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Sticky legal battles await for captured Somali pirates

Will Kenya be tapped as the next ‘Hague’ of the high seas?

By Staff writer / April 15, 2009


Four more ships nabbed by pirates Tuesday in the Sea of Aden dramatizes (once more) the difficulty of nabbing pirates operating in an area three-quarters the size of the United States.

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But the rise of savvy Somali pirates also presents an oceanic legal problem: no clear, practical legal regime exists for the world to capture and try pirates. And there's no reliable place to evaluate the evidence or hold them accountable for their crimes.

Where to try the young Somali pirate captured in the rescue of US Capt. Richard Phillips on April 12 points to the issue. The US may try him on American soil or in a special Kenyan pirate court. Either way, a trial would be a rarity.

In fact, most captured pirates, who are usually not kingpins anyway, are simply turned loose on or close to shore.

"The real issue is to create an international legal framework," US Coast Guard chief Adm. Thad Allen said this week. "What you really have to have is a coordinating mechanism that brings these pirates to court where they can be held accountable."

Currently, some legal experts in the US and Europe hope that the Kenyan court system will take up the call – with Mombasa acting as a kind of Hague international tribunal for pirate crimes. Britain, the US, and the European Union have signed memorandums of understanding with Nairobi in recent months. Legal action is underway in Kenya for several Somali pirates already turned over by the US and Germany, in a pre-trial phase being closely watched for its legal acuity.

In London, Mark Ellis, president of the International Bar Association, and Tom Cargill, African specialist at Chatham House, both feel that Kenya would be "ideal," as Mr. Ellis put it, and "the best solution we have," as Mr. Cargill adds.

Yet it is not clear – and now with Somali pirate lords talking about retaliation – that Kenya is entirely keen to be the world's judicial dumping ground for marauders of the high seas. Nor is it clear that Kenya's fragile politics can support a potentially controversial initiative on piracy, or that its troubled judicial system can deliver the quality of justice that many European nations, such as Germany, say they require in turning over the accused.

"Kenya has the ambition to become a court center, bringing money and prestige," says Rashid Abdi of the International Crisis Group in Nairobi. "But the coalition government is divided, there are pressures on the judiciary, calls for the removal of the chief justice, and fears of retribution [from Somalis]. I wouldn't ignore the possibility of post-colonial sentiments in Africa and here that the West is settling for third class justice for people they want to get rid of."

A new 'Hague' for pirates?

Along with potential retaliation by Somali warlords, the Somali community in Kenya, centered in the business-rich area of Eastleigh, has a powerful influence.