UK: Piracy Off Somalia: Prosecutions, Procrastination And Progress

Last Updated: 21 January 2010
Article by John Knott

This article looks at some of the legal and practical problems involved in prosecuting suspected pirates detained by warships off Somalia, and reports on the progress being made towards enhancing the criminal justice systems in regional states where trials are held, and in establishing humane detention facilities in Somaliland and Puntland for convicted pirates.

One striking feature of the various counter-piracy naval operations in the Indian Ocean and the Gulf of Aden is that, while warships of many nations have been successful in preventing many hijackings, more pirates and suspected pirates have been released—often being repatriated to Somalia without any weapons but with fresh supplies of food and clothes—than have been detained for prosecution. This has happened even when pirates have been captured while holding hostages. At first sight, this suggests that in such instances there was either ample evidence of guilt, or the naval forces were confiscating possessions in dubious circumstances.

The reality is more disturbing. There is a notable lack of political will on the part of most nations to become involved in prosecutions. It is simply too much trouble and too disruptive and expensive, and there are fears that convicted pirates may ultimately be able to secure rights of asylum. And this, despite the much-publicised agreements reached by the United Kingdom, the US, the EU and others, with countries such as Kenya, for suspects to be detained and tried.

Hostage Rescues

In April 2008 French special forces captured six Somalis believed to have been among those who hijacked the luxury yacht Le Ponant. Later, in September 2008, they rescued hostages held on board the yacht Carré d'As IV, killing one pirate and capturing six more. All the captured pirates were transferred to Paris for trial, and it seemed as if a reliable method had been developed for responding to hijacks.1

Further Encounters with Pirates—the Danish experience

But soon there were events that cast grave doubt on the wisdom of relying on prosecutions, as illustrated by the experience of the Danish Command and Support ship HDMS Absalon. This vessel, in terms of disrupting attempted hijackings, performed a commendable service to merchant shipping, and was the most successful member during her time with the Coalition Maritime Force's Combined Task Force150 ("CTF-150"), part of Operation Enduring Freedom. CTF-150 was under Danish command between 15 September 2008 and 12 January 2009. Subsequently, Absalon formed part of CTF-151. Unfortunately, much of what she achieved was undone by the release of suspects for legal, political or other reasons—leaving those suspects able to attack other ships—which must have been a frustrating experience for the Danish sailors who detained them.

In September 2008 Absalon intervened in two attacks by pirates, preventing hijackings, and on 17 September captured ten pirates in two skiffs, along with various weapons and boarding ladders. So far, so good. But it appears that the Danish authorities then realised that there could be some legal difficulties, possibly as no Danish interests had been directly at risk; and there was also strong opposition from within Denmark to the idea of a home prosecution. No other country contacted by Denmark was willing to undertake a prosecution. Accordingly, the Danish authorities ordered the release of the ten suspects, who were put ashore on a Somali beach six days after capture. Danish Defence Minister Soeren Gade said that the Ministry of Justice had assessed that the suspects could not be prosecuted under Danish law. And Capt. Dan B. Termansen, Absalon's commander, said that it would be an illusion to think that the pirates would have been brought to trial if they had been handed over to the authorities in Somalia, and added that there was nothing else that could be done.2

Meanwhile, on 20 September the Absalon had encountered two more boats of pirates, who also had rocket launchers and other weapons. On that occasion, mindful of the embarrassment caused by the earlier arrests, the warship seized the weapons but released the men and their boats.

Subsequently, on 4 December 2008, Absalon intercepted a boat drifting off the coast of Yemen because of engine failure, and discovered seven crew members who had been without food and water for several days. The boarding party also found a number of rocket-propelled grenade launchers and AK-47 rifles. A quick solution was found, and the suspects were handed over to the Yemeni authorities.

In an incident during the following month, on 2 January 2009, Absalon attended the Samanyolu, a Dutch Antilles general cargo ship which was being attacked by pirates. The crew of the Samanyolu had fired flares at the pirates' boat, setting fire to it. Five pirates jumped overboard and were rescued by Absalon. They were eventually handed over to The Netherlands to be prosecuted, pursuant to an ad hoc agreement reached between the two countries.

On the day after that incident, on 3 January 2009, Absalon intercepted three suspected pirate vessels containing a total of ten men armed with rocket-propelled grenade launchers, machine guns and pistols. On this occasion the men could not be linked directly with an attack and they were allowed to proceed, but without their weapons.

In these and other incidents, by the end of March 2009, when Absalon was due to return to Denmark after eight months of anti-piracy duties, she had encountered 88 of the 250 suspected pirates tackled by warships during that time, and had confiscated nearly 60 weapons and eight boarding ladders, with more having been sunk at sea. But no suspects were prosecuted in Denmark, and many had been released with the equivalent of a caution, dramatically illustrating the gulf between theory and practice when it comes to deterring piracy.

Rear Admiral Terence McKnight, then commander of CTF-151, said that Absalon had performed "a magnificent job".3 And at a ceremony at the London headquarters of the International Maritime Organisation ("IMO") on 23 November 2009, Denmark was one of the countries awarded a "Special Certificate for Exceptional Services Rendered to Shipping and Mankind", in recognition of services performed by HDMS Thetis, a Mine Countermeasures frigate, in protecting World Food Programme ships during the spring of 2008, and HDMS Absalon's counter-piracy contribution. 4

The Experiences of Other Nations

The experience of HDMS Absalon in relation to the fate of detained pirates is typical, rather than unique, among the vessels on counter-piracy duties. Warships from almost all the nations in action against pirates off Somalia—whether in CTF-150, CTF-151, EUNAVFOR's Operation Atalanta, a NATO force, or operating independently—have had similar experiences. For example, ten suspects in two skiffs loaded with grappling-hooks, rocket-propelled grenades, machine-guns, other weapons and ammunition, and drums of extra fuel, were released after being detained in June 2009 by boarding parties from Type 23 Frigate HMS Portland. A Ministry of Defence spokesman was reported as saying that although it was obvious that the suspects intended to attack shipping, they could have been arrested only if they had been witnessed actually attempting a hijack.5 And in December 2009, thirteen suspected pirates captured by the Dutch navy were released because no country—including Kenya, with which the EU has an agreement covering such a situation—would agree to prosecute them. 6

These are merely a few examples from among dozens of similar incidents. When giving evidence before the US Congress Armed Services Committee on 5 March 2009, Vice Admiral William Gortney (Commander US Naval Forces, Central Command, headquartered in Bahrain), reported that up to that time Combined Task Force 151 and other cooperating naval forces had encountered almost 250 pirates. Of these, 121 had been disarmed and released, 117 had been disarmed and handed over for prosecution, and nine were still being held pending a decision as to whether to prosecute.7 A similar pattern has been followed since then.

Potential Difficulties in Securing a Conviction

Apart from possible anomalies between the laws of the several nations which may be involved in the capture, trial and detention of suspected pirates8, factors that may in a particular case make a successful prosecution less likely relate to the taking of evidence, the handling of exhibits, holding suspects in appropriate conditions until they can be handed over for prosecution, avoiding situations that will allow suspects to allege a breach of their human rights, and securing the attendances of witnesses at possibly more than one hearing. Given these potential difficulties, and the fear of many of the nations whose warships have foiled hijacks, that suspects brought before the nations' own courts may acquire the right to asylum, it is perhaps not surprising that so many suspects are released.

International Court for Piracy

In view of the reluctance of most nations to prosecute suspected pirates—because of law and jurisdiction anomalies, doubts as to convincing evidence, logistical problems relating to the attendance of witnesses, a lack of suitable prisons for convicted pirates, a mixture of real and imagined inconveniences and political difficulties, and because of the expense of a trial and imprisonment—the idea of an International Court for piracy has been explored: one along the lines of the International Criminal Court ("ICC") at The Hague. The main advocate for such an institution, which in July 2009 hosted an informal workshop at The Hague to promote the idea, was the Ministry of Foreign Affairs of The Netherlands, supported by Russia.9 The idea of an international court for dealing with piracy is, however, a misguided notion. The ICC is based on the Rome Statute of 1998 and took four years to become effective, when 60 states ratified it in 2002. That was in addition to the time taken to draft and negotiate the Statute. Even so, the ICC does not include China, India, Russia or the United States. What is needed to deal with Somali pirates is a solution that can be implemented much sooner.

Agreements with Kenya and the Seychelles

The UK Government, with a view to avoiding the embarrassment of releasing captured pirates without trial, and also avoiding perceived procedural and political complications associated with bringing suspects to trial in the UK, on 11 December 2008 reached agreement with Kenya that the Kenyan authorities would accept and prosecute suspected pirates who were detained by UK forces. Previously, there was an ad hoc arrangement in relation to eight pirates who were captured in September 2008 by a boarding party from HMS Cumberland, under which those pirates were put on trial in Mombasa. Subsequently, the United States established a similar, permanent arrangement with Kenya, on 16 January 2009. An agreement to the same effect, for the benefit of vessels taking part in EU NAVFOR's Operation Atalanta, was signed in Nairobi on 6 March 2009. Later, approaches for a similar facility were made to Kenya by Canada, Denmark, China and India.

The EU has since exchanged letters with the Republic of Seychelles, forming a transitional agreement relating to the prosecution of suspected pirates.10 Currently, efforts are continuing to encourage other nations near Somalia to offer similar facilities, as already the Kenyan authorities have said that they do not wish their country to become the repository for all captured pirates, and that they cannot cope with a further influx without more international assistance. The reality, however, is that Kenya has already received financial and other assistance out of all proportion to the number of piracy cases.

Detention and Prosecution in Kenya

In recent months there have been over one hundred suspects held in Mombasa's Shimo La Tewa maximum security prison awaiting trial on charges of piracy. This is said by some members of the Kenyan criminal justice system to have placed a considerable burden on their administration and to have caused many practical difficulties. To put such claims in perspective, however, it is worth noting that Kenya has about 50,000 prisoners, housed in 93 prisons. The further 100 or so suspected pirates therefore form a very small increase (about 0.2 per cent). The United Nations Office on Drugs and Crime ("UNODC") has already injected a considerable sum into the prison system, and this has resulted in significant structural and humanitarian improvements at the Shimo La Tewa prison, which enure for the benefit of all 2,500 prisoners at that facility. Far from the suspected pirates overwhelming the prison system, the system has in fact been improved by their presence. The officer in charge of Shimo La Tewa said that because of the international aid received, the pirates were "a blessing in disguise11

Assistance provided by the EC/UNODC programme—augmented by donations and other help from Canada, Australia, and the United States, among others—has extended also to elements of the Kenyan police tasked with anti-piracy duties, in the form of training and the provision of transport and office and investigative equipment. Similarly, the Kenyan prosecution service has benefited from workshops covering the law of the sea, attendances at international piracy conferences, and the provision of legal resources, office equipment and transportation.

The EC/UNODC programme has already been able to provide some assistance to the Seychelles, including interpreters for the police and courts, and the provision of a prosecutor to help the State Law Office. Further extensive assistance is planned, with the help of donors, directed at the police, the courts and prisons.

Djibouti Code of Conduct

In another initiative, on 29 January 2009 a group of African and Arab nations signed a regional Code of Conduct in Djibouti on the subject of piracy. Early signatories were Djibouti, Ethiopia (the only non-coastal state), Kenya, Madagascar, the Maldives, the Seychelles, Somalia, Tanzania, and Yemen. Other countries participating in the meeting, which was sponsored by the International Maritime Organisation "IMO"), were Comoros, Egypt, France, Jordan, Oman, Saudi Arabia, South Africa and Sudan; and also present were observers from other IMO member States. The Code, which is aimed at repressing armed robbery against ships off Somalia and in the Gulf of Aden, remains open for signature by all countries in the region. It envisaged the creation of information centres in Mombasa (Kenya), Dar es Salaam (Tanzania) and Sana'a (Yemen), and agreement was reached for the establishment of a training centre in Djibouti. Each signatory agreed to review its legislation, to be sure that adequate laws are in place to criminalise piracy and related crimes, so that there will be a degree of uniformity of treatment of captured pirates.

With a view to ensuring that adequate laws are in force throughout the region, UNODC, in conjunction with the governments concerned, has already undertaken assessments of the laws of Kenya, the Seychelles, Tanzania, Mauritius, Yemen and Somaliland, focusing on piracy-related provisions, and aimed at identifying what redrafting may be desirable.

Local Courts and Local Prisons

In principle, suspected pirates can be prosecuted in Kenya or the Seychelles. Kenya has the capability of achieving a conviction (or a discharge) within a year, which compares favourably with trials in the UK for an indictable only offence (a serious offence which calls for a trial at a Crown Court). And in the Seychelles, the judicial process up to a conviction is likely to be complete within a few months.12

If convicted, pirates could in due course be held in UN-sponsored prisons in the Somali provinces Somaliland and Puntland, thereby avoiding imposing what might be an unreasonable burden upon the prosecuting States. Two prisons have been built in those provinces to international standards, funded by UNODC, but they are not yet occupied. The prison in Hargeisa (Somaliland) should be ready within six months. Development of the designated prison in Gardo (otherwise Qardho, in Puntland), is more difficult, owing to the security situation in the region.13

Before any convicted pirates can be transferred to either prison, the arresting State (that is, the nation whose warship detained the pirates) and the sending State (either Kenya or the Seychelles, depending where the pirates are convicted) will need to be satisfied that the prisons meet minimum international standards for the humane treatment of prisoners. The EC/UNODC Counter Piracy Coordination Office in Nairobi is already making good progress towards this. Success should be achieved in Somaliland quite soon, but is likely to take longer in Puntland, owing to the more difficult conditions there and the administration's ambivalent attitude towards piracy. Future UNODC plans include bringing other prisons and local detention centres in Somaliland and Puntland closer to international standards. There are also longer-term plans for those regions, in cooperation with other UN agencies, including training for police investigators and criminal justice system prosecutors.

The ideal situation—short of the prevention of piracy altogether—would be for suspects to be tried in Somalia itself. In theory, this is possible in Somaliland and Puntland, but in the short term there is little prospect of either region being able to offer a fair trial. And as for a trial in the southern part of Somalia, there is no prospect of this at all while the embattled Transitional Federal Government—whose effective power is limited to a small part of the capital Mogadishu, and its port and airport—is in danger of being over-run by Islamic insurgents.

Risks and Rewards of Piracy

The difficulties relating to prosecutions, and conflicting views about the payment of ransoms, are two examples of the difference between theory and practice in connection with piracy. Until pirates are physically prevented from setting out from Puntland by local security forces and coastguards (a long-term objective), or until the risk/reward ratio of attempting hijacks is tipped against piracy, the successes achieved by warships in deterring hijacks will continue to be short-lived. All the time that captured pirates, armed to the teeth, are being released without any effort being made to prosecute them, they will perceive the risks as small and acceptable. If, on the other hand, suspects are consistently put on trial, and on conviction are sentenced to appropriate terms in prison, then the attractions of piracy will be diminished. Serious improvements on land will be needed before piracy off Somalia can be wholly eradicated, but at least a determination on the part of all nations to prosecute suspects—overcoming concerns about expense, and fears about pirates gaining asylum—would be a step in the right direction and would be likely to make a significant contribution towards eradicating piracy.

Rights and Obligations under International Conventions

The High Seas Convention ("HSC") 1958, the United Nations Convention on the Law of the Sea ("UNCLOS") 1982, together with the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the "SUA Convention") 1988, and recent UN Security Council Resolutions, give the international community not just ample powers, but obligations, to curb piracy. What is lacking is the true will on the part of many nations to do so.14

Footnotes

1.A later operation by French special forces was not so successful. On 10 April 2009 an attempt to rescue five hostages held by pirates on board the yacht Tanit resulted in the death of the skipper and two of the five pirates who were on board at that time.

2. (1) Andersen, L.E., "Piracy in the Gulf of Aden: Reflections on the Concepts of Piracy and Order", in Danish Foreign Policy Yearbook 2009, pp. 80-81; (2) www.bt.dk/nyheder/de-ti-pirater-paa-absalon-loeslades ; (3) politiken.dk/newsinenglish/article572053.ece .

3.http://www.navy.mil/Search/display.asp?story_id=43862

4.http://www.imo.org/Newsroom/mainframe.asp?topic_id=1773&doc_id=12107

5.One is instinctively uncomfortable with this state of affairs. If a person walking in the streets of London at night were to be stopped by the police and found to be in possession of lock-picks and a jemmy without proper excuse (e.g. not being a legitimate locksmith), it would be very surprising if the police merely confiscated the lock-picks and jemmy and then let the person proceed on his way. If there are valid grounds for confiscating weapons at sea, there are presumably also valid grounds for detaining those who possessed the weapons, and initiating a prosecution.

6.The terms of the agreement of 6 March 2009 are set out in the Official Journal of the European Union at L 79/49 – L 79/59, and a copy of the agreement has been posted at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:079:0049:0059:EN:PDF

7.http://www.globalsecurity.org/military/library/news/2009/03/mil-090306-voa11.htm

8.See below for the work of UNODC in ensuring harmony between the laws of States in the region of Somalia.

9.Both The Netherlands (as mentioned above in relation to suspects captured by Denmark) and Russia had experienced complications with captured pirates. On 12 February 2009 the Russian cruiser Peter the Great captured ten pirates. And on 28 April 2009 the Russian destroyer Admiral Panteleyev captured 29 suspected pirates, some of whom turned out to have been hostages. The suspects were released to Yemeni authorities, Russia not having the benefit of an agreement with Kenya.

10.The exchange was concluded on 30 October 2009. The terms are set out in the Official Journal of the European Union at L 315/37 – L 315/43.

11.The Times, 10 December 2009. In the past there have, nevertheless, been many criticisms of the Kenyan prison system, one of the most over-crowded in the world, including, e.g., a US Department of State report dated 25 February 2009 on human rights in Kenya: http://www.state.gov/g/drl/rls/hrrpt/2008/af/119007.htm and a report by the Kenya National Commission on Human Rights dated 21 November 2008 into violations at Kamiti Maximum Security Prison: http://www.knchr.org/images/stories/kamiti.pdf .

12.On 15 January 2010, eleven suspected pirates pleaded not guilty in the Seychelles, and their trial was fixed for 15 March.

13.In Puntland, bribery, corruption and violence are rife. On 12 November 2009 Sheikh Mohamed Abdi Aware, a Somali judge who had presided over trials of pirates and persons involved in human trafficking, and Islamist insurgents, was assassinated in the Puntland town Bosaso (otherwise Bosasso).

14.Most States are parties to both HSC and UNCLOS, the major exceptions being the United States, Iran and Israel (HSC only, along with 5 other States), and Turkey and the United Arab Emirates (neither, along with 21 other States). The SUA Convention came into force on 1 March 1992. Article 6 imposes an obligation upon States to enact domestic legislation which criminalises certain offences when (broadly) there is a nationality or territorial connection, and empowers States to criminalise certain other offences. Among the many UN Security Council Resolutions relating to piracy off Somalia are 1772, 1801, 1838, 1846 and 1851, calling on States to take measures to protect merchant shipping and humanitarian aid; to take all necessary means to repress acts of piracy; and authorising action against pirates within Somali territorial waters and on land.

© Copyright John Knott, 2010

The author is a consultant at the London head office of Holman Fenwick Willan LLP, who have been instructed in relation to over 40 of the commercial vessel hijackings that have occurred off Somalia since 2008, in addition to similar incidents elsewhere. This article does not constitute legal advice. Specific legal advice should be sought for particular situations on any matters falling within the scope of the article.

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