Global Policy Forum

What Do You Do With a Captured Pirate?

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May 6, 2010

Warships patrolling Indian Ocean waters off the Somali coast are enjoying greater success in capturing pirates - but the legal challenges posed by 21st Century piracy raises question on what to do with suspects after they have been caught.

Isn't it the responsibility of the country whose navy apprehended the pirates to prosecute?

The United Nations Convention on the Law of the Sea defines piracy as a universal crime and gives sovereign nations the right to seize and prosecute pirates. But whether a country wants to prosecute arrested pirates depends on its own law. Experts say that several countries do not know how to incorporate the convention into their own jurisdiction.

According to the report Fighting Piracy by Commander James Kraska and Captain Brian Wilson: "On the high seas or in any other place outside the jurisdiction of a state, such as Somalia's ungoverned territorial seas, any nation's warship may take action against piracy. Pirated ships may be boarded, the pirates can be detained and the property on board the vessel can be seized and submitted to admiralty and criminal courts. The registry or "flag" of the attacked vessel, the state of nationality of any of the victims or crew, the nationality of the on-scene warship, and, in some cases, coastal and port states, all have a valid basis for asserting jurisdiction. But it can take weeks or months to sort out these logistics and legal issues."

About 20 warships from the navies of half a dozen countries operating under US, European Union and Nato commands police the pirate-infested waters. Many have signed agreements with Kenya, enabling them to send apprehended pirates there for trial.

Why are many countries reluctant to prosecute?

Suspected pirates have been taken to the US, France and the Netherlands, among others, for prosecution. Russia is reportedly considering bringing a group of suspected pirates to Moscow for trial.

But maritime experts have pointed out that the length of time taken to bring some of those cases to trial indicates the complexities involved.

In some cases, legal arguments have centred on how long the suspects were kept in detention before either getting legal assistance or being charged - possibly violating the legal process of the countries involved.

Cyrus Mody from the International Maritime Bureau says the logistical and legal burdens involved in transporting pirate suspects to Western countries can be daunting.

"It is difficult getting the pieces together, the evidence, the witnesses. Who's going to pay for it all?

"And if a prosecution fails, the burden lies with that country. There is always the prospect that the suspected pirate might then claim asylum," he told the BBC.

In some cases, suspects are simply released after they have been disarmed because of the potential legal headaches.

Why do most of the arrested pirates end up in Kenya?

Kenya, which borders Somalia, has signed agreements with the European Union, the US, Britain, Canada, China and Denmark to prosecute and jail pirates. It has been promised financial aid in return.

There are more than 100 suspected pirates in custody, either awaiting, or already on trial. But the process is slow - lasting up to a year - and costly.

In May, Foreign Affairs Minister Moses Wetangula said Kenya was unwilling to take on any more prosecutions and was to review the agreements. He said some of the countries had failed to give adequate financial support to Kenya's strained justice system.

Mr Wetangula said a key problem was what would happen to the pirates after their jail terms were up.

What happens to the others?

Nato, Russia and India, among others, have not signed an agreement with Kenya and so their navies need to determine whether or not to bring the pirates home for trial or look for another Gulf of Aden littoral state to prosecute. This has proved difficult.

According to reports, the Indian Ocean island nation of the Seychelles is emerging as the second regional centre for trying pirates seized by EU naval units. Working with the UN, the country recently amended its criminal code to enable it to prosecute pirates under universal jurisdiction.

The EU has also opened negotiations with other countries in the region, including South Africa and Tanzania, in the hope of reaching agreements enabling the prosecution of suspected pirates.

What about setting up an international court?

In April, the United Nations Security Council adopted a Russian proposal to consider the creation of a new court to deal with piracy. UN Secretary-General Ban Ki-moon will be asked to report within three months on options for "a regional tribunal or an international tribunal and corresponding imprisonment arrangements".

Some experts have argued, however, that this option would be costly and judicially cumbersome. There is still the issue of where convicted pirates would be held.




 

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