Adrift for two months, Somalis to stand trial in Seychelles

The U.S. has finally found a state willing to prosecute 15 pirates captured aboard an Iranian mothership in January 2012. As we noted at the time, there was no convenient location for prosecution. The U.S. had a legal basis to prosecute, but the cost of transferring the Somalis to the U.S. coupled with the risk that some would claim asylum was a deterrent. Iran was not likely to be the prosecuting nation. Although it may have a legal basis in its own domestic legislation to prosecute the pirates, the U.S. might have doubts that the pirates would receive a fair trial there. Further, it would be a public relations coup for Iran if it took possession and prosecuted the pirates. Finally, Somalia still has significant hurdles to overcome before it will be ready to administer fair piracy trials, be it in Somaliland, Puntland, or elsewhere.

Today the nytimes notes:

Fifteen Somali men accused of being pirates, who were captured aboard a hijacked Iranian fishing vessel by the United States Navy in January, were transferred on Tuesday to the Seychelles for trial.

The move from Djibouti to the Seychelles, an island nation in the Indian Ocean, was a welcome development for the United States in a high-profile case that had no clear legal resolution.

It also signaled the end of an intensive interagency effort to find a jurisdiction willing to receive the suspects, who had been held aboard a series of American warships for almost two months.

From its outset, the case, for all its high-seas drama, underscored the difficulties in developing effective and comprehensive programs to fight piracy. Capturing pirates, once international navies applied themselves to the task, has proved easier than bringing them to justice.

None of the nations most directly involved in the case — Somalia, home of the suspects; Iran, home of 13 hostages seized in the case; or the United States, which detained the Somalis — had either the capacity or desire to take on the costs and difficulties of prosecuting the suspects.

And the Seychelles, which in recent years has been a regional hub for hearing piracy cases, had no space in its tiny prison system for more convicts, American officials said.

Nonetheless, the recent transfer of several convicted pirates from Seychelles to Somaliland based upon a bilateral transfer agreement, freed up space in Seychelles to hold these defendants in jail and prosecute them. The U.S. Navy must be breathing a sigh of relief as considerable resources were occupied with maintaining the pirates on board:

A senior Navy officer expressed satisfaction at the Seychelles’ decision, which ended weeks of transferring the suspects among vessels at sea. The pirates, he said, first captured by the Kidd, a destroyer, had been held aboard three nuclear aircraft carriers, another destroyer and an amphibious warship before being brought ashore in Djibouti on Tuesday for a flight aboard an American military C-130 transport plane to the Seychelles.

Following on the London conference, a number of prisoner-transfer agreements were signed by East African states where prosecutions will most often occur and either Somaliland or Puntland, where UNODC is supporting the construction of new prisons. Until these new prisons are built, there will continue to be a bottleneck and could lead to a repeat of this incident where Somalis remain in military custody. This also raises some fair trial concerns. Insofar as it was not clear where they would be prosecuted, the Somalis could not very well have been charged with any offence during their two months in captivity. Piracy would have been the charge, but under which state’s legal system? Moreover, there remain questions as to how the prosecution will obtain eyewitness testimony. As we mentioned before, the Iranian hostages may not be at liberty to provide such testimony in order to support piracy charges for the hijacking of their fishing dhow. In addition, the nytimes notes that two of the pirates claim to be minors. All of that said, a solution has been found to the most pressing issue: where to prosecute. Other issues will remain for another day.

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