Sticky legal battles await for captured Somali pirates

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

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.

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.

"We should think of Kenya's hospitality as a very short term thing. They don't really want and don't need this right now," says an American international lawyer who spoke on condition of anonymity to protect colleagues in Somalia. "Kenya isn't The Hague, where combatants live far away. The truth is we are unprepared for this. There isn't a Kyoto protocol for piracy, there's no clear international practice."

Normally, under the United Nations' Law of the Sea Treaty, Somalia would try Somali citizens acting as pirates off its shores. But Somalia is not a party to the treaty, its courts are dysfunctional, and it has no clear anti-piracy laws.

If the Kenyan option breaks down or isn't sustainable, each country whose nationals are victimized can try captured pirates in their own courts. France and the Netherlands are now holding accused Somali pirates with this intent. But most experts say the way to establish clear judicial precedent is for the nations to focus on finding ways to help Kenya's court succeed.

Navies moving faster than courts

In the past year, international efforts to protect shipping off the Somali coast brought the navies of more than a dozen countries, including those from the US, EU, and Russia, into a coordinated mission. But efforts on the legal side have so far been "pretty ad hoc," says Roger Middleton, Somalia specialist at Chatham House. A forthcoming paper there describes the legal rules that are used on piracy as vague, grey, and ambiguous. But at a time when US media have started to link piracy and terrorism, the Chatham consensus is that piracy is a criminal act tied to commercial gain, and not a terrorist act aimed at harming or destroying a state.

Actually, says Ellis, the UN Law of the Sea Treaty, which governs piracy, is not ambiguous. It states that outside a 12-mile limit, piracy is a crime that can be prosecuted anywhere in the world under the concept of "universal jurisdiction." Piracy itself in the 18th century brought the first codification of such universal laws.

Inside the 12-mile limit – one reason pirates quickly tow ships close to shore – the crime is considered "armed robbery." A UN agreement last year with Somalia gives signatories the right of hot pursuit, even onto Somalia land. (The current pirates on trial in France were captured in a village.) But the 12-mile limit, and a further 300-mile economic zone off shore, makes for a set of practical complications for the dozen navies actively patrolling a 2,500 mile coast. EU nations are obliged to apply a high level of human rights standards, which, unlike the US Navy, even disallows fingerprinting of pirates. That can work against building a case. As a result, EU nations often release captured pirates – rather than taking a resource-depleting four-day trip to Mombasa.

"You don't hear about it, but a lot of pirates are just put on shore," says Mr. Middleton. "The EU mission is to 'dissuade and disrupt,' only. It's fairly selective when pirates are turned over. That only happens when the evidence against them is very good."

Stopping pirates while upholding the law

Last fall, in one of many such cases, a Danish naval vessel found a boat filled with Somalis that had run out of fuel. The Danes were sure they were pirates – and were certain the boaters AK-47s. But the Danes judged they had no legal standing to arrest and couldn't prove that they were pirates. So, they were let go. In the French case now in Paris the pirates claimed their weapons were for self-defense – experts say most Somalis do own a gun.

If Kenya is the best option for a regular court, says Ellis, the onus is on governments to find a way to ensure international legal standards are maintained without treading on Kenya's sovereignty. "We can't create a situation where an accused is transferred to a court that doesn't adhere to international principles," he says. "But neither is it reasonable to dictate to a sovereign nation how to restructure their legal system to mirror another one."

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