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,$"0$,1)#+&%-2"3,4'(%"0%$'&)1"#,-1%5)$)5"%-" &/)"3)#$)&'$6"7)-)$'(81"9)0,$&"'-5"&/)":'-2"9)0,$&"
1. Introduction: Prosecuting Somali Pirates A. Weve caught pirates! ... What now? It has been our experience that before you go looking for pirates, its a good idea to be clear about who will be assuming jurisdiction [over] the pirates first ...1 A key question faced by the states and international organizations conducting counter-piracy naval patrols off Somalia is what to do with captured suspects. There are, in fact, only three options. The flag state of the capturing warship may: prosecute those pirates itself; find another state willing to do so; or release the suspects with enough food and fuel to reach shore. The seemingly frequent exercise of the third option has attracted international concern and media condemnation.2 The underlying assumption appears to be that too few piracy suspects are facing justice and more should be prosecuted. It is not clear what this would achieve or if it is even possible to more than modestly increase current prosecution rates. The present article will outline the realities of Somali pirate interdiction by navies and the large number of suspects presently being prosecuted. It will then consider the options for further judicial mechanisms for prosecution. The argument will be that the Contact Group on Piracy off the Coast of Somalia (CGPCS) in its Working Group 2 on Legal Issues (CGPCS WG2)3 has already hit upon the only viable strategy internationally-assisted prosecutions before national courts and this is where our efforts should principally be directed. All other options are either too complex to implement or too expensive to garner international support. Before turning to these issues, a brief summary of the relevant legal framework for prosecution (discussed extensively elsewhere) may be helpful.4 At international law states are
1

K. Westcott, Pirates in the Dock, BBC News, 21 May 2009, available online at http://usproxy.bbc.com/2/hi/africa/8059345.stm (visited 12 May 2011) (quoting a UK Foreign Office official). 2 See e.g.: preambles to SC Res. 1976 (2011), SC Res. 1950 (2010), SC Res. 1918 (2010), SC Res. 1897 (2009), SC Res. 1851 (2008) (expressing concern over piracy suspects being released without facing justice); The losing battle against Somali piracy, BBC News, 10 February 2011, available online at http://www.bbc.co.uk/news/world-europe-12412565. 3 On the CGPCS see: Roach, supra note 2, at 413; L. Ploch et al, Piracy off the Horn of Africa, Congressional Research Service, 27 April 2011, available online at http://www.fas.org/sgp/crs/row/R40528.pdf, at 23-24 (visited 12 May 2011); T. Winkler, Foreword in B. van Ginkel and F.-P. van der Putten (eds), The International Response to Somali Piracy: Challenges and Opportunities (Leiden: Martinus Nijhoff, 2010), viix; R. Geiss and A. Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (New York: Oxford University Press, 2011) at 26-27. 4 See generally: F. Soons (this volume); Geiss and Petrig, supra note 3, at 55-85; D. Guilfoyle, Counter-Piracy Law Enforcement and Human Rights, 59 International and Comparative Law Quarterly (ICLQ) (2010) 141-

notably obliged to cooperate to suppress piracy, but not necessarily to prosecute it.5 Thus, deter and disrupt missions may be a legally acceptable alternative to law-enforcement interdictions.6 It is also sometimes suggested that prosecutions are hampered by jurisdictional complexities; the Russian defence ministry, for example, once claimed it had to release pirates due to imperfections in international law.7 At the risk of stating the obvious, there are no such jurisdictional complexities at international law: all states have a discretionary authority to prosecute pirates irrespective of any link between the pirates crime and the prosecuting states interests.8 This is the essence of universal jurisdiction and the basis of every states power to prosecute a piracy suspect subsequently found in their territory.9 Thus, it is now generally accepted that piracy is either an international crime, or at least a special permissive jurisdictional rule, and that in either case international law delegates jurisdiction over it to municipal authorities.10 A particular difficulty, however, is the failure of many states to implement an adequate universal jurisdiction law allowing the prosecution of pirates irrespective of whether their offence has some link with the prosecuting state.11 This may slowly be changing, as numerous states amend national legislation to allow the prosecution of piracy. Of itself, of course, this will not ensure prosecution. Some States with applicable national universal jurisdiction law will only prosecute pirates themselves when there is a clear national interest involved.12

169; J. A. Roach, Countering Piracy off Somalia: International Law and International Institutions, 104 American Journal of International Law (AJIL) (2010) 397-416. 5 Compare: Arts. 100 (using shall) and 105 (using may) United Nations Convention on the Law of the Sea 1982 (UNCLOS), 1833 UNTS 3; and similarly Arts. 14 and 19 Convention on the High Seas 1958 (High Seas Convention), 450 UNTS 82. 6 See: Guilfoyle, supra note 4, at 141. 7 E.g. Russia frees Somali pirates captured in Gulf of Aden, BBC News, 7 May 2010, available online at http://news.bbc.co.uk/1/hi/8667640.stm (visited 12 May 2011). 8 Art. 105 UNCLOS; Art. 19 High Seas Convention (the courts of the flag State of the capturing warship may decided on the penalties to be imposed). While treaty law refers only the jurisdiction of the capturing warship, this does not exclude the jurisdiction of other States: Guilfoyle, supra note 4, at 144-5; Roach, supra note 4, at 403-405. 9 Lotus Case, [1927] PCIJ Ser. A, No. 10, at 70 (Judge Moore, Dissenting Opinion); Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), International Court of Justice, 14 February 2002, ICJ Reports (2002) 3, President Guillaume (Separate Opinion) 5 and Judges Higgins, Kooijmans and Buergenthal (Joint Separate Opinion) 61; I Brownlie, Principles of Public International Law (7th edn., Oxford: Oxford University Press, 2008) 229. 10 D. P. OConnell (I. Shearer (ed.)), The International Law of the Sea, vol. 2 (Oxford: Oxford University Press, 1984), 967; J. W. Bingham (reporter), Harvard Research in International Law: Draft Convention on Piracy, 26 AJIL Supplement (1932) 739-885, at 757, 768; Geiss and Petrig, supra note 3, at 139-143. 11 As noted in almost every Security Council Resolution on point, e.g.: SC Res. 1950 (2010), preamble and para 13 and SC Res. 1976 (2011), preamble and para 13. For recent counter-piracy legislation in various jurisdictions see: http://www.un.org/Depts/los/piracy/piracy_national_legislation.htm (visited 12 May 2011). 12 The UK position, for example, seems to be that prosecution in the region is appropriate unless there is a strong UK nexus, such as a case involving a UK crew or a UK master. See: House of Commons, Oral Evidence taken before the Foreign Affairs Committee (Piracy off the Coast of Somalia), Wednesday 29 June

A further difficulty in the case of piracy off Somalia is that a suspect pirate captured by a warship deployed in an out-of-area mission is (if sent for prosecution) likely to be transferred to a regional state for trial, and (if convicted) may eventually be transferred to a third state to serve his sentence.13 The legal problems in suppressing piracy are therefore not problems of authority but problems of implementation and coordination. B. How many pirates must be prosecuted to create a deterrent effect? As noted above, two common criticisms leveled at current counter-piracy efforts are that not enough suspect pirates are being prosecuted to create a deterrent effect and that an unacceptably high percentage of suspects are being released without prosecution.14 Each point is addressed in turn below. First, it is sometimes estimated that there are only 1,400 to 2,000 Somali pirates.15 One would thus expect incarcerating, say, 500 of them would have some significant effect. In fact, in three years since 2008 over 1,000 suspects have been sent before at least 20 national jurisdictions.16 (Of these few have been ordered released, and those principally in Kenya on narrow jurisdictional grounds affecting a limited class of cases.17) This is a large number and there is no obvious reason to believe that prosecuting more would achieve any deterrent effect. There remains a seemingly inexhaustible supply of willing entrants to the pirate labour market,18 a relatively low risk of encountering a naval vessel (given the patrol areas involved) and even if captured, prosecuted and imprisoned this may leave a pirate little worse off
2011, available online at http://www.publications.parliament.uk/pa/cm201012/cmselect/cmfaff/uc1318ii/uc131801.htm (visited 19 July 2011) (evidence of Dr Campbell McCafferty, Ministry of Defence, answer to Question 164). 13 There are no known cases of female Somali pirates. 14 See e.g.: references supra note 2; and references infra note 19. 15 James Kraska and Brian Wilson, Diplomatic Efforts Against the Gulf of Aden Pirates, Harvard International Review, 19 February 2009, available online at http://hir.harvard.edu/diplomatic-efforts-against-the-gulf-ofaden-pirates (visited 12 May 2011); compare the claims at http://www.saveourseafarers.com/ (visited 12 May 2011). 16 See: Report of the Secretary-General on the modalities for the establishment of specialized Somali antipiracy courts, 21 June 2011, UN Doc S/2011/360 (Modalities Report), Annex 1; J. Lang, Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, 24 January 2011, UN Doc S/2011/30 (Lang Report), 42. 17 See: In Re Mohamud Mohamed Dashi & 8 Others [2009] eKLR, available online at http://www.kenyalaw.org/klr/ (visited 12 May 2011) (finding the lack of transition provisions in amendments to relevant Kenyan criminal law makes it impossible to prosecute suspects caught when the old law was in effect). The decision remains under appeal: P. Muyanga and G. Kihara, Three piracy cases fail to proceed, Daily Nation (Kenya), 12 April 2011, available online at http://www.nation.co.ke/News/Three+piracy+cases+fail+to+proceed+/-/1056/1143442/-/j237mn/-/ (visited 12 May 2011). 18 United Nations International Expert Group on Piracy off the Somali Coast, Piracy off the Somali Coast: Final Report, 21 November 2008, available online at http://www.imcsnet.org/imcs/docs/somalia_piracy_intl_experts_report_consolidated.pdf at 17 (hereinafter UN Expert Report).

materially than life in Somalia. This is not to counsel defeatism. Securing justice for affected seafarers clearly requires suspect pirates be tried whenever possible. However, we must be realistic: as discussed below, the aim of counter-piracy naval patrols cannot be to end piracy. This can only be achieved ashore. Whether prosecution rates are actually low depends on whether one compares total prosecutions to:

all pirate attacks on shipping in the Gulf of Aden and greater Indian Ocean (most data sets will include in attacks cases where merchant vessels simply outran suspicious vessels);19

all cases of suspect vessels and persons encountered by navies patrolling the region; or

all cases where pirates are encountered in the act of attacking a vessel.

Given the very limited policing resources available for the vast area over which piracy now occurs in the Gulf of Aden and Indian Ocean it is unrealistic to suggest that the definition of success is prosecuting every attack. The second approach will count as not prosecuted many cases where competent prosecutors might be justifiably reluctant to act. It may seem common sense that a group of men in a boat far out in the Gulf of Aden with guns, a lot of fuel and no nets must be pirates. Absent, however, specialised equipment such as boarding ladders (easily tossed into the sea) suspicious behaviour will fall far short of proof beyond reasonable doubt.20 This is especially so when many legitimate fishermen in the region carry guns. Finally, where suspect pirates are captured in the act of attack unless a state with adequate national laws is willing to take the case, the suspects will inevitably be released. Prosecutions may thus not occur due to: lack of warship coverage; lack of compelling evidence; lack of adequate national laws; or lack of political will. However, on any view it seems that no more than a third of suspects encountered are sent for trial.21 Ultimately, any judicial mechanisms for prosecuting piracy can only be one component of a larger counter-piracy program. The only truly effective way to repress most high seas
19

E. Kontorovich and S. Art, An Empirical Examination of Universal Jurisdiction for Piracy, 104 AJIL (2010), 436-453; compare the Lang Report, supra note 16, 14 (citing a 90% release rate of pirates apprehended by navies without giving any information about the definitions, assumptions or methodology used beyond Data communicated by EU NAVFOR) and compare 43 (738 of 2,000 suspects sent for trial i.e. a 63% release rate). 20 Lang Report, supra note 16, 59; Geiss and Petrig, supra note 3, at 185. 21 Ibid., 43 (citing 738 of 2,000 suspects sent for trial).

criminal activity is by means of law-enforcement ashore, to which maritime interdiction operations will always be a necessary but necessarily exceptional adjunct.22 Indeed, in recent United Nations reports and resolutions there has been a renewed emphasis on the idea that the solution to Somali piracy at sea is development and institution- and security-building ashore.23 In this context, the UN Secretary-General presented to the Security Council his report on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia (the UNSG Report) on 26 July 2010, as requested by UN Security Council resolution 1918. More recently this has been followed by the report of the Secretary-Generals Special Adviser on Somali piracy, Mr. Jack Lang, which also deals with issues of prosecution (the Lang Report). Its purpose was to identify what could be done to assist regional and other States to prosecute and imprison persons who engage in piracy and to explore whether regional States might be willing to host new judicial mechanisms (i.e. specialized counter-piracy courts or tribunals). In a sense, the UNSG Report was a desk review of options and UN experience; the Lang Report was intended as an on-the-ground investigation into practicalities. The UNSG Report outlines seven options for prosecuting Somali pirates, several of which are variants on a theme:

prosecution before a national court or courts in the region (whether with or without UN assistance, or with or without dedicated piracy chambers being established in such courts) (Options 1, 3 and 4);

prosecution before a special court of Somalia, sitting extra-territorially in another state in the region (Option 2);

establishing a regional court based on a treaty, with UN assistance (Option 5); establishing a hybrid court in a national system based on a treaty with the UN (Option 6); and

establishing an international tribunal through a Security Council resolution under Chapter VII of the UN Charter (Option 7).

22

The suppression of pirate radio affords an interesting example. Targeting those who financed such vessels (including by criminalizing advertising on their broadcasts) proved more effective than at-sea arrests. See: D. Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009), Chapter 7. 23 SC Res. 1976 (2011), preamble and 2, 4, 5, 10, 22, 26; Lang Report, supra note 16, 79 ff.

There are common advantages and disadvantages relevant to assessing any of these options. Relevant considerations regarding each option will necessary include: its likely costs; its capacity to handle a potentially high volume of cases; the speed with which it could be implemented; the extent to which it draws on existing prosecution experience or would require reinventing the wheel; whether it would meet relevant human rights standards; its impact on applicable rules of evidence gathering, criminal procedure and the transfer of suspects between jurisdictions; and whether it would assist regional capacity building in the justice sector or divert resources from it. Some considerations will be unique or more relevant to a particular option, and each option must be considered in the context of its likely practical operation. There is not space here to consider all possible advantages and disadvantages in relation to each option (an exercise conducted in the UNSG Report in any event). What is attempted is a synthesis of the most important considerations relevant to the option under discussion. The contention of this article is that the only realistic options are those focusing on national courts in the region. The other options will invariably be more costly and complex. Any option based upon a single, centralized judicial forum for trying pirates, despite holding out the promise of greater procedural simplicity, will run into common difficulties. Far more importantly, the success of any option is contingent on finding a state or states willing to imprison hundreds of convicted Somali pirates. Imprisoning a pirate for (potentially many) years is sigificantly more burdensome than conducting prosecutions and may represent the real bottleneck in states willingness to prosecute more piracy suspects.24 Suggestions that the UNODC could launch a rapid programme to build within two years prisons capable of housing 1,000 to 1,500 piracy suspects in Somalia (particularly in Puntland and Somaliland) are welcome and practical,25 but will need to be supported by a network of prisoner transfer

24

See: Contact Group on Piracy off the Coast of Somalia, Seventh Plenary Meeting of the Contact Group on Piracy off the Coast of Somalia (Statement), 17 November 2010, available online at http://www.state.gov/t/pm/rls/othr/misc/151795.htm (visited 12 May 2011); compare Lang Report, supra note 16, 111; UN Secretary-General, Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, including, in particular, options for creating special domestic chambers possibly with international components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements, taking into account the work of the Contact Group on Piracy off the Coast of Somalia, the existing practice in establishing international and mixed tribunals, and the time and resources necessary to achieve and sustain substantive results, 26 July 2010, UN Doc S/2010/394, 110 (UNSG Report). 25 Lang Report, supra note 16, 110-112 and compare UN Doc S/PV.6560, 21 June 2011, 4 (remarks of the Under-Secretary-General for Legal Affairs); note, however, estimates that 2,000 convicted pirates may need prison places by the end of 2011: Geiss and Petrig, supra note 3, at 186.

agreements and robust human rights monitoring.26 Further, there is the obvious risk that 1,500 prison places may fill rapidly even at present (allegedly low) rates of prosecution. The remainder of this article will proceed by process of elimination. Options will first be discussed in declining order of consensus (Options 7, 6 and 5), and then the legal and practical challenges in implementing the remaining possibilities centered on national courts (options 1-4) will be considered. This focus is particularly justifiable given two aspects of UN Security Council Resolution 1976. First, Resolution 1976 praises present efforts involving national prosecutions before regional courts and efforts to set up dedicated antipiracy courts or chambers.27 Second, in the same resolution the Security Council decides, based on the Lang Report, to urgently consider the establishment of specialized Somali courts to try suspected pirates both in Somalia and in the region, including an extraterritorial Somali specialized anti-piracy court and requested that the UN Secretary-General report within two months on modalities for implementing this option; that report was delivered on 21 June 2011 and the present article has been revised to take it into account (the Modalities Report).28 While the various options mentioned in Resolution 1976 are not incompatible or mutually exclusive, they suggest division in the Security Council as to the appropriate way forward.

2. The Judicial Options for Prosecuting Pirates A. The option least likely: an ad hoc Chapter VII tribunal (UNSG Report Option 7) The fact that the crimes of piracy and armed robbery at sea are not complex international crimes may mean that proceedings are shorter than those in the existing [international] tribunals and special chambers. However, the high numbers of suspects and the ongoing nature of the problem will have an impact on the costs and the potential duration of any new judicial mechanism.29 For most purposes, a Chapter VII resolution is not needed to take action against pirates.30 On the high seas Chapter VII authorization would provide no clearer basis than general international law or the United Nations Convention on the Law of the Sea (UNCLOS) for
26 27

See generally: Guilfoyle, supra note 4; Geiss and Petrig, supra note 3, at 198-207 and 219-20. SC Res. 1976 (2011), 25. 28 SC Res. 1976 (2011), 26; Modalities Report, supra note 16. 29 UNSG Report, supra note 24, 49. 30 On Security Council Resolutions allowing operations in Somalias territorial sea and within Somalia see: Roach, supra note 4, 399-401; Guilfoyle, supra note 4,147.

enforcement action against, and the arrest and trial of, piracy suspects.31 Indeed, all relevant Security Council resolutions to date refer to UNCLOS as setting out the legal framework applicable to combating piracy.32 There is only one real justification for creating an ad hoc international tribunal using the Security Councils Chapter VII powers: it would theoretically allow a single, unitary approach to the arrest and transfer of suspect pirates and evidence gathering, thus creating greater procedural uniformity than presently exists. A notable gap in the UNCLOS regime is that it contains no express provision on transferring a piracy suspect between the flag state of an interdicting warship and another state prepared to exercise universal jurisdiction over the crime. In practice, this has been addressed through states negotiating a range of agreements to transfer suspects from a capturing warship to another State for prosecution. Such agreements may be concluded either on a case by case basis or settled as a standing .33 However, no such agreements imply an automatic and unconditional duty to accept unlimited numbers of suspects. To the extent that the Suppression of Unlawful Acts Convention may create an obligation for coastal state to accept delivery of a suspect from a ships master and prosecute him or her for certain offences, it has not been invoked.34 A further difficulty has been the delays often involved in securing agreement regarding a transfer of suspects between a capturing state and a prosecuting forum state (hereafter, disposition).35 Such delay may itself violate the right to be brought promptly before a judicial authority.36 A UN tribunal might be thought to imply an automatically available option which would resolve many of the complications inherent in disposition including the question of whether suspects were being transferred to a forum which would respect international human rights standards.37 Whether this would be
31 32

See: supra note 5. Most recently: SC Res. 1976 (2011), preamble. 33 See: Guilfoyle, supra note 4, passim; Geiss and Petrig, supra note 3, at 198-207. 34 Arts. 7, 8 and 10 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988, 1678 UNTS 222, as referred to in SC Res 1846 (2008), para 15; SC Res 1851 (2008), preamble; SC Res 1897 (2009), preamble; SC Res 1950 (2010), preamble; and see Guilfoyle, supra note 4, 149 and compare Roach, supra note 4, 408-9; note Geiss and Petrig, supra note 3, at 187-191 (arguing SUA may not be used as a transfer mechanism by warships). 35 In rare cases a capturing State may seize piracy suspects within Somali territorial jurisdiction, as France did in the Ponant affair of April 2008. If there is a delay in securing consent to removing the suspects for trial before the seizing States court, further questions may arise: S. Touze, Affair du Ponant, 114 Revue Gnrale de Droit International Public (2010), 903-937 at 935. 36 See especially, Rotterdam District Court, Cygnus case (Somali pirates), 17 June 2010, 145 International Law Reports - forthcoming (finding such a violation, but not one serious enough to vitiate the trial); and D. Guilfoyle, Human Rights Issues and Non-Flag State Boarding of Suspect Ships in International Waters in C. Symmons (ed), Selected Contemporary Issues in the Law of the Sea (Brill: Leiden, 2011), 83-104, at 93-96. 37 See: Guilfoyle, supra note 4; J. T. Gathii, Kenyas Piracy Prosecutions, 104 AJIL (2010), 416-436, at 433-5. Note the recent case in which a Finnish warship captured pirates attacking a Singaporean vessel but could not release the suspects to Singapore as they may have faced the death penalty: 18 captured pirates released

sustainable in practice is questionable. Given that by January 2011 over 2,000 piracy suspects are thought to have passed through the hands of navies38 it is questionable whether an international court staffed with a handful of judges could deal promptly with literally hundreds of suspects. Further, as noted above the problem at present is less one of finding states willing to prosecute than finding states where convicted pirates can serve their sentence. No international tribunal to date has come with more than pre-trial detention facilities attached,39 other than the Nuremberg International Military Tribunal.40 Any international tribunal would thus still have to enter prisoner transfer agreements (presumably with Somalia or regional states) concerning where and under what conditions convicted pirates will serve their sentences. A Chapter VII tribunal would not resolve these critical questions so much as displace them from states to the tribunal. The other supposed attraction of such an international tribunal would be to simplify the applicable law of evidence gathering and criminal procedure,41 insofar as navies would then have only have to be trained in one set of evidential standards. There are several problems with this assumption. First, in practice navies have not had to be trained in the laws of evidence and police procedure in partner states. States have instead developed case handling protocols and evidence gathering templates to facilitate prosecutions in regional states.42 These in no way supplant the law of the prosecuting state but are intended to prevent obvious mistakes. (An example being that the naval practice of throwing captured pirate weapons into the sea jeopardised prosecutions in Kenya, where relevant weapons should be produced in evidence before the court.43) Further, in the short run an international tribunal would not necessarily bring greater certainty to questions of procedure and evidence. There

without charge, Ice News, 27 April 2011, available online at http://www.icenews.is/index.php/2011/04/27/18captured-pirates-released-without-charge/ (visited 12 May 2011). 38 Lang Report, supra note 16, 48. 39 A. Cassese, International Criminal Law (2nd edn., Oxford: Oxford University Press, 2008), at 431. 40 W. Schabas, Enforcement of Sentences in A. Cassese (ed), The Oxford Companion to International Criminal Law (Oxford: Oxford University Press, 2009), 310-11 at 310. 41 M Verhagen (Dutch Minister of Foreign Affairs), Speech at the Clingendael Institute, 8 July 2009, available online at http://www.clingendael.nl/cscp/events/20090708/20090708_speech_needandevoc.pdf (visited 12 May 2011). 42 Contact Group on Piracy off the Coast of Somalia Working Group 2 (CGPCS WG2), Chairmans Conclusions: 4th Meeting of Working Group 2 on Legal Issues, 26-27 November 2009, available online at http://www.marad.dot.gov/documents/WG2-4th_Meeting_chair-conclusions-November_26-27-2009-mtg.pdf (visited 12 May 2011); Modalities Report, supra note 16, 88-89. 43 M. Gebauer and H. Stark, Policing the Gulf of Aden: Somali Pirate Trial Tests Limits of EU Mission, Spiegel Online, 4 January 2009 available online at http://www.spiegel.de/international/world/0,1518,616760,00.html (visited 12 May 2011).

can be no guarantee that early trials will not be ... delayed by appeals on preliminary points, as the ... tribunal fleshes out its own procedural law and elements of crimes.44 Technical questions aside, two practical matters make any proposal for an international piracy tribunal implausible: cost and lack of political consensus. The international community has become wary of establishing new tribunals (so-called tribunal fatigue),45 viewing them as expensive.46 While piracy trials should be simpler and less expensive to conduct than prosecutions for complex mass-atrocity international crimes,47 the UN Secretary-General has noted that a Security Council-established piracy tribunal: is not likely to be among the most cost-effective [options]. ... [I]t would require premises, and may incur other such costs that a special chamber within a national jurisdiction may not have. In addition, ... it would be required to follow the United Nations common system for staffing and salaries. The total cost would be likely to exceed the costs of a special chamber in a national jurisdiction in the region.48 On political consensus, a 2009 invitational technical experts meeting endorsed by the Contact Group on Piracy off the Coast of Somalia and hosted by the Netherlands concluded that there was little international support for establishing a full-fledged international or regional hybrid court, instead consensus favored capacity building to support existing national prosecution mechanisms.49 Similarly, the 2011 Lang Report notes the lack of consensus for establishing such a tribunal in the Security Council and that most States believe that [an international tribunal] would not be well suited to the ordinary crime of piracy and could involve long procedures and high costs.50 For completeness, one should note that suggestions of adding piracy to the jurisdiction of the International Criminal Court (ICC) or the International Tribunal for the Law of the Sea

44

Guilfoyle, supra note 4, 169; compare F. Harhoff, It is all in the Process: Reflections on the Relation between International Criminal Trials and International Humanitarian Law, 78 Nordic Journal of International Law (2010) 469-480, 479 (the lack of a coherent system of criminal legal procedure at the international level trials [are] often slowed down by the high frequency of motions [on] procedural issues). 45 S. Ratner, J. Abrams, And J. Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (3rd ed, Oxford: Oxford University Press, 2009), 252. 46 R. Zacklin, The Failings of Ad Hoc International Tribunals, 2 Journal of International Criminal Justice (JICJ) (2004), 541-545, at 543-4; but note D. Wipmann, The Costs of International Justice, 100 AJIL (2006), 861-880. 47 UNSG Report, supra note 24, 49. 48 Ibid., 101. 49 See: CGPCS WG2, supra note 42; and note Contact Group on Piracy off the Coast of Somalia (CGPCS), Fourth Plenary Meeting of the Contact Group on Piracy off the Coast of Somalia (Statement), 11 September 2009, available online at http://www.state.gov/r/pa/prs/ps/2009/sept/129143.htm (visited 12 May 2011). 50 Lang Report, supra note 16, 78; compare CGPCS WG2, supra note 42 and CGPCS, supra note 49.

10

(ITLOS) are impractical.51 Both the ICC and the Tribunal are the creations of multilateral treaties, and the process of amending either the ICC Statute or the UN Convention on the Law of the Sea to include piracy within their jurisdiction would be complex and slow.52 In the case of the ICC, flooding a court established to deal with the gravest crimes of concern to humankind with hundreds of cases of armed robbery and hostage-taking would also risk trivializing it.53 ITLOS is an even less promising option. The judges of ITLOS are selected for the expertise they can bring to state-to-state law of the sea disputes, not for their experience in running individual criminal trials. B. A Special or Hybrid Piracy Court established within a national jurisdiction by treaty with the United Nations (Option 6) Those courts commonly referred to as hybrids are so diverse that one may question whether the term is even a useful analytical category.54 Nonetheless, a hybrid court established along the lines of the Special Tribunal for Sierra Leone will typically have: a mixture of national and international judges (the latter usually forming a majority to ensure international fair trial standards); substantial UN assistance in terms of staff and prosecutors; and jurisdiction over a mixture of offences defined in international and national law.55 Such courts are usually established in post-conflict societies facing significant difficulties in prosecuting cases arising from civil war (as in Sierra Leone) or, occasionally, following a specific episode of violence (as in Lebanon). They are usually seen as having a strong role in national reconciliation and the transition to a society under the rule of law, including through strengthening local justice systems by injecting international resources and expertise.56 Establishing such a court in Somalia while it remains in conflict seems optimistic, though it would not be impossible in
51 52

UNSG Report, supra note 24, 105-106. For their formal amendment procedures see: Arts. 312, 313 and 316 UNCLOS; Arts. 121-3 Rome Statute of the International Criminal Court 1998, 2187 UNTS 90. On the difficulties of amendment in practice, see: J. Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge: Cambridge University Press, 2011) at 62-84; A. Pellet, Entry into Force and Amendment of the Statute in A. Cassese, P. Gaeta and J. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, vol. IA (Oxford: Oxford University Press, 2002), 145-184 at 173-184 especially at 176 and 180. 53 See the preamble (the ICC was established to the most serious crimes of concern to the international community) and Art. 17(1)(d) (the ICC must decline jurisdiction if a case is not of sufficient gravity to justify further action) Rome Statute of the International Criminal Court 1998, 2187 UNTS 90. Art 17(1)(d) makes it doubtful the ICC could assume jurisdiction: Geiss and Petrig, supra note 3, at 182. 54 S. Nouwen, Hybrid courts: The hybrid category of a new type of international crimes courts, 2 Utrecht Law Review (2006), 190-214, available online at http://www.utrechtlawreview.org/ (visited 12 May 2011). 55 See generally: Ibid.; Ratner, Abrams and Bischoff, supra note 45, 246-50 and 253; R. Cryer, et al, An Introduction to International Criminal Law and Procedure (2nd ed, Cambridge: Cambridge University Press, 2010), at 182-196 and 197-199; and in more detail C. Romano, A. Nollkaemper and J. Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford: Oxford University Press, 2004). 56 Ratner, Abrams and Bischoff, supra note 43, 246; Cryer, et al, supra note 55, 198-9.

11

the regions of Puntland, Somaliland or Galmadug. Somaliland in particular earned international pariah status with its declaration of independence in 1991,57 but both Puntland and Somaliland are now seen as relatively stable potential partners in the fight against piracy.58 (Galmadug has emerged as a potential partner only recently.) If, however, such a court were to be established outside Somalia agreement would have to be sought with a regional host state. Further, in such a case if the tribunal were to have jurisdiction over piracy-like violence in Somalias territorial sea or related criminal activity ashore not covered by universal jurisdiction over piracy, Somalias consent to this exercise of jurisdiction would have to be sought and (as discussed below) every current indication is that it would not be forthcoming.59 It is far from clear that any form of hybrid tribunal would offer unique advantages over prosecutions in national courts or overcome the disadvantages of a Chapter VII tribunal. As the UNSG Report put it: A United Nations-assisted tribunal may well have greater human and financial resources, and therefore capacity, to prosecute large numbers of suspects than does a special chamber within a national jurisdiction. However, given the large numbers of suspects, it would still be important to decide whether the tribunal should be obliged to receive transfers from patrolling naval States, or whether it should be able to limit the number of suspects received.60 It is far from clear that hybrid tribunals are capable of prosecuting cases in great volume unless given resources commensurate to the challenge. Considerations of cost, however, have generally loomed large in the decisions to establish hybrid tribunals. Their reliance on voluntary contributions of states (rather than being funded through UN-assessed contributions) has lead to a precarious existence for some institutions and a detrimental impact not only on the effectiveness and efficiency of the tribunal concerned, but also on the

57

J. Melik, Riches of Somaliland remain untapped, BBC News, 15 March 2009, available online at http://news.bbc.co.uk/1/hi/business/7935139.stm (visited 12 May 2011). Whether Somaliland is a state is a question of the legality of its secession from Somalia: J. Crawford, The Creation of States in International Law (2nd ed, Oxford: Oxford University Press, 2006), 412-417 (concluding it is not). 58 A. Maria Costa (Executive Director, United Nations Office on Drugs and Crime), The War on Piracy Must Start on Land, The New York Times, 8 June 2010, available online at http://www.nytimes.com/2010/06/09/opinion/09iht-edcosta.html?scp=17&sq=puntland&st=cse (visited 12 May 2011); compare Lang Report, supra note 16, 6, 19-21, 40, 93-94. 59 UNSG Report, supra note 24, 94; Modalities Report, supra note 16, 52-55; UN Doc S/PV.6560, 21 June 2011, 4 (remarks of the Under-Secretary-General for Legal Affairs). 60 UNSG Report, supra note 24, 94.

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rights of the accused to a fair trial.61 The widely-noted failure of the Special Panels for Serious Crimes in East Timor to prosecute more than 87 of 391 indicted suspects can be attributed largely to insufficient resources.62 Even if successfully established and funded there is a question as to whether this would be a particularly good use of resources. Piracy is closely analogous to ordinary serious crimes under national law (armed robbery, kidnapping, assault, etc), and creating hybrid courts to deal with such violence would essentially be to create a two-tier system of justice in each state where one was set up. Thus if piracy cases can be effectively investigated and prosecuted before national courts there seems no real advantage in creating a two-tier criminal law system, singling out piracy from among ... [analogous crimes] and putting it before a special court.63 Finally, if there is not the will to establish and fund a Chapter VII tribunal largely for reasons of cost and complexity,64 the prospects for a hybrid tribunal do not seem much better. C. A tribunal based on a treaty among regional states, with UN assistance (Option 5) Such an option would require two levels of agreement: first, the conclusion of a treaty among regional states; and second, negotiations between the UN Secretary-General (pursuant to a Chapter VII resolution) and regional states over the terms of the UN becoming a party to the treaty.65 Typically, UN involvement would be predicated on salaries being paid on a UN scale and UN-appointed judges being in the majority in each chamber of the tribunal to ensure compliance with international standards.66 If a regional treaty for prosecuting pirates was concluded, unique pacta tertiis issues would arise. Such a treaty would need to specify the covered offences and geographic scope of jurisdiction under the treaty. To the extent that it adopted the UNCLOS definition of piracy, and relied on a delegation of authority from states that would themselves have universal jurisdiction, this poses few problems. However, if its jurisdiction was to include crimes of financing and organizing acts of piracy and armed robbery at sea these would need

61 62

Cryer, et al, supra note 55, 198. Compare UNSG Report, supra note 24, 50. For highly critical assessments see: Ratner, Abrams and Bischoff, supra note 45, 248-9; and compare S. De Bertodano, East Timor: Trials and Tribulations in Romano, Nollkaemper and Kleffner (eds) Bischoff, supra note 55, 79-97 at 86-92. 63 Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, The Necessity to take Additional International Legal Steps to deal with Sea Piracy, Council Doc. 12194, 6 April 2010, available online at http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc10/EDOC12194.htm#P271_37654 (visited 12 May 2011), at 48. 64 Lang Report, supra note 16, 78. 65 UNSG Report, supra note 24, 81-2. 66 Ibid., 81 and 86.

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definition.67 Some question as to the permissibility of exercising jurisdiction over such crimes if the territorial state where such activities were committed was not party to the treaty might arise; subject to the possibility that UNCLOS already provides universal jurisdiction over many such offences by including within the definition of piracy any act of inciting or of intentionally facilitating piracy without appearing to add any requirement that such accessorial conduct must occur outside the jurisdiction of any state.68 Such a regional court could promote capacity building if it allowed judicial, prosecutorial and court registry staff from across the region to acquire additional skills, experience and training (and to benefit from the experience of regional colleagues). It would, however, have to establish its own procedural law and would obviously be applying the substantive criminal law adopted in its establishing treaty rather than the law of any national jurisdiction. Most significantly: As a new judicial mechanism, a regional tribunal would not [have] ... established crimes and procedures. The tribunal would not be able to benefit, for example, from the expertise built up by the judicial systems in Kenya and Seychelles, because it would not be embedded in either of those jurisdictions. It could only benefit from that expertise if it were to draw judges, prosecutors and/or staff from those jurisdictions. This, however, may deplete the expertise of Kenya and Seychelles and inhibit their capacity to prosecute nationally.69 In any event, there does not appear to be any enthusiasm in the region for such an approach.70 D. A special court of Somalia, sitting extra-territorially in another state in the region (Option 2) This is one of the preferred options of the UN Secretary Generals Special Adviser, Mr. Jack Lang. He proposes a Somali court sitting in Arusha, Tanzania pursuant to an agreement with the host state and utilizing the facilities of the International Criminal Tribunal for Rwanda (ICTR).71 The idea has also had some support in non-papers circulated by Portugal (at Working Group 2 of the CGPCS) and France (at a plenary CGPCS meeting); and both these states, along with Russia and Gabon, have spoken strongly in favor of such a court in

67 68

Ibid., 84. Art. 101(c) UNCLOS. 69 UNSG Report, supra note 24, 83. 70 Ibid., 78. 71 Ibid., 116-129.

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the Security Council.72 The approach combines many of the disadvantages of other proposals with few obvious benefits. It also ignores significant legal, constitutional and political obstacles. The only real example of such an arrangement was the Scottish Court established in the Netherlands to hear the Lockerbie case: a process which proved complex, time-consuming and expensive.73 The issues that had to be settled between the UK and the Netherlands by treaty74 to allow such a court to go ahead included: place of trial; composition of the court; scope of the court's jurisdiction; new legislation; detention pending trial; place of imprisonment; observers; witnesses; legal aid; contempt of court; judicial assistance; media coverage; court premises; privileges and immunities; appeals; ... and, finally, the matter of the much greater cost of holding the trial abroad.75 In particular, absent the host states agreement, a national court sitting extra-territorially will have curtailed ancillary powers to deal with matters such as contempt of court or ordering the detention of witnesses likely to abscond.76 The International Criminal Court and International Criminal Tribunal for Yugoslavia headquarters agreements with the Netherlands also had to address a long list of technical issues including such matters as exemption from liability for local taxes, utility company access to court premises and the right of court staffs family members to work in the host state.77 That said, the existence of a number of such arrangements may provide models allowing a new treaty to be drafted more readily.78

72

UNSG Report, supra note 24, p. 27 note 39. On the CGPCS see references, supra note 3. On Security Council debate see: UN Doc S/PV.6560, 21 June 2011, 5-7, 13, 19-20 and compare 15 (where some representatives lack of customary diplomatic deference to either the wishes of the TFG or the professionalism of the UN Office on Legal Affairs is, at times, startling. A number of other States expressed lukewarm support for continuing to consider the idea, notably Germany). 73 See passim: A. Aust, Lockerbie: The Other Case, 49 ICLQ (2000), 278-296 at p. 283 ff; D. Arzt, The Lockerbie, Extradition by Analogy Agreement: Exceptional Measure or Template for Transnational Criminal Justice, 18 American University International Law Review (2002), 163-236, especially at 211 (cost of trial estimated at US$106 million). 74 See: Agreement Between the Government of the Kingdom of the Netherlands and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning a Scottish Trial in the Netherlands 18 September 1998, 2062 UNTS 82. 75 Aust, supra note 73, p. 825. See also: Modalities Report, supra note 16, 66-68. 76 Arzt, supra note 73, p. 212. 77 Arts 9(5), 15, 20 Headquarters Agreement between the International Criminal Court and the Host State, 7 June 2007, available online at http://www.icc-cpi.int/NR/rdonlyres/99A82721-ED93-4088-B84D7B8ADA4DD062/280775/ICCBD040108ENG1.pdf (visited 12 May 2011); and compare Arts 10, 12(4) Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, available online at

15

A further element of complexity, however, will be engendered by the number transfer agreements involved: patrolling naval states will need agreements governing the transfer of suspects to the courts host state (likely Tanzania); Tanzania will then have to hand the suspects into Somali custody at the court; in the case of those found guilty, further arrangements will be required either governing their transfer to a custodial state or permitting their transfer through Tanzania to a prison in Somalia.79 The disposition of those found innocent will also be of concern to a host state. The Lang Report holds out as possible merits of such a court:

the enhanced legitimacy, at least within Somalia, that would follow from seeing Somali pirates tried by a Somali court;

the reduced costs associated with utilising the facilities of the ICTR; and that by being seated in Arusha, Africas legal capital, the court could have enhanced access to legal specialists who could support the training of judges, prosecutors and defence counsel.80

The Lang Reports also notes that this must be done without diverting judicial and prosecutorial resources from Somalia and that it would require Somalia to enact an adequate piracy law. To begin, it is doubtful that there is much judicial or prosecutorial capacity within the Somalia to divert.81 The Lang Report notes there are few judges in Somaliland (120 judges) and Puntland (76 judges) and that only 5% of them are legally trained; the Modalities Report refers to 20 legally trained judges in Mogadishu.82 The alternative is to recruit lawyers from the Somali diaspora and appoint them as judges.83 It is hard to identify how many suitably qualified and willing lawyers there may be in the Somali diaspora, as most law societies do not collect information as to the ethnic or national origins of their members.84 Even if this is done, it is not obvious that training migrs as judges will contribute directly to capacity building within Somalia.

http://www.icc-cpi.int/NR/rdonlyres/99A82721-ED93-4088-B84D7B8ADA4DD062/280775/ICCBD040108ENG1.pdf (visited 12 May 2011). 78 Aust, supra note 73, p. 286. 79 Compare Artz, supra note 73, p. 177. 80 Lang Report, supra note 16, 123. 81 UNSG Report, supra note 24, 65. 82 Lang Report, supra note 16, 116; Modalities Report, supra note 16, Annex III, 6; see also Report of the Secretary-General on Somalia, UN Doc. S/2011/277 (28 April 2011) 21, 81-83 (on nine-month training programs being provided by the UNDP to Somaliland and Puntland judges). 83 Lang Report, supra note 16, 126. 84 Modalities Report, supra note 16, Annex III, 9-12.

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Further, the Lang Report acknowledges that, although Puntland has recently passed a piracy law, there is no adequate Somali federal piracy law at present.85 The TFG parliament has refused to pass such a law, with some Members of Parliament calling pirates heroes who deter foreign illegal fishing.86 The present article can only note that illegal fishing in no way justifies kidnapping innocent seafarers.87 This is not, however, the only difficulty to overcome. The Modalities Report notes that: there are at present no federal courts in Somalia, as despite provision being made for them in the Transitional Federal Charter they will not be effective until a Somali Constitution is adopted and a federal judiciary constituted;88 the laws currently applied by the Assize Sections of Regional and Appeals Courts in Somalia with jurisdiction over piracy are critically out of date, containing numerous inconsistencies and deficiencies;89 consideration would have to be given as to whether a new specialized court or new a division of an existing Assize Section dedicated to piracy could be established extraterritorially without constitutional amendments requiring a (presently unlikely) twothird majority in the TFG parliament;90 while the ICTR may be able to make a courtroom and cells for 30 prisoners available in the short term, it is housed in an international conference centre which limits the ability to upgrade its security.91 The UN Department of Safety and Security considers that it can be assumed that [co]locating a Somali extraterritorial anti-piracy court with the ICTR would increase dramatically the risks to the ICTR, and potentially to

85 86

Lang Report, supra note 16, 104-5. Somalia anti-piracy law: MPs block law banning heroes, BBC News, 20 January 2011, available online at http://www.bbc.co.uk/news/world-africa-12214940 (visited 12 May 2011); compare J. Kraska, Freakonomics of Maritime Piracy, 16 Brown Journal of World Affairs (2010) 109-118, at 116. 87 On the limited or non-existent relationship between illegal fishing and piracy, see: S. Hansen, Piracy in the Greater Gulf of Aden: Myths, Misconception and Remedies, Norwegian Institute for Urban and Regional Research, October 2009, available online at http://www.nibr.no/uploads/publications/26b0226ad4177819779c2805e91c670d.pdf (visited 19 April 2011), at 8-13; R. Rotberg, Combating Maritime Piracy, World Peace Foundation, Policy Brief No. 11, 26 January 2010, available online at www.worldpeacefoundation.org/WPF_Piracy_PolicyBrief_11.pdf (visited 12 May 2011) at 5; UN Expert Report, supra note 18, Legal Appendix, at 12; Piracy: No Stopping Them, The Economist, 3 February 2011, available online at http://www.economist.com/node/18061574 (visited 12 May 2011). 88 Modalities Report, supra note 16, 47. 89 Ibid., 14. 90 Ibid., 14. 91 Ibid., 75-76

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the United Nations more widely and recommends if such a court goes ahead a stand alone facility be found for it;92 and there is no support for an extra-territorial court (Somali or international) from either the TFG or any regional Somali governmental entity; and Somali officials expressed concern that such an approach could divert capacity building from Somalia.93 All other factors aside, the need for extensive criminal law reform to support a Somalia extraterritorial court only underlines that this would be a novel experiment in terms of substantive law, thus making no use of the existing regional experience of prosecuting pirates in national systems. While under proposals considered below, some states in the region might also take on piracy prosecutions for the first time, they at least have experienced criminal justice systems capable of supporting such trials. Arguments based on the perceived legitimacy of a Somali court trying Somali pirates have strengths and weaknesses. Extra-territorial prosecutions by a Somali court established by the TFG can only be as legitimate as the TFG itself. Notoriously, the TFGs effective control scarcely extends throughout (let alone beyond) Mogadishu and the TFG: has failed to attract a critical mass of support [among Somalis]. Indeed, the open blessing of the TFG by the United States and other Western countries has perversely served to isolate the government and propel cooperation among previously fractured ... extremist groups.94 On the international plane, too, the TFG is not universally recognised as the government of Somalia.95 The TFG is thus a weak vehicle for bestowing legitimacy upon any extraterritorial court. An extra-territorial court is also of questionable value in conveying a message to the Somali population that Somali justice considers piracy a crime. UN tribunals

92

Ibid., 77. The Tanzanian government apparently considers the upgraded security requirements would require the lease of a naval vessel to defend its coast (Ibid., 56). Notably, Arusha is 500 km inland (Ibid., 78). 93 Ibid., 52-55 (including suggestions that the only option envisaged in consultation with Mr Lang was strengthening existing court structures within Somalia at 55). 94 B. Bruton, Somalia: A New Approach, Council on Foreign Relations, March 2010, available online at http://www.cfr.org/somalia/somalia/p21421 (visited 12 May 2011), at 3-4. 95 This is one of the reasons behind using Chapter VII Security Council Resolutions to authorise counter-piracy operations in Somalias territorial sea and not simply relying on TFG consent to such operations alone: J. Dalton, J. Roach, and J. Daley, Introductory Note to United Nations Security Council: Piracy and Armed Robbery at SeaResolutions 1816, 1846 and 1851 48 International Legal Materials (2009) 129-142 at 130.

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have long been criticized on the basis that the remoteness of extra-territorial courts has significantly lessened their impact upon the populations they were set up to serve.96 In the alternative, one might consider that an institution with African foundations may still garner greater regional legitimacy, given present skepticism in African towards international justice. However, irrespective of their merits, the African Unions complaints about the International Criminal Courts obsession with Africa and the abuse of universal jurisdiction against African leaders is a reaction to the indictment of high political figures.97 The assertion of jurisdiction by foreign courts or international tribunals over lower-level perpetrators such as pirates is unlikely to prompt similar levels of concern among political elites.98 In sum, given the limited loyalty or territorial control commended by the TFG the idea that a court established under its auspices in a foreign country with international funding would enjoy greater legitimacy than prosecutions elsewhere is, at best, only marginally convincing. Paying a group of Somali legal officers, recruited largely from the diaspora, to live in Arusha would likely be cheaper than any of the international judicial options - but it is hard not to conclude it would likely be more expensive than conventional national prosecutions. As noted, suitable treaty arrangements would also have to be reached with the host state, as well as states which would be transferring suspects into such a courts jurisdiction. Nonetheless, supporters of the idea continue to leap to its defence in the Security Council. Russia considered there is no choice other than to create two specialized courts, in Somaliland and Puntland, and an extraterritorial court with international participation and that this is the absolute minimum acceptable; noting the challenges, Portugal suggested an extraterritorial court remained the most the most practical way of swiftly addressing pirate impunity; France asserted the idea remains the easy solution, achievable at negligible expense; and Gabon criticized the response of Somali federal and regional governments as not constructive.99 Other States (China, South Africa and Columbia) stressed that this option
96 97

Zacklin, supra 46 44, at 544. Decision of the Assembly of the African Union on the Report of the Commission on the Abuse of Universal Jurisdiction, AU Doc. Assembly/AU/Dec. 199(XI), 1 July 2008, operative 2 and 3 (on the political nature and abuse' of universal jurisdiction against African leaders and misuse of indictments against African leaders); Council of the European Union, The AU-EU Expert Report on the Principle of Universal Jurisdiction, EU Doc. 8672/1/09 Rev 1, 16 April 2009, available online at http://ec.europa.eu/development/icenter/repository/troika_ua_ue_rapport_competence_universelle_EN.pdf (visited 12 May 2011), at 34 and 38. 98 M. Langer, The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, 105 AJIL (2011) 1-49 at 5-9, 47-8 and note 25. 99 UN Doc S/PV.6560, 21 June 2011, 5-7, 12-13 and 20.

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cannot be pursued without Somali consent, and the UK and US took the pragmatic view that the scale of constitutional, legal and political impediments meant the option should simply be taken off the table.100 Overall, a Somali extra-territorial court is perhaps a less bad idea than an international or regional tribunal but it rests on the fundamental assumption that it must be better to try Somali nationals before a Somali court. To the extent that this is a worthy aim, it is better met by prosecutions in the stable Somali regions of Puntland and Somaliland. As the latter has indicated it will only prosecute acts by its residents or in its territorial sea,101 Puntland appears the only viable venue for national trials within Somali territory. That said, the estimate is that it will take three years of capacity building before trials in Somalia can meet international standards.102 E. Prosecutions before national courts in the region (Options 1, 3 and 4) The permutations outlined in the UNSGs report are:

additional UN or international assistance to build [the] capacity of regional states to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia (Option 1);

establishing a special chamber within the national jurisdiction of a state or states in the region, without United Nations participation (Option 3); or

establishing such a special chamber with United Nations participation (Option 4).103

Common to all of these options are, obviously, the advantage of being in the region. First, this simplifies the physical process of transferring suspects into a prosecuting states custody. Second, if convicted pirates are in future transferred to serve their sentences in Somalia this, too, may be logistically less complex if the prosecuting state is a regional one. Common potential disadvantages (depending on the degree of UN assistance) include:

the potentially limited capacity of such a chamber given the likely demands upon it; the risk a special chamber would draw resources from the criminal justice system more broadly, and may lead to a risk of two-tier justice if the standards of fairness

100 101

Ibid. See comments at: 9 (UK), 11 (US), 16 (China), 16-17(South Africa), 18 (Columbia). Lang Report, supra note 16, 119. 102 UN Doc S/PV.6560, 21 June 2011, 4 (Under-Secretary-General for Legal Affairs). 103 UNSG Report, supra note 24, pp. 1-2.

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and efficiency in the special chamber exceed those of other [national] criminal courts;

the need for law reform if international defence counsel, prosecutors or judges were to participate in proceedings (as they would otherwise be foreign lawyers with no local status); and

the need for law reform (and possibly Somalias consent) if a national court was to prosecute acts of violence occurring in Somalias territorial sea as well as high-seas piracy.104

Option 1 is, essentially, to continue what is presently happening: various regional jurisdictions (principally Puntland, Kenya and the Seychelles) have volunteered to prosecute a great number of the suspect pirates caught by the patrolling naval states (although a number of capturing states or flag states have also conducted prosecutions before their national courts).105 As noted, this usually occurs pursuant to transfer agreements between the prosecuting state and states with warships deployed in the region.106 Assistance is provided to such prosecuting states by a variety of mechanisms, including a trust fund administered by the Contact Group on Piracy off the Coast of Somalia, which had received approximately $3 million in funding as of July 2010.107 In particular, the UN Office on Drugs and Crime (UNODC) has been active in efforts to support piracy prosecutions.108 As the UNSG Report puts it: UNODC assistance and capacity-building programmes are largely focused on Kenya and Seychelles, and are in practice linked to these States transfer arrangements with patrolling naval States and the European Union, ... [who] provide financing. The assistance provided to each State is dependent on [its] particular needs ... The assistance benefits the national criminal justice system as a whole, not just piracy prosecutions ... , and aims to ensure that the trials and detention are fair and efficient. The main elements of the programme are legislative review , support to the police, prosecution and judiciary, the provision of logistics and information technology, witness and trial support, prison repairs and refurbishments, training of maritime

104 105

Ibid., 71, 75, 77. See: Ibid., pp. 1-2; and references supra note 16. 106 Gathii, supra note 37; Guilfoyle, supra note 4; Geiss and Petrig, supra note 4, at 198-207. 107 UNSG Report, supra note 24, 34. 108 It has been funded by both the EU and the CGPCS trust fund: Ibid., 28; Lang Report, supra note 14, footnote 37.

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authorities, prison management and officers, and the development and sharing of regional expertise ... The principal advantage of this option is that it is already functioning and has demonstrated that it is effective: it has proven able to absorb hundreds of piracy cases and complete trials within 12-18 months, all of which may be said (with considerable understatement) to compare[] favourably with the existing [international] tribunals.109 National courts are also able to apply established criminal laws and rules of evidence and procedure, and the advantages of this over starting from scratch are manifest. The principal weakness of Option 1 is that it is very much dependent on the continued cooperation of the prosecuting states and therefore is vulnerable to a change in political circumstances110 such as Kenyas giving notice of its intention to terminate its transfer agreements in September 2010.111 Two issues for the flag states of capturing warships under this option are evidentiary standards and human rights issues. If it is not known at the time of apprehending pirates in which jurisdiction they will stand trial, difficulties may arise in knowing how best to gather, document and preserve evidence. Under existing arrangements and any new mechanism naval officers will require guidelines or templates on how best to manage evidence collection and retention (as discussed above).112 Some doubts have been expressed as to the compatibility with various human rights instruments of transferring piracy suspects to regional states for trial. Generally, the transfer agreements concluded between the capturing and prosecution states regulate the treatment of suspect both while aboard a warship and once received by the criminal justice system of the prosecuting state. The issues that arise have been extensively discussed elsewhere, but it is commonly considered that the most important guarantee is likely to be independent human rights monitoring arrangements.113 Options 3 and 4, special chambers established within national judicial systems, with or without UN support, have a great deal in common. Both options would have the advantage of being able to draw upon an existing and functioning jurisdiction, with established crimes and

109 110

UNSG Report, supra note 24, 56. Ibid., 57. 111 The Economist, supra note 87; though it continues to accept transfers on a case-by-case basis: Report of the Secretary-General on Somalia, UN Doc. S/2011/277 (28 April 2011) 21. 112 Supra note 42. 113 Guilfoyle, supra note 4, pp. 152-167; Geiss and Petrig, supra note 3, at 219-20; Lang Report, supra note 16, 113; compare A. Fischer-Lescano and L. Kreck, Piracy and Human Rights: Legal Issues in the Fight against Piracy within the Context of the European Operation Atalanta, 52 German Yearbook of International Law (2009) 525-561.

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criminal procedures.114 In particular, a special chamber in Kenya or the Seychelles would have the additional advantage of drawing on their growing expertise.115 Whether either is worthwhile pursuing is essentially a question of whether a given national jurisdiction would have the capacity to prosecute a large number of piracy cases, or put another way whether there would be a sufficient number of cases in any jurisdiction to make it worthwhile establishing a chamber within a national criminal court dedicated exclusively to piracy cases. As the Secretary Generals report has noted: Even in Kenya, which has 12 ongoing piracy prosecutions, the new courtroom [funded by the UNODC] at Shimo La Tewa [the prison where piracy suspects are held] will not be exclusive to piracy prosecutions.116 The risks of special chambers are common to a number of other options, including that it might: draw resources from the criminal justice system more broadly, and may lead to a risk of two-tier justice if the standards of fairness and efficiency in the special chamber exceed those of other criminal courts. A further disadvantage may be limited capacity ...117 The principal remedy for problems of capacity and resource diversion would, of course, be UN or international assistance Option 4. This could take the form of United Nations selected judges prosecutors and/or staff under an agreement between the UN and the host state.118 The assistance provided would, of course, have to be in a form acceptable both to the host state and the UN. Typically, UN-assisted tribunals have had a majority of UN-appointed judges to ensure international minimum standards; whether this would be acceptable, for example, to Kenya or the Seychelles is unclear and would in any event likely require law reform as trials are conducted by single judges in both jurisdictions.119 Even if international judges were appointed from the region (to strengthen capacity building and knowledge transfer), this may raise a risk of the diversion of scarce judicial resources from other states.120 Any option bases on prosecution before national courts in the region unless the host is Somalia will also require agreement on enforcement of sentences and prisoner transfer.121 Finally, the position of the relevant Somali jurisdictions is patently clear. The TFG, Somaliland and Puntland are only minded to accept, within Somalia, prosecutions in
114 115

UNSG Report, supra note 24, 70. Ibid., 73. 116 Ibid., 69. 117 Ibid., 71. 118 Ibid., 73. 119 Ibid., 74-5. 120 Ibid., 77. 121 Ibid., 72.

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ordinary national courts by Somali prosecutors and before Somali judges. While international capacity building and training is welcome, international staff are not (other than perhaps members of the Somali diaspora).122 While this is certainly the long-term position the international community would like to achieve, in the short-run it will take three years for Somali trials to reach international standards.123 It may take even longer for the Somali criminal justice system to be up to prosecuting more complex cases against pirate financiers and kingpins.124 3. Conclusions As with all questions regarding Somalia, there are perhaps no easy solutions and few good ones. Self-evidently, however, any prosecutorial option has to demonstrate both clear advantages over present national prosecution arrangements and that it is achievable with the limited resources the international community appears willing to provide. Given the latter, any mechanism established will need some flexibility and the capacity to be scaled up or down relatively quickly. This consideration alone eliminates the prospect of any truly international court. There is also no obvious appetite in the region for a regional treatybased court. All other options ordinary national prosecutions, the establishment of special chambers in national jurisdictions or a more ambitious international hybrid tribunal or an extra-territorial Somali court rely on being grounded in a national criminal justice system. A choice of model cannot be made at the level of abstract principle, but an underlying question in the debate appears to be the desirability of a unitary solution (a one stop shop forum for all piracy prosecutions) or a plurality of parallel mechanisms. The point has now been exhaustively debated without any firm strategic decisions being taken. As noted, in October 2009 the Netherlands hosted an inter-governmental expert meeting on the issue of an international, regional or other mechanism for the prosecution of suspected pirates as a parallel but related process to the discussions in the Contact Group on Piracy off the Coast of Somalia (CGPCS).125 That meeting reported that: few States and organizations supported the establishment of a full-fledged international or regional hybrid court. Instead many States and organizations pointed

122 123

Modalities Report, supra note 16, 21, 52-55. Ibid., 94. 124 Ibid., 63 and 64 (noting the need for sophisticated investigative, prosecutorial and judicial expertise in such prosecutions). 125 CGPCS, supra note 47.

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to the need to support existing mechanisms of prosecution through capacity building.126 Subsequent discussions in CGPCS Working Group 2 (a meeting of over 100 government, international organisation and industry lawyers) suggested in November 2009 although noting a divergence of national views on the best mechanism that: the most feasible model would be a specialized/dedicated piracy chamber established within the existing domestic criminal justice system of one or more States and located in one or more States willing and able to undertake prosecution ... It was furthermore the understanding that international elements if required could be added both through international financial support and/or through technical assistance (inter alia secondment of international personnel).127 This model, dedicated piracy chambers with international assistance (dedicated piracy chambers plus) was thus on the table and apparently widely agreed among government lawyers as being the most feasible recommendation eight months before the SecretaryGenerals Report, 14 months before the Lang Report and 17 months before UNSCR 1976. It is implicitly, at least, presented in the Secretary-Generals Report as the most cost-effective option: that report notes that neither a regional tribunal, nor a hybrid tribunal, nor an international tribunal are likely to be as cost-effective as a special chamber within a national jurisdiction.128 The idea appears to have taken longer to take root at the international level. Certainly, the earlier calls from some politicians and diplomats for an international piracy tribunal129 have seemingly fallen away, perhaps in response to the clear weight of legal opinion. UNSCR 1976 makes unlike UNSCR 1918130 - no mention of an international piracy tribunal. The idea can therefore finally be treated as dead and buried. As suggested above, its probable attraction was the seeming simplicity and certainty of having one court to which all piracy cases could be sent. UNSCR 1976, however, did not support the dedicated piracy chambers within established jurisdictions to the exclusion of all other options. As noted it also, based on the Lang Report,
126 127

CGPCS WG2, supra note 42. Ibid. 128 UNSG Report, supra note 24, 86, 91 and 101; Geiss and Petrig, supra note 3, at 171. 129 Verhagen, supra note 41; UN Doc S/PV.6046, 31 (Egypt); Statement by President D Medvedev (Russian Federation), Countries Need to Make a Joint Legal Response to Piracy, including through the Possible Establishment of an International Tribunal (Statement), 4 May 2009, available online at http://www.ship.gr/news6/ru4.htm (visited on 12 May 2011); Geiss and Petrig, supra note 3, at 179. 130 4.

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decided to consider establishing specialized Somali anti-piracy courts, including an extraterritorial court. The Security Council response to the Modalities Report was divided between those still pushing for an extraterritorial Somali court, those calling for it to be dropped as an idea, and those considering it deserved further consideration. The support for this option may indicate either a genuine belief that such measures will assist capacity building in Somalia or a final push to establish a potential unitary prosecution mechanism: a Somali mechanism to which the bulk of cases could be sent. Neither a dedicated territorial court in Somalia (in effect, Puntland) nor an extra-territorial Somali court is a realistic option at present. Puntland has a piracy law but no meaningful judicial capacity or ability to attain international standards. An extra-territorial court would require an adequate Somali piracy law and constitutional framework (which does not exist) and a pool of Somali judges (which is not available) and would even then be logistically and legally complex and quite certainly more expensive than dedicated piracy chambers elsewhere. On any view, however, prosecutions before national jurisdictions are now widely acknowledged as the only feasible option, whether in the general court system or dedicated chambers. The question is one of modalities. Any option that appears unduly expensive will fail for want of support. The real underlying questions will be ones of burden-sharing and leverage. So long as warship-contributing states remain reluctant to take (many) piracy cases, those states bearing the burden of prosecution have the leverage. As Kenya has done, prosecuting states may (threaten to) withdraw cooperation unless international support is forthcoming. There is also the possibility that some prosecuting jurisdictions, in a climate in which foreign aid budgets are dwindling, may be in a rare position to provoke a bidding war for international assistance between the various counter-piracy missions in the Gulf of Aden in return for prosecutions. A rational allocation of counter-piracy resources may thus require a more centralized approach in negotiating future agreements.

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