Looking for a Jurisdiction for Somali Pirates
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The Political Quarterly, Vol. 82, No. 2, April–June 2011
Looking for a Jurisdiction for
Somali Pirates
DANIELE ARCHIBUGI AND MARINA CHIARUGI
The reluctance to punish hostes humani generis (enemies of human-
kind).
On 27 April 2010 the United Nations However, the crime of piracy has been
Security Council adopted the last of a sleeping for so long that also the pro-
rather long series of Resolutions devoted cedures to punish it have become rusty.
to dealing with a problem that inter- Most of the piracy at sea experienced
national relations theory did not expect before the resurgence in the Gulf of
to reappear in the twenty-first century: Aden was, and still is, localised. In Asia
the resurgence of piracy in the Gulf of and West Africa, pirates exercise vicious
Aden. While previous Resolutions urged robberies that are much less disturbing
states to act effectively against piracy, this for world politics. The pirates in the Gulf
new one is devoted to addressing a more of Aden have dramatically changed this
specific issue that has also faced unpre- perspective: harboured in a failed state
pared good-willing states and their that is not able to control its coasts and
navies: what do to with the pirates once patrol its territorial waters, Somali pirates
they are arrested? The Security Council is have become much more audacious.
well aware that many suspected pirates They have managed to hijack some of
have been arrested by various national the world’s largest ships, kidnap crews
navies and then released without facing and secure millions of American dollars
any trial. How is it possible? For how in ransom, most of which is used to
long will it last? And, more importantly, finance further criminal activities. And,
what can be done about it? last but not least, for several months if not
Whoever has a smattering of inter- years, if eventually caught red-handed by
national law is perfectly aware that the one of the several navies that are now
law of piracy at sea already provides patrolling the Gulf, rather than facing a
willing states with a fully equipped trial and long years in prison, the hos-
toolkit.1 The age in which states exercised tages have been gently escorted offshore
their rivalry by using privateers against by their capturers.
the vessels of competing powers has long It is true that the rate of bloody crime
gone. For several decades, if not centu- has been contained and that the number
ries, the act of piracy at sea has returned of hostages that have been killed is so far
to being just a private crime. It can there- very small, but it is also true that one of
fore be expected that each state able to the most important maritime routes of the
arrest a suspected pirate would place him world is no longer safe. Ship-owners are
on trial.2 The law against piracy at sea increasingly asking governments to take
developed in a very linear way, giving firm action. Insurance companies are
states the opportunity to exercise being forced to update their premiums
universal jurisdiction upon individuals and deal with specialised firms able to
suspected of being ‘Blackbeard’s col- carry out negotiations with the pirates
leagues’ and unanimously considered that have taken possession of the ships.
# The Authors 2011. The Political Quarterly # The Political Quarterly Publishing Co. Ltd. 2011
Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA 231The data collected by the International ered to be a Thai fishing trawler seized by
Maritime Bureau (IMB)—a non- pirates. The navy ship Tabar returned fire,
governmental organisation funded by sinking the trawler and killing the sus-
ship-owners—show that the risk of being pected pirates as well as the fifteen kid-
attacked by a skiff waving the Jolly Roger napped fishermen who were on board.
is much greater, in fact almost double, The second episode occurred on 6 May
than the probability of incurring any 2010, when Russian forces were engaged
other kind of maritime accident. The in a military operation aimed at freeing
statistics speak for themselves: actual or the oil tanker Moscow University. The
attempted attacks have been 239 in 2006, eleven kidnappers were fired upon by
263 in 2007, 293 in 2008 and 406 in 2009.3 the Russians, which provoked the killing
Moreover, it is estimated that about half of one of them and the release of the
of the actual attacks are not reported tanker. The military head of the operation
because of the burden and slowness con- concluded that there were no trial oppor-
nected to successive investigations.4 tunities in Russia and the ten surviving
Navies of Western states have been the pirates were ‘released’ 300 miles off the
protagonists of several fast-track arrest- coast without water, food and any navi-
and-release episodes. The reason why gation device. According to the declara-
suspected pirates have been released is tions of a Russian high-ranking defence
that a very old crime in a new age has ministry official, the pirates did not have
found states and the other damaged any possibility of safely reaching the
players unprepared. Western states are, coast. The end of this episode is, however,
in fact, those that have the maritime disputed: some journalists suggested that
forces to patrol the Gulf of Aden and the official version could be an attempt to
have the greatest interest in returning to hide the killing of all of the pirates during
safe commercial navigation. But Western the rescue operation. It is difficult to
states also have to satisfy sophisticated know what actually happened; neverthe-
systems of legal guarantees, a demanding less, it is a serious violation of human
public opinion and a large number of rights to use excessive force to free a
attentive human rights organisations. It hijacked ship and, above all, to leave
is certainly not easy for them to deal pirates in the high sea to their own for-
satisfactorily with suspects arrested in tune.
the middle of the sea. In some cases Should the behaviour of the Russian
they have preferred to wash their hands navy be considered the implementation
of the matter and return the pirates to the of a new anti-piracy doctrine? In fact,
coast. some months before, Russian President
Medvedev declared, half in jest, that since
norms on what to do with captured
Tough clashes and gentle pirates are still unclear, it would be better
returning to our forefathers’ methods,
arrests in the high sea which presumably includes hanging
Other navies have been less gentle than them from their vessels’ masts. There is
this. Although many of the high seas no official register for these ‘quick and
confrontations with suspected pirate ves- dirty’ encounters of military ships with
sels are likely to be unreported, two suspected pirates in high sea since
episodes involving the Indian and the nobody cares to report them. But it is
Russian navies, respectively, are instruc- quite clear that each navy can act using
tive. The first involved the Indian navy its own discretion.
approaching a suspected vessel in Western navies are much gentler with
November 2008 which was later discov- pirates—so gentle in fact that often they
232 D a n i e l e Ar c h i b u g i a n d M a r i n a C h i a r u g i
The Political Quarterly, Vol. 82, No. 2 # The Authors 2011. The Political Quarterly # The Political Quarterly Publishing Co. Ltd. 2011have escorted suspected pirates to shore. detention of suspected pirates can make
For example, the NATO Operation some difference. It is therefore logical that
Ocean Shield does not have any com- the ‘international community’—this bar-
mon legal framework to arrest pirates, or oque name that designates the common
any mechanism to transfer them to a interest of a large number of governments
third party for trial. If a NATO vessel and of the multinational business sec-
seizes suspect pirates, the question tor—has been busy trying to find solu-
regards only the national state of the tions.
seizing warship.
Yet it is self-evident that powerful
states cannot send their expensive mar- A forgotten legal framework
itime forces to patrol the Gulf of Aden in
order to restore safe sea routes and, when
and a new global context
they eventually manage to capture sus- Is there any middle ground between the
pected pirates, just release them. If navies indiscriminate killing of suspected
will limit themselves to having a preven- pirates and their gentle escort to the
tive role, and not also a repressive role, coast? What are the legal instruments
they will have a never ending job. Navies that states can use? Both the 1958 Geneva
certainly have had a tremendous impact Convention on the Law of the Sea and
in terms of increasing security in the Gulf. the 1982 United Nations Convention on
This security has to deal with two oppos- the Law of the Sea (hereinafter
ing trends: on the one hand, there is the UNCLOS) authorise states to try sus-
increasing number of pirates and the pected pirates. Moreover, the norms on
improved quality of their equipment as universal jurisdiction have become part
a consequence of the ransoms paid; on of international customary law, allowing
the other hand, there is the greater deter- states that did not ratified these Conven-
rence exercised by navies and by new on- tions to prosecute pirates, collecting even
board forms of protection, which make it the gratitude of the international com-
more difficult to seize a ship. munity. Therefore, any state has an
Attempted attacks have in fact almost uncontroversial power to seize any ship
doubled, while the successful ones have suspected of being used by pirates, arrest
not. It can be argued, as expected, that the its crew and bring them to its territory
number of pirates has increased as a for trial in its courts. The 1988 Conven-
consequence of the ransoms paid, but to tion on the Suppression of Unlawful Acts
seize a ship has become more difficult. On Against the Safety of Maritime Naviga-
the basis of the IMB’s statistics, in 2008 tion (hereinafter the SUA Convention)
successful attacks have been 38 per cent goes even further since member states
of the attempted ones, while in 2009 the have a precise duty to adopt all the
percentage has decreased to 22 per cent. national laws necessary to assure the
During the first months of 2010, the total prosecution of any act of violence in
number of attacks seemed to be decreas- the high sea.7 Without the need to evoke
ing for the first time, while there was a the controversial notion of universal
shift of the areas of massive attacks south- jurisdiction, the SUA Convention asks
ward from the Gulf of Aden to the Indian states to prosecute or extradite the sus-
Ocean.5 pects, either because the ship has its
The number of pirates directly in- nationality (flag state), the crime has
volved with piracy at sea is limited and occurred in its territorial waters (territor-
most estimates converge in thinking they ial state), or because the suspects are its
are in the range of 1,000–2,000.6 If this is citizens (state of active nationality). The
the actual number, the arrest, trial and SUA Convention makes it clear that
L o o k i n g fo r a J u r i s d i c t i o n fo r S o m a l i P i r a t e s 233
# The Authors 2011. The Political Quarterly # The Political Quarterly Publishing Co. Ltd. 2011 The Political Quarterly, Vol. 82, No. 2whenever there is a pirate, there must be Yet the arrest, transfer and prospective
at least one competent national court to prosecution of these pirates are just part
try him—at least as far as states party to of the story. When the kidnapped crews
the Convention are concerned.8 are not clearly associated with the nation-
In the case of Somalia, the UN Security ality of a powerful Western state, there is
Council has further broadened the no eager agent that makes a serious
powers of the states patrolling the area, attempt to capture them and release the
removing the limit of territorial waters for hostages through force. And so for sev-
the hot pursuit of suspected pirate ves- eral years ships have continued to be
sels. With Resolutions 1816 and 1851, the hijacked, crews to be kidnapped, ransoms
Security Council has allowed states even to be paid and captured pirates to be
to enter into Somali territory, although released. Only a few apprehended Somali
subject to the additional consent of the pirates are suffering the consequences of
Transitional Federal Government. By all their actions. The wind is changing, how-
means, it seems that life should have ever, and some states have become eager
become more difficult for pirates and to use their courts. Significant examples
easier for those willing to prosecute include the following:
them. So far, however, navies have sel-
dom decided to exercise such powers. In April 2010, American prosecutors charged
There has been a surprising reluctance eleven alleged pirates that, probably by mis-
of Western powers to use legal methods take, made a ridiculous attempt to hijack two
to judge pirates. Costs, an unclear code of warships of the United States Navy. In May
2010, a Yemeni tribunal sentenced to death six
conduct, onerous guarantees imposed by
pirates that killed two people during the
human rights and refugees law or a seizure of an oil tanker, condemning six
simple lack of interest have all contribu- others to ten years’ imprisonment. In June
ted for several years to leaving the crime 2010, a Dutch Court condemned five pirates
without punishment. There are, however, who hijacked a Dutch vessel to five years’
a few exceptions that are more revealing imprisonment.
than the norm.
States have been willing to use a mus- Why have so few pirates been at the
cular approach when their own nationals bar, and most of those who have only in
are victims of hijacking. Typical cases very recent months? Although the rea-
include the seizure of French yacht Le sons are more political than legal, the
Ponant and of the American cargo ship available legal framework is also some-
Maersk Alabama: in both cases, the re- how unsatisfactory. First of all, many
spective national navies arrested the countries still lack an internal set of rules
pirates and put them into the hands of for prosecuting individuals suspected of
their national courts. From the juridical piracy; even if international norms are
viewpoint, they have been following the quite clear, the lack of appropriate in-
criteria of the flag state and, more impor- ternal laws is a hampering factor. Second,
tantly, passive nationality jurisdiction. there are legal and logistical difficulties in
Perhaps more relevant has been the polit- transporting defendants, evidence and
ical viewpoint: France and the United witnesses to courts that are often thou-
States have been able to please their sands of miles away: the costs associated
public opinion by showing that the na- with a fair trial are too onerous. Third,
tional government was able to protect its while the advantage of seizing and trying
citizens abroad. In both cases, presidents a group of pirates will be collective, the
Nicholas Sarkozy and Barack Obama economic costs and the political risks
have personally greeted the kidnapped would be paid for by the capturing nation
citizens when they arrived home. only.
234 D a n i e l e Ar c h i b u g i a n d M a r i n a C h i a r u g i
The Political Quarterly, Vol. 82, No. 2 # The Authors 2011. The Political Quarterly # The Political Quarterly Publishing Co. Ltd. 2011It would be certainly cheaper to try the More recently, a similar agreement has
suspected pirates in the region, but here been signed with the Republic of the
Western states have to struggle against Seychelles. The Seychelles was quick to
their own norms and policies protecting change its criminal code to allow jurisdic-
human rights: suspects cannot be trans- tion over piracy, and the first trial was
ferred to countries that practice torture concluded on 26 July 2010, in which
and where fair trials are not guaranteed. eleven pirates were sentenced to ten
More generally, the non-refoulement prin- years in prison. Under this premise, it is
ciple forbids returning an individual to a not surprising that Mauritius and Tanza-
territory where there is the risk of being nia also have announced their willing-
persecuted or abused.9 In other words, ness to prosecute pirates.
Western states are able to seize the pirates The fact that a Western ship arrests the
because they have efficient military capa- pirates and that they are then transferred
city and political muscle to get them, but to countries in the region may create
they are also more reluctant to bring the some procedural problems with the
suspects home to trial because they have regional country’s internal legislation.
to face more disadvantages than advan- To prevent this, the Security Council has
tages. invited patrolling states to make use of
the practice of ship-riders agreements—a
Searching new judicial very common and fruitful practice in the
fight against drug trafficking, which enti-
instruments tles a law enforcement officer to make an
This has led to search for other, cheaper arrest under the laws of his or her state
and more effective solutions. Many states when the officer is on a foreign vessel,
have found it convenient to sign bilateral avoiding criminals being allowed to take
agreements with states in the region to advantage of shared waters for illegal
assure all the procedural needs of the activities. Ship-riders possess the author-
trial. The United Kingdom, the United ity to assess piracy incidents, decide the
States, the European Union and Denmark best way to proceed with the capture, and
have all signed Memoranda of Under- secure the evidence needed by the courts
standing with Kenya for the transfer of of their state.
captured pirates to its jails for being tried Still, Western states should continue to
in front of African judges. In November be worried about the fortune of the sus-
2009, 111 pirates were waiting for trial pects they deliver since the prisoners’
after having been handed over to Kenya, human rights can be violated. The Ken-
74 of which on the basis of the provisions yan judicial system and its prisons are far
of the Memorandum of Understanding from being best practice examples. Even
(MOU) with the EU. The willingness of if the treaties signed by Western states
states in the region to try and jail sus- and the Resolutions of the Security Coun-
pected pirates is also related to negotia- cil put a great emphasis on fair trial and
tions. For example, the Kenyan the protection of human rights, there is
government announced in April 2010 its more than one reason to doubt that these
intention to no longer accept pirates for targets will be achieved. There is the risk
trial because of its overburdened judicial that the transfer of prisoners may repli-
system. However, the resources made cate the notorious ‘extraordinary rendi-
available by the international community tions’ not just for suspected terrorists, but
increased and two months later a new also for suspected pirates.
high-security courtroom in Mombasa
was opened for piracy as well as for other
crimes.
L o o k i n g fo r a J u r i s d i c t i o n fo r S o m a l i P i r a t e s 235
# The Authors 2011. The Political Quarterly # The Political Quarterly Publishing Co. Ltd. 2011 The Political Quarterly, Vol. 82, No. 2Achieved results and possible to benefit from the renewing of peniten-
actions tiary institutes.
The simple presence of the UNODC
After more than three years of multina- international staff at local jails represents
tional naval operations, the more inter- a strong deterrent against possible
esting achievements of the international abuses against prisoners. But will this
community in the realm of a fair system concern and supervision be sustainable
of pirate prosecution came from the Con- in the long run, when the attention of the
tact Group on Piracy off the Coast of international community will be lower?
Somalia (CGPCS) and the United Nations To use tribunals and prisons of states in
Office on Drugs and Crime (UNODC). the region is not necessarily sustainable
CGPCS is an informal group initiated by in the long term: the judicial and deten-
the United States in January 2009, tion facilities cannot stand the pressure
endorsed by UN Security Council Reso- of sustaining all the trials, and the gov-
lution 1851 and currently composed of 45 ernments have already said that prison-
countries and seven international organ- ers will be accepted on a case-by-case
isations. It was principally conceived to basis.
coordinate political, legal and military What else can be done? A wealth of
efforts against piracy and to ensure that proposals have been made,10 and perhaps
pirates are brought to justice. It manages this is the most clear expression that the
a trust fund mainly aimed toward enhan- international community does not yet
cing the prosecution capacities of states in have a clear idea of how and where to
the region, but also toward promoting the act. The most comprehensive and author-
diffusion of anti-piracy messages in the itative stance has come from the Secre-
Somali local media. tary-General who, at the request of the
UNODC aims to coordinate inter- Security Council, has released a specific
national efforts against organised crime, report.11
and has implemented a large programme Seven different options are offered in
for judicial capacity building in Eastern the Secretary-General’s report for prose-
Africa States. In particular, it focuses its cuting and imprisoning pirates. First of
attention on: the review of remand cases all, it is significant to look at what the
that has led to a reduction in the number report does not include. While academics
of prisoners; the training of prosecutors discussed the possibility of resorting to
and police forces; the provision of the International Criminal Court, 12 the
defence lawyers; mechanisms for the Secretary-General’s report does not
availability of evidence; and, above all, endorse this proposal. This seems reason-
the improvement of conditions in pris- able since in a short period it may gen-
ons. A major concern is that prisons erate a high number of trials associated
satisfy the basic necessities of inmates, with piracy, thereby risking a serious
including water, medical care, limited blockage in ICC activities. Nor it would
overcrowding, sewerage capacity, and be dignified assigning competences over
blankets and mattresses. The commit- piracy—an international crime, but still a
ments of UNODC are directed not only form of robbery at sea—to an institution
towards Kenya and the Seychelles, but created to judge the most heinous crimes
also towards the pirates’ territorial state; of our age. Beyond the obvious conse-
the organisation is also sponsoring the quence of trivialising a tribunal aimed
construction of two new prisons in Punt- to judge ‘the most serious crimes of inter-
land and Somaliland, which should meet national concern’, the deterrence factor
international standards. Hopefully, not may be weak and transferring prisoners
just pirates but all prisoners will be able to other courts will not contribute to
236 D a n i e l e Ar c h i b u g i a n d M a r i n a C h i a r u g i
The Political Quarterly, Vol. 82, No. 2 # The Authors 2011. The Political Quarterly # The Political Quarterly Publishing Co. Ltd. 2011improving local capacity building in legal courts and will not require long forensic
proceedings. examination of the assaulted merchant
The Secretary-General’s report pro- ships. In fact, one of the reasons why
poses the return to international tribu- ship-owners are often reluctant to report
nals, which could either follow the successful, and even more unsuccessful,
model of the ad-hoc tribunals instituted assaults is to avoid delays associated with
by the Security Council more than fifteen the collection of legal evidence. The insti-
years ago for ex-Yugoslavia and Rwanda, tution of an exclusion zone will make life
or the mixed tribunals adopted for Sierra more difficult for suspected criminals and
Leone, Cambodia and Timor East. These easier for merchant ships. Nevertheless,
options would reduce drastically any evidence-collecting remains a difficult
perplexity about the fairness of prisoner task in a field where the tools for crime
treatment during and after the trial. After are easily hidden in the abyss by merely
all, there has been a proliferation of inter- throwing it overboard.
national and hybrid criminal courts.13
Nevertheless, as pointed out by both the
Council of Europe’s and the Secretary-
Prospects
General’s reports, such an alternative After some years of uncertainty, the inter-
obviously implies costs that states are national community now has a full menu
not necessarily willing to bear and it for choice since, at the request of the 1918
may take too long to be instituted to Resolution of the Security Council, the
represent an effective deterrence. More- Secretary-General has delivered a report
over, there is the danger that an inter- with various options for prosecuting and
national tribunal will divert resources imprisoning suspected pirates in the Gulf
from official development aid and will of Aden. Already the fact that the Secur-
not contribute to improving the judicial ity Council leaves open so many options
apparatus of the states in the region. shows that there is not yet a clear strategy
Alternatively, the Secretary-General’s on the methods that should be used to
report explores the possibility of making repress piracy in the region. There should
a greater use of local and regional facil- be more options than either releasing the
ities, either by creating a regional tribunal suspects or sinking their ships, and the
or by enhancing the judicial capabilities Secretary-General provides states with
of the states in the region. All these the opportunity to choose how to act.
options could imply the more or less The economic interests associated with
intense participation of the United navigation in the area, the periodic com-
Nations and of other states. plaints of the business community and
Others have suggested the institution the high costs involved in maintaining a
of an ‘exclusion zone’—a sea area where fleet of military ships in the Gulf are all
vessels equipped with particular items factors that should induce governments
like ladders, grappling hooks, weapons to pick at least some of the options sug-
or even a manifestly insufficient store of gested by the Secretary-General. Never-
food and water are presumed to be pira- theless, the proper way to sort the
tical vessels, inverting the burden of the problem once and forever, of course,
proof.14 These instruments (known also would not be to repress crime in high
as ‘equipment articles’) have been repeat- sea, but to recreate a Somali state able to
edly used in the struggle against slave control its coasts, preventing expeditions
trade in past centuries and against drug to hijack ships. Since it is more than
smuggling in recent times. Such a propo- twenty years since the Somali question
sal will have the advantage of making it was listed on the agenda of global gov-
easier to collect the evidence needed in ernance, there is little hope that it can be
L o o k i n g fo r a J u r i s d i c t i o n fo r S o m a l i P i r a t e s 237
# The Authors 2011. The Political Quarterly # The Political Quarterly Publishing Co. Ltd. 2011 The Political Quarterly, Vol. 82, No. 2fixed with the resources and the political oceans surrounding Somalia. Piracy
willingness that the international com- remains a problem that can be actually
munity has so far been willing to use. solved only onshore, rebuilding the insti-
In addition, the second-best solution— tutions able to administer justice and so-
namely the integration of prevention with cial policies in the Somali territory. The
repressive measures—has been incred- second best solution of jailing pirates may
ibly slow. In particular, there has been be just a short-term palliative.
widespread reluctance to develop legal
methods in spite of a well developed
international law framework that will Notes
allow for it. It is difficult to explain this 1 For an historical and legal overview on the
since Somali pirates have neither political law of piracy, see M. Bahar, ‘Attaining
protection nor serve the vested interests optimal deterrence at sea: a legal and
of any power. Perhaps the reluctance strategic theory for naval anti-piracy
which for so many months has left cap- operations’, Vanderbilt Journal of Trans-
tured pirates either shot dead or free is national Law, vol. 1, 2007, pp. 32–121;
due to the unwillingness to introduce D. Guyldfoyle, ‘Counter-piracy law enfor-
extraterritorial courts that can deal with cement and human rights’, International
and Comparative Law Quarterly, vol. 19,
the crimes recognised by international
2010, pp. 142–63; M. Halberstam, ‘Terror-
law. ism on the high seas: the Achille Lauro
Crimes committed by Somali pirates piracy and the IMO Convention on Mar-
are much less vicious than the war crimes itime Safety’, America Journal of Inter-
and crimes against humanity committed national Law, vol. 82, no. 2, 1988, pp. 272–
in Africa and elsewhere. Governments 311; E. Kontorovich, ‘A Guantanamo on
sponsoring ad hoc courts will have the sea: the difficulties of prosecuting
increasing difficulty in explaining why pirates and terrorists’, California Law
they devote so much attention to trying Review, vol. 98, 2010, pp. 243–61; A. J.
pirates and so little to repressing war Roach, ‘Agora: piracy prosecutions’, Amer-
criminals. Governments may be accused ica Journal of International Law, vol. 104,
of using the sword of law to strike the 2010, pp. 243–61; J. E. Thompson, Mercen-
aries, Pirates and Sovereigns, Princeton, NJ,
petty rather than the egregious criminal.
Princeton University Press, 1994.
If this is the case, it is likely that none of
2 No need to use gender neutral language in
the Secretary-General’s options will be this case since all Somali pirates appre-
implemented. hended so far are men. The few exceptions
Even if the landscape is changing and to the rule are to be found either in the
there is an increase in the willingness to legendary Anne Bonny and Mary Read or
exert justice, we can be sure that the men in the few reported women pirates of our
at the bar are not yet the ‘big fishes’ age active in the Chinese and Nigerian
among Somali pirates. Piracy in the Gulf seas.
of Aden started as an individual act of 3 See the annual reports of the International
desperation, but it is transforming fast Maritime Bureau (IMB) of the Inter-
into organised crime. The lords of piracy national Chamber of Commerce: Piracy
remain peacefully at home and can count and Armed Robbery Against Ships, January–
December 2008, London, International
on an almost ten million population basin
Chamber of Commerce, January 2009;
of manpower, impatient to find a way to Piracy and Armed Robbery Against Ships,
escape from the most anguished poverty. January–December 2009, London, Inter-
Under these premises, even if the judicial national Chamber of Commerce, January
repression mechanisms worked properly 2010. All can be requested on the IMB
and quickly, the plague of piracy would Piracy Reporting Centre website: http://
hardly disappear from the seas and www.icc.ccs.org
238 D a n i e l e Ar c h i b u g i a n d M a r i n a C h i a r u g i
The Political Quarterly, Vol. 82, No. 2 # The Authors 2011. The Political Quarterly # The Political Quarterly Publishing Co. Ltd. 20114 See the report of the Political Affairs Com- see D. Guilfoyle, ‘Counter piracy law
mittee of the Parliamentary Assembly of enforcement and human rights’, Inter-
the Council of Europe to Resolution 1722: national and Comparative Law Quarterly,
B. Keles, Piracy: A Crime and a Challenge for vol. 59, 2010, p. 152.
Democracies, doc. 12193, 1 April 2010, 10 See the report of the Committee on Legal
available on the Assembly website: Affairs and Human Rights of the
http://www.assembly.coe.int Parliamentary Assembly of the Council
5 See International Maritime Bureau (IMB) of Europe to Recommendation 1913:
of the International Chamber of Com- S. Holovaty, The Necessity to Take Addi-
merce, Piracy and Armed Robbery Against tional International Legal Steps to Deal with
Ships, 1 January–30 June 2010, London, Sea Piracy, doc. 12194, 6 April 2010, avail-
International Chamber of Commerce, able on the Assembly website: http://
July 2010, available at: http://www.icc. www.assembly.coe.int
ccs.org 11 United Nations Secretary-General, Report
6 See, among others, R. Middleton, Piracy in of the Secretary-General on Possible Options
Somalia: Threatening Global Trade, Feeding to Further the Aim of Prosecuting ( . . .), doc.
Local Wars, Chatham House Briefing n. S/2010/394, New York, United Nations,
Paper, October 2008, available at: http:// 26 July 2010.
www.chatamhouse.org.uk 12 See E. Andersen, B. Brookman-Hawe and
7 SUA Convention, Article 6, available on P. Goff, Suppressing Maritime Piracy:
the website of the International Maritime Exploring the Options in International Law,
Organization: http://www.imo.org Workshop Report, October 2009, p. 4 and
8 While Somalia did not ratify the Conven- ff., available at the American Society of
tion, all other states in the region are International Law website: http://
bound to its provisions. www.asil.org
9 Under international law, non-refoulement 13 See the census of the Project on Inter-
precludes states from returning a person national Courts and Tribunals of the
to a territory where his life or freedom New York University at: http://
would be threatened or where he might www.pict-pcti.org/index.html
be tortured or face persecution (see Article 14 See E. Kontorovich, Equipment Articles for
33, 1951 Refugee Convention). The prin- the Prosecution of Maritime Piracy, Discus-
ciple is, however, subject to various excep- sion Paper prepared for One Earth Future
tions and, while it is commonly Foundation, available on the website of the
considered a customary principle, its nat- Foundation: http://www.oneearthfuture.
ure of peremptory norm is not universally org
accepted. On its relationships with piracy,
L o o k i n g fo r a J u r i s d i c t i o n fo r S o m a l i P i r a t e s 239
# The Authors 2011. The Political Quarterly # The Political Quarterly Publishing Co. Ltd. 2011 The Political Quarterly, Vol. 82, No. 2You can also read
