Prosecuting Pirates: No More Walking The Plank

Men accused of being pirates who were arrested by French soldiers in the Gulf of Aden. i i

This handout photo released by the French Ministry of Defense on Jan. 4 shows men accused of being pirates who were arrested by French soldiers in the Gulf of Aden. AFP/Getty Images hide caption

itoggle caption AFP/Getty Images
Men accused of being pirates who were arrested by French soldiers in the Gulf of Aden.

This handout photo released by the French Ministry of Defense on Jan. 4 shows men accused of being pirates who were arrested by French soldiers in the Gulf of Aden.

AFP/Getty Images

Back in the days of the Spanish Main, captured pirates might have found themselves dancing on air at the end of a ship's yardarm or lunching with the sharks. Now, however, there are lawyers involved.

Nations that have captured suspected sea robbers now have to decide what to do them. The problem is that no nation seems to want to take on the cost and complication of prosecuting pirates.

"Trials are expensive, and there's no international criminal court that has jurisdiction over pirates. What's happened is that no nation wants to prosecute," says Kenneth Randall, dean of the University of Alabama law school.

In recent weeks, nations concerned about their shipping interests have redoubled their efforts to disrupt pirate attacks, deploying more warships in the Gulf of Aden and off the east coast of Somalia. Their actions were prompted by the growing audacity of the Somali pirates, who seized more than 40 vessels last year in some of the world's busiest shipping lanes.

By most accounts, the additional warships have reduced the number of pirate attacks. The International Maritime Bureau's Piracy Reporting Center, a watchdog group based in Kuala Lumpur, Malaysia, says international warships or military aircraft thwarted four attacks in a weeklong period ending Jan. 5. And some naval vessels have picked up suspected pirates.

A Dilemma In Denmark

A Danish Absalon warship, for instance, took five suspects on board on Jan. 2, after the alleged pirates came to grief during an attack on a cargo vessel.

According to a third-country naval officer familiar with the incident, private security guards aboard the target vessel threw a flare or a Molotov-cocktail firebomb into the pirate skiff, which then caught fire, forcing the suspected pirates to jump into the water.

Having abandoned ship, however, the suspects came under the definition of "distressed mariners," and the tradition of the sea requires anyone who is able to come to their aid. So the Danes duly fished the men out of the water and took them into custody. The Danish Foreign Ministry says it is now trying to establish who will take charge of them.

Back in September, the Danish Navy captured 10 alleged pirates — and eventually had to release them — because legal experts in Copenhagen were uncertain whether they could be prosecuted in Denmark. Officials in Denmark, where capital punishment is banned, were unwilling to turn the suspects over to Somalia's ineffective transitional government, because of concern that they might face the death penalty in Somalia.

Precedent To Prosecute

Randall, an expert on international law, says there is plenty of precedent for any nation to prosecute pirates, going back to the days of Blackbeard and Captain Kidd. He says piracy was regarded as the "archetypal offense" that any nation-state could punish.

"One reason is that it was on the high seas and beyond any territory," Randall says. "Another was that pirates were committing such heinous crimes that they essentially were stateless and that they were the enemies of all mankind."

But Randall says there's a difference between having jurisdiction and wanting to exercise it, considering the expenses and legal difficulties involved. Many nations have decided it's easier to deter piracy than to prosecute pirates.

'We Have Not Intentionally Captured Pirates'

That's essentially the view of the U.S. Navy, which will be heading up a new multinational task force aimed at disrupting piracy in the region.

"We have not intentionally captured pirates," says Cmdr. Jane Campbell, a spokesperson for the Navy's 5th Fleet. "We have been active in deterring and disrupting acts of piracy, which does not require putting small boats in the water and putting sailors in harm's way to capture armed pirates." Campbell says that's especially true when there isn't a clear judicial process to deal with detainees.

A naval officer familiar with the problem says there's another reason the coalition doesn't like to capture pirates: It's not an efficient use of their time. "A vessel that catches pirates usually has to go off-station for multiple days while their nation figures out what to do with the prisoners," said the officer, who was not authorized to talk about the issue and declined to be identified.

Campbell says military action alone won't stop piracy off the coast of Somalia, and the various navies involved in the task force see the mission as a four-pronged process: Naval action must be taken to deter hijacking; merchant ships themselves have to take defensive action to protect themselves; the international community must establish legal processes to deal with piracy; and most important, there has to be a long-term solution that restores internal security and governance in Somalia.

More Legal Definition Needed

In the meantime, she says, the new Task Force 151 will coordinate among the people and warships of nearly 20 nations to prevent what she calls "little-kid soccer," the kind of situation "where every gray warship rushes in the direction of a pirate attack." She points out that pirates, in their 15- to 20-foot skiffs, usually only have to see one gray warship to discourage them from carrying out a planned attack.

Randall, the legal expert, says the bottom line in some ways is that countries such as Denmark may have to hold their prisoners for a while until there is more definition about what to do.

"At some point, this will raise questions of due process, and obviously, even international offenders deserve some due process," he says. "Probably what has to happen is that the United Nations needs to step up to the plate and help to define the prosecution of pirates. It may be that the U.N. should even establish an international tribunal if Denmark and other states are not willing to prosecute them."

The laws governing piracy go back to the days when all communication and trade between continents traveled by sea; it was absolutely essential to protect that shipping. It's not so different today. Experts say that 90 percent of the world's trade is still carried by ships, which must be protected from piracy.

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