Monday, December 19, 2011

Issues in prosecuting piracy

(Delighted to welcome back alumna Milena Sterio, author of a forthcoming article on maritime piracy, who contributes this guest post)

After last week in the Seychelles, where, as posted, I attended meetings with the Seychelles’ Attorney General and Supreme Court judges, I am back in the United States. I would like to take this opportunity to reflect on some of the legal issues related to Somali piracy and prosecutions in the national courts of the Seychelles.

Jurisdiction
For any nation interested in prosecuting Somali pirates, the threshold issue is jurisdiction. In other words, if a country wants to prosecute pirates, it must amend and expand its jurisdictional statute to allow for such prosecution on the broadest possible basis.
The Seychelles (flag above) has thus revised its national law to allow for the prosecution of pirates captured on the high seas. This type of universal jurisdiction allows countries like the Seychelles to prosecute acts of piracy to which they have no nexus. (Such issues also have been discussed in prior IntLawGrrls posts, available here.)
Many countries, including the Seychelles before the recent revision, have jurisdictional statutes that allow for pirate prosecutions only if the act of piracy is committed in that country’s territorial sea, extending 12 nautical miles from the country’s shore. Thus, acts of piracy committed outside of such countries’ territorial sea cannot be prosecuted in those countries’ national courts because of a basic jurisdictional shortcoming.
Mauritius, another island nation in the Indian Ocean and another potential partner in the global fight against Somali piracy, has also started to consider expanding its jurisdictional statute to allow for national prosecutions of Somali pirates. It is unclear, however, how Mauritius will revise its statute. Some reports indicate that Mauritius’ law will only allow for prosecutions of piracy acts committed in the Mauritius exclusive economic zone, a stretch of sea extending 200 nautical miles from the country’s shore. This kind of a revision would seriously limit Mauritius’ ability to prosecute Somali pirates, as acts committed on the high seas would be excluded from Mauritius’ jurisdictional reach.
In the Seychelles, it appears that jurisdiction will not pose problems, in light of the new universal jurisdiction statute that this country passed.
One issue that remains unclear is whether the Seychelles’ government will demonstrate an ongoing political willingness to support piracy prosecutions on a true universal jurisdiction model. In fact, despite the mentioned universal jurisdiction statute, the Seychelles’ authorities may prove unwilling for policy reasons to extend their courts to prosecutions of Somali pirates who have not threatened the Seychelles’ national interests in any way.
Another possible mode of jurisdiction that countries like the Seychelles may adopt in the future is the protective principle – a type of jurisdiction that allows for prosecutions of acts which threaten the national interests of the prosecuting country. While traditionally this mode of jurisdiction has been used to prosecute offenses such as treason, immigration violations, and the counterfeiting of national flags, currency, and emblems, it is possible that acts of piracy could be conceived of as violating the national interests of certain countries and thus prosecuted under this model of jurisdiction.
The advantage of using the protective principle may be in the fact that it could allow for the prosecution of acts committed in preparation of piracy – acts that do not qualify as piracy itself.
Acts that do not constitute piracy, yet nonetheless may constitute presumptive offenses, include sailing on a skiff with a boarding ladder and weapons. For this type of preparatory act, universal jurisdiction is of no help, because universal jurisdiction statutes only cover true acts of piracy and do not extend to planning and preparatory offenses. Protective principle jurisdiction, on the other hand, could be used to cover these kinds of crimes; a country like the Seychelles may successfully make the argument that the planning of a piratical act could threaten its national interests, for the reason that the act of piracy, even if committed on the high seas, could be harmful if it can be shown that pirates were about to target the country's vessels or nationals or enter its exclusive economic zone.
Using a combination of universal jurisdiction to cover true acts of piracy, with the protective principle to cover preparatory offenses, would enable countries like the Seychelles to prosecute the maximum number of piracy-related violations occurring on the high seas.

Cooperation agreements
The next issue related to the prosecution of pirates for a country like the Seychelles is the ability to prosecute Somali pirates who are detained by the naval authorities of another country. Here, the Kenya model of transfer agreements or memorandums of understanding, which I discussed in my last post, proves useful.
The Seychelles, like Kenya (flag at right), has thus concluded transfer agreements with the European Union and the United Kingdom, pursuant to which Seychelles has accepted to prosecute Somali pirates detained by the EU or UK forces on the high seas.
The Seychelles’ Attorney General informed our delegation last week that eleven successful piracy trials had already taken place in the Seychelles’ courts; in all these cases the pirates had been detained by the European Union/British forces and transferred to the Seychelles.
The pirates have been prosecuted for the offense of piracy existing under the Seychelles’ domestic criminal law.
Moreover, pirates have been prosecuted under the theory of “common intention,” a mode of joint criminal liability which allows for combined prosecutions of all pirates involved in a single piracy incident. This has enabled the Attorney General to prosecute pirates in groups of ten or eleven, as well as to charge all those involved in a piracy incident with the same offenses, irrespective of their role in the incident itself. Thus, the prosecutors in these cases did not have to prove what exact role each pirate played in the piracy incident. Rather, each pirate was charged with the act of piracy itself, and each pirate would potentially be imposed the same criminal sentence. According to the Attorney General, convicted pirates have received sentences ranging from five to twelve years of imprisonment, and several other pirates are currently detained and awaiting trial.

Conditions of confinement
The next issue that countries like the Seychelles face is prison capacity and the adequacy of detainment conditions.
The Seychelles and Kenya both have benefited from financial assistance, from major maritime nations as well as the United Nations. Thus, in the Seychelles a new prison wing has been built; this wing is “reserved” for the detention of Somali pirates and arguably coincides with international detention standards.
This in turn will preempt non-refoulement, the human rights principle that prevents states parties to major human rights treaties from transferring pirates to any place where pirates would be likely mistreated. In fact, the Seychelles has clearly demonstrated that its prosecutions are fair and neutral, and that pirates are detained pre- and post-trial in humane conditions. Capturing nations should not face non-refoulement type issues when deciding whether to transfer detained Somali pirates to the Seychelles’ authorities.

After detention
Finally, countries like the Seychelles may be faced with post-detention issues – in other words, once Somali pirates have finished serving their sentences, they may choose to apply for political asylum in the Seychelles. While nobody should be blamed for wanting to live in this tropical haven, it is reasonable for the Seychelles’ authorities to question the need to extend their country’s protection to individuals who have committed heinous offenses such as piracy. It is one thing to detain Somali pirates for a set number of years, it is quite another to offer them political asylum and the possibility to freely live in the Seychelles forever. I would be loath to discourage countries like the Seychelles from prosecuting Somali pirates, but post-detention issues remain a complex issue that the Seychelles’ authorities may have to ponder in the near future.

I look forward to blogging about Somali piracy in the future, and hope that other countries, like Mauritius (flag at left), will follow in the footsteps of the Seychelles and seriously consider opening their courthouse doors to piracy prosecutions.



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