Piracy trials and tribulations
Posted Wednesday, 24 November, 16:27
By Christian Le Mière, Research Fellow for Naval Forces and Maritime Security
Quite a bit of coverage has been given this week to the first German trial of pirates in 400 years. But across the Atlantic, another court case is wrapping up that even more emphatically underlines the problems of prosecuting pirates in the modern age. The trial of five Somalis on charges of attacking the USS Nicholas – the first US piracy case since the Civil War – went ahead in Norfolk, Virginia, because Kenya refused to accept the suspects. Now a new Kenyan legal decision means that more Western countries could be forced to shoulder the burden of legally trying those who have been hijacking ships off the east coast of Africa.
Maritime security is of perennial interest in the Gulf, and a special session at the Manama Dialogue on Sunday morning is devoted to it. Piracy in the Gulf of Aden and off the Somali coast had become such a scourge by early 2009 that the United States Navy's Fifth Fleet in Manama announced the formation of a new combined taskforce (CTF–151) specifically to tackle it. Between 15 and 20 nations are now deployed at any one time either independently or in one of three multinational operations to protect shipping.
But, from the outset, dealing with captured pirates has involved difficult issues of jurisdiction. Although all states have the right to combat piracy on the high seas, prosecuting pirates is an altogether different matter. First is the cost involved in transportation and prosecution. Then, the burden of proof means only watertight cases will be considered: unless they have been caught in possession of a ship they took by force, gaining a conviction may prove tricky. Finally, there is always the possibility of a Somali claiming asylum if their case collapses or after serving their sentence, which could prove extremely unpopular politically.
With Western countries reluctant to take these risks, they turned to regional states. Initially Kenya took the lion's share of cases. But, despite a high-security courtroom and USD9.3 million being provided by the UN, Nairobi began to fear it could not shoulder the high caseload.
A decision on 9 November by the Kenyan High Court now means piracy trials will be hampered not by irregular refusals of assistance, but a blanket ban on prosecutions. High Court Judge Mohammed Ibrahim’s ruling that the court 'can only deal with offences or criminal incidences within the territorial jurisdiction of Kenya sets a precedent. In future, no pirates seized outside Kenya’s 12-mile territorial waters can be tried in the country, and even those 50 pirates already convicted since 2008 could appeal against their detention on the same grounds.
Other regional countries have either tried Somali suspects (the Seychelles and Yemen have both convicted 22 people each) or expressed interest in prosecutions (Mauritius and Tanzania). But Kenya’s decision is unlikely to encourage them to prosecute the growing number of suspects being arrested for piracy. Kenya’s High Court has essentially scuppered recent efforts at bringing legal recourse to the pirates of the Indian Ocean.
This may encourage more trials in Western countries, but will also signal a weakening perceived cost to Somalis of engaging in piratical activities. Already the likely advantages in ransom money for coastal communities with few other sources of revenue far outweigh the potential disadvantages. Fewer trials and lesser sentences will only encourage further piracy.
