Efforts to establish an international court to prosecute Somali pirates face complex laws governing the seas and national sovereignty as well as the lack of an effective police force, experts said.
In the past three years, commercial shipping lanes linking Asia and Europe in the Horn of Africa’s coastal waters have seen a rise in attacks by pirates who have earned tens of millions of dollars in ransom from hijacks of mostly foreign vessels.
“The legal framework constraining action against piracy has remained essentially unchanged since the 18th century,” Vaughan Lowe, public international law professor at Oxford, told legal, policy and military experts on fighting piracy.
“The international law framework needs to be modified if it is to serve modern needs effectively,” Lowe said.
While the 1982 United Nations Convention on the Law of the Sea (UNCLOS) has provisions on piracy, they are often ineffective in bringing pirates to justice because they rely heavily on national governments to prosecute and try suspects.
Moreover, piracy also involves criminal and civil law, which can complicate prosecution. For example, if pirates are categorised as terrorists, those making ransom payments may also face prosecution under terrorism financing legislation.
Somali pirates freed the Greek ship Ariana and its 24 Ukrainian crew yesterday after a helicopter dropped a multi-million dollar ransom onto its deck and ended a more than six-month hostage ordeal.
Anti-piracy operations by the European Union, NATO and several individual states have failed to deter the pirates, who are still holding 11 ships along with 283 crew.
Court of piracy?
But one key topic raised at discussions, hosted by the International Criminal Law Network, a Hague-based think tank, was whether the International Criminal Court (ICC), also based in The Hague, could expand its jurisdiction to include piracy.
While experts said they expect the ICC which was set up in 2002 as the world’s first permanent war crimes court to take up the issue of piracy at its Review Conference in Uganda in May of 2010, they don’t expect an expansion of jurisdiction.
Moreover, countries in the Horn of Africa most affected by piracy Somalia, Sudan, Ethiopia and Eritrea are not signatories to the Rome Statute establishing the ICC.
Enforcement, however, would be the biggest problem.
“The ICC does not have an international police or task force to enforce the ICC statute,” said Geert-Jan Knoops, a Utrecht University professor of international criminal law.
Other proposals include establishing a hybrid tribunal with international and national jurisdictions, said Judge Tullio Treves of the International Tribunal for the Law of the Sea.
The tribunal established by UNCLOS and based in Hamburg, Germany, handles legal issues over the oceans and resources.
At a separate conference earlier this week on Somali piracy, representatives from Somalia and Puntland, the self-declared autonomous region in north-eastern Somalia where pirates are mostly based, said the real solution would be in finding jobs for the pirates, most of whom are former fishermen.
“The solutions are on land, not at sea,” said Somalia’s Ambassador to the UN Yusuf Mohamed Ismail.