As five Somali men stand trial in Rotterdam charged with the attempted hijack of a Dutch Antilles freighter, international criminal lawyer Geert-Jan Knoops spoke to the IJT about solutions to piracy in international criminal law.

By Thijs Bouwknegt

What do you think about the Dutch trial?
It is a unique trial, but it is also legally complicated. How do you actually prove that somebody is a pirate if a person says “well I initially had the intention to hijack a ship but I actually decided to withdraw from my intentions”?

This is the case in the Dutch trial against the five Somalian ‘pirates’ who allegedly tried to hijack, in January 2009, a Dutch Antillean ship. The hijacking didn’t succeed after which the pirates were arrested by Danish marines. And during the trial the pirates said that it was initially their intention to hijack this ship, but they were just fishing and they got problems with their motor and they withdrew from their initial plans. So the prosecution has to prove that this still is a criminal act. And this is not easy.

These men are being tried on the basis of a very old law. Is it still applicable?
The problem is how to enforce the law. Most domestic legal systems in the world will have a provision which includes some type of piracy or hijacking of ships on the high sea.

The problem, however, is that there is no universal system to try alleged pirates. There is no international piracy tribunal. It is left to the domestic systems. We have some international legal treaties on the prevention and suppression of hijacking on the high seas, but there is no obligation on part of the states to vest universal jurisdiction to combat piracy. The problem lies in how you enforce these international treaties which are meant to prevent piracy.

What about an international tribunal?
The Netherlands – with Russia – was one of the supporters of a tribunal, but last year it came out that most members of the United Nations do not support it. Even the solution of setting up a mixed tribunal in Kenya – composed of both international and local judges was rejected in November 2009.

Yet on the other hand - from the perspective of universality and uniformity in how you combat piracy – it would be one of the better solutions than the system as it is now, which basically leaves it to the discretionary powers of states to prosecute alleged pirates or not.

That means that a lot of pirates have to be released because no European state is willing to prosecute. And what do we do with the pirates after the trial? Can they be sent back to Somalia? Can they seek asylum? Nobody knows. That is the reason why a lot of cases are not being brought before the justice systems.

Is there any place for pirates at the International Criminal Court?
Piracy does not fall under the jurisdiction of the ICC, simply because it cannot be connected to the principles of the court, which mainly aims at international or national armed conflicts.

There are also a lot of legal technical problems to bring piracy as an international crime under the jurisdiction of the ICC. The proposal was already rejected last year and there is no chance that it will be included in it’s statute during the Review Conference of the Rome Statute this week.

Is international criminal law a solution to piracy?
No. I am convinced that it is not. As Hillary Clinton said, “the only solution for piracy lies in economic, political and socio-cultural change in Somalia.” There are a lot of fishermen who go into piracy because the fishing grounds around Somalia are being exhausted by professional fishing fleets from all over the world.

The economic and political instability of the country, which give leeway to corruption and the absence of any financial prospects brings people into piracy. Actually, we should not have the illusion that when you convict five Somali pirates here in The Netherlands that this would prevent future piracy. Nobody in Somalia will know about the trial in The Netherlands. The solution thus lies in economic and political change, not in international criminal law.

Read more: Pirates on trial in the Netherlands

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