A Broader Trend of Engagement for China? On China’s Vote in Favour of an International Piracy Tribunal


It is fair to observe that China has generally disassociated itself with the flow of the international criminal justice. Voting against the Rome Statute in 1998 has best elaborated its stand on this issue. An “overly active” global court is perceived to have the potential to jeopardize state sovereignty, the cornerstone of the Five Principles of Peaceful Co-Existence China has consistently adhered to in its engagement of international affairs. A survey of China’s involvement with all the other UN-backed tribunals further confirms the above observation. Apart from Chinese judges, I am aware of only two senior staff to work in UN international tribunals. China is rarely interested in the work of these tribunals. Starting with low expectations, commentators were amazed, if not at all surprised, by China’s vote in favour of an international tribunal to prosecute piracy. In his speech at the UNSC debate, Chinese Ambassador Wang said his country would be in favour of the option of prosecution in Tanzania in an international court. To what extent is this an indicator of China’s broader trend of engagement with international criminal justice?

Observers arguing in favour of this proposition would suggest this happens in a wave of change in China’s view on international tribunals. In particular, China (the People’s Republic of China only took back the seat in the United Nations in 1971) for the first time appeared before the International Court of Justice in its proceedings in the Kosovo Advisory Opinion. China’s participation in this case is full-fledged, by both submitting written submissions as well as participating in the oral arguments. Lead by Ministry of Foreign Affair’s Legal Adviser, Ambassador Xue Hanqin (who later become a Judge at ICJ), the strength of the team is also unprecedented. As the words of Ambassador Xue plainly put:

[although] this is the first time for the People’s Republic of China to participate in the proceedings of the Court, the Chinese Government has always held great respect for the authority and importance of the Court in the field of international law.

If it is true that China has always paid tribute to the work of the ICJ, why is it only in 2009 that China first joined in its proceedings? One of the reasons is the nature of this case. It concerns the competing interests of the sovereign territorial integrity of a state and a minority group’s wish for independence under the principle of self-declaration. One may find it very easy to relate the situation to those China has been facing with regard to Taiwan, Tibet and Xinjiang. All of these regions are legally and constitutionally part of China and recognized as such by the overall majority of international community. Yet each of them has been through different degrees of secessionist movements, in particular Taiwan, which arguably has been enjoying a de facto independent status. Beijing has unequivocally submitted these territorial integrity issues as the core interests of China. To resolve these issues in favour of China has always been one of the foremost tasks of Chinese diplomats like Ambassador Xue and her team. Fortunately enough for us in favour of the proper functioning of international law, she has successfully persuaded the country and its rulers to endorse her endeavour at the International Court of Justice.

Those who are sceptical of the above proposition might suggest that this is also true for the case of international prosecution of piracy: enormous Chinese interests are at stake. Chinese vessels are not immune to piracy. In a wave of pirate attacks in 2008, a Hong Kong vessel was seized in September 2008. Later another attempted siege was launched on a Chinese fishery boat in December 2008 and was fortunately defeated by “friendly countries’ force”. At the end of that year, China decided to send its own battle vessels to the area, a practice lasting until today. Nevertheless, Chinese vessels continue to be harassed by pirates. For example, the Chinese vessel “De Xin Hai” was seized in October 2009. After arduous negotiations, Beijing was forced to pay a large ransom. China’s efforts have also extended to transnational crime along international rivers, more particular the Mekong. China has prominently displayed its naval force in response to recent deadly attacks along the river. In conclusion, a lesson has been learnt in Beijing: there must be an orchestrated effort in this regard, probably including the international prosecution of crimes.

Having highlighted the special situation of these two cases, the question to be answered is will these be the only isolated incidents? I would refute that argument. Simply stated, for a country as significant as China with national interests interspersed throughout the globe, these examples tend to exhibit a general pattern rather than isolated incidents. No Chinese would have imagined China being so much involved in piracy off the coast of an East African country. Yet here we are.  As Chinese have frequently said, there is always a direct cause and a fundamental cause for an event. Applying this formulation to the trend of engagement with international criminal justice, the tangible Chinese interests at stake are the direct cause whilst the fundamental cause is the rising awareness of the value of international law, the functioning of the international courts and at its remote back the growing role of China in the global affairs.

A further extension of this principle to the International Criminal Court is still far off and the road to Rome will not be easy. After Ambassador Xue’s team headed back to China, challenges to this endeavour appeared. Critics believe if the sovereign integrity argument was refused by the International Court of Justice, the legitimacy of this consistently adhered-to position will be undermined. This was later proved to be not at all pessimistic. After all, China has much to learn in defending its national interest through the international justice system. Yet the signal is clear, China is getting on board!

A Globalized System of Criminal Justice

Piracy and armed robbery incidents reported to the IMB Piracy Reporting Centre during 2011. Map courtesy of International Chamber of Commerce.

Criminal Justice for pirates has become a truly global affair, utilizing diverse state resources to funnel pirates through a limited number of regional states in East Africa back to their homeland of Somalia. More specifically, the UN’s preferred option for prosecuting Somali pirates will be national prosecutions in several East African states (Seychelles, Mauritius, Kenya, Tanzania) as well as in several semi-autonomous regions of Somalia (Somaliland, Puntland).  Prosecution in European states and the US would remain a backup plan. But this is only one piece of the criminal justice apparatus. Police functions in the Indian Ocean will continue to be performed by a combination of naval coalitions such as NATO and EUNAVFOR and by individual naval states with interests in commercial shipping through the high-risk piracy corridor (including the motley crew of the U.S., India, China, Iran, and others).  At the other end of the criminal justice chain is the prison system where there is currently a bottleneck.  In this regard, the United Nations Office of Drugs and Crime is in the process of refurbishing and building new prisons in Somaliland and Puntland to house convicted pirates.

This solution has several benefits as compared with the other solutions outlined by Jack Lang in January 2011. Prosecuting pirates in multiple regional states creates redundancies, so that if one or more courts prove incapable of continuing prosecutions, other options remain available. For example, Kenya recently stopped all of its piracy prosecutions due to a High Court decision ruling Kenyan courts did not have jurisdiction over piracy offences. Likewise, the Seychelles recently refused to accept pirates from a Danish ship because there was no guarantee that the pirates, if convicted, could be sent back to Somalia (for lack of prison space) and because the Seychelles’ limited judicial capacity. In situations such as these, other states might serve as back-up solutions so that prosecutions could be directed elsewhere.

Funneling Pirates Back to Somalia

Another advantage of this proposed solution is that it has the benefit of building local capacity. Instead of directing resources into a foreign institution, providing support to local courts and local prosecutors promises to increase the capacity of regional state institutions to address criminal justice issues beyond piracy.

The report also raises hopes that the financiers and organizers of piracy can be adequately addressed by East African states. In relation to Mauritius and Seychelles in particular, the report highlights the capacity of these states to prosecute inchoate crimes such as conspiracy, incitement and attempts to commit piracy. The UK and the Netherlands are funding a Regional Anti-Piracy Prosecutions Intelligence Co-ordination Centre (RAPPICC) in Seychelles, in part, for this purpose. This capability will be crucial in order to bring to justice those individuals who organize pirate enterprises, but never step foot on board a pirate vessel.

There will be heavy reliance on prisons in Puntland and Somaliland

However, the report and the plan are lacking in several respects.  First, the cost savings of this plan have likely been exaggerated. There is no final accounting provided in the UNSG report. But a cursory survey of the various costs associated with refurbishing courtrooms, providing expert assistance, hiring additional judges and prosecutors, conducting trainings and, especially building prisons, shows a quickly rising price tag. Combine this with additional unspecified costs that would likely accompany this proposal such as rule of law, general training, and governance projects and the costs may actually be about the same as a hybrid tribunal such as the Special Court for Sierra Leone or the Extraordinary Chambers in the Courts of Cambodia (about $40 million each annually). In any event, the proposed solution’s budget is modest compared with the sums that are currently being dumped into unsustainable solutions that fail to address the root of the problem.

In addition, the UNSG report apparently hazards some guesses as to the potential of its proposed course of action. Despite the different conditions in each country or region, the report indicates that Somaliland, Puntland, Kenya, and Mauritius will be capable of performing piracy investigations in 20 months and within two years would be able to prosecute 24 cases of 10 defendants each. These are good benchmarks to evaluate the success of these projects.  But it is hard to believe that they are realistic assessments of local conditions. The report evaluates the local capacities of each state/region indicating the number of prosecutors and judges in each. But it fails to compare these numbers of professionals to the actual populations that they must serve. Three hundred and five (305) Prosecutors in Tanzania seems to be a significant number compared to the 36 prosecutors for the whole of Somaliland. However, Tanzania’s population is 43.5 million and the population in Somaliland appears to be around 3.5 million. Therefore, the number of prosecutors per capita in Somaliland (1/10,000) is higher than in Tanzania (1/140,000). In addition, only 10 Tanzanian prosecutors would be in charge of piracy prosecutions. Likewise, the report fails to take into consideration the caseload of the respective prosecutorial groups that would be responsible for piracy prosecutions (i.e. the number of cases each attorney is responsible for, thereby dictating how much time they would have to devote to piracy cases). This suggests the projected capacities are not based upon a realistic assessment of current capacity.

More importantly, the report acknowledges that it was unable to predict with any accuracy the number of piracy cases that would likely proceed to trial. That is, how much prosecutorial and penal resources will likely be required in the next few years.  Due to the volatility of Somalia, the changing tactics of pirates and of commercial vessels responding with various self-defence measures, an accurate assessment in this regard is quite difficult. However, the report suggests that anticipating the numbers of piracy suspects likely to be apprehended at sea and transferred to regional states for prosecution was not possible because no information was available as to the reasons for the release of piracy suspects from the numerous states conducting naval anti-piracy missions in the Indian Ocean.  It is unclear why the UNSG was unable to obtain this information from various member states of the United Nations. But it has certainly left a conspicuous gap in the report’s findings.

Finally, the report ends without any recommendations as to how to prevent recidivism, including programs to retrain Somali prisoners and integrate them back into the community. In this regard, the proposed solution is short-sighted, enabling the relocation of pirates back to Somalia, but providing no real long-term preventative measures. The only permanent solution to piracy is a stable and economically prosperous Somalia. Hopefully, the London Conference can initiate positive reforms in this regard as it is widely accepted that the solution or piracy resides on land, and not at sea.

New Logo!

A big thanks to Steve Tierney of teaguesart for our new logo and header!

The Economic Cost of Piracy – Oceans Beyond Piracy Report 2011

The economic cost of piracy has joined the already substantial political and security concerns of such operations, as an issue requiring further research and consideration by the relevant stakeholders. In this vein, the Colorado-based One Earth Future Foundation, which studies the effects of piracy through the Oceans Beyond Piracy project, has released its 2011 working paper on The Economic Cost of Somali Piracy. In order to ensure reliability, the report builds on dialogue and feedback from Oceans Beyond Piracy’s 2010 assessment of the cost of piracy with data obtained through collaboration with maritime stakeholders from industry, government and civil society, in addition to commentators and experts in the field. As the second report of its kind, the paper aspires to flag pertinent concerns for the Oceans Beyond Piracy Working Group, which will release recommendations for a more coordinated, and comprehensive strategy against piracy in July 2012.

In highlighting its concerns about the economic cost of Somali piracy to relevant stakeholders and the wider community, the report estimates the 2011 economic cost of piracy to be $6.6 – $6.9 billion US dollars. The majority of which is spent in mitigation of piracy attacks rather than in ransoms, as is most commonly believed and also portrayed by the media. The report only calculates direct costs, as indirect figures were too difficult for the research to quantify and in doing so assesses nine different cost factors specifically focused on the economic impact of Somali piracy. Namely: increased speeds, military costs, security guards and equipment, re-routing, insurance, labour, ransoms, prosecutions and imprisonment and counter-piracy organisations. The report subsequently found that 80% of all costs relating to countering piracy attacks are covered by the shipping industry, while governments finance the remaining 20% of the expenditures. The approximately $7 billion figure for 2011, is down from the $7 – $12 billion that was estimated in the 2010 report. While the 2010 estimate was higher, the 2011 report is said to be based on more authoritative and exact information according to the author of the report Anna Bowden who explained that in reality the figures of 2010 and 2011 are likely to be similar.

Key piracy developments: overview

The report outlines what it believes to be the key piracy developments affecting the cost of piracy in 2011, where there was an increase in attacks by Somali pirates, particularly in the first quarter. There was a record of 237 piracy attacks, rising from the 212 in 2010. However the proportion of successful attacks fell, with only 28 of the vessels actually captured, in comparison to the 44 in 2010. This is most likely due to the use of private armed guards on vessels and naval operations that have become more familiar dealing with piracy issues. The report recognised that 99% of the $7 billion was spent on yearly recurring costs associated with the protection of vessels including $2.7 billion in fuel costs, $1.3 billion for military operations and $1.1 billion for security equipment and armed guards.

In other observations, shipping behaviour altered whereby shippers increased payments necessary to harden vessels, hire private security and increase speed in high risk areas. Further, the geographic expansion of pirate activities increased eastwards towards India, and northeast towards the Gulf of Oman and Strait of Hormuz. New trends in piracy mitigation included the rerouting of ships so that they transited close to the western Indian coastline rather than the Cape of Good Hope. As will be discussed below, only $16.4 million was spent on prosecutions and $160 million was collected by pirates in the form of ransoms, which is only 2% of the overall economic expenditure. These figures represent a disproportionately small contribution to the economic cost of piracy compared to the $7 billion spent in order to stop the attacks.

Further key developments surrounded ransoms, which increased from $4 – $5 million, as did the duration that ships were held hostage during negotiations. Meanwhile, the human cost in the loss of lives cannot be adequately quantified, but notably increased from eight in 2009 to 24 in 2011, despite the significant economic effort to avoid the attacks. 2011 evidenced an increase in seafarer deaths, in addition to specific incidents highlighted in the media where groups of pirates were accused of kidnapping tourists and humanitarian workers on land in Somalia and Kenya. This resulted in a more aggressive response from military forces conducting counter-piracy missions in the region while pirates changed their primary operations from large vessels to smaller fishing boats.

Piracy and prosecutions

An issue of particular interest is the comparatively low cost of prosecutions, imprisonment and local legal capacity building, which at $16.4 million is a relatively small proportion of the $7 billion overall economic cost of piracy. This figure is an estimate of the cost of trials and imprisonment in the four selected regions of Africa, Europe, North America and Asia. The report highlights that in attempting to find a legal resolution to the issue of piracy, in October 2011, the United Nations Security Council called on UN member states to criminalise piracy, asking member states to report to the Secretary General on the measures they have taken to criminalise piracy.

Certain countries such as the United States and Oman have sentenced pirates to life imprisonment, with South Korea sentencing one pirate to death for murder. In estimating the cost of prosecutions in 2011, the report calculated the average cost of pirate trials that were conducted, in addition to the cost of imprisonment for suspected Somali pirates during the year, accordance with economic development and prosecutorial costs. The cost of trials and imprisonment in Kenya and the Seychelles were not included, due to the fact that the relevant costs for these prosecutions are covered by funding from the UNODC Counter Piracy Programme and other international funding mechanisms.

According to a report released in 2011 by Jack Lang, the United Nations Secretary General’s Special Adviser on Legal Issues Relating to Piracy off the Coast of Somalia, more than 90 per cent of captured pirates will be released without prosecution. The report notes that over the previous few years 1,089 pirate suspects had been arrested for piracy and those individuals have either been tried or are awaiting trial in 20 countries, a figure which has risen from 10 countries in 2010. Lang therefore proposed a specialised extraterritorial Somali court system with its seat in Arusha, Tanzania based on an estimated cost of $2.73 and $2.33 for each following year.

In consideration of this, and as already discussed in this blog, criticisms as to the resources needed for a fully internationalised piracy tribunal, that may cost up to an estimated $100 million, are short sighted against the report’s figure of $7 billion for the overall cost of piracy. In an earlier post by Matteo Crippa, we indicated that the most relevant issue in evaluating the effectiveness of international prosecution was its real deterrent effect. In comparison to an overall figure of $7 billion, $100 million for an international tribunal, however costly in isolation is comparatively low. These disparate figures might also justify a substantial increase in funding for the current localised prosecutorial initiatives, which are similarly capable of meeting effective deterred goals. Whatever solution is chosen, it is clear that prosecutions have not been prioritised as a budgetary matter.

Conclusions

The 2010 Oceans Beyond Piracy report was widely referred to in piracy commentary. The updated and more accurate 2011 version has already been critiqued by various sources. When considering that protecting vessels through high insurance premiums, onboard guards and re-routing costs $7 billion in comparison to the $160 million Somali pirates receive in ransoms or the comparatively small $16.4 million spent on prosecutions and imprisonment, there is an obvious disconnect and disproportionality in dealing with this issue. There is an ever present argument that insurance companies, as well as Private Maritime Security Contractors (PMSCs), earn more from piracy than the pirates themselves, which is well supported by this report, which showed evidence that 99% of piracy costs are recurring. This means that they will be repeated every year and will only fluctuate if piracy itself reduces to the extent that it warrants a change in political and economic approaches to the problem.

The report therefore suggests that stakeholders need to reassess the long-term sustainability of the costs outlined. The fear and preventative economic investment in piracy however looks set to increase with incidents such as Somali pirates launching their first attack in territorial waters when they raised a vessel near the Gulf State of Oman. One particularly disturbing piracy trend is that pirates have begun to focus their attention on people rather than ships. There have been incidents where pirates release the ships, but keep the crew for ransom purposes. This has extended to pirates kidnapping hostages on land such as humanitarian aid workers and tourists in Kenya and Somalia.

While not quantifiable in economic terms, the human cost of piracy is higher than any economic figure given. Twenty four people were killed by pirates in 2011, but hostages were held for longer in order to negotiate higher ransoms, which the report states took an average of 178 days (or six months). Also forgotten are the deaths of the pirates themselves. Due to the economic disconnect between pirate ransoms and the overall economic cost of pirate deterrence, it is clear that a purely mitigating or preventative policy does not offer a solution to control or alleviate piracy. Neither the military nor shipping industry have been successful in stemming the problems and the more money that is invested does not seem to reduce the cost to human life. One option is to stabilise the situation on the ground in Somalia in political and economic terms. As the report notes, very little is spent on the root causes of piracy, suggesting a redirection of investments from short-term symptoms to long-term solutions.

 

Upcoming event: Panel on Establishment of a Special Anti-Piracy Tribunal: Prospects and Reality

As part of the ABA Section of International Law, 2012 Spring Meeting in New York, 17-21 April 2012, there are two panel discussions that may interest readers. The first will discuss the legal issues surrounding the prosecution of piracy. For further background on the Kenyan High Court decision see here. The second panel will take a look back at one of the precursors to modern international criminal law, the Nuremberg trials.
Establishment of a Special Anti-Piracy Tribunal: Prospects and Reality
Tuesday, 17 April 2012, 4:00 pm – 5:30 pm

Two hundred years ago, piracy was recognized as the first “international” crime. Recently, piracy has re-emerged as a major problem for international commerce. In the last two years, Somali pirate attacks off the Kenyan and Somali coasts have caused over $25 billion in losses. Although the UN Security Council authorized the international community to capture Somali pirates and turn them over to Kenya for prosecution, Kenyan courts have struggled with the novel legal issues presented before them. A Kenyan High Court Judge recently ruled the Kenyan Piracy Court cannot obtain jurisdiction over captured pirates because Kenyan law lacks the requisite statute granting such jurisdiction. Prosecuting pirates involves knowledge of international treaties, criminal law, maritime law, and unusual evidentiary gathering rules, which is challenging and even dangerous. This panel will provide a basic understanding of these complex legal issues and how the many parties involved are trying to resolve this continuing international dilemma.

Moderator: Anthony Colleluori, Anthony Colleluori & Associates, PLLC, Melville, New York

Speakers: Sandra Hodgkinson, National Defense University, Alexandria, Virginia

Rosemelle Mutoka, Kenya Piracy Court  Chief Judge, Kenya

Michael Scharf , Case Western Reserve University, Cleveland, Ohio

The Evolution of International Criminal Law: Problems and Perspectives

19 April 2012,  4:30 pm – 6:00 pm

A conversation with Ben Ferencz, the sole surviving American who served as a prosecutor at the Nuremburg trials of Nazi war criminals. Ferencz was Chief Prosecutor for the United States in The Einsatzgruppen Case, which the Associated Press called “the biggest murder trial in history.” Twenty-two defendants were charged with – and convicted of – murdering over a million people. In addition to his wartime and Nuremburg experiences, Ferencz will discuss Nuremburg’s implications for the rule of law and the international criminal court.

Program Chairs & Moderators: Michael H. Byowitz, Wachtell, Lipton, Rose & Katz, New York, New York

Don Ferencz, The Planethood Foundation, New York, New York

Speaker: Ben Ferencz , New Rochelle, New York

UK House of Commons Issues Piracy Report, Eyes Private Security Guards on Board, Local Prosecutions in East Africa (Part II)

This is the second part of an earlier post discussing the UK Foreign Affairs Committee Report on piracy off the coast of Somalia.

Regional and Local Prosecutions of Pirates (paras 74-110)

The trial and prosecution of pirates is also an extremely relevant, and pressing, topic. As noted in the Report, the peculiar features of modern day piracy, particularly in the Gulf of Aden and the lack of cohesive governance in Somalia, create several practical difficulties, including the apprehension, detention on board and transfer of suspected pirates. One of the primary purposes of policing activities through naval operations is, indeed, its deterrent effect on pirate attacks rather than the arrest and prosecution of the perpetrators.

The collection of sufficient evidence to secure successful prosecutions is particularly problematic, as we noted in a recent post. It should be remarked how any evidentiary assessment on whether to bring alleged perpetrators to justice should, ordinarily, be best placed in the hands of judicial authorities as neutral fact-finders rather than subject to the prelimary evaluation by the naval authorities upon the capture of suspected pirates. Moreover, the Report correctly points out how such assessment could benefit from modern technological means already available to the naval authorities, namely video, radar and satellite recording. In addition, remote testimony via video or audio link is recommended, particularly when victims are located in third countries or, more likely, have already set sail.

Modern international law asserts the possibility to exercise universal jurisdiction over piracy prosecutions. However, as one expert who gave evidence before the Committee put it, the obstacle to prosecution is not identifying the appropriate jurisdiction, but rather the inability, and unwillingness, to prosecute. In addition, the surge of modern piracy and armed robbery at sea has exposed the current inadequacy of national laws, including in the UK, against piracy. For those operating within the field of international criminal prosecutions, the phenomenon is not new. Several states suddenly found themselves incapable to put Genocide suspects on trial before municipal courts due to the inadequacy of their national laws in enacting the provisions of the Genocide Convention.

We have also discussed whether the response to modern piracy should contemplate a revision of the existing international counter-piracy legislation and mechanisms, in particular because it appears that current treaties have difficulty in addressing the difference between political and purely-financial motivations of pirates attacks, or whether attempted attacks are also punishable. Interestingly, as noted in the Report, the IMO has taken the view that “the development of a new multilateral instrument might be premature, or unnecessary, in light of the existing international legal framework on piracy, which was generally considered to be adequate”. Some concerns remain, however, particularly on the practical implementation and effectiveness of these mechanisms.

The main recommendation contained in the Report with regard to options for the investigation and prosecution of pirates is therefore the rejection of the establishment of a specialized Somali tribunal, initially recommended by the UN Special Adviser to the Secretary General Jack Lang as one possible alternative. This option would have established a court outside of Somalia in a neighboring state (most likely Tanzania) with funding and administration from the international community, but would employ Somali judges applying Somali law. There appear to be a number of compelling legal complications against such court, including its legality vis a vis the Somali Constitution. The UK Report rejected this proposal stating:

 “the Government was right to oppose the establishment of an extra-territorial Somali court as proposed in the Jack Lang report to try Somali pirates in a third country. We recommend that the Government set out in its response to this report its views on the more recent proposals for specialised anti-piracy courts established within regional states under ordinary national law.”(para. 92)

Among the main arguments in support of this conclusion are also the possible high costs of an extra-territorial institution, with a tentative figure of $100 million a year. This is not convincing, particularly considering the lack of clarity at the basis of this figure as well as the present estimates of the global costs of piracy, which already identified high costs from the current prosecutions as well as a cost of ransoms alone capping over $130 million per year. In addition, this figure would remain a fraction of the overall economic costs of piracy. It must be acknowledged, however, that an extra-territorial court, financially supported by international organizations, might not be able to promptly contribute as an anti-piracy deterrent and develop effective outreach capabilities within the turned-pirate population in and around the Gulf of Aden.

The rejection of the UN-funded option reflects a gaining trend to favor specialized piracy prosecutions within the area where the alleged attacks took place, counting on a much stronger deterred effect than trials taking place thousands of miles away. Local prosecution projects have already taken shape in Kenya, Mauritius and Seychelles, among other countries in the region. In addition, a small number of historic trials were also held in the US, Germany and the Netherlands, mainly because the alleged pirates were captured by the naval forces of these countries, or due to a nexus between the piracy acts and these latter.

However, while piracy prosecutions in the UK are still contemplated, albeit in limited circumstances, in the Report, the support expressed therein for local or regional anti-piracy courts also present several difficulties which should be carefully weighed. Requesting the help of regional states to prosecute pirates in their courts does not obviate the need to provide support to the various local authorities in the form of financing, training, monitoring and oversight extending not only to the mere prosecutions and trials of suspected pirates, but also to transfer, investigation, security, procurement and infrastructures as well as pre-trial and post sentence detention. Indeed, the fate of a recently arrested group of alleged Somali pirates by the UK Royal Navy after both Kenya and the Seychelles have refused to detain them because “their court systems are swamped”  is a rather timely reminder of some of these difficulties. As the Kenyan government stated last year when it refused to continue piracy prosecutions, ““We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.”

Secretary General Issues Report of Piracy Court Possibilities

After several months of consultations with the relevant parties in Somalia and regional states that could assist with piracy prosecutions, the Secretary General has issued a report . My very brief synopsis: Somaliland, Puntland and the TFG in Mogadishu want any and all piracy courts to be based in Somalia, but disagree as to precisely where. Regional and national legislation will need to be enacted that is in accordance with the Somali Constitution. The UN may still provide international assistance in the form of judges, prosecutors and defence, and there is a preference to send members of the Somali diaspora to fill these posts. Although the report was requested in order to bring these courts into existence, the SG could not estimate with any precision the potential cost of these courts or the length of time it might take to lay the legal and logistical groundwork. In order to create a special Somali court, there will need to be agreement between the various factions and regions in Somalia as to legal basis and potentially the seat of the court. On the one hand, there is not a sterling track record for reaching consensus between these parties. On the other hand, the financial and security incentives that could arise from creating these courts may be a golden opportunity to initiate successful negotiations. See the full report here.