 11, p. 82. 201 N.J. Arajärvi, ‘Universal Jurisdiction: End of Impunity or Tyranny of Judges?’, Master Thesis, University of Helsinki, 2006, p. 9‐10.
36 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST
“On the high seas, or in any other place outside the jurisdiction of any State, every State may 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. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.”
UNCLOS is a widely ratified treaty,202 but the States that haven’t ratified UNCLOS are nevertheless bound by this provision by the 1958 Geneva Convention. In fact any State is bound by this Article as a matter of customary international law.203 Reading Article 105 UNCLOS carefully, the language seems to indicate that parties have a right (‘may’), but not an obligation to exercise jurisdiction:204 “every State may seize”, “the courts… may decide” and “may also determine”. Nevertheless, Article 14 of the 1958 Geneva Convention and Article 100 UNCLOS sets out the ‘duty’ to cooperate:
“All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”
But the rule in Article 105 UNCLOS does not establish the exclusive jurisdiction of the seizing State’s courts.205 The international law rules on action to be taken against pirates permit action, but the UNCLOS does not ensure that such action is effectively taken.206 The fact that
202 157 countries have signed and 161 countries have ratified UNCLOS
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States “may” (rather than “shall”) prosecute does not mean that States will be eager of will have appropriate national laws.207 This issue was addressed by the UN in Resolution 1918(2010) where the UNSC calls on all States in the region to criminalize piracy under their domestic law and “favorably consider the prosecution of suspected, and imprisonment of convicted, pirates apprehended off the coast of Somalia.”208 In the absence of an applicable aut dedere aut judicare (to extradite or to prosecute) obligation, UNCLOS contains no express obligation for a capturing State to submit a pirate to their national authorities for trial (if it is not possible to hand the pirate over to third State for trial).209 States are only encouraged to cooperate with each other to determine the disposition of suspects and which (if any) State claiming jurisdiction will prosecute them.
Under the UNCLOS, the high seas are viewed as ‘no man’s land’ and jurisdiction belongs to all nations.210 But as we saw in the first chapter of this book, no nation has the right to enter the territorial or inland waters of a State (Article 3 UNCLOS limits the territorial sea to 12 NM off shore).211 In 2007, Somali pirates took advantage of this situation by quickly returning to the Somali territorial waters where they were immune for naval ships patrolling in the Gulf of Aden and the Indian Ocean.212
prosecution. 207 C. Warbrick, ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter‐Piracy Efforts’, International and Comparative Law Quarterly, Vol. 57, Cambridge University Press, July 2008, p. 693. 208 UNSC Resolution 1918(2010) of 27 April 2010, para. 2. 209 D. Guilfoyle, ‘Treaty Jurisdiction Over Pirates: A Compilation of Legal Texts with Introductory Notes’, Prepared for the 3rd Meeting of Working Group 2 on Legal Issues, The Contact Group on Piracy off the Coast of Somalia, Copenhagen, 26‐27 August 2009, p. 6. 210 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies Paper No. 09‐178, 4 September 2009, p. 12. 211 Article 3 UNCLOS extended the territorial seas to 12 NM from the coast, which is a significant expansion of the traditional 3 NM zone. 212 M. Sterio, ‘Fighting Piracy in Somalia (and Elsewhere): Why More is Needed’, Fordham International Law Journal, Forthcoming; Cleveland‐Marshall Legal Studies Paper No. 09‐178, 4 September 2009, p. 12.
38 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST
§3.6 Provisions Universal Jurisdiction in UN Resolutions
On 23 January 1992, the UNSC imposed a general and complete arms embargo upon Somalia in Resolution 733(1992), invoking Chapter VII.213 To address the issue of Somali piracy described in the last paragraph, the UNSC adopted on 2 June 2008 unanimously (with Somalia’s consent) Resolution 1816(2008). The UNSC stated that the situation in Somalia “continues to constitute a threat to international peace and security in the region.”214 It is important to note that not piracy in itself, but the situation in Somalia constituted a threat to international peace and security. Resolution 1816(2008) encourages States to “cooperate with each other, with the IMO and, as appropriate, with the relevant regional organizations”215 and “to provide technical assistance to Somalia and nearby coastal States.”216 But paragraph 7 attracts the most attention and reads the following:
“Decides that for a period of six months from the date of this resolution, States cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary General, may:
(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and (b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery.”217
Resolution 1816(2008) extended the authorization of States to enter Somalia’s territorial waters and to use ‘all necessary means’ to repress
213 I. Osterdahl, ‘By All Means, Intervene ‐ The Security Council and the Use of Force under Chapter VII of the UN Charter in Iraq (to Protect the Kurds), in Bosnia, Somalia, Rwanda and Haiti’, Nordic Journal of International Law, Volume 66, 1997, p. 254. 214 UNSC Resolution 1816(2008) of 2 June 2008, second preamb. para.. 215 Ibid, para. 3. 216 Ibid, para. 5. 217 UNSC Resolution 1816(2008) of 2 June 2008, para. 7.
39 ANNEMARIE MIDDELBURG acts of piracy.218 The UNSC used Chapter VII powers to authorize foreign military and law‐enforcement action for a six‐month period. The use of force needs to be reasonable and necessary, according to customary international law. Resolution 1816(2008) does not clearly make the international law of piracy directly applicable in the territorial waters of Somalia. The question rises if universal jurisdiction applies to pirates captured in territorial waters of Somalia under this Resolution. The enforcement jurisdiction (legal authority to pursue and arrest the pirates) is granted by the Resolution, but if the prescriptive and adjudicative jurisdiction (legal authority to try the pirates) is granted, is debatable. Paragraph 11 of the Resolution addresses jurisdiction. The UNSC calls upon all States to “cooperate in determining jurisdiction, and in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia... providing disposition and logistics assistance.”219 Several approaches are possible, implementing this paragraph. On the one hand, following the customary principle allowing the State where the pirate is present to assert jurisdiction. In that case, Somalia is the coastal State and should have jurisdiction. On the other hand, a broad interpretation of ‘all necessary means’ of Resolution 1816(2009) could extend to asserting prescriptive and adjudicative jurisdiction, given the limited capacity of the State Somalia.220
On 2 December 2008, the UNSC adopted Resolution 1846(2008). Acting under Chapter VII of the Charter, the UNSC extended the authorization of other States to enter Somalia’s territorial waters provided by Resolution 1816(2008) for another twelve months.221 In paragraph 15 the UNSC emphasized the need for States to implement their obligations under the SUA Convention: “provides for parties to create criminal offences, establish jurisdiction, and accept delivery of persons responsible for or suspected of seizing or exercising control over a ship by force or threat thereof or any other form of
218 M. Silva, ‘Somalia: State Failure, Piracy and the Challenge to International Law’, Virginia Journal of International Law, Volume 50, No. 3, 2010, p. 571. 219 UNSC Resolution 1816(2008) of 2 June 2008, para. 11. 220 C. Warbrick, ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter‐Piracy Efforts’, International and Comparative Law Quarterly, Vol. 57, Cambridge University Press, July 2008, p. 696‐697. 221 UNSC Resolution 1846(2008) of 2 December 2008, para. 10.
40 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST intimidation.”222 The UNSC also emphasized to cooperate with the IMO “to build judicial capacity for the successful prosecution of persons suspected of piracy and armed robbery at sea off the coast of Somalia.”223
On 16 December 2008, The UNSC adopted Resolution 1851(2008). Acting under Chapter VII of the Charter, the UNSC invited all States and regional organizations fighting piracy off the coast of Somalia “to conclude special agreements or arrangements with countries willing to take custody of pirates in order to embark law enforcement officials (‘shipriders’) from the latter countries, in particular countries in the region”224 and “to establish an international cooperation mechanism to act as a common point of contact between and among States.”225 Again, States and regional organizations may undertake “all necessary measures” that are appropriate in Somalia, in a manner consistent with applicable international humanitarian and human rights law.226 Chapter 4.4 of this book will provide more information about those special agreements.
With the above UN Resolutions, the UNSC has taken measures within the framework of Chapter VII in response of the growing amount of pirate’s activities off the Somali coast. In my opinion, the Resolutions are of practical importance. In the first place, several countries have sent their warships to Somalia to combat piracy attacks. In the second place, naval ships are permitted to enter the territorial waters of Somalia to combat piracy. While in Somali waters, they could use ‘all necessary means’ which have proven to be an important tool for naval ships. In the third place, the UNSC invited States to conclude special agreements with countries willing to take custody of pirates.227 Thus far the United Kingdom, United States, European Union, Denmark, Canada and China have been entered bilateral prosecution agreements with Kenya that allow for the extradition of suspected
222 UNSC Resolution 1846(2008) of 2 December 2008, para. 15. 223 Ibid. 224 UNSC Resolution 1851(2008) of 16 December 2008, para. 3. 225 Ibid, para. 4. 226 Ibid, para. 6. 227 H. Lanham, ‘Walk the Plank: Somali Pirates and International Law’, Bachelor Thesis, University of Otago, October 2009, p. 33.
41 ANNEMARIE MIDDELBURG pirates for prosecution in Kenya.228 More than 100 suspected Somali pirates have faced trial in Kenya.229 Finally, the CGPCS was established to “coordinate to facilitate discussion and coordination of actions among States and organizations to suppress piracy off the coast of Somalia” and they work closely together with the IMO to develop internationally recognized best management practices.230
§3.7 Anti‐Piracy Efforts of the International Community
On 25 September 2008, the Secretary‐General of the United Nations, Ban Ki‐moon, requested the North Atlantic Treaty Organisation (NATO) to start Operation Allied Provider: a temporary protection force (between October and December 2008) for World Food Programme (WFP) assistance shipments in the region.231 This operation was succeeded by Operation Allied Protector under the command of Standing NATO Maritime Group 1 (SNMG1).232 Between March and August 2009 the operation helped to “deter, defend against and disrupt pirate activities in the Gulf of Aden and off the Horn of Africa”, according to NATO.233 On 17 August 2009, the anti‐piracy missions has been replaced by operation Ocean Shield, under the command of Standing NATO Maritime Group 2 (SNMG2).234 The focus continues to be counter‐piracy operations at sea, but a new element of the mission is participation in regional‐State counter‐piracy capacity building efforts which aims to assist regional governments,
228 M. Silva, ‘Somalia: State Failure, Piracy and the Challenge to International Law’, Virginia Journal of International Law, Volume 50, No. 3, 2010, p. 574. 229 T. McConnell, ‘Where to Try Pirates: Kenya? US?’, GlobalPost, 30 April 2010
42 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST upon their request, in developing their own capacity to combat piracy activities.235 This mission will last until the end of 2012.
On 8 December 2008, the European Union (EU) launched in support of the above‐mentioned UNSC Resolutions a naval operation against piracy called EU NAVFOR Somalia – Operation ATALANTA in order to “help deter, prevent and repress acts of piracy and armed robbery off the coast of Somalia.”236 The aim of Operation ATALANTA is to “contribute to the protection of vessels of the World Food Programme (WFP) and the protection of vulnerable vessels sailing in the Gulf of Aden and off the Somali coast.”237 It is the first naval operation of the EU and conducted in the framework of the European Security and Defence Policy (ESDP). The operation was scheduled for an initial period of twelve months (until December 2009), but has been extended by the Council on the EU until December 2012.238 A total of 26 countries239 contributed to the operation until December 2010. EU NAVFOR consisted of a total of around 2,000 military personnel, including land‐based personnel.240 The operation has shown signs of effectiveness because EU NAVFOR ships have successfully deterred
235 Allied Maritime Command Headquarters Northwood, ‘One Year On NATO Remains Vigilant in Gulf of Aden’, News Release, 24 March 2010
43 ANNEMARIE MIDDELBURG attacks, arrested numerous pirates and have also protected many vessels chartered by the WFP.241
Two U.S.‐led tasks forces are active in the Gulf of Aden and off the Somali coast as well. Combined Task Force 150 (CTF 150) has an anti‐ terrorism mandate and its mission is “to conduct Maritime Security Operations (MSO) in the Gulf of Aden, Gulf of Oman, the Arabian Sea, Red Sea and the Indian Ocean.”242 MSO help develop the conditions for security and stability in the maritime environment that promotes stability and global prosperity.243 The primary aim of CTF 150 is to fight terrorism at sea but a problem arose when some navies of the coalition did not have the authority to conduct counter‐piracy missions.244 Therefore, Combined Task Force 151 (CTF 151) established in January 2009, has been specially engaged in counter‐piracy operations. Their mandate is to “actively deter, disrupt and suppress piracy in order to protect global maritime security and secure freedom of navigation for the benefit of all nations.”245
In April 2008, an IMO conference was held in Tanzania to discuss the establishment of a regional counter‐piracy document (similar to the ReCAAP which have been successful in reducing piracy in the Strait of Malacca region).246 The Tanzanian conference produced a draft non‐ binding regional memorandum of understanding. On 29 January 2009, leaders from 17 States in the region adopted in Djibouti a regional agreement at a meeting convened by the IMO.247 They developed a regional framework to cooperate and share and report information
241 B. Germond, M.E. Smith, ‘Re‐Thinking European Security Interests and the ESDP: Explaining the EU’s Anti‐Piracy Operation’, Contemporary Security Policy, Volume 30, Issue 3, December 2009, p. 589. 242 B.J. Finman, ‘Maritime Security on the Horn of Africa: Threading the Needle At a Seam of Responsibility’, Naval War College, LCDR, USN, 6 November 2007, p. 5. 243 Combined Maritime Forces, ‘Combined Task Force (CTF) 150’
44 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST through a system of national focal points and information centers in the repression of piracy and armed robbery against ships.248 The non‐ binding Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden recognizes “the extent of the problem of piracy and armed robbery against ships in the region and, in it, the signatories declare their intention to co operate to the fullest possible extent, and in a manner consistent with international law, in the repression of piracy and armed robbery against ships.”249 The parties agreed that three regional facilities250 are planned to support the information sharing components. They also agreed to resolutions on technical cooperation and the establishment of a regional training center in Djibouti.251 In Resolution 1918(2010) the UNSC welcomed the progress being made to implement the IMO Djibouti Code of Conduct.252
On 14 January 2009, the Contact Group on Piracy off the Coast of Somalia (CGPCS) was established, encouraged by Resolution 1851(2008) and led by the Bush Administration.253 The CGPCS is a voluntary ad hoc international forum, which meets quarterly at the UN. In its first year, the CGPCS doubled in size to more than 50 countries and international organizations,254 including the African Union, the European Union, the Arab League, NATO, the UN Secretariat, the UN Office of Drugs & Crime, INTERPOL and the IMO.255 They are coordinating political, military, and other efforts to
248 M. Silva, ‘Somalia: State Failure, Piracy and the Challenge to International Law’, Virginia Journal of International Law, Volume 50, No. 3, 2010, p. 572. 249 IMO, ‘Piracy in Waters off the Coast of Somalia’
45 ANNEMARIE MIDDELBURG bring an end to piracy off the coast of Somalia and to ensure that pirates are brought to justice.256 They identified six tasks257 and categorized four Working Groups258 that meet regularly around the world to develop and implement national counter‐piracy policies and programs.259 The experience of the CGPCS is that this collaboration is fruitful, but that great challenges remain in terms of stemming the problem of piracy.260 In Resolution 1897(2009), the UNSC commended the work of the CGPCS to facilitate coordination and urged States and international organizations to continue to support their efforts.261
[Last Accessed 1 March 2011]. 256 U.S. Department of State, ‘Contact Group on Piracy off the Coast of Somalia’
46
4.1. Prosecution Solutions, Option 1: Prosecution in Somalia
Chapter 3 clarified that UNCLOS and other legal instruments offer a clear legal regime for the prosecution of pirates. Powerful legal tools are available in international law to combat piracy. There has been concerted action against piracy at the UN level in passing Resolutions, military responses from the United States CTF and the EU mission ATALANTA. But those UN and military actions alone are unsuccessful in fixing the ineffective legal response that has to be part of the solution.262 Navy ships patrolling in the Gulf of Aden capture pirates, because States acknowledge that piracy is a crime under international law and a common threat for the international community. But in most cases States are unwilling to prosecute pirates. This chapter will answer the question how the captured pirates could be and should be prosecuted. Five different prosecution options will be discussed, starting with the possibilities for prosecution in Somalia.
§4.1.1 Jurisdiction of Somalia
On the basis of territorial jurisdiction (if the pirate is captured on Somali land or in the Somali territorial waters) and active personality jurisdiction (if the pirate is a national of the Somali State), Somalia has jurisdiction to prosecute suspected pirates. Ideally, suspects should be prosecuted in the country where they come from, but most States do not see this as an option. There are several reasons for that: Somalia’s lack of an effective and functioning central government since Siad Barre was expelled in 1991,263 Somalia has no functioning navy,264 the criminal justice system is weak and there is a probability that the pirates would be subject to unfair trials or human rights breaches.265
262 S. Gopalan, S. Switzer, ‘Pirates of the Aden: A Tale of Law’s Impotence’, SSRN, 14 May 2009, p. 3. 263 See Chapter 2 of this book. 264 VOA News, ‘Analysts Skeptical New Somali Navy Can Fight Piracy’, Nairobi, 18 June 2009
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§4.1.2 Human Rights Concerns
European governments are concerned about cruel treatment and even the death penalty in case of repatriation and that would conflict with the obligation of non‐refoulement under international law. This fear is well founded because Somalia’s deputy Prime Minister Abdurrahman Haji Adam said during a conference in April 2009 the following: “Becoming a pirate is a crime and Islam says if you become a pirate you should definitely be killed because you are killing the people.”266 Under Shari’a law, Islamic courts in Somalia sentence people to have their right hand cut off when found guilty for robbery and the death penalty is ruled for murder, rape, armed robbery and drug trafficking.267
The UN Convention Against Torture (UNCAT)268 describes in Article 3 the following: “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Non‐refoulement in case of Somali piracy prohibits sending pirates to States where they will be likely be abused. Somalia has one of the worst human rights records and it is likely that suspected pirates would face human rights abuses when they will face trial in Somalia.269 Nevertheless, France navy officers frequently handed over Somali pirates to Somalia. On 1 January 2009, the French warship Premier Maitre L’Her captured eight pirates when they tried to hijack a cargo ship from Panama and they were handed over to Somali authorities.270 In March 2010, France handed over 22 Somali pirates to Somalia and
266 Wales Online, ‘Somalia Calls for Piracy Death Penalty’, 20 April 2009
48 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST they will be prosecuted in local courts.271 France concluded an agreement with Somalia, including assurances that they will not be tortured.272 It is debatable whether such assurances justify refoulement.273
Several States, including Denmark, release captured pirates rather than transferring them to the Somali authorities, because they don’t want to take the risk of breaching their obligations under UNCAT, the International Covenant on Civil and Political Rights (ICCPR) or the European Convention of Human Rights (ECHR).274 Cole, head of the UNODC counter‐piracy program said that that there are being held more than 200 Somali piracy suspects in the region of Puntland.275 In 2008, they had convicted 154 people for involvement in piracy and the number awaiting trial was 72.276
§4.1.3 Somalia’s Incapability
The State of Somalia is unable to take coercive action and exercise jurisdiction. The Minister for Foreign Affairs and International Cooperation of the TFG of Somalia acknowledged that during UNSC 6046th Meeting when Resolution 1851(2008) was adopted. He said that “his country had no capacity to interdict or patrol its long coastline to ensure the security of the sea, but it had cooperated with the international community in that fight and it would continue to do so
271 A. Hassan, ‘French Navy Hands Over Suspected Pirates to Somalia’, Reuters, 13 March 2010
49 ANNEMARIE MIDDELBURG fully, now and in the future. That was why it supported resolution 1851.” In April 2010, when Resolution 1918(2010) was adopted, the UNSC acknowledged that the State Somalia is not able to prosecute pirates themselves: “Stressing the need to address the problems caused by the limited capacity of the judicial system of Somalia and other States in the region to effectively prosecute suspected pirates.”277
§4.1.4 Conclusion
Somalia is a failed State and has no functioning government. The judicial system of Somalia has limited capacity and lacks to sufficient investigate, detain or prosecute pirates operating within its jurisdiction.278 It is likely that suspected pirates would face human rights abuses when handed over to Somalia for prosecution. Under Shari’a law, the death penalty is ruled for the crime of piracy. Therefore, States risk of breaching their obligations under UNCAT, ICCPR, ECHR or other human rights treaties when handing over pirates to Somalia for prosecution. Although France handed over pirates to Somalia (under an agreement with special assurances), prosecution in Somalia is not a preferable option.
277 UNSC Resolution 1918(2010) of 27 April 2010, preamble. 278 M. Silva, ‘Somalia: State Failure, Piracy and the Challenge to International Law’, Virginia Journal of International Law, Volume 50, No. 3, 2010, p. 22.
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4.2. Prosecution Solutions, Option 2: Prosecution in the ICC
§4.2.1 Jurisdiction of the ICC
Piracy is identified as the oldest recognized crime under international law.279 But when the Rome Statute of the ICC was adopted in 1998, piracy was of less concern of the international community.280 In early drafts of the Rome Statute, some members of the International Law Commission proposed an ICC with jurisdiction over fourteen crimes which have become known as the ‘treaty crimes’, including crimes covered by the SUA Convention.281 Over time, opposition has grown to their inclusion within the Court’s jurisdiction and they were excluded from the 1996 Draft Code. Only a catalogue of ‘core crimes’ of international concern would fall within the Court’s jurisdiction.282 The jurisdiction of the ICC is now limited to genocide, crimes against humanity, war crimes and aggression.283
It is not likely that the act of piracy falls within the scope of crimes against humanity or war crimes (when interpreted very broadly). Although some scholars advocate a broad interpretation of crimes against humanity and even claim that drug trafficking or hostage taking should fall within the scope of the ICC jurisdiction, such a broad interpretation is not desirable. Piracy is, in my opinion, neither a crime against humanity, nor a war crime.284
279 B. Broomhall, ‘International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law’, Oxford Monographs in International Law, Oxford University Press, 2003, p. 23. 280 The Rome Statute of the International Criminal Court entered into force on 1 July 2002. 281 E. Andersen, B. Brockman‐Hawe and P. Goff, ‘Suppressing Maritime Piracy: Exploring the Options in International Law’, Expert Workshop Report, 16‐17 October 2009, p. 4. 282 N. Boister, ‘The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics’, Journal of Armed Conflict Law, Volume 3, No. 1, June 1998, p. 27. 283 Rome Statute of the International Criminal Court, 17 July 1998, Article 5, para. 1. 284 M.C. Bassiouni, ‘Crimes Against Humanity in International Criminal Law’, Martinus Nijhoff Publishers, 1999, p. 363‐364.
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However, it is theoretically possible to include the crime of piracy within the jurisdiction of the Court. The jurisdiction of the Court can be expanded by amendment or protocol. I suggest that (if the crime of piracy would be included within the jurisdiction of the court) it would be easier to include it by protocol, because a protocol would come into effect only to States who have signed it and even States who are no party to the Rome Statute can agree to the protocol.285 An amendment requires an adoption two‐thirds majority of States Parties286 and must be ratified by seven‐eighths of the State Parties to enter into force.287
A couple of issues are important to consider. In the first place, a problem is that the Court has limited resources and the Court does not have the capacity to pursue a big amount of piracy cases. In the second place, the Court has jurisdiction over “the most serious crimes of concern to the international community.”288 The Preamble stated further that States Parties recognize the “grave crimes threaten the peace, security and well‐being of the World.”289 It is debatable if the crime of piracy is comparable to the other four crimes of Article 5 of the Statute and if it has the same support for international prosecution. The wave of piracy attacks in the Gulf of Aden and the Indian Ocean is a major problem for the international community and disrupts global trade. But in my view, piracy does not fit into the description “most serious crimes of concern”. The economic crime piracy cost some States a lot of money, but compared to the high costs of States of war crimes, crimes against humanity and genocide it is relatively low (to most States).290
In May 2010, seven years after the entry into force of the Rome Statute, the Secretary‐General convened a Review Conference to consider any amendments to the Statute.291 The incorporation of the
285 E. Andersen, B. Brockman‐Hawe and P. Goff, ‘Suppressing Maritime Piracy: Exploring the Options in International Law’, Expert Workshop Report, 16‐17 October 2009, p. 4‐5. 286 Rome Statute of the International Criminal Court, 17 July 1998, Article 121, para. 3. 287 Ibid, Article 121, para. 4. 288 Ibid, Preamble. 289 Ibid. 290 E. Andersen, B. Brockman‐Hawe and P. Goff, ‘Suppressing Maritime Piracy: Exploring the Options in International Law’, Expert Workshop Report, 16‐17 October 2009, p. 6. 291 Rome Statute of the International Criminal Court, 17 July 1998, Article 123, para. 1.
52 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST crime of piracy into the ICC framework was not on the agenda of the meeting.292 According to international criminal lawyer and professor Knoops there was indeed “no chance that the crime of piracy will be included in the Statute during the Review Conference of the Rome Statute.”293
§4.2.2 Conclusion
Although it is legally possible to include the act of piracy within the jurisdiction of the ICC, it is not a preferable option to prosecute pirates operating off the Somali coast. The advantage of this option is the permanence of the ICC, avoiding extra delay and costs (in comparison with an piracy tribunal) and the ICC has a lot of expertise in the application of international criminal law. Nevertheless, this option has not received much support in the international community and I agree with scholars who argue that the ICC is not the appropriate body to handle piracy prosecutions. Piracy is threatening international peace and security, but the act of piracy cannot be compared with genocide, crimes against humanity, war crimes and aggression.294 It is further noteworthy that of the 114 States that are State Parties to the Rome Statute, it is striking that no State off the Horn of Africa (Somalia, Ethiopia, Eritrea and Sudan)295 is present.296 Joining the Rome Statute will remain voluntary and the East African States who host the pirates can avoid jurisdiction of the ICC.297
292 E. Andersen, B. Brockman‐Hawe and P. Goff, ‘Suppressing Maritime Piracy: Exploring the Options in International Law’, Expert Workshop Report, 16‐17 October 2009, p. 7 and G.J. Knoops, ‘Internationale Piraterij: Naar een Supranationale Rechtsgang?’, Justitiële Verkenningen, Volume 35, No. 8, 2009, p. 84. 293 T. Bouwknegt, ‘International Law “No Solution to Piracy”’, International Justice Tribune, 2 June 2010
53
4.3. Prosecution Solutions, Option 3: Prosecution in the Flag State
§4.3.1 Lack of Political Will
The principle of universal jurisdiction in Article 105 UNCLOS calls for domestic prosecution in the arresting State, but in practice this has not been utilized.298 States have proven to be unwilling to bring pirates to their domestic courts for prosecution.299 During a UNSC meeting in December 2008 when Resolution 1851(2008) was adopted, former U.S. Secretary of State Condoleezza Rice emphasized this issue and told the UNSC that: “the Convention on the Law of the Sea, Security Council resolutions and other legal instruments formed a base of sufficient legal authority with which to apprehend and prosecute pirates, but sometimes political will and capacity was lacking.”300 There are many (legal) issues that prevent States from effectively prosecuting pirates. Those problems will be addressed in this chapter.
§4.3.2 The Interest of the State
The German prosecution office notes that “it has direction to prosecute non‐German pirates and will only exercise that discretion if the German State has a particular, well‐defined interest in the prosecution.”301 Furthermore, the Public Prosecutor in Hamburg states that: “What is totally clear, however, is that the German judicial system cannot, and should not, act as World Police.”302 The interest would be met if German nationals had been killed or injured, when a German ship is hijacked, a ship owned by a German shipping company had been involved or when the German navy had detained the pirates.303
298 H. Lanham, ‘Walk the Plank: Somali Pirates and International Law’, Bachelor Thesis, University of Otago, October 2009, p. 42. 299 E. Kontorovich, ‘A Guantanamo on the Sea: The Difficulties of Prosecuting Pirates and Terrorists’, California Law Review 234, Volume 98, 2010, p. 255. 300 UNSC Resolution 1851(2008) of 16 December 2008, Statement Condoleezza Rice. 301 Hamburg Public Prosecutor, ‘Prosecution of Acts of Piracy off Somalia by German Prosecution Authorities’, 6 March 2009
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The same reasoning applies for the Netherlands, the U.S. and France. The Dutch Government has stated that criminal prosecutions of pirates will only be initiated when there is a specific national interest. These include the hijacking of a ship with the Dutch flag, a ship owned by a Dutch shipping company or where Dutch crew is involved.304 Also the U.S. and France government has drawn the line at cases involving national interests.305 This suggests that nations are in general willing to prosecute pirates when it involves their direct and immediate interest, but not if it involves universal jurisdiction.306
§4.3.3 Inadequate Domestic Legal Structures
The right of universal jurisdiction conferred in UNCLOS is often not implemented in domestic legal structures.307 It is very important that a legal framework exists in domestic law as a foundation to carry out the arrest and prosecution of suspected pirates operating off the Somali coast to prevent pirates being released without facing justice. In April 2010, the UNSC called on States to “criminalize piracy under their domestic law and favorably consider the prosecution of suspected, and imprisonment of convicted, pirates apprehended off the coast of Somalia, consistent with applicable international human rights law” and the UNSC commended the States that have already amended their domestic law.308 On 19 June 2009, Japan for example enacted the Law on the Penalization of Acts of Piracy and Measures against Acts of Piracy. The law criminalizes acts of piracy under the Japanese domestic legal system, while Japan did not have any law governing piracy before this law entered into force.309 There are still States that
University of Otago, October 2009, p. 43. 304 K. Homan and S. Kamerling, ‘Piraterij Vaart Wel Bij Somalisch Vacuüm: Bestrijdingsnetwerk in de Maak’, Internationale Specator, Volume 63, No. 9, September 2009, p. 456. 305 C. Whitlock, ‘Lack of Prosecution Poses Challenge for Foreign Navies that Catch Somali Pirates’, Washington Post, 24 May 2010
56 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST do not recognize the crime of piracy in domestic law (like India and Denmark) and if States have piracy laws, most of them are outdated, often unchanged since the nineteenth century.310 Other States have the domestic legal frameworks, but they lack the financial resources to take action, they lack sufficient legal capacity or insufficient political‐ military guidance is given to naval patrols.311
§4.3.3 Asylum Claims
A lot of States have concerns about the status of convicted pirates who are released after serving a prison sentence. Countries are reluctant to prosecute pirates because they fear that pirates can claim asylum due to “dismal conditions in Somalia.”312 Somalia has a record of human rights violations and therefore it would be almost impossible to send the pirates back to Somalia after their conviction. Due to human rights concerns the pirates can take advantage of (European) asylum laws. Suspected pirates could claim that they would be subject to unfair trials, torture and extrajudicial killing if they would be send back to Somalia.313 At least two of the five suspected pirates who are facing trial in the Netherlands have declared their intention to stay on as residents and seek a better life in a Western country.314 Sayid, one of the suspected pirates said the following about his experience in a Dutch jail: “Life is good here, I appeal to the government not to send me back to Somalia. The people who live here respect human rights. I
Penalization of Acts of Piracy and Measures against Acts of Piracy’, 19 June 2009
57 ANNEMARIE MIDDELBURG wish to settle here."315 He intends to send for his wife and children as soon as he is released from prison. Realizing that a problem had emerged, former Dutch Minister of Foreign Affairs Maxime Verhagen, said the following: “This made me scratch my head; we can’t be on the right track if our punishment is perceived more as a treat than as a threat. This could lead to the strange situation that our attempts to punish pirates actually encourage piracy instead of discouraging it.”316 For this reason, Great Britain instructed its naval ships patrolling the Gulf of Aden not to capture pirates, because they could claim asylum under European human rights law once the pirates were aboard a British ship and certainly when the suspected pirates would be brought to Britain for trial.317 The ‘reward’ of an asylum will indeed only worsen the piracy problem. But all nations that have signed and ratified the ECHR or UNCAT need to act in accordance with the provisions given and are not allowed violating human rights of individuals. The fact that the individuals are pirates would have to make no difference.318
§4.3.4 Pirates Facing Trial
In March 2002, Shi Lei, a Chinese cook of the Taiwanese fishing vessel Full Means No. 2 stabbed the Captain and first mate to death, while the ship was sailing in international waters off the coast of Hawaii.319 After killing the men, Shi Lei seized control of the vessel and after five days the U.S. Coast Guard arrested Shi for violating Title 18 United States Code §2280, which prohibits “acts of violence that endanger maritime navigation.” He was escorted to Honolulu and
315 J. Turley, ‘Pirating to Freedom: Somalis Find Pirating (and Arrest) As Avenue to a Better Life in the West’, Blog Jonathan Turley, 20 May 2009
58 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST prosecuted by the U.S. Court of Appeals under the SUA Convention.320 The prosecuting attorney requested the death penalty, but the U.S. Attorney General did not authorize that. Instead, Shi was sentenced to 36 years in prison.321
On 18 May 2010, Somali pirate Abduwali Abdukhadir Muse pleaded guilty before the U.S. District Court for the Southern District of New York. He was charged that he “unlawfully, intentionally, and knowingly seized and exercised control over a ship by force and threat of force and intimidation, and attempted to do the same, to wit, the defendant, armed with a firearm, attempted to hijack, hijacked and aided and abetted the hijacking of, the Maersk Alabama, a United States‐flagged cargo ship that was navigating in the Indian Ocean beyond the outer limit of the territorial sea of any country.”322 On 8 April 2009 Muse took Captain Richard Phillips hostage in a lifeboat. After five days, the U.S. Navy intervened and killed three of the pirates and arrested Abduwali Abdukhadir Muse. The charge of piracy has a mandatory life sentence (Title 18 United States Code 1651), but the prosecutors dropped four of the six counts, including the crime of piracy as defined by the law of nations. On 16 February 2011 Abduwali Abdukhadir Muse was sentenced to 33 years and 9 months in prison..323
In April 2010, the U.S. navy handed over another 11 suspected pirates for trial in a federal court in Norfolk.324 Those pirates were captured in April 2010 after two incidents involving U.S. warships. Five suspected
320 E. Kontorovich, ‘A Guantanamo on the Sea: The Difficulties of Prosecuting Pirates and Terrorists’, California Law Review 234, Volume 98, 2010, p. 254. 321 United States v. Shi, 525 F.3d 709 (9th Cir. 2008). 322 United States of America v. Muse, United States Disctict Court Southern District of New York, Indictment 19 May 2009, USA‐33s‐274 (Ed. 9‐25‐58), para. 2. 323 R. Rivera, ‘Somali Man Pleads Guilty in 2009 Hijacking of Ship’, The New York Times, 18 May 2010
59 ANNEMARIE MIDDELBURG pirates were charged in an incident on 31 March 2010 when a pirate ship exchanged fire with the U.S. warship Nicholas in the Gulf of Aden and six suspected pirates were charged in an attack on 10 April 2010 on the dock landing ship Ashland off the coast of Somalia.325 The five Somali pirates who were accused of attacking the U.S. warship Nicholas were found guilty for piracy in November 2010.326 The ruling marks “what is to believed to be the first piracy trial conviction in the U.S. since 1820”, the U.S. Department of Justice said in a statement.327 The lawyers of the five pirates want the federal judge to reconsider the conviction, claiming that they did not commit piracy, because the five men never boarded or robbed the ship.328 Sentencing is scheduled on 14 March 2011. The six Somali pirates who were accused of attacking the ship Ashland were not found guilty for piracy in August 2010. The federal judge dropped one of the eight counts, including the piracy charges, because “the government had not shown that the men’s actions violated American piracy law.”329 Seven other charges, including assault and attack to plunder a vessel, remained against the six pirates. On 29 November 2010, one of the pirates was sentenced at to 30 years in prison.330 The other five pirates remained in jail waiting
325 T. Sterling, ‘Dutch Court Sentences Somali Pirates to 5 Years’, The Associated Press, 17 June 2010
60 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST for a ruling from the federal appeals court. It is (yet) unknown when the sentencing will be scheduled.
On 18 May 2010, A Yemeni court has sentenced six Somali pirates to death and sentenced six other pirates to 10 years in prison for the hijacking of an Yemeni oil tanker Quana in April 2009.331 The Somali pirates hijacked the oil tanker; they have killed two crewmembers and wounded four others. The convicted pirates paid 2 million Yemen riyals to the Aden Refinery in compensatory damages.332
The first European trial of suspected Somali pirates was commenced by the Netherlands District Court of Rotterdam on 25 May 2010. Five Somali pirates were arrested off the coast of Somalia on 2 January 2009 by Danish marines after attacking a Dutch flagged cargo ship Samanyolu with automatic weapons and rocket‐propelled grenade. The suspected pirates were handed over to the Netherlands and they were charged of sea robbery for hijacking a cargo ship registered in the Netherlands Antilles. The pirates could face a maximum sentence of 12 years, but prosecutors had asked for seven‐year sentences. On 17 June 2010, each of the pirates was sentenced to five years in prison, taking the difficult conditions in Somalia that led the men to piracy into account.333 Presiding judge Klein Wolterink said that “Piracy is a serious crime that must be powerfully resisted.”334 The case is called a landmark in the fight against Somali piracy.
Besides the Samanyolu case, there was recently another piracy case in the Netherlands. On 4 April 2010, a German cargo ship MS Taipan was hijacked 500 NM off the Somali coast by Somali pirates.335 The Dutch
331 AFP, ‘Yemen Sentences Somali Pirates to Death’, BBC News, 18 May 2010
61 ANNEMARIE MIDDELBURG naval ship HMS Tromp launched a military operation and regained control over the ship. They arrested the 10 suspected pirates; the pirates were put on a Dutch military plane to the Netherlands where they remained in custody until they were handed over to the German justice official.336 Germany had requested the extradition of the pirates, intending to prosecute them.337 The Court in Amsterdam ruled on 4 June 2010 that the pirates may be extradited to Germany.338 The trial in Hamburg has started on 22 November 2010 and the pirates are charged with attacking maritime traffic and extortionate kidnapping.339 They face sentences up to 15 years in prison.
On 4 April 2008, a group of six Somali pirates captured the luxury French yacht Le Ponant and held the 30 crewmembers hostage. The pirates sailed to a village in Puntland and one week later the ransom of 2 million dollars was paid and the hostages released.340 The French Special Forces captured the six Somali pirates in a helicopter raid in the Somali desert when they made their getaway.341 The suspected pirates have been arrested and flown to Paris by military plane (with the consent of the Somali President) where they are facing trial. In addition to the pirates captured in connection with Le Ponant, six other pirates are currently awaiting trial in France. On 2 September 2008, the French Special Forces rescued hostages held on board the yacht Carré d’As IV. The France commandos killed one pirate and captured six pirates. They were arrested and transferred to Paris on 23 September
336 DPA, ‘Somali Pirates Extradited to Germany’, The Local, 14 April 2010
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2008. They are expected to face trial. But because the investigations are still ongoing, no pirate has yet been brought to trial in France.342
On 21 January 2011, a Korean chemical ship Samho Jewelry was hijacked by a group of Somali pirates in the Arabian Sea. The pirates attempted to murder the ship’s captain, but South Korea’s navy intervened and rescued all 21 crewmembers aboard.343 Five Somali pirates were arrested and eight other pirates were killed. The five pirates were flown to Busan, South Korea’s southeastern port city, to stand trial. They will be charged with maritime robbery and attempted murder.344
§4.3.5 Conclusion
Chapter 3 of this book pointed out that on the basis of universal jurisdiction, countries are willing to prosecute war criminals, but not willing to prosecute pirates.345 The example Kontrovich gave in his article ‘A Guantánomo on the Sea’ is noteworthy: “Denmark has said that it cannot punish pirates it captures. Yet it was one of the first European countries to prosecute Serb officers for crimes committed against Bosnian Muslims in the Yugoslav civil war. Similarly, when the Spanish Navy captured a group of suspected Somali pirates, a judge ordered them released on the grounds that prosecuting a crime that occurred thousands of miles away would be ‘a bit disproportionate”. But just a week before, another Spanish magistrate had launched an investigation into an Israeli strike on Hamas leader in Gaza in 2002.”346 States are not willing to prosecute Somali pirates operating in the Gulf of Aden and the Indian Ocean. But as pointed out in this chapter and international criminal lawyer Knoops rightly said: “there are good reasons why many countries do not wish to burn their fingers on the
342 M. Corder, ‘Somali Pirates Tried Under 17th Century Law’, The Associated Press, 25 May 2010
63 ANNEMARIE MIDDELBURG pirates.”347 There have been only a few prosecutions so far of pirates in domestic courts, due to the following problems. A legal framework in domestic law as a foundation to carry out the arrest and prosecution does not exist in many States. If a definition exists in domestic law, the definition and legal framework is often inconsistent with international law.348 Political will and capacity is lacking and States are only willing to prosecute pirates when their own interest is harmed. The fact that pirates can claim asylum and other human rights protections upon release worried also a lot of States and overseeing prosecutions are costly and logistically challenging. After all, my biggest concern regarding trial in the flag State is that it undermines the principle of universal and uniform legal protection of suspected pirates.349 Domestic prosecution causes problems with regard to legitimacy and accountability. Not only the definition of piracy differs from country to country also the sentences vary significantly. In Yemen the Somali pirates faced the death penalty, in the U.S. they faced relatively 36, 30 and 27 years prison sentence and in the Netherlands the pirates faced a prison sentence of only 5 years. To my mind, those differences are too big and therefore trial in the flag State is not a preferable option.
347 B. Waterfield, ‘Somali Pirates Embrace Capture As Route to Europe’, Telegraph.co.uk, 19 May 2009
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4.4. Prosecution Solutions, Option 4: Prosecution in Third Countries
The previous chapter showed that States do not wish to see a large number of pirates serving prison sentences in their domestic prisons and standing trials in their courts.350 Another option for prosecution of Somalia pirates is a prosecution agreement (memorandum of understanding) with third countries that are willing to prosecute pirates, encouraged by UNSC Resolutions 1816(2008), 1846(2008) and 1851(2008). Those resolutions call upon flag, port and coastal States to cooperate in “determining jurisdiction, and in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia.”351 Bilateral prosecution agreements with Kenya have entered into force by the United Kingdom, United States, European Union,352 Canada, China and Denmark.353 However, Kenyan Foreign Minister Moses Wetangula said that “it would be dealt with on a case by case basis. It is not an open door for dumping pirates onto Kenya soil.”354 This chapter will analyze the option of bilateral prosecution agreements with third countries, such as with Kenya and the Seychelles. A legal analysis if such agreements are legally authorized by UNCLOS will be provided as well.
§4.4.1 Agreements With Kenya
Neighboring country Kenya has stepped forward to offer itself as regional prosecution venue for Somali pirates. They are holding 123 piracy suspects for trial and another 18 pirates have been convicted
350 B. Keleş, ‘Piracy, a Crime and a Challenge for Democracies’, Report Political Affairs Committee Council of Europe, Parliamentary Assembly, Doc. 12193, 1 April 2010, para. 65. 351 UNSC Resolution 1816(2008) of 2 June 2008, para. 11 and UNSC Resolution 1846(2008) of 2 December 2008, para. 14. 352 NATO does not have a similar agreement with Kenya to provide the transfer of suspects to another nation. Participating nations in NATO’s counter‐piracy operations have to refer back to their national procedures. 353 BBC News, ‘Q&A: What Do You Do With a Captured Pirate?’, 6 May 2010
65 ANNEMARIE MIDDELBURG and sentenced in Kenya since 2007, Alan Cole (head of the UNODC counter‐piracy program) said in June 2010.355 Under the bilateral prosecution agreements, pirates captured by U.S. and European naval ships on the high seas (or the territorial sea) will be handed over to Kenyan authorities for prosecution. Given the location of Kenya, captured pirates can be quickly handed over on shore and taken into custody. Although the suspected pirates have no connection to Kenya, they could be prosecuted under universal jurisdiction.356 The Kenyan Merchant Shipping Act 2009 incorporates the SUA Convention. It extends Kenyan jurisdiction over offences against the safety of ships committed within territorial waters and elsewhere, regardless of nationality.357 The law was amended in 2009 and paragraph 371 of the Act removed the death penalty and now provides that the punishment for piracy is life imprisonment. The Kenyan authorities requested support from the international community after they realized that the administrative burden on Kenya was enormous.358 As a reaction, the European Commission (EC) and the United Nations Office on Drugs and Crime (UNODC) agreed to a comprehensive program of judicial assistance to cover the cost of pirate prosecutions.359 The EU budget for the program is $2.3 million and covers everything from salaries, logistics, police training, office equipment, prison services and investments in the Kenyan criminal justice system.360 Denmark signed an additional bilateral agreement with Kenya in which Denmark promises “to help Kenya with the financial cost of taking on the extra judicial cases.”361 In May 2010, Kenya said it would stop accepting new piracy suspects captured by naval forces, because “they put undue
355 T. Maliti, ‘UN: Donors to Give $9.3M on Somali Piracy Cases’, Guardian, 15 June 2010
66 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST strain on the country's justice system.”362 Cole (head of the UNODC counter‐piracy program) said in June 2010 that donor countries would spend another $9.3 million “to help Kenya and Seychelles prosecute suspected Somali pirates and improve those countries' criminal justice systems.”363 On 24 June 2010, a court mainly to try suspected pirates has opened in Mombasa, funded by international donors.364 Kenya has convicted 26 Somali pirates and more than 100 suspected Somali pirates are being held in Kenyan prisons.365
§4.4.2 Agreements With Seychelles, Tanzania and Mauritius
The Indian Ocean island nation of Seychelles followed Kenya and has also offered itself as a venue to prosecute Somali pirates seized by foreign naval ships. The country has been working with the UN and recently amended their criminal code to enable it to prosecute pirates under universal jurisdiction. The transitional agreement with the EU relating to the prosecution of pirates was concluded on 30 October 2009.366 The EC and UNODC provide assistance to Seychelles, including interpreters for the police and courts and further extensive assistance is planned directed at the police, the courts and prisons.367
362 M. Corder, ‘Germany Requests Transfer of Piracy Suspects’, Boston Globe, 21 May 2010
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In the Seychelles, the judicial process up to a conviction is in most cases completed within a few months.368
In response to a EU call for other nations in the region to share the financial and security burden on Kenya and the Seychelles, Tanzania agreed on 20 May 2010 to prosecute Somali pirates. Tanzania's Attorney General Werema said that “the Parliament has already approved amendments to the penal code to ensure that Somali pirates can now be prosecuted in Tanzania.”369 Ashton, the EU’s special representative for foreign affairs and security policy, said that “the EU would help Tanzania develop the necessary infrastructure to detain pirates and put them on trial.”370 Prime Minister Navinchandra Ramgoolam of Mauritius said on 12 June 2010 that his country is ready to try and jail suspected Somali pirates: “During a meeting with Catherine Ashton, I have expressed our wish to try and judge suspected pirates.”371 Additionally he said that Mauritius needed financial assistance and training.
The EU has also opened negotiations with other countries in the region, including South Africa in the hope of reaching agreements. Convicted pirates could be held in UNODC prisons in Somaliland and Puntland to avoid an ‘unreasonable burden’ upon prosecuting States. So far, two prisons (Hargeisa and Qardho) have been built to international standards, but not yet occupied.372
368 Kenya has the capability of achieving a conviction within approximately a year. 369 F. Ng'wanakilala, ‘Tanzania Agrees to Prosecute Somali Pirates’, Reuters, 20 May 2010
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§4.4.3 Problem with Article 105 UNCLOS?
The general clause of Article 100 UNCLOS373 may be the basis for transfer or extradition of pirates to another State than the State who captured the pirates.374 But it is questionable if Article 105 UNCLOS authorizes the delegation of jurisdiction to third States. Kenya nor the Seychelles or other future prosecuting States has a connection with the alleged pirates and the question rises if they might be prosecuted under universal jurisdiction. Article 105 UNCLOS describes that “every State may 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. The courts of the State which carried out the seizure may decide upon the penalties to be imposed…” The words “the state which carried out the seizure” are important and suggest that while ‘every State’ may seize the pirates, only the flag State who captured the pirates may prosecute them. Elaborating thereon, it suggests that transferring pirates to third countries for prosecution is outside the permitted use of universal jurisdiction under UNCLOS.375 It is said that the drafting history of the Article supports the reading that the “Article precludes transfers to third‐party States.”376 However, in my opinion, UNCLOS prohibits the practice of transferring pirates to third countries. Therefore, third countries have no jurisdiction to prosecute suspected pirates. There is no State practice yet explicitly elucidating Article 105 UNCLOS, but most States have not adopted the limited reading.377 The effect of Article 105 UNCLOS has not been raised in any piracy trial yet.378 The uncertain language of UNCLOS explains that States emphasized the SUA Convention, which allows
373 “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State” 374 The Exchange of Letters that is concluded between the EU and Kenya for the transfer of suspected pirates states Article 100 UNCLOS specifically as the basis for conclusion of such an agreement. 375 H. Lanham, ‘Walk the Plank: Somali Pirates and International Law’, Bachelor Thesis, University of Otago, October 2009, p. 33. 376 E. Kontorovich, ‘A Guantanamo on the Sea: The Difficulties of Prosecuting Pirates and Terrorists’, California Law Review 234, Volume 98, 2010, p. 270. 377 Ibid, p. 271. 378 H. Lanham, ‘Walk the Plank: Somali Pirates and International Law’, Bachelor Thesis, University of Otago, October 2009, p. 33.
69 ANNEMARIE MIDDELBURG each State Party with personal jurisdiction over a defendant to prosecute.379
§4.4.4 Human Rights Concerns
The bilateral agreements with third countries in the region raise human rights issues. The agreement between the EU and Kenya contains the following provisions: “The signatories confirm that they will treat persons transferred under this Exchange of Letters, both prior to and following transfer, humanely and in accordance with international human rights obligations, including the prohibition against torture and cruel, inhumane and degrading treatment or punishment, the prohibition of arbitrary detention and in accordance with the requirement to have a fair trial.”380 Further on, suspected pirates “will receive adequate accommodation and nourishment, access to medical treatment and will be able to carry out religious observance”381 and “any transferred person will be brought promptly before a judge or other officer authorized by law to exercise judicial power, who will decide without delay on the lawfulness of his detention and will order his release if the detention is not lawful.”382 In addition, any suspected pirate “will be entitled to trial within a reasonable time or to release.”383 The agreement also offers other safeguards in Article 3, 4 and 5. The agreement between the EU and the Government of the Republic of the Seychelles contains the same provisions. But the question rises if those human rights guarantees are put into practice.384 If the reports are to be believed, Kenya has a seriously
379 Article 6, para. 1 SUA Convention. 380 EU, ‘Exchange of Letters Between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy and Detained by the European Union‐led Naval Force (EUNAVFOR), and Seized Property in the Possession of EUNAVFOR, from UNAVFOR to Kenya and For Their Treatment After Such Transfer’, Official Journal of the European Union, L 79/49, 25 March 2009, para. 2(c). 381 Ibid, para. 3(a). 382 Ibid, para. 3(b). 383 Ibid, para. 3(c). 384 S. Holovaty, ‘The Necessity to Take Additional International Legal Steps to Deal With Sea Piracy’, Report Legal Affairs and Human Rights Committee Council of Europe, Doc. 12194, 6 April 2010, para. 91.
70 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST deficient human rights record.385 Shortly after the bilateral agreements with the U.S. and the EU were announced, the report of the UN Special Rapporteur on Extrajudicial, Summary or Arbitary Executions showed that the Kenyan police and justice system systematically failed. Alston noted that “the criminal justice system as a whole was widely described as ‘terrible’. Investigation, prosecution and judicial processes are slow and corrupt.”386 Additionally, the UN Special Rapporteur called for “the dismissal of Kenya's police commissioner and attorney general over the country's failure to address widespread killings by the police.”387 The report also showed the poor treatment of prisoners. Hillary Clinton also criticized Kenya during her visit in August 2009 for “the absence of strong and effective democratic institutions which has permitted ongoing corruption, impunity, politically motivated violence and a lack of respect of the rule of law.”388 Various human rights organizations proved their concerns about the use of torture and cruel and degrading treatment in Kenya.389 Kenya’s courts faced in 2008 already a backlog of 800.000 cases and suspects suffer in jail for over a year before a judge hears them.390 I cannot draw another conclusion after reading various reports that there are substantial grounds for believing that a captured pirate facing trial in Kenya would face a great risk of being tortured. The same problem arises for prosecution in the Seychelles, Tanzania or Mauritius. Under Article 3 UNCAT, the nonrefoulement principle ensures that “No State Party shall expel, return (‘refouler’) or extradite
385 H. Lanham, ‘Walk the Plank: Somali Pirates and International Law’, Bachelor Thesis, University of Otago, October 2009, p. 36. 386 P. Alston, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions – Mission to Kenya’, UN Doc. A/HRC/11/2, 26 May 2009, para. 6. 387 D. Kilner, ‘UN Official Calls for Dismissal of Kenya's Police Chief, Attorney General’, Voice of America, 25 February 2009
71 ANNEMARIE MIDDELBURG a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” State who extradite pirates to Kenya breach, as far as I am concerned, their international human rights obligations. Not only under UNCAT, but also under the ICCPR and the ECHR.
§4.4.5 Shipriders
It has been suggested in UNSC Resolution 1851(2008) and in the Djibouti Code of Conduct that shipriders could be used in order to collect evidence in accordance with the prosecuting state’s evidentiary rules.391 There is no official legal definition of shipriders, but in short they are law enforcement officers from a coastal State (for example from Kenya, the Seychelles or Tanzania) who are embarked on a foreign naval ship. A shiprider arrangement would allow an law enforcement officer to arrest pirates in the name of their country and have the pirates sent to their national court for prosecution and detention. Shipriders also collect the necessary evidence and can act as a witness at the trial. For example Kenyan shipriders could be embarked on Dutch naval ships and they will carry out the arrest and detention of suspected pirates and gather evidence for prosecution in Kenya under Kenyan law.392
The UNSC invited all States fighting piracy off the coast of Somalia “to conclude special agreements or arrangements with countries willing to take custody of pirates in order to embark law enforcement officials (‘shipriders’) from the latter countries, in particular countries in the region.”393 Traditionally, shipriders are used to combat drug trafficking and illegal fishing and the practice has been employed successfully to fight drug traffickers, for the protection of fishing resources and maritime environment and in removing jurisdictional barriers to investigation and prosecution.394 Sophisticated bilateral arrangements
391 H. Lanham, ‘Walk the Plank: Somali Pirates and International Law’, Bachelor Thesis, University of Otago, October 2009, p. 37. 392 R. Beckman, ‘Somali Piracy – Is International Law Part of the Problem or Part of the Solution?’, Presentation RSIS, 23 February 2009, p. 65. 393 UNSC Resolution 1851(2008) of 16 December 2008, para. 3. 394 S.R. Subramanian, ‘Fighting the Somali Pirates: The 'Shipriders Agreement' Breakthrough’, Jurist, University of Pittsburg, School of Law, 29 January 2009
72 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST are required, but not yet in place for Somali piracy. After all, the use of shiprider arrangements in itself cannot replace other agreements. They are not a permanent, long‐term solution for the piracy problem off the coast of Somalia and the Indian Ocean. As far as I know, countries in the Horn of Africa have not made extensive use of this innovative arrangement and it has only limited effect.395
§4.4.6 Conclusion
It is preferable to prosecute pirates in courts in the region, because captured pirates can be quickly handed over on shore and taken into custody. But the countries on Africa’s east coast like Kenya, the Seychelles, Tanzania and Mauritius do not have the required legal systems and are lacking in resources for law enforcement and the judiciary.396 Third countries “bear the burden of holding, prosecuting and incarcerating pirates”, but they do not have the capacity to handle all of the suspected pirates that are apprehended.397 Additionally, States should not ignore human rights concerns. Although the agreements contain promising provisions and human rights guarantees, it is debatable if they are put into practice. Countries on the East African coast have seriously deficient human rights records.398 Kenya and other third countries cannot ensure that trials of suspected pirates are procedurally fair, there is a backlog of cases with the result that piracy suspects suffer in jail for over a year before they are heard by a judge and there is a big risk that piracy suspects will be tortured and treated inhumanely in jail. State who extradite pirates to Kenya or
[Last Accessed 1 March 2011] and UNODC, ‘'Ship Riders': Tackling Somali Pirates at Sea’
73 ANNEMARIE MIDDELBURG other third countries breach, in my opinion, their international (and European) human rights obligations.
74
4.5. Prosecution Solutions, Option 5: Prosecution in an International Piracy Tribunal
In line with Article 105 UNCLOS, it was widely recognized that the prosecution of pirates was a national responsibility. Only recently the discussion for having an international tribunal for the suppression of piracy started when States faced challenges regarding the prosecution. The Netherlands has proposed in the CGPCS that the UN should establish an international tribunal.399 Germany and Russia supported the Dutch Proposal,400 although the CGPCS has emerged a consensus that tribunals are not a viable option.401 On 27 April 2010 the UNSC adopted Resolution 1918(2010) where the UNSC requested the Secretary‐General to present “within 3 months a report on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, including, in particular, options for creating special domestic chambers possibly with international components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements, taking into account the work of the CGPCS, the existing practice in establishing international and mixed tribunals, and the time and the resources necessary to achieve and sustain substantive results.” This chapter will analyze if the creation of a piracy tribunal (in different forms) to prosecute suspected pirates operating off the Somali coast will be an adequate solution.
§4.5.1 The Creation of an Ad Hoc Piracy Tribunal
As pointed out in §3.4 of this book, the ICTR and ICTY do not base their jurisdiction on universal jurisdiction, but gain their powers from the UNSC.402 The UNSC relied on Chapter VII of the UN Charter to create
399 Permanent Mission of the Kingdom of the Netherlands to the United Nations, ‘Verhagen: International Problem of Piracy Demands International Action’
ANNEMARIE MIDDELBURG the tribunals and imposes on all States a duty to cooperate.403 However, there is a threshold before an ad hoc tribunal can be established, namely piracy needs to constitute “a threat to peace and security”. Whether such a threat exists is doubtful. In Resolutions 1816(2008), 1838(2008), 1851(2008) and 1897(2009), the UNSC did not say that piracy is a threat to peace and security, but indicated more generally that “the incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the situation in Somalia which continues to constitute a threat to international peace and security in the region.”404 In Resolution 1918(2010), the UNSC expressed to be “gravely concerned by the threat that piracy and armed robbery at sea against vessels pose to the situation in Somalia and other States in the region, as well as to international navigation and the safety of commercial maritime routes”, but does not explicitly say that piracy is a threat to international peace and security. There is an indication that China would support a Resolution acknowledging that piracy is such a threat. He Yafei, Vice‐Minister for Foreign Affairs of China, said during the adoption of Resolution 1851(2008) the following: “his country had been a victim of the piracy, with six vessels attacked. Piracy was threatening international peace and security.”405 But so far, no other State has publicly adopted this position.406 Although piracy off the Somali coast is an economic crime and not comparable to the type of crimes addressed by other ad hoc tribunals or the ICC, piracy these days seems to constitute a threat to international peace and security for the following reasons. Piracy hampers the stability and safety of international trade. It is estimated that present‐day piracy cost between U.S.$13 billion and U.S.$15 billion every year and could cost substantially more in coming years.407 In addition to the personal
403 E. Andersen, B. Brockman‐Hawe, P. Goff, ‘Suppressing Maritime Piracy: Exploring the Options in International Law’, Expert Workshop Report, 16‐17 October 2009, p. 11. 404 UNSC Resolution 1816(2008) of 2 June 2008, preamble, UNSC Resolution 1838(2008) of 7 October 2008, preamble, UNSC Resolution 1851(2008) of 2 December 2008, preamble and UNSC Resolution 1897(2009) of 30 November 2009, preamble. 405 UNSC Resolution 1851(2008) of 16 December 2008, Statements. 406 E. Andersen, B. Brockman‐Hawe, P. Goff, ‘Suppressing Maritime Piracy: Exploring the Options in International Law’, Expert Workshop Report, 16‐17 October 2009, p. 11. 407 B. Wilson, ‘Effectively Confronting a Regional Threat: Somali Piracy’, Conflict Trends, p. 13 76 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST danger, piracy threatens property and ships, endangers critical sea lines of communication and the free flow of commerce. It also undermines humanitarian aid, food security and stability in the region. Finally, piracy is mordant to political and social development, disrupting economic growth.408 Nevertheless, it is interesting that the UNSC did not refer to the qualification of piracy as a “threat to peace and security” in UNSC Resolution 1918(2010) or any other SC Resolution. If the UNSC will hold on to this view, it means that there is no legal basis for the establishment of an international piracy tribunal based on Chapter VII UN Charter. If the UNSC would change its view and acknowledge that piracy off the Somali coast and the Indian Ocean is a threat to international peace and security, the UNSC could establish an international Piracy Tribunal similar to the ICTR and ICTY under Chapter VII UN Charter. The establishment of the ICTR, ICTY was justified on social and political grounds: the existence of an emergency resulting in the collapse of a legal system.409 The tribunals were in particular established to “aid the restoration of peace, redress violations and fulfill a deterrent function.”410 It is arguable that these factors also apply to the situation in Somalia. If a Piracy Tribunal under Chapter VII will be established, it will be a subsidiary organ of the UN. I would propose that the Piracy Tribunal should be competent for the prosecution of persons responsible for acts of piracy. The applicable law should be international law (UNCLOS or SUA). However, the Tribunal’s jurisdiction should be limited geographically and by time and it should have concurrent jurisdiction (has primacy over the national courts).411 The Tribunal should consist of the following organs: (a) the Chambers, comprising three Trial Chambers and an Appeals Chamber, (b) the Prosecutor and (c) a Registry, servicing both the Chambers and the Chapter+2.pdf> [Last Accessed 1 March 2011]. 408 Ibid. 409 G.J. Knoops, ‘Internationale Piraterij: Naar een Supranationale Rechtsgang?’, Justitiële Verkenningen, Volume 35, No. 8, 2009, p. 90. 410 H. Lanham, ‘Walk the Plank: Somali Pirates and International Law’, Bachelor Thesis, University of Otago, October 2009, p. 46. 411 To my mind, the Piracy Tribunal should have geographical limitations (it should only to deal with regional piracy in the Horn of Africa). It is not my intention to establish a ‘World Court against the suppression of piracy’. The Piracy Tribunal should also have limitations in time. 77 ANNEMARIE MIDDELBURG Prosecutor.412 Although the Netherlands have proposed that the location for the court should be The Hague, because it is after all “the legal capital of the world”,413 I would propose that the Piracy Tribunal should have its seat in the region and convicted pirates must serve their prison sentences there. §4.5.2 Advantages of an Ad Hoc Piracy Tribunal The former Dutch Minister of Foreign Affairs, Maxime Verhagen, is a fervent supporter of an ad hoc Piracy Tribunal. His main argument is that “the lack of a uniform standard in bringing suspects to justice is disturbing” and he believes that “a more standardized and international approach is needed.”414 Elaborating on that, a tribunal could standardize substantive law and legal procedures, such as evidence gathering and witness procedures.415 Another advantage is that a tribunal could create its own capacity and resources.416 Zegveld also pleads for an ad hoc Piracy Tribunal: “'Such a tribunal could collect evidence and use specialized indicters. For suspects there’s also legal certainty concerning the applying law. The current Dutch system under which pirates are only prosecuted if there is a national interest at stake for the arresting country, is not working.”417 From the perspective of universality and uniformity, an ad hoc Piracy Tribunal is one of the best solutions. Chapter 4.3 showed that a lot of pirates have to be released because European States are not willing to prosecute. This situation demonstrates a lack of political will of having purely a domestic solution to the problem of prosecuting pirates.418 Therefore, 412 Article 11 of the Statue of the ICTY. 413 J. Young, ‘New Threat, New Court’, Reuters, 13 April 2010 78 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST an international solution needs to be found. Additionally, an ad hoc Piracy Tribunal could fill the legal void left by UNCLOS by defining crimes in such a manner that prosecutors could bring multiple charges against a suspect.419 §4.5.3 Disadvantages of an Ad Hoc Piracy Tribunal There exist, however, a number of arguments against the establishment of ad hoc tribunals, which have been well documented. In the first place, the creation of such an ad hoc tribunal could take too long. Although no international conference is required, the establishment of an ad hoc tribunal will probably take a couple of years. Also the ratification process can take a significant amount of time.420 In the second place, the establishment of an ad hoc tribunal would be very costly and the question raises if a tribunal would be cost‐ effective.421 To indicate, the ICC budget for 2009 was €101.229.900,‐ and the two year ICTY budget for 2008‐2009 was $342.332.300,‐.422 In the third place, it is said that a Piracy Tribunal would neither be efficient nor practical. A Piracy Tribunal would have to make for example arrangements for the travel and accommodation of accused persons, witnesses and others.423 It would also be necessary that interpretation take place into one or more official languages. Evidence would have to be taken to the Piracy Tribunal and have to be presented in conformity with the Tribunal’s rules on evidence. Convicted pirates would have to be imprisoned somewhere, and in 419 E. Andersen, B. Brockman‐Hawe and P. Goff, ‘Suppressing Maritime Piracy: Exploring the Options in International Law’, Expert Workshop Report, 16‐17 October 2009, p. 12. 420 It took for example 10 years to adopt the Statute of the ICC and another 4 years to enter into force. 421 BBC News, ‘Q&A: What Do You Do With a Captured Pirate?’, 6 May 2010 79 ANNEMARIE MIDDELBURG accordance with conditions concerning sentencing and imprisonment that are laid down by the Tribunal.424 The fourth counter‐argument is that the primary aim of the Piracy Tribunal would be to put suspected pirates to trial instead of preventing piracy. It is said that an International Piracy Tribunal does not focus on local law‐enforcement measures and that a Piracy Tribunal will therefore be a misdirection of effort.425 States fear that when the Piracy Tribunal closes down, the experience will be dispersed as international staff return home and will not contribute to the building of the local judicial system.426 Strengthening the local onshore law‐enforcement measures are indeed necessary but could, in my opinion, be implemented alongside the establishment of an international Piracy Tribunal. §4.5.4 The Creation of a ‘Hybrid‘ Tribunal Because it might be unlikely that the legal basis for the establishment of a future tribunal would be Chapter VII of the UN Charter, other possibilities need to be considered. A Special Court similar to that for Sierra Leone could be established to prosecute suspected Somali pirates. A ‘hybrid’ court combines elements of a domestic court and an international tribunal. During a CGPCS meeting in August 2009, Portugal proposed the establishment of a Somali ‘hybrid’ court for the prosecution of piracy related crimes off the coast of Somalia.427 In line with the Sierra Leone Special Court, a Special Piracy Court could be established by an Agreement between the UN and the Government of Somalia (TFG) or Kenya that will be “a treaty‐based sui generis court of mixed jurisdiction and composition.”428 The applicable law could be international law (UNCLOS or SUA) and domestic Somali or Kenyan law. The Court or Special Chamber should consist of international 424 S. Holovaty, ‘The Necessity to Take Additional International Legal Steps to Deal With Sea Piracy’, Report Legal Affairs and Human Rights Committee Council of Europe, Doc. 12194, 6 April 2010, para. 46. 425 Ibid. 426 Ibid, para. 86. 427 CGPCS, 3rd Meeting of Working Group 2 on Legal Issues, Chairman’s Conclusions, Copenhagen, 26 – 27 August 2009 80 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST judges and judges selected by the TFG of Somalia or Kenya.429 The Special Piracy Court or Chamber could have the power to prosecute persons of acts of piracy. The Court’s jurisdiction should again be limited geographically and by time430 and it should have concurrent jurisdiction (has primacy over the national courts).431 The Special Piracy Court should consist of the following organs: (a) The Chambers, comprising two Trial Chambers and an Appeals Chamber; (b) The Prosecutor and (c) The Registry.432 §4.5.5 Advantages and Disadvantages of a ‘Hybrid’ Tribunal In the light of capacity building, the creation of a Special Piracy Tribunal or an ‘international chamber’ within the courts of a State in the region could be a step in the right direction to strengthen regional justice systems and local capacity to bring pirates to justice. On top of that, the experience will be kept where it is needed.433 But establishing a ‘hybrid’ tribunal in Somalia will pose a security threat, since there is no functioning government in Somalia. If such a tribunal will be located in Kenya (Kenya will be the most likely country in the region), we have to ask the famous question: “Can we drop our common problem on one country’s doorstep?”434 I do not believe so. Building on the existing courts in the region may be more effective and I agree that the presence of a ‘hybrid’ tribunal would have a positive effect on the rule of law in that State. But I do not see a real advantage in creating a two‐ tier criminal law system for the crime of piracy in Kenya.435 Kenya does not have the judicial capacity and has already has a backlog of 800.000 cases. The Kenyan legal system suffers from under‐resourcing, 429 UNSC ‘Report of the Secretary‐General on the establishment of a Special Court for Sierra Leone’, 4 October 2000, UN Doc S/2000/915, para. 9. 430 Ibid, para. 25‐28 and Article 1 of the Statute of the Special Court for Sierra Leone. 431 Ibid, para. 10 and Article 8 of the Statute of the Special Court for Sierra Leone. 432 Article 11 of the Statute of the Special Court for Sierra Leone. 433 B. van Ginkel, ‘Pioneering for Solutions to Somali Piracy – Facing the Challenge, Seizing the Opportunity’, Clingendael Security and Conflict Programme (CSCP), Policy Brief, Volume 3, August 2009, p. 4. 434 Speech by Minister of Foreign Affairs Maxime Verhagen at the Expert Seminar, Clingendawel, 8 July 2009 81 ANNEMARIE MIDDELBURG inefficiency and corruption.436 Another problem is that there are substantial grounds that pirates will face human rights abuses in a Kenyan trial.437 The setting up of a mixed tribunal in Kenya does not guarantee a fair trial and the proposal was also rejected by most members of the UN in November 2009.438 §4.5.6 Other Prosecution Options? Dutch shipowners proposed the possibility of bringing seized pirates to face trial in the Netherlands at the International Court of Justice in The Hague (ICJ).439 The ICJ has only the authority to adjudicate disputes between States (with the consent of the governments involved) and it may give advisory opinions on legal questions requested by the United Nations General Assembly (UNGA) or UNSC. The ICJ has no jurisdiction to investigate or prosecute individuals and therefore it is not an option to prosecute suspected Somali pirates at the ICJ. The same applies to trials of pirates in the International Tribunal for the Law of the Sea (ITLOS). The ITLOS is competent to settle disputes concerning the interpretation and application of UNCLOS.440 Disputes between States may be submitted to ITLOS by agreement of the parties or unilaterally. Disputes about piracy may arise for example between the flag State of the victim ship and the flag State of the pirate ship (if the ship retains a nationality). It may occur if the acts of violence are attributable to a State or if a State has failed to exercise due diligence.441 For this kind of dispute, the ITLOS has compulsory 436 S. Holovaty, ‘The Necessity to Take Additional International Legal Steps to Deal With Sea Piracy’, Report Legal Affairs and Human Rights Committee Council of Europe, Doc. 12194, 6 April 2010, para. 45. 437 See also §4.4.4 of this book. 438 T. Bouwknegt, ‘International Law “No Solution to Piracy”’, International Justice Tribune, 2 June 2010 82 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST jurisdiction of UNCLOS. But, similar to the ICJ, the ITLOS has no jurisdiction to prosecute individuals of a State. Prosecution of suspected Somali pirates at the ITLOS is not an option. .pdf> [Last Accessed 1 March 2011]. 83 4.6. Practical Prosecution Implications When it comes to the prosecution of suspected pirates, there are some practical complications. Kieserman, chief of the U.S. Coast Guard’s Operations Law Group emphasized the following: “You get flags from one country, witnesses from another, suspects from another: how do you put that all together in court?"442 As a result of today’s globalized world, the international shipping and global commerce are organized in such a way that the following example of this complex piracy case is reality: “pirates captured by a British naval vessel after trying to attack a Liberian‐flagged ship, owned by a Canadian company, crewed by Ukrainians, Indians, and Filipinos, with a Russian captain and carrying cargo owned by a Turkish company, en route for delivery to a company in Dubai.”443 This Chapter will shortly address the difficulties and problems in piracy trials. These complications also explain why States have been hesitant to undertake piracy trials.444 §4.6.1: Evidence Gathering Europe's first trial of suspected Somali pirates in the Netherlands in June 2010 showed a notable lack of physical evidence.445 In general, pirates use excuses in trials for why they have been caught on the high seas with serious firepower. Kadima, a Kenyan lawyer confirms that and explained that all his clients use the same excuse in court: “pirates say that they were just fishermen who needed to protect themselves.”446 It is difficult to prove that somebody is a pirate when 442 P. Prada, A. Roth, ‘On the Lawless Seas, It's Not Easy Putting Somali Pirates in the Dock’, Wall Street Journal, 12 December 2008 ANNEMARIE MIDDELBURG firearms are thrown overboard and the suspected pirate explains in court: “well, I initially had the intention to hijack a ship but I actually decided to withdraw from my intentions when our skiff ran out of food, water and fuel.”447 As with every criminal case, it is very difficult to prove the intent of the pirate. §4.6.2: Witness Problem UK Defence Minister Baroness Taylor said in January 2010 after a British naval ship released several pirates that there was “insufficient evidence to arrest anyone.”448 A spokesman added: “If there is insufficient evidence, including uncooperative witnesses, to ensure a successful prosecution, then any equipment is destroyed and the suspected pirates released with enough fuel and supplies to allow them to return to land, in accordance with our international legal obligations.”449 The practical problem of witnesses plays an important role in piracy cases, because key witnesses are most of the time sailors, marines or crewmembers with no mailing address who spend all year at sea. It is very difficult for those witnesses to provide testimonies. An additional problem is the language and finding Somali translators. Proceedings must often be translated twice, and sometimes even three times, depending on the language of the defendants and witnesses.450 [Last Accessed 1 March 2011]. 447 T. Bouwknegt, ‘International Law “No Solution to Piracy”’, International Justice Tribune, 2 June 2010 86 5. Conclusion This book looked into piracy off the Somali coast and focused on possibilities for prosecution of suspected Somali pirates within the framework of international law. The first option is prosecution of Somali pirates in their own State. Somalia is a failed State and has no functioning government. The judicial and criminal justice system is weak and it is likely that pirates face human rights abuses during their trial in Somalia. Therefore, this is not a preferable option. The second option is prosecution in the ICC, but this is not a preferable option either. The act of piracy is not comparable with genocide, war crimes, crimes against humanity or aggression. Piracy involves problems that are of less importance than the cases the ICC has dealt with up to now and therefore it is not the appropriate body to handle piracy prosecutions. Piracy is the ‘original universal jurisdiction crime’, which means that every State may capture and prosecute pirates operating off the Somali coast. But UNCLOS contains no aut dedere aut judicare obligation, which means that States do not have an obligation under UNCLOS to extradite or prosecute Somali pirates. States are not willing to prosecute pirates in their national courts (only when their national interest is harmed). Asylum claims and human rights protections worry a lot of States. An additional problem is that a lot of States have not effectively implemented and updated their domestic legislation on piracy after ratifying UNCLOS. As a consequence, a legal framework as a foundation to carry out the prosecution does not exist or is outdated. Therefore, prosecution in the flag State is not a preferable option. The fourth option is prosecution in third countries. Although it is debatable whether UNCLOS permits the extradition of pirates to third countries, this is not a preferable option. Third countries in the region do not have the required legal systems and are lacking in resources for law enforcement and the judiciary. Additionally, third countries in the region of Somalia have deficient human rights records. Given those documented human rights abuses, States who hand over pirates to 87 ANNEMARIE MIDDELBURG third counties in the Horn of Africa, breach their human rights obligations. The fifth option is the prosecution in an international Piracy Tribunal. UNSC Resolution 1918(2010) made clear that the proposal of an international Piracy Tribunal is no longer a vague proposal only, but an agenda item at UN level.451 So far, a Piracy Tribunal under the umbrella of the UN did not have enough support. Some UN diplomats said that “such special tribunals are complicated, expensive and might not be worth the trouble.”452 They suggested that it would be better “to assist countries prepared to prosecute pirates in national courts”.453 Indeed, the ICTY and ICTR have been criticized for their week enforcement powers, slow progress in starting trials and bureaucracy‐ laden institutions.454 These perceptions of the ad hoc tribunal system can contribute to a lack of political will to establish another ad hoc Piracy Tribunal. But in fact ad hoc tribunals have substantially contributed to international justice455 and there is no reason to assume that trials before an ad hoc Piracy Court would occur at the same pace as the ICTR or ICTY.456 Moreover, the crime of piracy is not as complex as for example genocide or crimes against humanity and procedural rules could be developed to speed the trial process.457 Although it is very costly and the creation will take probably long, the establishment of an ad hoc Piracy Tribunal, based on Chapter VII of the UN Charter is in my opinion the best solution to prosecute Somali pirates and is the most effective way to put an end to impunity. An ad hoc Piracy Tribunal will assure a uniform sentencing regime, it will aid 451 C. Bueger, ‘An International Piracy Tribunal? The Forthcoming Security Council Resolution and the Further Legalization of Responses to Piracy’, Piracy Studies, 23 April 2010 88 PROSECUTION OF PIRATES OPERATING OFF THE SOMALI COAST the development of piracy law and most importantly: a Piracy Tribunal assures a uniform application of international law. The creation of a ‘hybrid’ tribunal or an ‘international chamber’ within the courts of a State in the region is not a preferable option, because I do not see the advantage of combined elements of domestic courts and international tribunals. Somalia is a failed State and has no functioning government; therefore it is unlikely that a ‘hybrid’ court will be established in Somalia. The most likely location in the region to establish such a mixed court will be Kenya. This is not a preferable option either, because of human rights concerns, lack of judicial capacity, inefficiency and corruption. In my opinion, the international crime of piracy needs an international solution. 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