Dusting off ancient laws to deal with 21st-century piracy

The Dutch navy's release of seven Somali pirates and the trial of another Somali pirate in a New York court have focused attention once more on the legal challenges posed by 21st-century piracy.

The sight of a broad-smiling Somali pirate arriving in shackles in a packed federal court in New York City this week, inspired many writers there to reminisce about the days when pirates were a fact of daily life. The Somali, who was the lone survivor of an American rescue mission that put an end to the hijacking of the Maersk Alabama, is the first person to be tried for piracy in the US in more than a hundred years.

Other countries too are dusting off ancient laws to deal with the 21st-century version of an old phenomenon. Next month will probably see the start of a trial in the Netherlands against five Somali pirates who have been sitting in a Rotterdam cell since January after they were handed over by Danish authorities. The five were picked up by a Danish navy ship after the crew of a ship sailing under the flag of the Dutch Antilles had sunk their boat with flares. The Somalis are being prosecuted under the never-used article 381 of the Dutch criminal code, which outlaws piracy. According to this article, the captain of a pirate ship can be sentenced to up to 12 years, while crew members can receive up to nine years.

The Netherlands were somewhat less gung-ho when a Dutch Navy ship arrested then released nine Somali hijackers last week in the Gulf of Aden. The commander of the ship, which is part of a Nato mission, argued that he did not have a mandate to detain people for prosecution. Had the ship been part of a similar European Union mission, the suspects could have been delivered to Kenya, which has signed an agreement with the EU to prosecute pirates detained by European soldiers.

Angry Dutch lawmakers grilled deputy defence minister Jack de Vries about the incident on Tuesday. "We see piracy as a major problem but this weekend a Dutch ship detains pirates and then frees them," opposition member of parliament Ewout Irrgang said. "How can this happen? Do you agree that this is idiotic?"

Anti-piracy summit

De Vries admitted that Dutch prosecutors should have been consulted before the pirates were released. And a spokesperson for the national prosecution office, told the Associated Press the pirates could "in principle" have been put on trial under Dutch law even though no Dutch citizens or ships were targeted by the pirates.

On Monday, Dutch foreign minister Maxime Verhagen and US secretary of state Hillary Clinton, in a joint press conference in New York, promised to address the problem as part of a four-point plan to combat piracy. Clinton's plan will be discussed at this week's Somali donor conference in Brussels, and at a special anti-piracy summit in New York next month. In the meantime, each country will continue with its own ad-hoc approach.

The French navy alone has captured 71 suspected pirates. Only 15 of them, those involved in the hijackings of French vessels, have been brought to France for trial, while most of the others were handed over to the authorities of the breakaway Somali state of Puntland, a major piracy hub.

Whether they end up in France, Kenya, Puntland or the Netherlands, critics say the international legal framework is insufficient and that the suspects’ rights are not guaranteed.

Puntland’s institutions need to be built from scratch and its human rights record has repeatedly come under fire. Yet, the three-month-old administration of Puntland president Abdirahman Mohamud Farole insists it is up to the task.

Last week Wednesday, Puntland's supreme court handed down three-year jail terms to 37 pirates who had been captured by the US and French navies."We are strengthening our legal system by employing more judges and increasing their salaries," Farole said.

Way forward

The lack of legal provisions on piracy and criminal activities at sea has meant that dozens of pirates have simply been allowed to sail free or been dumped back on the shores of Somalia.

The Law of the Sea Convention gives foreign warships the right to prevent, deter and respond to acts of piracy but it does not apply to territorial waters and inadequately addresses the issue of transfer ashore. In a working document for a UN-sponsored conference in December, it was also pointed out that human rights were an issue, "particularly the standard of treatment that a suspected pirate would experience both in custody and at trial."

When Le Ponant, a luxury French yacht, was hijacked in April 2008, French commandos pursued pirates on land after the ransom was paid and the ship freed, arresting six of them. A year later, they have not been charged and court-appointed defence lawyer Romain Ruth argued that the five days the captured pirates spent on a French warship before being transferred were a violation of the law.

Veteran Somali rights activist Abdullahi Daib says foreign powers are missing the point by seeking to prosecute pirates. "After 19 years without a government, Somalia is a country that needs help, not a military or a legal crackdown. Many of these young people have no future, the only job they can find nowadays is in piracy."

Many pirates netted by the 20-odd foreign warships plying the region’s seas are now brought to Kenya, the only coastal nation to have dedicated agreements with major naval powers. Critics have argued that capturing Somali pirates and handing them over to a third state is tantamount to rendition. "The Kenyan judicial system is inefficient, fairly corrupt and lacks capacity," said Peter Chalk, a piracy and terrorism expert with the US-based Rand Corporation think-tank.

But UN expert Stefan Liller argued that it was one of the few options immediately available. "Nobody thinks that Kenya has a perfect legal system but Kenya is one of the few solutions. Nobody is willing to send suspects to Yemen for example, where punishment for piracy is crucifixion," said Liller, who works with the UN Office on Drugs and Crime. "There are a lot of ideas being floated, such as a special piracy tribunal, but everyone is basically struggling to find out what the best way forward is."