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Warships patrolling Indian Ocean waters off the Somali coast are enjoying greater success in capturing pirates - but the legal challenges posed by 21st Century piracy raises question on what to do with suspects after they have been caught.
Isn't it the responsibility of the country whose navy apprehended the pirates to prosecute?
The United Nations Convention on the Law of the Sea defines piracy as a universal crime and gives sovereign nations the right to seize and prosecute pirates. But whether a country wants to prosecute arrested pirates depends on its own law. Experts say that several countries do not know how to incorporate the convention into their own jurisdiction.
According to the report Fighting Piracy by Commander James Kraska and Captain Brian Wilson: "On the high seas or in any other place outside the jurisdiction of a state, such as Somalia's ungoverned territorial seas, any nation's warship may take action against piracy. Pirated ships may be boarded, the pirates can be detained and the property on board the vessel can be seized and submitted to admiralty and criminal courts. The registry or "flag" of the attacked vessel, the state of nationality of any of the victims or crew, the nationality of the on-scene warship, and, in some cases, coastal and port states, all have a valid basis for asserting jurisdiction. But it can take weeks or months to sort out these logistics and legal issues."
About 20 warships from the navies of half a dozen countries operating under US, European Union and Nato commands police the pirate-infested waters. Many have signed agreements with Kenya, enabling them to send apprehended pirates there for trial.
Why are many countries reluctant to prosecute?
Suspected pirates have been taken to the US, France and the Netherlands, among others, for prosecution. Russia is reportedly considering bringing a group of suspected pirates to Moscow for trial.
But maritime experts have pointed out that the length of time taken to bring some of those cases to trial indicates the complexities involved.
In some cases, legal arguments have centred on how long the suspects were kept in detention before either getting legal assistance or being charged - possibly violating the legal process of the countries involved.
Cyrus Mody from the International Maritime Bureau says the logistical and legal burdens involved in transporting pirate suspects to Western countries can be daunting.
"It is difficult getting the pieces together, the evidence, the witnesses. Who's going to pay for it all?
"And if a prosecution fails, the burden lies with that country. There is always the prospect that the suspected pirate might then claim asylum," he told the BBC.
In some cases, suspects are simply released after they have been disarmed because of the potential legal headaches.
Why do most of the arrested pirates end up in Kenya?
Kenya, which borders Somalia, has signed agreements with the European Union, the US, Britain, Canada, China and Denmark to prosecute and jail pirates. It has been promised financial aid in return.
There are more than 100 suspected pirates in custody, either awaiting, or already on trial. But the process is slow - lasting up to a year - and costly.
In May, Foreign Affairs Minister Moses Wetangula said Kenya was unwilling to take on any more prosecutions and was to review the agreements. He said some of the countries had failed to give adequate financial support to Kenya's strained justice system.
Mr Wetangula said a key problem was what would happen to the pirates after their jail terms were up.
What happens to the others?
Nato, Russia and India, among others, have not signed an agreement with Kenya and so their navies need to determine whether or not to bring the pirates home for trial or look for another Gulf of Aden littoral state to prosecute. This has proved difficult.
According to reports, the Indian Ocean island nation of the Seychelles is emerging as the second regional centre for trying pirates seized by EU naval units. Working with the UN, the country recently amended its criminal code to enable it to prosecute pirates under universal jurisdiction.
The EU has also opened negotiations with other countries in the region, including South Africa and Tanzania, in the hope of reaching agreements enabling the prosecution of suspected pirates.
What about setting up an international court?
In April, the United Nations Security Council adopted a Russian proposal to consider the creation of a new court to deal with piracy. UN Secretary-General Ban Ki-moon will be asked to report within three months on options for "a regional tribunal or an international tribunal and corresponding imprisonment arrangements".
Some experts have argued, however, that this option would be costly and judicially cumbersome. There is still the issue of where convicted pirates would be held.
07 May 2010
CAST ADRIFT — POSTSCRIPT TO THE RUSSIAN NAVY’S PIRATE OPERATION
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A spokesman for the Investigative Committee, a special branch of the General Prosecutor’s office, said yesterday, after the news of the rescue had reached Moscow, that the surviving pirates would be taken to Russia and charged under the piracy article of the Russian Criminal Code — Part 3, Article 227. He and Russian Navy spokesmen then modified their announcement, indicating that Russian ministry officials were debating what to do with the pirates.
Complicating the issue, apparently, was lack of public certainty of the position at sea of the Moscow University when it was attacked, and when the rescue by marines of the Marshal Shaposhnikov was effected. Most reports place both vessels in international waters more than 200 nautical miles off the coasts of both Yemen and Somalia. In these waters, Russia has the legal right to take jurisdiction over acts of piracy committed against its citizens, companies, cargoes, or vessels. The 23-man crew was Russian, as is Novoship, their employer and owner of the tanker. The vessel itself is registered in Liberia, and the cargo is of Sudanese crude oil belonging to a Chinese purchaser.
“We are all aware of this evil and cannot agree on how to fight it,” President Dmitri Medvedev told the Defense Minister Anatoly Serdyukov. “We will have to act as our forefathers did when they met pirates. Of course, we will fight pirates with the full force of the naval law.”
On Thursday evening, a source at the Ministry of Defense in Moscow announced that “”unfortunately, the current legal rules for the prosecution of pirates operating in Somalia, did not exist, and thus they [the arrestees] do not fall under the jurisdiction of any state and international law.” On Friday morning, Colonel Alexei Kuznetsov, head of press at the Defense Ministry, announced the pirate release was required “due to the imperfection of the international legal framework”.
There was another legal problem for the Russian prosecution of piracy. This was that there were no witnesses to substantiate the identities and individual actions of the boarders. During the pirate attack, the Russian crew had secured themselves in their safe-room, turned off power and engines, leaving the vessel adrift and in the dark. They were safe from being taken hostage, and that made it easier for the counter-attack to succeed swiftly and without casualties on the Russian side. But the crew are not in a position to testify against the alleged pirates. The rescue was effected, also in the dark, by Russian marines shooting first and asking questions later. The Somali survivors have reportedly claimed they weren’t pirates, but had been hostages of the real pirates. They probably pointed to the deadman as the culprit.
In June of last year, the chief Russian prosecutor in charge of the piracy problem, Alexander Zvyagintsev, acknowledged the practical doubt and legal ambiguity that were restricting what Russian civilian bodies might do with arrested pirates. The law clearly allows Russian military action against pirates. It is less clear what can be done if the pirates survive. According to Zvyagintsev, “the legislation of many states does not provide the possibility of prosecuting the criminal liability of foreign citizens and persons without citizenship for crimes of piracy committed out of the [territorial or juridictional] limits of these states, [and so] there is the issue of how implement criminal prosecution using the mechanisms of international law.”
Zvyagintsev said he was meeting with his counterpart prosecutors in the G8 group of countries to reconcile differences in the piracy statutes and coordinate criminal prosecutions. But nothing appears to have changed since Zvyagintsev spoke nine months ago: “The problem of what to do with the pirates who have been arrested,” he said then, “remains undecided for the majority of countries. That adds to the confidence of the pirates that they can go on acting with impunity.”
Note:The Russian Navy cast the Somali pirates adrift on what is reported to have been an inflatable dinghy. It has not been disclosed whether they were provided with motor, sails, or navigation equipment; nor how far off the Somali shore they were left. The picture above shows a replica of the 25-foot longboat in which British Navy Captain William Bligh sailed 4,000 nautical miles across the Pacific to the island of Timor, after being cast adrift at one of the Tongan islands by the mutineers of HMS Bounty in April 1789. Blight carried 17 men, oars and sails, octant, sextant, pocket watch, compass, 150lb of ships biscuits, 16 two pound pieces of Pork, 6 quarts of rum, 6 bottles of wine, 28 gallons of water – and no navigation charts. The re-enactment of Bligh’s voyage commenced from Tonga on April 29, 2010. It is sponsored by Talisker single malt scotch whisky, and appeals for donations to the Sheffield Institute for Motor Neurone Disease.
A spokesman for the Investigative Committee, a special branch of the General Prosecutor’s office, said yesterday, after the news of the rescue had reached Moscow, that the surviving pirates would be taken to Russia and charged under the piracy article of the Russian Criminal Code — Part 3, Article 227. He and Russian Navy spokesmen then modified their announcement, indicating that Russian ministry officials were debating what to do with the pirates.
Complicating the issue, apparently, was lack of public certainty of the position at sea of the Moscow University when it was attacked, and when the rescue by marines of the Marshal Shaposhnikov was effected. Most reports place both vessels in international waters more than 200 nautical miles off the coasts of both Yemen and Somalia. In these waters, Russia has the legal right to take jurisdiction over acts of piracy committed against its citizens, companies, cargoes, or vessels. The 23-man crew was Russian, as is Novoship, their employer and owner of the tanker. The vessel itself is registered in Liberia, and the cargo is of Sudanese crude oil belonging to a Chinese purchaser.
“We are all aware of this evil and cannot agree on how to fight it,” President Dmitri Medvedev told the Defense Minister Anatoly Serdyukov. “We will have to act as our forefathers did when they met pirates. Of course, we will fight pirates with the full force of the naval law.”
On Thursday evening, a source at the Ministry of Defense in Moscow announced that “”unfortunately, the current legal rules for the prosecution of pirates operating in Somalia, did not exist, and thus they [the arrestees] do not fall under the jurisdiction of any state and international law.” On Friday morning, Colonel Alexei Kuznetsov, head of press at the Defense Ministry, announced the pirate release was required “due to the imperfection of the international legal framework”.
There was another legal problem for the Russian prosecution of piracy. This was that there were no witnesses to substantiate the identities and individual actions of the boarders. During the pirate attack, the Russian crew had secured themselves in their safe-room, turned off power and engines, leaving the vessel adrift and in the dark. They were safe from being taken hostage, and that made it easier for the counter-attack to succeed swiftly and without casualties on the Russian side. But the crew are not in a position to testify against the alleged pirates. The rescue was effected, also in the dark, by Russian marines shooting first and asking questions later. The Somali survivors have reportedly claimed they weren’t pirates, but had been hostages of the real pirates. They probably pointed to the deadman as the culprit.
In June of last year, the chief Russian prosecutor in charge of the piracy problem, Alexander Zvyagintsev, acknowledged the practical doubt and legal ambiguity that were restricting what Russian civilian bodies might do with arrested pirates. The law clearly allows Russian military action against pirates. It is less clear what can be done if the pirates survive. According to Zvyagintsev, “the legislation of many states does not provide the possibility of prosecuting the criminal liability of foreign citizens and persons without citizenship for crimes of piracy committed out of the [territorial or juridictional] limits of these states, [and so] there is the issue of how implement criminal prosecution using the mechanisms of international law.”
Zvyagintsev said he was meeting with his counterpart prosecutors in the G8 group of countries to reconcile differences in the piracy statutes and coordinate criminal prosecutions. But nothing appears to have changed since Zvyagintsev spoke nine months ago: “The problem of what to do with the pirates who have been arrested,” he said then, “remains undecided for the majority of countries. That adds to the confidence of the pirates that they can go on acting with impunity.”
Note:The Russian Navy cast the Somali pirates adrift on what is reported to have been an inflatable dinghy. It has not been disclosed whether they were provided with motor, sails, or navigation equipment; nor how far off the Somali shore they were left. The picture above shows a replica of the 25-foot longboat in which British Navy Captain William Bligh sailed 4,000 nautical miles across the Pacific to the island of Timor, after being cast adrift at one of the Tongan islands by the mutineers of HMS Bounty in April 1789. Blight carried 17 men, oars and sails, octant, sextant, pocket watch, compass, 150lb of ships biscuits, 16 two pound pieces of Pork, 6 quarts of rum, 6 bottles of wine, 28 gallons of water – and no navigation charts. The re-enactment of Bligh’s voyage commenced from Tonga on April 29, 2010. It is sponsored by Talisker single malt scotch whisky, and appeals for donations to the Sheffield Institute for Motor Neurone Disease.
Islamists vow to end Somalia piracy
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As the radical Muslim group, Hezb Al Islam captured Harardhere, a major pirate town in northern Somalia, it declared it would end piracy and impose Islamic law (IMRA, 5/4/10).
Is the distinction there that instead of preying on foreigners, the rulers of that town will prey upon their own people? Terrorists are considered common enemies of mankind which, under international law, is akin to piracy.
As the radical Muslim group, Hezb Al Islam captured Harardhere, a major pirate town in northern Somalia, it declared it would end piracy and impose Islamic law (IMRA, 5/4/10).
Is the distinction there that instead of preying on foreigners, the rulers of that town will prey upon their own people? Terrorists are considered common enemies of mankind which, under international law, is akin to piracy.
EU naval force stops fleeing pirate skiff, arrests 12
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NAIROBI, May 6 (Xinhua) -- European Union's anti-piracy mission said its warship's disabling fire stopped fleeing pirate skiff and arrested 12 Somali pirates about 400 nautical miles northwest of Seychelles on Wednesday.
EU Naval Force spokesman John Harbour said the Swedish Maritime Patrol Aircraft detected a Pirate Action Group (PAG) about 400 nautical miles northwest of Seychelles and sent French warship La Fayette to the position to intercept the PAG. "Later in the afternoon, FS La Fayette found the PAG, consisting of one Whaler and two skiffs with a total of 12 suspected pirates. The mother ship and one skiff stopped immediately when ordered to do so, but the remaining skiff tried to escape," Harbour said.
According to Harbour, a marksman from Lafayette was able to stop the fleeing skiff with disabling fire which destroyed both engines and arrested all pirates.
"Onboard the skiff was a quantity of arms and ladders and these have been seized. The EU NAVFOR Dutch warship Johan De Witt was close by and is providing assistance to the operation," he said.
Kenya shares its southern border with Somalia, whose coastline has been infected with piracy in recent years.
More than 160 pirate attacks were reported in the waters off Somalia from the beginning of last year.
Pirate attacks off the Somali coast have continued despite the presence of several warships, deployed by navies of the NATO, the European Union, Russia, China, Republic of Korea and India, in the region to protect cargo and cruise ships against piracy.
Russia frees captured Somali pirates
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Russian forces have released 10 Somali pirates captured during a military operation to free an oil tanker this week, reversing an earlier pledge by President Dmitry Medvedev to punish them "under the full force of naval law".
The move highlights the legal and logistical challenges faced by foreign navies targeting the pirate gangs who have turned the waters off Somalia into the most dangerous in the world.
The hijackers were captured yesterday aboard the MV Moscow University, which was carrying oil worth $52m (£35m) from Sudan to China when it was attacked in the Gulf of Aden a day earlier. It was the first time a Russian-owned and staffed ship had been hijacked off Somalia.
After the 23-man crew cut the power and barricaded themselves in a safe room, a helicopter launched from a nearby Russian warship exchanged fire with the attackers, who quickly surrendered. One hijacker was killed.
Medvedev praised the rescue operation, and promised tough action against the attackers. "Perhaps we should return to the idea of creating an international court and other judicial instruments," Medvedev was quoted by the Interfax news agency as saying. "Until we get that, we'll have to do what our predecessors have done when they have encountered pirates."
But today, the Russian defence ministry said that the captives had been disarmed and freed. Aleksei Kuznetsov, a ministry spokesman, said the release was "connected to the imperfections in international law". But he also suggested that the cost of prosecution and subsequent imprisonment was a factor. "Why should we feed some pirates?" he said.
The release of pirates by foreign navies patrolling the Gulf of Aden and Indian Ocean is not uncommon. Somalia's lawlessness means handing suspects over for trial there is not possible, while there can also be problems with collecting evidence for trial abroad.
But other foreign governments have prosecuted Somali pirates in cases where their own citizens and vessels were attacked. The sole surviving hijacker of the US-flagged tanker Maersk Alabama, whose crew members were dramatically freed by American special forces last year, is awaiting trial in New York, while 11 other would-be Somali hijackers were taken to the US in April after firing on American warships on patrol. Somali pirates also currently face trial in the Netherlands and France.
More often, however, US and European navy ships have offloaded pirates in Kenya under an agreement with the government in Nairobi. But with its own legal and prison system under strain, Kenya now says it will only accept Somali prisoners on a case-by-case basis. Instead, the EU is looking for assistance from the Seychelles, whose maritime trade has been hit by Somali hijackings and which has announced plans to establish a regional centre to prosecute pirates.
Roger Middleton, who researches piracy for the Chatham House thinktank in London, said that effective prosecutions were important, but were unlikely to discourage most pirate gangs.
"I'm not sure that jail time in the US or Kenya is enough of a disincentive to stop young Somalis who can make $20,000 or $30,000 in a year at sea," he said.
Russian forces have released 10 Somali pirates captured during a military operation to free an oil tanker this week, reversing an earlier pledge by President Dmitry Medvedev to punish them "under the full force of naval law".
The move highlights the legal and logistical challenges faced by foreign navies targeting the pirate gangs who have turned the waters off Somalia into the most dangerous in the world.
The hijackers were captured yesterday aboard the MV Moscow University, which was carrying oil worth $52m (£35m) from Sudan to China when it was attacked in the Gulf of Aden a day earlier. It was the first time a Russian-owned and staffed ship had been hijacked off Somalia.
After the 23-man crew cut the power and barricaded themselves in a safe room, a helicopter launched from a nearby Russian warship exchanged fire with the attackers, who quickly surrendered. One hijacker was killed.
Medvedev praised the rescue operation, and promised tough action against the attackers. "Perhaps we should return to the idea of creating an international court and other judicial instruments," Medvedev was quoted by the Interfax news agency as saying. "Until we get that, we'll have to do what our predecessors have done when they have encountered pirates."
But today, the Russian defence ministry said that the captives had been disarmed and freed. Aleksei Kuznetsov, a ministry spokesman, said the release was "connected to the imperfections in international law". But he also suggested that the cost of prosecution and subsequent imprisonment was a factor. "Why should we feed some pirates?" he said.
The release of pirates by foreign navies patrolling the Gulf of Aden and Indian Ocean is not uncommon. Somalia's lawlessness means handing suspects over for trial there is not possible, while there can also be problems with collecting evidence for trial abroad.
But other foreign governments have prosecuted Somali pirates in cases where their own citizens and vessels were attacked. The sole surviving hijacker of the US-flagged tanker Maersk Alabama, whose crew members were dramatically freed by American special forces last year, is awaiting trial in New York, while 11 other would-be Somali hijackers were taken to the US in April after firing on American warships on patrol. Somali pirates also currently face trial in the Netherlands and France.
More often, however, US and European navy ships have offloaded pirates in Kenya under an agreement with the government in Nairobi. But with its own legal and prison system under strain, Kenya now says it will only accept Somali prisoners on a case-by-case basis. Instead, the EU is looking for assistance from the Seychelles, whose maritime trade has been hit by Somali hijackings and which has announced plans to establish a regional centre to prosecute pirates.
Roger Middleton, who researches piracy for the Chatham House thinktank in London, said that effective prosecutions were important, but were unlikely to discourage most pirate gangs.
"I'm not sure that jail time in the US or Kenya is enough of a disincentive to stop young Somalis who can make $20,000 or $30,000 in a year at sea," he said.
05 May 2010
Somali pirates hijack China-bound oil tanker
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Reuters) - Somali pirates on Wednesday hijacked the China-bound oil tanker MV Moscow University 350 miles off the coast of Yemen with 23 Russian crew and crude oil worth $52 million on board.
"The oil is Chinese. It belongs to Unipec. It was sailing to (the Chinese) port of Ningbo," said a Russian shipping source.
Maritime experts said the Russian-owned tanker had a deadweight of 106,474 tonnes and a Russian shipping source said the vessel had begun its journey from Sudan with a cargo of 86,000 tonnes of oil.
"This morning we had an attack on a Liberian-flagged ship Moscow University in the northeastern horn of our operation," Commander Rear Admiral Jan Thornqvist of the European Union's Navfor naval force told reporters in the Kenyan port of Mombasa.
"The crew members locked themselves in the radar room. This ship has been hijacked."
Somali sea bandits continue to outwit an international fleet of warships in the busy shipping lane linking Europe with Asia, raking in tens of millions of dollars in ransoms.
One pirate who identified himself as Abdi said the tanker was headed to a pirate lair on the coast of central Somalia and warned against any rescue mission.
"Any attempt to rescue the ship will certainly endanger the crew. The ship will be docked at Garacad," Abdi said, adding it was to early to talk about a ransom.
EN ROUTE TO CHINA
A source at the Novorossiysk Shipping Company, which owns the tanker, said it was sailing from Sudan to China.
Russian media quoted military sources as saying a Russian warship deployed to the MV Moscow University was not expected to reach the tanker before the end of the day. It was not clear what the warship would do next.
Some oil tankers are sailing around southern Africa and further east into the Indian Ocean away from Somalia's coastline to avoid the Gulf of Aden and pirates who are striking deeper out at sea, shipping experts say.
But many continue to run the gauntlet through the busy Gulf of Aden shipping lane, where warships operate convoys and have set up transit corridors. The tanker had not registered with the Maritime Security Center Horn of Africa, EU NAVFOR said.
The use of mother ships has enabled Somali pirates to strike as far as the Mozambique Channel and off India's coast in recent months, launching smaller boats known as skiffs against ships.
An estimated 7 percent of world oil consumption passes through the Gulf of Aden.
Last weekend, Somali insurgent group Hizbul Islam seized the pirate haven of Haradheere and pledged to take control of more towns in the region, the rebel group said.
(Additional reporting by Jonathan Saul in London, Abdi Guled in Mogadishu, George Obulutsa in Nairobi, Gleb Stolyarov in Moscow; Editing by Mark Heinrich)
Reuters) - Somali pirates on Wednesday hijacked the China-bound oil tanker MV Moscow University 350 miles off the coast of Yemen with 23 Russian crew and crude oil worth $52 million on board.
"The oil is Chinese. It belongs to Unipec. It was sailing to (the Chinese) port of Ningbo," said a Russian shipping source.
Maritime experts said the Russian-owned tanker had a deadweight of 106,474 tonnes and a Russian shipping source said the vessel had begun its journey from Sudan with a cargo of 86,000 tonnes of oil.
"This morning we had an attack on a Liberian-flagged ship Moscow University in the northeastern horn of our operation," Commander Rear Admiral Jan Thornqvist of the European Union's Navfor naval force told reporters in the Kenyan port of Mombasa.
"The crew members locked themselves in the radar room. This ship has been hijacked."
Somali sea bandits continue to outwit an international fleet of warships in the busy shipping lane linking Europe with Asia, raking in tens of millions of dollars in ransoms.
One pirate who identified himself as Abdi said the tanker was headed to a pirate lair on the coast of central Somalia and warned against any rescue mission.
"Any attempt to rescue the ship will certainly endanger the crew. The ship will be docked at Garacad," Abdi said, adding it was to early to talk about a ransom.
EN ROUTE TO CHINA
A source at the Novorossiysk Shipping Company, which owns the tanker, said it was sailing from Sudan to China.
Russian media quoted military sources as saying a Russian warship deployed to the MV Moscow University was not expected to reach the tanker before the end of the day. It was not clear what the warship would do next.
Some oil tankers are sailing around southern Africa and further east into the Indian Ocean away from Somalia's coastline to avoid the Gulf of Aden and pirates who are striking deeper out at sea, shipping experts say.
But many continue to run the gauntlet through the busy Gulf of Aden shipping lane, where warships operate convoys and have set up transit corridors. The tanker had not registered with the Maritime Security Center Horn of Africa, EU NAVFOR said.
The use of mother ships has enabled Somali pirates to strike as far as the Mozambique Channel and off India's coast in recent months, launching smaller boats known as skiffs against ships.
An estimated 7 percent of world oil consumption passes through the Gulf of Aden.
Last weekend, Somali insurgent group Hizbul Islam seized the pirate haven of Haradheere and pledged to take control of more towns in the region, the rebel group said.
(Additional reporting by Jonathan Saul in London, Abdi Guled in Mogadishu, George Obulutsa in Nairobi, Gleb Stolyarov in Moscow; Editing by Mark Heinrich)
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