In recent years, piracy has emerged as a significant threat to global maritime interests. The International Maritime Bureau reports 223 acts of piracy in the year 2012, as of 30th August. While the incidence of Somali piracy has reduced, disproportionate increases have been recorded in other parts of the world, such as Nigeria, the Gulf of Guinea, Togo and South East Asia. Piracy is a growing industry.
A host of laws have been formulated to tackle the problem. The UN Convention on the Law of the Sea (UNCLOS) has established the legal definition of piracy in international law. UNCLOS does not, however, provide for investigatory or prosecutorial procedures or guidelines for international co-operation. It accords universal jurisdiction for piracy; any state is authorised to prosecute the crime of piracy committed on the high seas. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 obliges contracting governments to either extradite or prosecute alleged offenders. The 1979 International Convention against the Taking of Hostages requires contracting states to criminalise the taking of hostages. The United Nations Office on Drugs and Crime has published model laws on mutual assistance in criminal matters, witness protection, extradition and money-laundering and financing of terrorism that focus on the substantive obligations arising from international conventions. States may use the model laws as a starting point while drafting their own laws on the subject.
Universal jurisdiction does not apply when crimes are committed in territorial waters. It does not allow authorities to pursue pirates to their sanctuaries within territorial limits or on land. In order to prosecute piracy offences domestically, a state needs to criminalise the offence. Model legislation helps domestic legal systems to reform their substantive law and to prosecute in a manner consistent with international law.
Reports state that hundreds of Somali pirates are currently incarcerated in other countries, awaiting trial. Many of these countries have not yet criminalized piracy and the pirates are charged with general crimes such as armed robbery and attempt to murder. Often, the pirates are quietly released on the high seas to reduce congestion in local jails and the burden on the legal system.
Efforts to bring pirates to justice in domestic courts have foundered due to various legal and practical challenges. Not all countries mete out the same punishment. Kuwait and the Republic of Korea, among others, have imposed the death penalty. Countries that impose less severe sentences are reluctant to extradite pirates to these countries for trial. Other factors that affect domestic trials are a lack of clarity with respect to the steps that capturing ships must take so as not to breach the pirates’ human rights and difficulties in preserving and transporting evidence. Countries such as Denmark have sought to address some of these problems by issuing guidelines to naval vessels on collection of evidence and communication between authorities in order to support a prosecution for piracy.
Overseeing a prosecution can be costly and logistically challenging and this has contributed to a general reluctance to prosecute. In 2010, the EU’s Atalanta anti-piracy force stormed a ship that was hijacked by Somali pirates. As the crew of the ship included two Germans, the pirates were extradited to Germany for trial. A regional court in Hamburg commenced a highly publicized trial of the pirates in November 2010. A battery of lawyers, expert witnesses and Somali language interpreters are trying to extract information from the defendants regarding the shadowy figures behind them – the individuals who oversee this form of organized crime. Reports state that the cost of the trial is EUR35,000 for each day that the court is in session and although more than 100 days of court-time have elapsed, the court has not yet managed to elicit any useful information. It appears that the defendants are mere foot soldiers from the skiffs as opposed to the kingpins who finance, arm and run the pirate network. The foot soldiers are not privy to information of any value regarding the networks. Germans are asking whether the defendants will live in Somalia or Germany after serving their prison terms – there is an understandable reluctance to face the potential asylum claims, since if granted, the pirates will live in Germany at public expense.
The Financial Action Task Force has examined the money flows connected with organized piracy for ransom. It is estimated that of the $238 million in ransom money reportedly paid to Somali pirates in 2010, approximately $95 million was pumped into the international financial system. This has exposed the financial system to the risks and vulnerabilities associated with money-laundering and financing of terrorism. Much has been said of links between Somali pirates, the al-Qaida affiliated al-Shabaab terrorist organization and other terrorist groups operating in the Horn of Africa. Reports indicate that the formal financial system and banks in particular have played a prominent role in the movement of funds. There is a need to detect, investigate and prosecute this kind of money-laundering so that the ring-leaders and financiers of acts of piracy are held accountable. This requires a high degree of international co-operation between the countries involved, involving law enforcement agencies, financial investigators and the judiciary. In many cases, there has been a complete failure to co-operate internationally that has resulted in the trail going cold. In a few cases, the ransom money has been successfully traced due to the co-operation of investigating law enforcement agencies. However, bringing the perpetrators to book requires information of evidentiary value to the judicial system of the prosecuting country and more often than not, the available information does not pass muster and the offenders escape scot free.
The recent reduction in the incidence of Somali piracy has been on account of the concerted effort of the international navies that patrol the seas and the increased use of armed security personnel aboard ships transiting through the region. This has brought down the success rate of pirate attacks. However, piracy cannot be eradicated solely by a maritime-focused effort. The socio-economic reality is that the average Somali has an annual income of $200. With few other sources of income, piracy has become embedded in Somali society to the point that it is a significant driver of local economies. Since there is little chance of those engaged in piracy being caught and punished, there is no effective deterrent. Government institutions, law enforcement and judicial structures are fragmented or non-existent. It is almost impossible to track the movement of ransom payments in Somalia and when detected, to successfully prosecute cases of piracy. The UN and the international community have done much to rebuild the collapsed Somali governance infrastructure. Efforts to build capacity in Somalia include setting up and training a domestic police force, building court rooms and prisons, training and equipping prosecutors and the judiciary and providing legal resources. It is hoped that Somali pirates will eventually be successfully prosecuted and serve their sentences in Somalia.
There are lessons to be learned from Somalia. A long-term solution to piracy will require capacity-building at the domestic level and adding value to local economies. Since increasing the number of pirate prosecutions is a key part of counter-piracy efforts, a future prosecution strategy should include providing support to those states that have criminalized piracy and that demonstrate a willingness to prosecute pirates. International and domestic anti money-laundering laws must be strengthened and countries must co-operate to bring the financiers and ring-leaders of piracy to justice. Currently, the overlap between the various regimes is itself a major barrier to effective policy co-ordination. Working on these issues will make the global anti-piracy regime more comprehensive and focused.
Niyati Nath is a partner at Indian law firm, J. Sagar Associates. She specializes in maritime laws, private equity and dispute resolution.
(As published in the December 2012 edition of Maritime Reporter - www.marinelink.com)