The Pirates of Somalia: Inside Their Hidden World by Jay Bahadur

Author:Jay Bahadur
Language: eng
Format: mobi, epub, pdf
Tags: Non-fiction
ISBN: 9780307379061
Publisher: PANTHEON
Published: 2011-07-01T00:00:00+00:00

10

The Law of the Sea

TO DATE, CAPTURING PIRATES HAS PROVED FAR EASIER THAN deciding what to do with them afterwards. The laws of foreign nations have treated Somali pirates as another group of “boat people,” that is to say, illegal migrants. The largely Western countries that patrol the Gulf of Aden and the Indian Ocean understandably desire to avoid the costs associated with transporting captured offenders and processing them in domestic courts. In some nations, such as the United Kingdom, arrested pirates would even be within their rights to claim asylum (the UK Foreign Office has voiced concerns that the pirates may face the Islamic punishments of beheading or amputation should they be returned to Somalia).1 Although in rare instances national pride has prevailed over fiscal sense—Boyah’s six unfortunate compatriots, for instance, as well as five pirates turned over to Dutch courts by the Danish navy in January 2009—prosecuting pirates through Western institutions is not a feasible long-term solution.

So labyrinthine is the legal maze that many foreign navies have opted simply to release suspects after confiscating their weapons and destroying their ships, thereby drawing attacks from media outlets. Such criticism is not entirely fair. Pirates operating out of a failed state are unprecedented in modern times, and the existing international legal machinery is simply not suited to handle them. International law, fortunately, is continually being reinvented as needs dictate, and in no case is this fact better demonstrated than in the legal dilemma posed by the Somali pirates.

* * *

Since ancient Rome, pirates have been labelled as hostis humani generis—“enemies of all mankind”—and piracy has been considered a crime of universal jurisdiction, giving states the right to arrest and prosecute suspected offenders outside national boundaries, such as the high seas. Two principal instruments of modern international law define the procedures for exercising this jurisdiction: the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention). Of the two, the SUA Convention is considered to be the more robust, as it contains a broader definition of piracy and includes explicit instructions for extraditions amongst its signatories. In practice, this permits the master of a ship to deliver captured pirates to another state party, thereby theoretically allowing nearby acceding countries like Kenya, Djibouti, Yemen, and Tanzania to prosecute offenders.

However, the SUA Convention is unsuited to the Somali pirate situation for two reasons. First, the terms of the convention permit only the arresting state party—or another state with a demonstrable interest in the offence (for example, if its own citizens are the victims)—to assume jurisdiction over the accused. As a result, the home government of a given warship should usually be stuck with the responsibility of prosecuting. In theory, this obstacle could be overcome through the use of “shipriders,” officials from a third state brought on board a foreign warship in order to conduct the arrest and subsequent judicial process under the laws of their own country.

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