Following the life-long convictions last week of 5 Somali pirates in the US, urgent questions are being asked about how the international community should deal with the pirates terrorising shipping in the Indian Ocean.

By Richard Walker

The Netherlands is currently prosecuting 5 Somalis in Rotterdam under national law for an attempted hijacking of a Dutch ship in 2009.

But as observers of these prosecutions have pointed out, when the perpetrators are brought to court so far from the scene of the crime, the deterrent in Somalia is watered down. The threat of justice close to home, if there was one, would be more powerful.

Not only that but the costs and logistics of bringing a legal solution to the problem under the existing system are prohibitive. The reason – there is no system.

Somalia lacks the infrastructure to deal with its home-grown pirates. Many are released because of disputes over which country should try them. When prosecutions are made it is at the discretion of an individual state.

What price for a convicted pirate?
A loose set of maritime agreements and treaties, some of which date back centuries to when fleeing pirates buried their treasure, isn't making the task of dealing with a burgeoning number of sophisticated and well-armed pirates an easy one.

A well-informed source based in Kenya, close to Somali pirates, told RNW, “If the Americans or the Dutch catch Somali pirates out there (at sea) then they'd better prosecute them themselves... Kenya needs a lot of support to deal with them in their courts”.

So is it a question of supporting Kenya as the best placed state to deal with the problem? According to RNW's connected source, “there is a lot of neo-colonial behaviour coming from the Europeans, dictating to the Kenyans how they should proceed... but then again the Kenyan authorities' hunger for money is endless... there's only one solution – to have an international tribunal to prosecute crimes on the high seas”.

Piracy tribunal
There is a court in Hamburg - the International Tribunal for the Law of the Sea, but it deals only with disputes between states.

The International Criminal Court in The Hague has no jurisdiction over piracy because it cannot be connected to the principles of the court, which deal with national or international armed conflicts.

The EU attempts to police the area around Horn of Africa with its naval Atalanta mission. But according to Judge Allan Rozas from European Court of Justice, “it’s simply to prevent the crime of piracy”. Neither it nor the ECJ provides any structure for prosecuting caught pirates.

RNW's anonymous source sees a worrying new trend - pirates in the Maluku islands region of southeast Asia have demonstrated a grisly new trend in recent months - ships are being hijacked and the crews murdered.

So how bad will the violence at sea have to get before the issue of modern piracy is taken seriously enough to set up some form international tribunal? The Netherlands and Russia supported the idea of one containing national and international judges, based in Kenya 14 months ago. It failed due to lack of support among UN member states.