Pirates in the dock

Last week, a German warship apprehended a pirate boat near the Somali coast and found AK-47 assault rifles, ammunition and anti-tank weapons on board. Despite the explosive discovery, the pirates went free after being disarmed.

The incident is not an isolated one. In recent years, foreign navies policing the waters off the Somali coast have detained several ships operated by armed sea gangs.

But most have been released after having their weapons confiscated and few suspected pirates have been put on trial, underlining the legal difficulties involved in their prosecutions.

Experts say such leniency sends the wrong signals to would-be sea robbers.

“You can’t just take away the pirates’ weapons and allow them to go scot-free. Pirates are like any other criminals. They’ll just get other weapons and attempt the same thing again,” Michael Stehr from the Bonn-based German Maritime Institute, told Deutsche Welle. “Legal deterrence is vital - without it the whole fight against piracy is threatened.”

Piracy attacks around the world, in particular on the vast shipping lanes linking Asia and Europe near the Somali coast, have risen sharply. They more than doubled to 240 from 114 during the first six months of this year, according to the ICC International Martime Bureau’s Piracy Reporting Center.

Confusing and disparate laws

The United Nations Law of the Sea convention defines piracy as a universal crime and each of the 158 states that have signed the treaty may arrest pirates at sea and prosecute them at home. But many countries have not fully incorporated this into their national legislation.

Some countries such as Denmark and Canada have no provisions in their penal codes to treat piracy as a punishable offence. Others like Germany - which operates under the EU anti-piracy mission Atalanta off the coast of Somalia - can only make arrests if its own interests are affected.

“The legal prosecution of pirates in Germany is possible if a German ship is attacked, if the victims are German or if the attack results in a huge economic loss,” Uwe Jenisch, a maritime expert at the Walter Schücking Institute of International Law in the northern German city of Kiel, told Deutsche Welle.

“The final decision is up to a government committee which looks into prosecution on a case by case basis.”

Pirates in the dock

Experts say these huge differences over laws concerning the arrest of pirates has resulted in only a few western nations willing to conduct trials of suspected pirates.

In May this year, five suspected Somali pirates nabbed by the Danish navy went on trial in a court in the Netherlands. In the same month, a Somali teenager, the sole-surviving accused pirate from an attack on an American container ship, was indicted in the US on ten counts.

Some point out that building a legal case against suspected pirates reflects the difficulties many nations find themselves in when deciding what to with a suspected pirate once they are arrested.

Gathering evidence, assembling witnesses who are often far out at sea and of different nationalities and the logistical and legal burdens in transporting pirate suspects to western countries remains daunting, according to Cyrus Mody from the London-based International Maritime Bureau.

“Getting everything in place - the evidence, the witnesses and paying for the process - is difficult enough,” Mody told Deutsche Welle. “But the other big concern in western nations is that if the pirates are held here until the lengthy trial is completed, they could apply for asylum.”

Concern over Kenya pirate trials

That's one reason why a number of western governments - including the US and within the European Union - have signed agreements with Somalia’s neighbor Kenya on the transfer of suspected Somali pirates for trial in the African country.

The practice has been strongly criticized by legal experts and rights groups who say Kenya’s dubious human rights record means it cannot guarantee a fair trial.

“It’s very convenient for western nations to just wash their hands off the pirates by handing them over to Kenya and thus avoid potential legal headaches,” Jenisch said. “But morally, it’s a very questionable practice.”

According to Jenisch, around 130 pirate suspects have been transferred to Kenya this year alone.

International piracy court in Hamburg?

The legal challenges posed by 21st century piracy has prompted several nations to call for an international court to be established to deal with the prosecutions. The option is viewed by many as costly and judicially cumbersome.

Germany is debating conducting pirate prosecutions at the International Tribunal for the Law of the Sea, an independent judicial body based in Hamburg with close links to the UN.

Legal experts say the Hamburg court, which hears disputes between states over the UN Law of the Sea convention, would need a new mandate to conduct pirate prosecutions - a process that could take years and long negotiations between UN member states.

But some point out that ultimately, legal tools to deter pirates remain a secondary option at best.

"It's much more important that western nations try to find a political solution to the underlying conflicts within Somalia if they are really interested in stamping out piracy," Jenisch said.

Author: Sonia Phalnikar

Editor: Rob Mudge