Pirate-Chasers Find Busting Brigands Is Easier Than Trying Them
By Gregory Viscusi
March 26 (Bloomberg) -- The world’s navies have gotten better at catching Somali pirates in the Gulf of Aden. Now they have to figure out how to bring them to justice.
European Union and U.S. naval forces have captured dozens of presumed brigands in recent months after beefing up their presence in the Gulf of Aden, the world’s most dangerous waters. Most have been let go or dumped on the shores of neighboring Somalia because of a lack of evidence or confusion over what jurisdiction can prosecute them.
“International law is very clear about giving any warship from any sovereign nation the right to suppress piracy in international waters,” said John Kimball, a maritime expert at law firm Blank Rome LLP in New York. “But it’s a messy burden. They need to be processed and given trials. Not many governments are willing to do this.”
Spurred by a spike in piracy last year, about 20 warships from 15 countries are patrolling the gulf between Yemen and Somalia, and nearby waters. Pirates assaulted 165 ships last year, seizing 43 of them for ransom, with 10 boats taken in November alone. Only five ships have been seized so far this year, and only one this month.
Since last August, when international naval forces began aggressively patrolling off Somalia, 127 presumed pirates have been apprehended and then released, according to the U.S. Navy. Another 35 are awaiting trial in Europe or Kenya, and 91 were handed over to authorities of Somalia’s various entities. At least three have been killed in gun battles with French and British commandos.
Somalia has lacked a central government, and a working justice system, since 1991.
“We do appreciate what’s been done and it’s starting to have an effect,” said Giles Noakes, head of security at Copenhagen-based BIMCO, the world’s largest shipping association. “Now the issue is, how do we assist the naval operation with the right legal framework?”
The United Nations Convention on the Law of the Sea gives sovereign nations the right to repress and prosecute pirates. France is one country that has tried, with little success.
In April 2008, French commandos leaped from helicopters onto Somali soil to seize six alleged pirates who had made off with $2.15 million in ransom from the hijacking of a French yacht.
The Somalis are still sitting in French prisons a year later, along with six other people captured by naval commandos who freed a hijacked French yacht in September. They haven’t been charged, and any eventual trial is at least 18 months away because of legal challenges and a backlog of criminal cases. A judge will rule April 6 on a defense motion to release them.
Court-appointed defense lawyers argue that the detentions violated the French requirement that suspects be released or placed under investigation within 48 hours of arrest. The military held the presumed pirates for seven days before sending them to France. After they arrived, authorities waited four days before placing them under investigation.
“No one is contesting that France is competent to judge piracy attacks against its citizens,” said Gustave Charvet, a lawyer for one of the Somalis, Mohamed Said Hote, who is being held in prison outside Paris. “But there has to be some legal framework. Here we are in a world of no law and no rights.”
Isabelle Montagne, a spokeswoman for the French prosecutor’s office in Paris, said the national law was respected and the investigation “is progressing.” Christophe Prazuck, a spokesman for the French military’s joint chiefs, said previous court cases determined that arrests at sea aren’t bound to the same time limits.
The Netherlands is the only other country to bring pirates home for prosecution. Five presumed Somali pirates were captured Jan. 2 by Danish frigate HDMS Absalon after attacking a Dutch Antilles merchant ship. They were held in Bahrain while a Dutch arrest warrant was processed and arrived in Rotterdam Feb. 11.
It’s the first time the Netherlands has put pirates on trial since the 17th century, said Wim de Bruin, a spokesman for the Dutch prosecutors. “We have a clear case based on videos and photos provided by the Danish Navy” that show the people attacking the boat, he said.
Reinier Feiner, a Rotterdam court-appointed lawyer defending one of the Somalis, disagreed: “They spent a month without legal assistance,” he said, adding that his clients deny attacking any ship. A public hearing is planned for May.
Let Them Go
More commonly, the suspects are just released. On March 20, the USS Gettysburg, a guided-missile cruiser, captured six presumed pirates after responding to a distress call from a Philippine-flagged ship. A helicopter pilot from the Gettysburg could see objects being thrown overboard, said U.S. Navy spokesman Matt Snodgrass in Bahrain. The Somalis were briefly detained and then returned to their skiff.
In the past two months, the U.S. and the EU have signed agreements with Kenya allowing them to turn suspected pirates over to the East African country for prosecution. Germany’s FGS Rheinland-Pfalz frigate delivered nine such detainees to a court in Mombasa, Kenya’s main seaport, on March 11. On March 5, the U.S. Echo turned seven over to Kenya.
The first trials are expected to start this summer, said Githu Muigai, managing partner of Nairobi law firm Mohammed Muigai.
Kenyan courts are likely to reject any jurisdiction challenges from defense lawyers, Muigai said. Even so, trials could drag on because of a backlog in Kenyan courts and the logistics of bringing foreign marines to testify.
“The real challenge will be to hold these trials expeditiously,” said Muigai. “But that’s a problem for the people on trial, not the prosecution.”