Law Watch
Problems of effective prosecution of
pirates: An overview
S.M. Mohiuddin Hasan
The modern day implications of piracy are now global in scope. In today's globalized age the problem of piracy is one that affects not just individual countries or shipping companies but potentially the entire global economy. The outbreak of piracy and its increasing threat to commerce, to security, and most importantly, to the principle of freedom of navigation of the seas is one that concerns every nation-state globally. Despite years of international, political and naval coordination, the problem continues to grow worse. The impunity of pirates after having been captured is considered to be one of the many contributing reasons for the degrading situation.
There are sufficient legal authority and available mechanisms to apprehend and prosecute pirates. While international law may be vague and uncertain in many areas, piracy is not one of them. International law as it currently stands gives ample license for pursuing and prosecuting pirates. One of the oldest, clearest and least controversial rules of international law is that any country can prosecute any pirates they happen to apprehend. For hundreds of years, the pirate has been treated as a hostis humani generis- enemy of all mankind.
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Photo: vplp.fr. |
The Law of the Sea Convention defines piracy to include any illegal acts of violence or detention, or any act of depredation, committed for private ends. As regard prosecution of pirates, the convention under Article 105 provides: “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.”
The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 (SUA) allows any signatory under its Article 3 (1) to prosecute anyone who “seizes or exercises control over ship by force or threat of force or any other form of intimidation.” Jurisdiction is even more readily available for countries whose nationals are on the pirated vessel under Article 6 (4) (b).
The Security Council of the United Nations equally remained concerned about the issue of prosecution of pirates and adopted series of resolutions for that purpose. For example, The Security Council adopted unanimously on April 27, 2010 Resolution 1918, after recalling resolutions 1814 (2008), 1816 (2008), 1838 (2008), 1844 (2008), 1846 (2008), 1851 (2008) and 1897 (2008) on Somalia, and called on countries to criminalize piracy within their national laws. Lastly on October 25, 2011 the UN Security Council unanimously adopted an India-co-sponsored resolution on piracy in Somalia, taking on board, the issue of prosecution of convicted pirates not only for acts of piracy but also for hostage taking. The resolution called for international cooperation in sharing information for the purpose of law enforcement and effective prosecution of those who illicitly plan, organize, facilitate, or finance and profit from such attacks. It recognized the increasing scope of piracy beyond the coast of Somalia, which affects not only the states in the region but also those far beyond. In the resolution, the 15 member body urged countries that have not already done so to criminalise piracy under their domestic laws and to implement prosecution methods in accordance with international human rights law. The resolution also emphasized the need to establish specialized anti-piracy courts in Somalia and other countries in the region.
This being the legal regime on prosecution of pirates, in most of the cases an unacceptable 'catch and release' incident takes place. Despite some countries have pursued the prosecution pirates in their national courts, a significant number of suspected pirates encountered by naval forces are still being released without being prosecuted, sometimes for lack of evidence. In addition, many of the countries affected by piracy flag states, states from where many crew members hail, have proven to lack either the capacity or the political will to prosecute cases in their national courts. Furthermore, states in the region that have accepted suspects for prosecution to date have been reluctant to take more, citing limits to their judicial and prison capacities and insufficient financial support from the international community. As a result, too many suspected pirates encountered at sea are simply released without any meaningful punishment or prosecution
It has to be taken as granted that effective legal prosecution is vital to deter piracy. It is unlikely that piracy can be stopped if pirates are not prosecuted and punished. Therefore international community mandatorily should adopt effective and appropriate ways of dealing with captured pirates. All states should share the burden of prosecuting suspected pirates in their national courts, and incarcerating those convicted. Under international law, piracy is a crime of universal jurisdiction. This means that all states are authorized under international law to prosecute cases of piracy, whether or not that state has a direct link to the event. To facilitate the process, all states, particularly those victimized by piracy should contribute generously to building the legal capacity of regional SUA states. States who flagged hijacked vessels, whose nationals own hijacked vessels, or who have crew members on hijacked vessels, must honour their SUA obligations in relation to receiving and prosecuting suspected pi
The writer is an Advocate, Supreme Court of Bangladesh.
