The Law Enforcement Approach to Sea Piracy: Overcoming Challenges to Effective Investigation and Prosecution of Somali Pirates

Abstract

Piracy, committed on the high seas or in an area outside the jurisdiction of any state, re-emerged in the twenty-first century off the continent of Africa, after having virtually disappeared from the world’s oceans. Most of the attacks on ships hitherto had been perpetrated against ships alongside, at anchor or steaming in the territorial waters of states. Such attacks were usually low level and were dealt with by states within the common law as robbery, damage to property and assault or within their national statute laws. With the resurgence in piracy in 2005 and attacks occurring up to 600 nautical miles off the coast of Somalia in the first 6 months of 2009, many states that were subsequently called upon to prosecute the perpetrators were caught on the back foot by not having criminalised piracy, as defined by article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) in their national laws. This led to some states seeking ad-hoc solutions by entering into memorandums of understanding with states in Africa by which the pirates that had been apprehended by their navies would be prosecuted and incarcerated in those African states which were perceived to have established universal jurisdiction for acts of piracy. According to a report of the Special Advisor to the Secretary General of the United Nations on legal issues related to piracy off the coast of Somalia, the position with regard to the prosecution of Somali pirates is that 738 persons suspected or found guilty of piracy are being detained. Of the 738 detainees 556 are being detained in countries in Africa, 132 in the Middle East, 38 in Europe and 12 in the United States of America. Over half of the suspected pirates apprehended since 2008, have been released without prosecution and as of May 2010, more than nine out of every ten captured pirates are not being prosecuted. Article 5 of the European Convention on Human Rights (ECHR), makes provision for the lawful arrest and detention of a person suspected of having committed an offence, or to prevent that person from committing an offence or to flee after having done so. The purpose of the arrest and detention must be for the purpose of bringing that person before a legally competent authority. Arrest and subsequent detention followed by release without appearing before a judicial authority could be construed as being in breach of article 5 of the ECHR. The situation begs the question as to why captured suspected pirates are being released without being prosecuted and what can be done to overcome a situation in which persons are committing piracy with virtual impunity. The answer to eradicating the phenomenon of Somali piracy is of course multilayered and complex and requires inputs from divergent disciplines. Providing a deterrent to the commission of piracy through successful prosecution and incarceration of offenders, although not the complete answer to the problem is a small, albeit necessary step towards the eventual eradication of Somali piracy.