Thursday, April 29, 2010

Suppressing Maritime Piracy: What Are The Options?

Further to Diane's post below, this post is to call attention to a report produced by the ASIL, the Academic Council on the UN System (ACUNS) and the One Earth Future Foundation on international piracy. The report grew out of a conference on the topic, details of which are here and here. (I was a participant along with American Society of International Law Executive Director Betsy Andersen). The conference and report focused on the following topics:
  • Can the crime of piracy be added to the jurisdiction of the ICC? If so, what is the process for doing so?
  • Given the politics around the 2010 ICC review conference (the possibility that the crime of aggression will be added to the ICC’s jurisdiction; the desire on the part of some to add terrorism), how likely is it that the ICC might try pirates in the near future?
  • What are the same possibilities for the Law of the Sea Tribunal?
  • What are the advantages and disadvantages of using (third party) national governments to try apprehended pirates? How might universal jurisdiction work in practice with regard to the crime of piracy in the current era?
  • What alternative governance options exist to prosecute pirates?
  • What are the prospects for a special tribunal on piracy? How might this be established? By whom or under whose auspices? Through what processes?
My presentation focused on the international/hybrid tribunal option and discussed the different modalities by which international or hybrid tribunals have been established in the past:
  • by coercion through the Security Council (ICTY & ICTR)),
  • by consent with a host government (SCSL, ECCC, STL), or
  • as part of a transitional administration (Special Panels in East Timor & Kosovo).
I also discussed potential regional and bilateral arrangements as well as other cooperative arrangements among affected states (along the lines of the mixed antislavery commissions of the 19th century, which IntLawGrrl Jenny Martinez (right) has written about, or the Lockerbie Tribunal). My presentation argued that given the vagaries of incorporation of the piracy prohibition into domestic law and the demonstrated inability and unwillingness of states to aggressively prosecute offenders, the international community needs a more comprehensive regime to effectively prosecute acts of piracy to supplement the cooperative military and preventative responses to date.
The Security Council's action is indeed welcome. Interestingly, so far, the Council has been careful not to identify piracy per se as a threat to the peace. In the Somalia resolutions, the Council designates the situation in Somalia as the threat that is exacerbated by piracy. Several states (including South Africa) are on record opposing the idea that piracy per se constitutes a threat to the peace. China has taken the opposite position. In its Resolution 1918, the Council asks the Secretary General to report on options
to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea.
No doubt the ASIL/ACUNS/OEF report will feature prominently in this research. Check it out!

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