On 25 August 2010, the UN Secretary-General published a report at the behest of the UN Security Council (UNSC), on the available options ‘to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia.’ This report can be seen as a summary of a debate that was started in 2009 within the confines of the Contact Group on Piracy off the Coast of Somalia.

By Kenneth Manusama

When it comes to piracy, states whose sophisticated navies patrol the Indian Ocean seem stuck between not wanting to deal with Somalia itself and not wanting to prosecute pirates domestically. The international legal regime on piracy offers a definition, the exceptional authority to stop and seize vessels on the high seas, and provides for universal jurisdiction, i.e. the authority for any state to prosecute acts of piracy.

Yet, states are not obligated to prosecute and states mostly decline to do so for various reasons. In 2009, as the number of piracy incidents continued to rise, international efforts focused first on domestic prosecutions by all states and secondly on prosecution by states in the region resulting in controversial transfer agreements between most prominently the EU and Kenya (and later the Seychelles).

In time, the capacity Kenya to absorb and prosecute transferred pirates came under severe strain, however. The Netherlands, Russia and Germany therefore argued in favour of an international mechanism to prosecute pirates, based on the existing legal regime.

The options for prosecuting pirates discussed in the report, can be put into two categories, namely prosecution by regional states and international prosecution. With regard to the latter, the options are based on the existing models for international criminal trials, namely the ICC, ICTY and Sierra Leone tribunal.

An international tribunal would provide uniformity in terms of procedure, punishment and interpretation of the legal regime as well as the proper treatment of those suspected of piracy. Yet, it will consume a lot of time to bridge the many political and legal disagreements that do exist over piracy and how any tribunal should operate, whether the tribunal is established by treaty or by UNSC resolution.

Arguably that time is not available, and many states do not want to see another Chapter VII UNSC resolution establishing an international body. More fundamentally, States argue that international prosecution should be reserved for the most serious crimes (genocide etc.), which piracy is arguably not. With only Russia arguing in favour, an international tribunal does not seem likely.

The domestic prosecution by regional states, with international assistance, is first of all an expression of the view that piracy is a regional problem, and that for political, legal and cultural reasons, Somali pirates should be tried and held in the region. The options discussed in the report focus on practical issues, making domestic prosecutions possible and effective.

Option 1 in the report reflects already ongoing international efforts to build the capacity of the regional states to prosecute, in particular Kenya. Through international funding and technical assistance, piracy prosecutions can be placed outside the domestic legal system and within new and separate facilities.

As in Kenya, option 2 contemplates a Somali court that sits in the territory of another regional State, which is sympathetic, but not feasible in the ultimate failed State and because of regional animosities.

The third and fourth options follow the example of the Bosnian War Crimes Chamber, in which a special Chamber within the national system is created and specifically geared towards prosecuting specific crimes, thereby lessening the burden on the regular system. The Bosnian example is not well known, but is highly (cost) effective.

The issue of piracy will not be solved in any court of law, but rather in Somalia itself. The assistance of the international community for regional States should nevertheless be welcomed as the only feasible option that has benefits for all involved.