As the world's most failed state, Somalia currently does not have the resources or infrastructure to prosecute perpetrators of piracy. There has been no effective central government in the country since 1991 and without UN and/or international assistance and financial backing, piracy will remain a largely unpunished crime in Somalia.
In order to counteract this lamentable situation, the UN adopted Resolution 2015 on October 24, 2011, which urges member states to support efforts to establish specialized anti-piracy courts in Somalia. Member states are requested to make arrangements for the provision of international experts to advise on the kind of international assistance that would be required to make such courts operational. The UN Secretary-General has been asked to consult with Somalia and regional states and to provide detailed implementation proposals by December 31, 2011. This is to further Resolution 1918, passed in 2010, which called on all states to prosecute piracy suspects and imprison convicted pirates, and Resolution 1976, passed in April 2011, calling for specialized courts to be set up in Somalia as well as the East African region.
Piracy is a crime of "universal jurisdiction," the doctrine which allows any nation to prosecute offenders who have committed international crimes, even if the crime, the defendant and the victim(s) have no nexus with the state carrying out the prosecution. However, the reality remains that the prosecution of pirates is comparatively rare. The naval forces that patrol the Gulf of Aden and Indian Ocean capture hundreds of pirates each year, but the majority are not prosecuted due to the legal complexities and expense of prosecution.
In addition, the evidential difficulties the navies face should not be overlooked. It can be difficult to prove that armed men in a skiff on the high seas are pirates, and this is one of the main obstacles to prosecution. Unless they are actually caught in the act of attacking a vessel, pirate suspects can claim to be mere fishermen, despite the fact that naval forces may have seen them throw overboard weaponry and other equipment that might be used in an attack. Even if firearms are found on board, pirate suspects will argue that they are being carried for self-defense purposes by fishermen, and currently there are no equipment articles in treaty or municipal law that create a presumption of piracy where certain equipment and firearms are carried on board small vessels.
Turning back to the legal issues, one of the difficulties is that different nationalities (and therefore, jurisdictions where claims may be brought) are likely to be involved in the seizure and arrest of pirate suspects. For example, this can be determined by the flag of the attacked or hijacked vessel, the nationality of the crew, or the nationality of the naval vessel, and if the victim vessel is not on the high seas, the coastal state could assert jurisdiction.
Even after the problem of deciding where to prosecute is solved, there is a potential problem under Article 105 of the UN Convention on the Law of the Sea, which provides that the state which arrested the pirates should decide on the penalties to be imposed. This provision was originally intended to prevent transfers to third party states, which is precisely the action the UN resolutions have been advocating. However, these resolutions are necessary in light of the fact numerous states simply do not want to prosecute pirates on their courts. It is an expensive and lengthy process to bring a case against suspected pirates, for which the state will have to pay. If the prosecution fails, the burden will lie with the state to repatriate an acquitted suspect and there is always the prospect that they might claim asylum. If the prosecution succeeds, sentences generally range from five to 20 years, although sentences of more than 33 years have been handed down. A long-term imprisonment obviously places a substantial financial burden on the prosecuting state.
The option of extradition to Somalia and/or enhancing prosecution mechanisms in the existing judicial systems of states in the East African region remains the favored option by many states for various reasons. It will promote burden-sharing between affected states both inside and outside the region. This will be welcomed by states such as Kenya and the Seychelles, which have taken on what they would argue is more than their fair share of pirate prosecutions over the past few years. Financial burden-sharing is also important and affected states outside the region should be prepared to contribute their share towards the costs of prosecuting pirates. It is hoped that UN and/or international assistance in this region will also help to develop the justice systems in this area in general, and not only in relation to prosecution for piracy.
The study called for by Resolution 2015 has been long-awaited as it is clear that international efforts to bring suspected pirates to justice have not been sufficient so far and more needs to be done. However, the reality is that regretfully, specialized anti-piracy courts in Somalia or in the East African region will take time to set up. Although such courts might eventually form an important part of any long-term solution, in the meantime, states both inside and outside the region should continue to consider alternative quick and effective measures to combat the problem of Somali piracy.
James Gosling is a Partner at the London office of Holman Fenwick Willan LLP, a global law firm specializing in international commerce. His expertise lies in the fields of shipping, piracy and civil and criminal pollution liabilities. Widely acknowledged as a prominent piracy authority, he has spoken at a number of high profile events and is regularly quoted in the press. Chambers Global 2010 recognized him as a premier lawyer in his fields of concentration.
Sally Buckley is an Associate at the London office of Holman Fenwick Willan LLP. She specializes in maritime law and is on the firm's Admiralty team. She advises on both wet and dry shipping litigation matters.
Suggested citation: James Gosling & Sally Buckley, Combating Piracy Requires Enhanced Judicial Systems in East Africa, JURIST - Sidebar, Nov. 27, 2011, http://jurist.org/sidebar/2011/11/gosling-buckley-somali-piracy.php.
This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org