Somali pirates have rights too Judicial consequences and human rights concerns I think that this court would be abdicating policy is ‘insuffi cient legal basis’.4 Th is ‘insuffi cient legal its jurisdiction, power and authority and its basis’ results from diffi culties with determining the Constitutional obligations in ensuring the protection appropriate jurisdiction, confl ict of laws, the inadequacy of the fundamental rights and freedoms of the of domestic laws, evidentiary procedures, and the cost [pirates] who fi nd themselves in a perilous, insecure of the judicial consequence. For example, a vessel that is and unenviable situation in a strange country to which attacked by pirates could be registered in Panama, have a they were brought without their wish or volition.1 Filipino crew, be owned by a Turkish corporation ferry- ing Ukrainian cargo destined for China, and be rescued 5 INTRODUCTION by a US warship. It is therefore hardly surprising that judicial con- Th e above statement of the court, which refers to the sequences, or the lack thereof, have been identifi ed as legality of the existing piracy jurisdiction, epitomises the weakest link in the counter-piracy war. Th e lack of the dangers of the international community’s conduct legal preparedness before dispatching the naval forces is in countering piracy in the Horn of Africa. A conven- nothing short of dereliction by the international com- tional law-enforcement problem has escalated to such a munity and exposes the pirates to human rights viola- level that although military intervention is condoned, tions. Despite the escalation of piracy, many countries military deterrence has been limited by international are yet to amend their laws in ways that can adequately laws that safeguard pirates from military actions that address the potential legal obstacles to prosecution. would otherwise be lawful were they undertaken within Th is undoubtedly threatens the credibility of these a combat situation. Th ese rules stipulate that the use counter-piracy operations. A few suspects are prosecuted of force against suspected pirates be proportional to in the home country of the warship that has captured the crime and that due process be complied with when them, when the piratical incident is directed against apprehending these pirates. To circumvent these con- that country’s nationals or vessels.6 However, some of straints, new international rules have been established to the naval states have resorted to rendering the captured accommodate the military actions, to the detriment of suspected pirates to regional courts, and Kenya and the human rights standards.2 Th ese new rules have created Seychelles have accepted the bulk of these suspects for a negative precedent and could become mired in the prosecution, as well the responsibility for the imprison- same legal quagmire that the fi ght against terrorism is ment of convicted pirates. beset with, while they also fail to address the security To a certain extent, rendering piracy suspects to re- challenges and counter-piracy acts that inadvertently gional courts undermines the legitimacy of the ensuing intensify piracy. prosecutions. Th e regional courts are hampered by Most of the naval warships that patrol the Gulf of inadequate resources, capacity and laws to conduct Aden and the Indian Ocean hope that their presence eff ective piracy trials and, in Kenya’s case, a founder- alone will deter pirates from attacking shipping vessels, ing criminal justice system. Kenya has long been but this is rarely the case.3 Instead, in practice, the accused of breaching human rights standards, and warships have been capturing suspected pirates and there have been accusations of extrajudicial killings, then oft en releasing them, rather than taking them into torture and partial courts. Human rights monitors custody for prosecution; this is because few countries are also place Kenya’s judiciary architecture far below the willing to accept the burden of prosecuting these cases. minimum international standards necessary to protect Th e customary refrain used for the ‘catch and release’ the rights of the rendered suspects. Th e country’s new Deborah Osiro • ISS Paper 224 • July 2011 constitution has only recently provided a roadmap that In prosecuting suspected pirates, observance of due can be used to implement reform of the justice system. process and basic human rights standards would be a Th e realisation that human rights standards are relative positive and necessary step towards containing confl ict for diff erent parties and judicial systems means that in the region. It is evident that the need for legal account- it is more expedient for the West to prosecute the ability for pirates is being championed at the expense of suspected pirates in a less rigorous regional human their rights, and this not only fuels more piratical attacks rights environment as opposed to one that has more but also creates a greater threat to security in the region. stringent, Western human rights standards. For some Th e situation calls for the deliberation of other options countries the reality of saving US$ 240 000 may seem that may help to resolve this security threat. Th ese worth sacrifi cing the rights of the pirates and ignoring options include legal and political remedies that should their plight.7 underscore respect for principles of fundamental justice Nevertheless, human rights are universal and that and universally accepted human rights, particularly universality means that they must be enjoyed by all, for the pirates, who constitute a vulnerable group. Th is without discrimination. However, a recent judgement would lend credibility to the international counter-piracy in Kenya may off er a ray of hope for the pirates in the eff orts and reduce the legitimacy of the pirates’ actions, country.8 Justice Mohamed Ibrahim, in Re Mohamud which they feel are based on historical injustices against Mohamed Hashi & 8 Others, ruled that the pirates’ rights them that have been perpetrated by the international had been violated when they were prosecuted under community. the old piracy law; he also prohibited the lower courts from determining their case because the country had no Maritime piracy in the Horn of Africa jurisdiction. He added that, considering the ‘peculiar, very unique and exceptional circumstances’ in which Th e incidents of piracy are increasing, outpacing the best the pirates found themselves, it was incumbent on the countering eff orts of the international community. Th is court to off er them protection and security and suo increase in piracy attacks in the Horn has been attributed moto declared them ‘vulnerable persons’ and ‘wards’ of to a number of factors,9 which include inadequate state the court. Notwithstanding this decision, the State has law-enforcement capacity in Somalia; greater vessel appealed, and jurisdiction remains a problematic issue in vulnerability as a result of technology that reduces the the country’s piracy trials. crew numbers required to man vessels; ambiguous juris- Th e discussion that follows will explore the human dictions; the attractive geographic location that makes rights issues underpinning the judicial response to acts of piracy easier to perpetrate; and the potential maritime piracy in the Horn of Africa. Th e interna- high returns of piracy coupled with the low risk of any tional human rights concerns limiting the naval states’ signifi cant consequences. To elaborate further, Somalia judicial response will be reviewed and reference to is strategically situated next to busy sea routes, at the Kenya’s prosecutorial role will be discussed at length. entrance to the Gulf of Aden, and has a long coastline of Th e fi rst part of this discussion briefl y introduces the 3 898 km. Th e majority of the vessels that are attacked phenomenon of piracy, with some emphasis on the state are bulk carriers, containers and chemical tankers. Th e of insecurity in Somalia and how this insecurity encour- weak judicial consequences of piratical acts seem to have ages piracy and results in the ensuing legal dilemma. emboldened the pirates, and less than 40 per cent of the Th e second part discusses the perceived and considered captured pirates are ever brought to trial.10 failure of the international legal system, and the potential In 2010 the incidence of piratical attacks remained human rights concerns that prompt such recourse to the virtually unchanged from that of 2009, with 219 attempts regional courts. Th e third part examines Kenya’s legal and 49 reported successful hijackings. In 2009 piratical and systemic shortcomings as the main regional centre incidents off the Somali coast constituted 217 of the 416 for piracy prosecutions. incidents reported globally. Forty-nine of the successful Table 1 Horn of Africa piracy numbers 2007 2008 2009 2010 2011 (1st Quarter) Incidents 51 111 218 219 97 Hijackings8 49495216 Hostages 163 815 867 1016 299 Ransom amounts (US$) 3.6 million 75 million 177 million 238 million 65 million Sources International Maritime Bureau (IMB), Piracy and armed robbery against ships annual reports, 2009 and 2010 and IGAD, Report on the Impact of Piracy on the IGAD region 2 Somali pirates have rights too: judicial consequences and human rights concerns • ISS Paper 224 • July 2011 hijackings occurred off the Somali coast, with the pirates Indian Ocean, which means that a much larger area must holding 867 crew members hostage.11 Th is represented a now be policed. Th e hijacking of the South Korean MV 50 per cent increase from 2008. But successful hijackings Golden Wave, with 39 Kenyans on board, off Lamu Island were down relative to the piratical incidents reported, as in October 2010 and the fi rst hijacking of a Kenyan vessel, a result of better policing of the Gulf of Aden. Attacks FV Sakoba, in March 2010 means that piracy has now decreased by 50 per cent in the Gulf of Aden but rose become a security priority for the country.14 substantially in other seas and the Indian Ocean.