concept paper on piracy prosecution initiatives

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CONCEPT PAPER ON PIRACY PROSECUTION INITIATIVES, PROBLEMS AND

SOLUTIONS BY THE INTERNATIONAL COMMUNITY

WRITTEN BY

AHMAD RAWI

The writer can be contacted at

[email protected]

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I. INTRODUCTION

Format and Scope of This Concept Paper

This concept paper will deal with the issue of prosecution of piracy occuring beyond territorial

waters of states or more familiarly known as piracy jure gentium,in particular the apparent lack of

it. Toward this end,this concept paper will be divided into three parts literature reviews. In the first

part, this paper will review literature on jurisdiction of states to try the crime of piracy jure

gentium,keeping in mind that in many jurisdictions there are two types of piracy i.e. piracy jure

gentium and the offence of piracy as laid down by municipal (state) law. In the second part, this

paper identifies the problem and lacunae in the current situation with regard to the issue of piracy

jure gentium prosecution. Finally in the third part, this paper will review literature on the specific

recommendation to fill in this lacunae, in particular the role undertaken by the United Nations

through the Security Council.

II. LITERATURE REVIEW ON THE JURISDICTION OF STATE TO TRY CRIME

OF PIRACY

Background

In order to appreciate the issue at hand, a survey of the definition of piracy as found in various

literature and statutes has been conducted for the purpose of this paper and the result reveals a lack

of coherent conceptual framework of what piracy is.

According to Oxford Dictionaries, piracy is the practice of robbing ships at sea and etymologically

is imported into the corpus of English words via Medieval Latin from the Greek wordpirateia.De

Souza (2002,p.3) has carried out a lengthy discourse on the etymology of the term

piracy.According to De Souza the English word piracy has its earliest origin in the Greek word for

bandit. The Ancient Greek has two common words that can be translated as pirate, leistes and

peirates.Leistes is derived from the Greek word leis which in turn originate from the Indo-

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European root word lau (meaning booty or plunder) and the essential meaning ofleistes is armed

robber or plunderer (De Souza,2002.p.3). The other word,peirates, came to the corpus of the

ancient Greek words later than the word leis and is probably derived from the wordpeira,meaning

a trial or attempt, and could have some connection with peirao, the meaning of which is to make

an attempt at something (De Souza, 2002,pg.3).

In modern day usage the definition has been contextually applied to other form of robbery

especially hijacking of other mode of transports e.g. aerial piracy. De Souza (2002) stated that

piracy is a term with pejorative connotation and defines pirates as armed robbers whose activities

normally involve the use of ships (p.1).A broad corollary to this definition of pirate is that piracy is

an act of armed robbery carried out by armed robbers such as defined in the foregoing.Legal

definitions of piracy vary contextually and in this regards, definitions of piracy are not uniform at

the municipals (state) law level, international law level and also at supra-national level (e.g.

relevant organizations such as International Maritime Organization)which will be discussed further

below.

Definition of Piracy Under Customary International Law

Under the customary international law, piracy is known as piracy jure gentium and it is universally

recognized as a violation of customary international law rendering prosecution of it to fall under

the jurisdiction of all states (Joiner 1974,p.53).When people mentions about law, they usually

means case law (i.e. law brought into existence by virtue of court decisions), administrative law

(i.e. law created by the executive branch of the government or fiat) or jure gentium law (law

brought into existence by international convention,custom or treaty) (Gregg Barak pg 132 Crimes

by the capitalist state: an introduction to state criminality).The offence of piracy does exist as a jure

gentium legal entity (Ibid,p.132),however,only certain types of activities on the high seas fall

within the exclusive domain of piracy jure gentium under the customary international law(Joiner

1974,p.19).

Definition of piracy jure gentium varies, for example, according to Joiner (1974,p.19) in order to

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constitute piracy jure gentium, the act of violence must be sufficient in degree e.g. robbery,

destruction by fire or other forcible depredations such as grave injury to persons or property.

Further, it should be committed on the high seas as opposed to acts committed within the territorial

jurisdiction of any state. According to Wheaton (1936,cited in Joiner 1974,p.19) the perpetrators, at

the time of the commission of the act, must be rogues or outlaws i.e. not under the command or

control of a lawful authority or should have made themselves so by their deed (e.g. a mutinied

navy ship). Martin and Astone (1980:p.127 cited in Georges-Abeyie,1991, p. 132) put it succinctly

that most jure gentium piracy definitions involve the seizing of a private vessel by another private

vessel or by an on-board offenders and such a seizure must occur over or in international waters or

air space and is carried out for private gain (i.e. motivated by profit), with the offender vessel not

being a military or police vessel of a recognized nation state.

Definition of Piracy under UNCLOS and According to International Maritime Organization

The 1982 Convention definition of piracy echoes that of customary international law and can be

found in Article 101(1) of the same. Article 101(1) stated that:

Article101. Definition of piracy

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for

private ends by the crew or the passengers of a private ship or a private aircraft,

and directed:

(i) on the high seas, against another ship or aircraft, or against persons or

property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the

jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with

knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in

subparagraph (a) or (b).

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Zou Keyuan (2008, p. 160) points out that the above UNCLOS 1982 definitions has

limitation.Firstly, it requires that for the violence act to constitute piracy,it must be for private ends

therefore terrorist act at sea for political ends are generally excluded. Secondly, the definitions

requirement of two vessels principle i.e. piracyjure gentium presupposes that a criminal act be

exercised by passengers or the crew of a ship against another ship or persons or property on

boards.Finally,piracy must occur on the high seas and piratical acts within territorial waters are not

subject to the above definition.

To remedy this limitations, the IMO has attempted to divide acts of piracy into two categories by

geographical and legal division of maritime zones:piracy on the high seas is defined as piracy

under the LOS Convention definition,while acts of piracy in ports or national waters (internal

waters and territorial sea) are defined as armed robbery against ships.According to Zou Keyuan

(2008,p.160), the shortcoming of such division is obvious :piracy is not equivalent to armed

robbery and it may also include other violent acts such as murder,assault and rape.

In this regard, the definition offered by the International Maritime Bureau (IMB) may offer a

solution. The IMB, a part of International Chamber of Commerce (ICC), established the Anti-

Piracy Centre (APC) in Kuala Lumpur, Malaysia for the purpose of reducing the incidence of

piracy.The IMB defines piracy as an act of boarding or attempting to board any ship with intent to

commit theft or any other crime and with the attempt or capability to use force in furtherance of

that attack. This definition makes no distinction between attacks on the high seas and in territorial

waters, which means that attacks from a raft or even from the quay are acts of piracy.The definition

also does not require that the act of piracy be committed for private ends. Attacks on ship for

political or environmental reasons also qualify as piracy (Johnson, Pladdet and Valencia

2005,p.xii).

Definition of Piracy Under Municipal Law

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Definition of piracy under municipal laws varies according to jurisdiction. In the United States, the

law criminalizing piracy is found in 18 U.S.C., Section 1651 which is entitled Piracy under law of

nations and which provides that Whoever, on the high seas, commits the crime of piracy as

defined by the law of nations, and is afterwards brought into or found in the United States, shall be

imprisoned for life.

There is no single statute in the United Kingdom which govern the offence of piracy and a

mosaicing of relevant provisions from different statutes is necessary to obtain a bigger picture of

the existing English legal framework concerning piracy. The English statutes do not have their own

definition of what constitute piracy and instead rely on definition provided by United Nations

Convention on the Law of the Sea (1982) or UNCLOS 1982. Section 26 (1),(2) and (4) of the

United Kingdoms Merchant Shipping and Maritime Security Act 1997 (elaborated further in

discussion on jurisdiction below).

Under the English Law, it has been declared that actual robbery is not an essential element of

piracy jure gentium by the Privy Council in the case In Re Piracy Jure Gentium. In that case the

Privy Council were faced with a question of law :Whether an accused person may be convicted of

piracy in circumstances where robbery has not occurred. The decision of the Privy Council was

actual robbery is not an essential element in the crime of piracy jure gentium. A frustrated attempt

to commit a piratical robbery is equally piracy jure gentium1. In the Malaysian context, there is

no statutory criminalization of piracy under the Malaysian laws, though the High Court is vested

with the jurisdiction to try piracy jure gentium as elaborated further below.

Jurisdiction to Prosecute The Crime of Piracy Under International Law

Under the international law, there are five principle by which states gain jurisdiction over crime

prescribed as jure gentium crime ,namely :

1. The Active Nationality Principle which is the concept that each State may..punish

1 In Re Piracy Jure Gentium, Privy Council Order available from British and Irish Legal Information Institute(BAILII) url :http://www.bailii.org (Fill in Piracy Jure Gentium as search term in BAILII search engine)

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crimes committed anywhere by its own nationals; this principle is in [no] way

controversial (Johnson 1965,p.75 cited in Georges-Abeyie 1991,p.133).

2. The Territorial Principle, the concept that each state may punish crimes committed on its

own territory,whether by its own nationals or by foreigners(Johnson 1965,p. 75 cited in

Georges-Abeyie 1991,p.133).This principle is also not controversial.

3. The Passive Nationality Principle, whereby the State which claim jurisdiction by virtue of

this principle arrogate to themselves, the right to punish crimes, wherever committed, of

which their own nationals are victims..(Johnson 1965,p. 75 Georges-Abeyie

1991,p.133).This principle is highly controversial.

4. The Universal Principle, which authorizes all States to punish crimes of heinous nature

which threaten the international community as a whole (Johnson 1965,p.76 Georges-

Abeyie 1991,p.133).

5. The Protective Principle which declares that States may punish crimes, wherever

committed,which directly threaten their own security(Johnson 1965,p.76 Georges-Abeyie

1991,p.133 ).

This concept paper will only review literature relating to the principle most often invoked to

prosecute piracy jure gentium namely the universal principle. Most traditional jurisdictional basis

is territorial jurisdiction which is justified by some nexus between a state and a particular crime

(Inazumi 2005,p. 49).However, with regard to universal jurisdiction over piracy jure gentium, the

requirement of nexus is waived.The crime of piracy (jure gentium) ,without controversy, is the

longest recognized crime to be subject to universal jurisdiction (Inazumi 2005, p.49-50). The

rationales why universal jurisdiction is recognized for piracy under international law are two

pronged. Firstly is due to the gravity of the crime of piracy, rendering the perpetrators to be hostis

humanis generis (enemy of mankind) and forcing states to recognize that it is not only in the

interest of the individual state that piracy be punished but also in the interests of states constituting

the international community in general (Inazumi 2005, p. 50) Universal jurisdiction in modern

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international law: expansion of national).The second rationale is the lack of eligible jurisdiction or

the uncertainty as to which state had jurisdiction over a case. Because acts of piracy are committed

on the high seas an area which is outside the territorial waters of any state and therefore belongs

to none- invariably no state possessed jurisdiction to punish such acts of piracy, and states

including the flag state were unable to prosecute effectively. Due to this it was held that any state

that is capable of capturing suspects and of prosecuting and punishing them effectively could take

that opportunity. Otherwise, it would be very difficult to combat the crime of piracy (Inazumi

2005, p. 51).

The applicability of universal jurisdiction to the crime of piracy jure gentium which originates

from customary international law is embodied in Article 105 of the 1982 Convention on the law of

the Sea.Article 105 of the 1982 Convention stated that :

Article 105. Seizure of a pirate ship or aircraft

On the high seas, or in any other place outside the jurisdiction of any State, every State

may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the

control of pirates, and arrest the persons and seize the property on board. The courts of

the State which carried out the seizure may decide upon the penalties to be imposed, and

may also determine the action to be taken with regard to the ships, aircraft or property,

subject to the rights of third parties acting in good faith.

The UNCLOS 1982 provisions above is generally accepted as declaratory of the position of

customary international law with respect to universal jurisdiction over piracy jure gentium

(Reydams 2005, p. 58 Universal jurisdiction: international and municipal legal perspectives).Under

the 1982 Convention, in order for an act to constitute an act of piracy jure gentium which is subject

to universal jurisdiction, the locus delicti (place of the act) must be the high sea or a place outside

the jurisdiction of any State. Such acts of violence must also be committed for private ends by

crews or passengers of private craft in order to constitute piracy jure gentium.(Reydams 2005, p.

58).These two particular constitutive elements i.e. the place where the act has taken place (locus

delicti) and the requirement that the the act must be done by private actors (i.e. non-sovereign

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entity) are the reason why universal jurisdiction over piracy is undisputed since the exercise of

such jurisdiction cannot possibly infringe on another states sovereignty (Reydams 2005, p. 58).

Jurisdiction to Prosecute The Crime of Piracy Under Municipal Law

In order for international rules to be applied by the state within their legal systems, generally it

needs to be incorporated into the domestic law. The extent to which the provision criminalizing

piracy as respectively found in Convention on High Sea and UNCLOS 1982 is incorporated by

individual state varies. In the United States for example legislation and case law is clear on this i.e.

the United States court has jurisdiction to try the offence of piracy jure gentium as provided by 18

U.S.C,S. 1651 and as shown by the trial of Somalian defendants in the case of United States v.

Hasan and United States v. Said discussed below. Criminal resource manual published by the

United States Department of Justice, in its comment on 18 U.S.C,Section 1651 states that since

1819, the United States has had jurisdiction to prosecute anyone who commits the crime of piracy,

as defined by the law of nations, on the high seas and is later brought to or found in the United

States2.

In the United Kingdom, the legislation conferring universal jurisdiction to the United Kingdom

courts to try the offence of piracy jure gentium is found in section 26 of the United Kingdoms

Merchant Shipping and Maritime Security Act 19973 which provides, among others, as follow :

26. Piracy

(1) For the avoidance of doubt it is hereby declared that for the purposes of any

proceedings before a court in the United Kingdom in respect of piracy, the

provisions of the United Nations Convention on the Law of the Sea 1982 that are

set out in Schedule 5 shall be treated as constituting part of the law of nations.

(2) For the purposes of those provisions the high seas shall (in accordance with

2 Available fromhttp://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00009.htm

3 Available fromhttp://www.legislation.gov.uk/ukpga/1997/28/section/26

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paragraph 2 of Article 58 of that Convention) be taken to include all waters

beyond the territorial sea of the United Kingdom or of any other state.

Schedule 5 simply sets out articles 101 to 103 of the UNCLOS 1982 as follow :

Article 101. Definition of piracy

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for

private ends by the crew or the passengers of a private ship or a private aircraft, and

directed

(i) on the high seas, against another ship or aircraft, or against persons or property on board

such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any

State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with

knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or

(b).

Article 102. Piracy by a warship, government ship or government aircraft whose crew

has mutinied

The acts of piracy, as defined in article 101, committed by a warship, government ship or

government aircraft whose crew has mutinied and taken control of the ship or aircraft are

assimilated to acts committed by a private ship or aircraft.

Article 103. Definition of a pirate ship or aircraft

A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in

dominant control to be used for the purpose of committing one of the acts referred to in

article 101. The same applies if the ship or aircraft has been used to commit any such act,

so long as it remains under the control of the persons guilty of that act.

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In Malaysia, the Malaysias Comments on the Scope and Application of the Principle of Universal

Jurisdiction Pursuant to GA Resolution 64/117 of 16 December 2009, item 9 stated that:

For Malaysia,recognition of the principle of universal jurisdiction over piracy by the law

of nations is as provided under section 22 of the Courts of Judicature Act 1964 (Revised

1972) [Act 91] which provides that :

22. (1) The High Court Shall have jurisdiction to try -

(a) all offences committed

(i) .

(ii)

(iii) .

(iv) by any person on the high seas where the offence is piracy by the

law of nations;....

However, the same Comment clearly states that as of April 30, 2010 (the date of the

Comment),there is no statutory criminalization of piracy under the Malaysian laws.

III. LITERATURE REVIEW ON THE LACUNAE IN PIRACY PROSECUTION

The lacunae in piracy prosecution is the lack of an effective system of prosecution of the pirates.

The Security Council, in its resolution 1918 (2010)4,affirmed that the failure to prosecute persons

responsible for acts of piracy and armed robbery at sea off the coast of Somalia undermine the anti-

piracy efforts of the international community. From the literature review, it can be concluded that

the underlying problems in the failure to prosecute piracy can be attributed to the following :1. Absence of concrete legal framework concerning piracy prosecution at International

(convention and treaty) and at municipal (state) level (i.e. domestic legislation).

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2. the cost involved in bringing the perpetrator to justice.

3. the lack of political will of the international community.

Report of the Secretary General pursuant to Security Council Resolution 1897 (2009)5 (pg 10)

admitted that the prosecution of pirates presented a problem not only for Somalia and its

neighbours, but also for the international community.(pg. 10).The report stated that among others,

many countries have considerable lacunae in their domestic law regarding the issue of piracy.

The other problem in prosecuting piracy noted by the report with (regard to legal framework)

concern the procedural aspects of prosecution. According to the report, investigations,

information-sharing, and the finding and keeping of witnesses for the duration of a trial, most of

whom are seafarers who change ships and companies regularly, are difficult tasks.

1. Absence of Concrete Legal Framework Concerning Piracy at International and States level

This paper will discuss the lacunae under this heading by reviewing the literature on three weak

areas in the existing legal framework concerning piracy at International and State levels.

1.1 Inadequacy of UNCLOS 1982 with regard to prosecution of pirates

UNCLOS 1982 stops short from providing the guidance on how the pirates should be prosecuted.

UNCLOS 1982 imposes a duty on states to cooperate in the suppression of piracy, but no explicit

duty to prosecute. In practice, legal theorists have to turn to provisions under the Convention for

the Suppression of Unlawful Acts against the safety of Maritime Navigation 1988 (the SUA

Convention) to justify the states practice of capturing pirates, in particular, pirates of the coast of

Somalia and prosecuting them. The SUA Convention are counter-terrorism treaty adopted in

response to the attack in 1985 of the Achille Lauro and it does not cover the offence of piracy, but

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many act of piracy will be offences within its terms. The Convention obliges states to criminalise,

among others,armed robbery at sea, an act which would amount to piracy if committed in the

circumstances outlined by UNCLOS 1982 (Chatham House,2009, p. 3). With regard to prosecution

of pirates, UNCLOS 1982 is silence as to how the pirates is to be prosecute.SUA Convention

however places obligations upon states to have adequate national laws implementing the SUA

Convention offences and either to extradite or prosecute suspects found within their territory,

irrespective of where the offence was committed. UNCLOS 1982 says nothing about transferring

suspects to another jurisdiction, but the SUA Convention provides that a master may disembark a

suspected person in port (Article 8(1)) and includes procedure for such action. The primary

obligation is on the port state to receive the suspect unless they have very strong grounds for

refusing to do so. In such circumstances, the port state may try the suspect either as a pirate or for a

SUA Convention offences, depending upon their national law (Chatham House,2009, p. 6).

According to Blanco-Bazan (2001,p.1), the situation where warships are compelled to release

alleged pirates due to lack of a proper legal title to hold them in custody is brought about by legal

uncertainties regarding the extent to which warships can enforce coercive measures in order to

suppress piracy. According to Blanco-Bazan further, this phenomenon illustrates the bewildering

irony of states display if intimidating navy power and at the same time the inability of the same

navies to function as an effective deterrent.(p. 1).Blanco-Bazan is of the view that force without

law leads to nowhere and unless laws ensuring prevention and prosecution of piracy are in place,

no amounts of ships or weapons will be effective enough to discourage piracy. Force, according to

Blanco-Bazan, must become enforcement, namely the exercise of preventive and punitive action

within a clearly defined legal framework.

In view of the adequacies of UNCLOS 1982 when it comes to piracy prosecution, enforcement

authorities throughout the world are suggesting the application of SUA Convention above in

combating piracy.However, several countries have indicated that they have difficulties to apply it

to cases of piracy because of the different historical background and treaty law features of

UNCLOS and SUA Convention (SUA Convention primarily a treaty to suppress terrorism).

1.2 Inadequacy of the domestic laws of the states parties to UNCLOS 1982

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According to Blanco-Bazan (2001), legal certainty can only be achieved on the basis of an

adequate implementation in national law of both the UNCLOS 1982 anti-piracy provisions and the

SUA Convention. The International Maritime Organization (IMO) recommendation to

Governments for preventing and suppressing piracy and armed robbery against ships (IMO 1999)

has recommended that states take such measures as may be necessary to establish their jurisdiction

over the offences of piracy and armed robbery at sea, including adjustment of their legislation to

enable them to apprehend and prosecute such offences.

Before a person suspected of the offence of piracy can be transferred to a state for prosecution, that

state must have the necessary domestic legislation authorizing that act. Prosecution of piracy jure

gentium is therefore only permissible after the particular rules of international law authorizing

states to prosecute piracy has been incorporated into the domestic legislation by the parliament to

implement the said international rule. The Security Council, in its resolution 1918 (2010)6, has

noted with concern that the domestic law of a number of States lacked provisions criminalizing

piracy and/or procedural provisions for effective criminal prosecution of suspected pirates, and

called on all States, including States in the region, to criminalize piracy under their domestic law

and favourably consider the prosecution of suspected, and imprisonment of convicted, pirates

apprehended off the coast of Somalia, consistent with applicable international human rights law. In

this regard, Belgium, Japan and Seychelles each reported that they had recently adopted new

legislation on piracy while the development in Kenya needs a special mention in this paper.

Inadequacy of domestic laws is also attributed to the different definition of what piracy is in the

domestic legislation.Piracy is no longer piracy when the violence act happens in territorial

waters.Going by this definition, in Straits of Malacca, piracy can never legally take place since

Article 3 of UNCLOS 1982 awards states sovereignty over territorial sea, which extends twelve

nautical miles off a states coasts, the Strait of Malacca falls within the jurisdiction of the coastal

states of Malaysia,Indonesia and Singapore and as such piratical attacks within these waters

constitute armed robbery (De La Pena 2009, p. 2). According to IMO definition, when such act

occurs, it is armed robbery at sea. Armed robbery at sea is the undisputed responsibility of coastal

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states. But sometimes, legislation against piracy (armed robbery) in domestic waters can also be

inadequate (Murphy 2007, p. 166). This inadequacy in domestic law is best illustrated by two

recent piracy cases in the United States whereby the courts arrived in different conclusions while

interpreting the scope of a controlling provision in the relevant domestic legislation (Mason, 2010).

The United States Navy, after successfully thwarting two separates alleged acts of piracy,

transferred the suspected perpetrators to Norfolk,Virginia for criminal trials in the U.S. District

Court for the Eastern District of Virginia on the charges of piracy.There were two trials, United

States v. Hasan and United States v. Said. In United States v. Hasan, the defendants were found

guilty on various charges including piracy whereas in United States v. Said, the court dismissed the

charge of piracy (the prosecution appealed the ruling in United States v. Said).The common issue

between the two cases is the court interpretation of piracy under Section 1651, United States Code

No. 18 (hereinafter 18 U.S.C,S. 1651).

The case of United States v. Hasan originated from an attack on the USS Nicholas, a U.S. Navy

frigate, on April 1, 2010, on the high sea between Somalia and Seychelles. The prosecution alleged

that the defendants, approached and attacked the USS Nicholas with a rocket propelled grenade

and AK-47 assault rifle,under the mistaken belief that it was a merchant ship.The USS Nicholas

returned fire, chase the pirates and apprehended them.The defendants in United States v. Hasan

were charged, among other offenses, with a violation of 18 U.S.C, S. 1651. The defendants argued

that the charge of piracy should be dismissed because general piracy requires a robbery on the

high seas, and that, because robbery requires the taking of property,the Governments failure to

allege any actual taking precludes a conviction for general piracy. The court in considering and

ultimately denying the defendants motion to dismiss the charge of piracy, acknowledged that the

issue before the court was a straightforward one namely what is the definition of piracy under

international law.

The Court in United States v. Hasan, examined the previous US case law on piracy, United States

v. Palmer and United States v. Smith for guidance on what constitute piracy under 18 U.S.C,S.1651

and also case law authorities from England and Kenya and come to the conclusion that

international law or law of nations is a dynamic and ever changing body of law and that therefore

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the definition of piracy in 18 U.S.C. must therefore be assessed according to the international

consensus definition at the time of the alleged offense. On this premises, the Court adopted the

definition of piracy as found in Article 101 of UNCLOS 1982 as being the accepted definition of

piracy under the law of nations and as such denied the defendantss motion to dismiss the charge of

piracy.Accordingly the trial went on and the court in United States v. Hasan found the defendants

guilty on 14 counts each of piracy, attack to plunder a vessel,assault and related charges.

In the United States v. Said case, the case originated from the attack on USS Ashland on April

10,2010 in the Gulf of Aden. The defendants were charged among other offenses, with a violation

of U.S.C 18,S. 1651,in that they commit piracy as defined by the law of nations.The defendants

argued that the charge of piracy should be dismissed because they did not board or take control of

the USS Ashland and did not obtain anything of value from the vessel.The prosecution argued that

in response that piracy has historically included different type of conduct and is not limited to the

common law definition and that any unauthorized armed assault or directed violent act on the high

seas is sufficient to constitute piracy.The court however after considering various precedent

including United States v. Smith,UNCLOS 1982 and Convention of the High Sea held that the

definition of piracy under the law of nation is robbery or forcible depredations on the high seas i.e.

sea robbery and accordingly found that the defendants acts do not amount to piracy though the

defendants were found guilty for other offences including use of firearm during a crime,assault

with dangerous weapon on federal officers and employees and acts of violence on persons on a

vessel (Mason 2010,p.7).

Municipal laws however operates to restrict this principle by excluding what can be considered as

piracy jus gentium if it occurs within the territorial waters of the state and in the process absolving

the state from having to undertake the heavy responsibility of prosecuting piracy. In other words, in

case of piracy prosecution, states willfully ceded their jurisdiction to try the matter even though the

offence occurs within their territorial waters.

Under the English law for example, whether an offence of piracy has occurred depends on the

locus where the piratical act is committed and not so much on the nature of the piratical act

committed. In this sense, the English legal framework concerning piracy is flawed in that the

nature of the offence does not determine whether a particular crime has taken place but the nature

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of the crime is determined by the locus or place of the event. In other words, if an act of piracy

occurs on the high seas outside territorial waters, the act is considered as piracy but if the same act

occurs in the territorial waters,then it is not (House of Commons 2006,p.15)

To illustrate this point further, under the English law, piracy jure gentium definition exclude any

acts done inside the territorial jurisdiction of the state,notwithstanding that it is that state which

seeks to exercise jurisdiction. This definition in essence is technically very restrictive since most

attacks on ships occur in territorial waters, when the targeted ships are navigating near to the shore

or while they are passing through straits used for international navigation,while they are at

anchorage or while they are berthed at port (Hirst 2003,p.305).

Those ships are at their most vulnerable while they are stationary.The modus operandi of the pirate

is usually to board the ships by climbing the anchor chain. It is for this reason that in piracy hotspot

areas, ships are advised to keep as far to seaward as possible, and to avoid stopping.

The restrictive yet accepted definition of piracy jus gentium under English law effectively rules out

piracy being committed within the United Kingdom territorial waters. The result is pure legal irony

in that attacks on ships occurring within the territorial or internal waters of a state may qualify as

an act of piracy for insurance purpose (and indeed this is the holding of International Maritime

Bureau) but do not amount to an act of piracy under English criminal law, notwithstanding that

such internal waters are also major international shipping lanes (Hirst 2003,p.305).

But this is not to say that an act resembling piracy jus gentium if it occurs in the territorial waters

will go unpunished. Indeed it will be punished, but under a different charge instead.In view of the

foregoing, it is uncertain whether a charge of piracy could be brought against a party who boarded

a ship and commits violence and robbery aboard her within the territorial waters of the United

Kingdom. As such and instead, the safest option to secure conviction is by proffering a charge of

robbery or a charge of assault with intent to rob under the English Theft Act 1968 (Hirst

2003,p.305)

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According to Mason (2020,p.9), in the context of piracy prosecution by the United States, in the

absence of Congress guidance to the courts by legislatively clarifying the definition of piracy under

18 U.S.C.,S. 1651, the courts may continue to arrive at differing interpretations.

Despite universal jurisdiction being accorded by UNCLOS 1982 to any state to prosecute piracy

(which necessarily means authority to do act preparatory to prosecution, for example, carrying out

hot pursuit on perpetrators vessels), the absence of Reverse Hot Pursuit also hamper the effective

prosecution of piracy. Article 111 of UNCLOS 1982 provides for the right of hot pursuit, however

it does not provide for situation of reverse hot pursuit i.e. the right of ship of one state to pursue

pirates from the high seas into or across the territorial waters of another state (Lehr 2007, p. 166).

Poorly monitored and patrolled territorial water will be turned into pirates sanctuaries if interested

states do not have this right. A common feature of piracy is that few piratical acts occur on the high

seas and even when high sea is the locus delicti of the piratical act, the pirates take advantage of

territorial boundaries by retreating to their native states waters, fully in the known that foreign

maritime authorities will cease hot pursuit once they (the criminals) have crossed the maritime

boundaries (Mo 2002,p.347;Pugh 1993:p7;Frecon 2002.p.53-54,78-80 cited in Black

2011,p.85).The primary reason right of reverse hot pursuit is not embodied in UNCLOS 1982 is

that a significant number of state signatories to UNCLOS were reluctant to cede any control over

their sovereign jurisdiction. The effectiveness of Article 101 UNCLOS 1982 to confront the

problem of piracy is limited. Sovereign states will most of the time seek to protect their own

sovereign interest and promote a policy of non-intervention in their states domestic affairs

(Linklater 1996;p.104-9;Little 2003 p 453;Cutler 1991 p.55-57 cited in Black 2011,p.85).Somalia

is however a special case since reverse hot pursuit is allowed by Security Council Resolution 1816

(Kontorovich 2010, p.254)

2. the cost involved in bringing the perpetrator to justice

An anti-piracy NGO has conducted a survey and estimated that the cost of prosecution of piracy

for the year 2010 alone is approximately in the region of USD 31 Million. This amount however is

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only the amount involved in prosecution and imprisonment of the perpetrators of the crime and

does not involve cost other ancillary cost e.g. costs of maintaining a naval presence in the high-risk

sea lanes. The same report stated that the survey found that around USD 2 billion is spent each

year on naval operations off the coast of Somalia alone. The cost of naval presence basically can be

divided into two : (1) the cost of each contributing naval vessel and (2) the administrative and

staffing budget of the three naval operation as of at the end of 2010 i.e. Operation Atlanta,

Operation Ocean Shield and Combined Task Force 151.

However, this figure is miniscule compared to the cost of letting the crime of piracy goes

unprosecuted. A new report, compiled by US-based think-tank One Earth Future7, has calculated

that maritime piracy is costing the international economy between $7 to $12 billion, per year.

The report notes that at the end of 2010, around 500 seafarers from more than 18 countries are

being held hostage by pirates.

For economically disadvantageous country like Indonesia, the issue of resources to be used in the

fight against piracy is an important one. Patrolling against piracy is economically burdensome on

Indonesia as it demands a significant initial capital investment in ships, equipment and

training.Further, continuing expenditure on fuel, maintenance and crew costs must also be taken

into account.Indonesia, on its own estimation projected that it needs 300 vessels of various sizes

plus support to maintain its maritime security. It actually has only 115 vessels of which a mere 25

are at sea at any one time.Indonesia has to spread this available resources thin. Apart from piracy

(which Indonesia refered to as armed robbery at sea), these vessels are also deployed to carry out

duties such as prevention of internal conflict, illegal fisihing and other illegal acts such as

smuggling and illegal migration and patrolling the archipelagic sea lanes (Murphy 2007, p. 170).

3. the lack of political will of the international community

The former US Secretary of State, Condoleezza Rice told the UN Security Council that

international law provides sufficient legal authority with which to apprehend and prosecute pirates.

According to Ms. Rice, what is lacking is the political will of the international community

(Kontorovich,2010, p.245).Indeed according to Rice,pirates enjoyed (the rights to treat law with)

7 Available from http://www.saveourseafarers.com/assets/files/The_Economic_Cost_of_Piracy_Summary.pdf

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http://www.saveourseafarers.com/assets/files/The_Economic_Cost_of_Piracy_Summary.pdfhttp://www.saveourseafarers.com/assets/files/The_Economic_Cost_of_Piracy_Summary.pdf


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impunity, partially because of the problems with the detention and prosecuting captured pirates

(Kontorovich 2010, p. 243). Under the classical jurisdictional regime, for the crime of piracy,

universal jurisdiction was recognized as being a primary permissive universal jurisdiction (rather

than obligation) (Inazumi 2005, p. 54), which means that state has an option either to invoke the

jurisdiction or not. International law concerns mainly with the issue of when a State should

exercise jurisdiction and when it should not.It cannot compel states to exercise jurisdiction when

they lack power to do so under their own laws.(Johnson, 1965,p.77 cited in Georges-Abeyie

1991,p.132).In other words, International law principle serves as declaratory pronouncement only,

and in case of universal jurisdiction over crime of piracy, no one state can be compelled to exercise

that right.

This principle of universal jurisdiction is embodied in Article 105 of the UNCLOS 1982 which

authorizes two level of universal jurisdiction i.e. the first level is the executive universal

jurisdiction and the second level is the judicial universal jurisdiction (Csonka 2009, p.1). Executive

universal jurisdiction is invoked when a warship belonging to a particular capturing states navy

enforces its power over a private ship (not belonging to the capturing state) suspected of

committing piracy. Judicial universal jurisdiction i.e. in the sense of exercise of any judicial power

by the courts will follow and Article 105 of UNCLOS 1982 provides that it is the state that has the

alleged pirates in its hands that will exercise jurisdiction. According to Csonka, while in theory this

framework provides a good solution, states practice however runs to the contrary with the result

that pirates caught are often released by the navies and are not even brought to the court (p. 2).

The problem of finding a jurisdiction willing and able to prosecute piracy suspects and detain

convicted pirates continues to hamper the effective prosecution of piracy. To overcome this

problem, bilateral agreements have been established by the government of the United States, the

United Kingdom and the European Union (EU) with the governments in the Horn of Africa region,

in particular with Kenya.Some agreements that have been concluded to date define procedures for

the detention, transfer and prosecution of captured pirates suspects. For example, suspected pirates

captured by the US military forces now may be transferred to Kenyan custody for prosecution

according to the terms of a bilateral Memorandum of Understanding (MoU) signed in January

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2009 between the government of the United States and Kenya. Despite this, at the enforcement

level i.e. the US Navy, divergence of practice still occur and rather than transfer suspected pirates

to Kenya or the US for trial, the US Navy has in some instances confiscated their weapons and

released them, allowing them to return to land.(Mason,2010, p. 6)

With regard to lack of political will of the international community in prosecuting and punishing

piracy, a Security Council reports8 stated that while the number of states willing to prosecute has

increasedmthe reluctance of States to provide long-term imprisonment options has become a major

constraint on piracy prosecutions, rather than the lack of States willing to prosecute . The report

stated that discussions with Maldives, Mauritius and Seychelles and other States of the region have

revealed a willingness to detain piracy suspects for trials but also a reluctance or refusal to hold

them in national prisons once their appeals are complete. The long sentences that have been

imposed in recent convictions from 5 to 20 years are becoming a compelling disincentive for

regional States to continue to prosecute pirates.

According to another Security council paper9, no State in the region (other than Somalia which is

represented through the authority of two regions Somaliland and Puntland still recognized by

the International community and known as the Transitional Federal Government) has expressed an

interest in hosting a long-term detention facility for convicted Somali pirates.

IV. THE UNITED NATIONS ROLE IN OVERCOMING THE PROBLEM OF

UNDER-PROSECUTION OF PIRACY

As the matter is of broad international importance and as it is very unlikely that any single country

can handle the matter effectively, the United Nations through its Security Council has embarked on

a concerted effort to increase the international communitys capability to bring the perpetrators of

this crime to the court.

8 Available from http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Somalia%20S2010%20394.pdf

9 Available from http://unpos.unmissions.org/Portals/UNPOS/Repository%20UNPOS/S-2010-556%20%2827OCT10%29.pdf

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http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Somalia%20S2010%20394.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Somalia%20S2010%20394.pdfhttp://unpos.unmissions.org/Portals/UNPOS/Repository%20UNPOS/S-2010-556%20(27OCT10).pdfhttp://unpos.unmissions.org/Portals/UNPOS/Repository%20UNPOS/S-2010-556%20(27OCT10).pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Somalia%20S2010%20394.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Somalia%20S2010%20394.pdfhttp://unpos.unmissions.org/Portals/UNPOS/Repository%20UNPOS/S-2010-556%20(27OCT10).pdfhttp://unpos.unmissions.org/Portals/UNPOS/Repository%20UNPOS/S-2010-556%20(27OCT10).pdf


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In 2010, the Security Council, in its resolution 1918 (2010) of 27 April 2010, requested the

Secretary-General to present a report on possible options to further the aim of prosecuting and

imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of

Somalia. The request includes, in particular, options for creating special domestic chambers

possibly with international components, a regional tribunal or an international tribunal and

corresponding imprisonment arrangements, taking into account the work of the Contact Group on

Piracy off the Coast of Somalia, the existing practice in establishing international and mixed

tribunals, and the time and resources necessary to achieve and sustain substantive results.

In pursuance of the request, the Secretary-General has identified seven options for the Security

Council to consider namely:

Option 1: The enhancement of United Nations assistance to build capacity of regional States to

prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the

coast of Somalia.

Option 2: The establishment of a Somali court sitting in the territory of a third State in the region,

either with or without United Nations participation.

Option 3: The establishment of a special chamber within the national jurisdiction of a State or

States in the region, without United Nations participation.

Option 4: The establishment of a special chamber within the national jurisdiction of a State or

States in the region, with United Nations participation.

Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among

regional States, with United Nations participation.

Option 6: The establishment of an international tribunal on the basis of an agreement between a

State in the region and the United Nations.

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Option 7: The establishment of an international tribunal by Security Council resolution under

Chapter VII of the Charter of the United Nations.

According to the security report, Option 1 is has already started and has shown some success. For

instance, on 24 June 2010, Kenya opened a new high security courtroom in Shimo La Tewa,

Mombasa, which was built by the United Nations Office on Drugs and Crime Counter-Piracy

Programme. This courtroom will be used to hear piracy cases and to try other serious criminal

offences. The report also recommend that the Security Council may wish to consider continuing,

and building on, the role it has played in its resolutions to enhance option 1. In this regard and to

spread the burden of combating piracy to other members of the International community, the

Report recommend that a potential host State would need to be identified for each of the other

options. It would be necessary to ascertain the preferences of that potential host State, including

whether it would accept international participation in such mechanism, and, if so, in what form.

The report noted that prosecutions of acts of piracy have been conducted in 10 States: France,

Germany, Kenya, Maldives, the Netherlands, Seychelles, Somalia (in the Somaliland and

Puntland regions), Spain, the United States of America and Yemen. Although an increasing

number of States, within and outside the region, are undertaking prosecutions, it has been reported

that there have been incidents in which suspected pirates have been released without having been

brought to justice.

Kenyas role in prosecution of piracy needs a special mention here as currently, it is the only

country which has vigorously undertaken the responsibility to prosecute Somalian pirates

apprehended by the various international navies patrolling the Gulf of Aden.On January 16, 2009,

Kenya and the United States signed a Memorandum of Understanding (MoU) whereby Kenya

agrees to prosecute suspected pirates (Gathii 2009,p.1)

V. CONCLUSION

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As a conclusion, piracy is not a new global phenomenon and instead has been around since time

immemorial. Despite being one of the oldest crime, its precise nature is still being debated i.e. what

constitute piracy jure gentium is still not resolved. The gap that has been identified in issues

relating to piracy is the failure of the international community to prosecute the perpetrators (the

pirates). This can be attributed to the absence of concrete definition of what piracy is in

international law and domestic legislation. In this regard, the role of the United Nations through

the Security Council is of utmost importance to provide executive solution to the legislative

inadequacy. However, in the long run, the war on piracy can only be successful if individual states

are willing to shoulder the responsibility of enforcing the universal jurisdiction accorded to them

by international law by bringing the perpetrators of the crime of piracy to justice.

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Chatham House (2009) Piracy and Legal Issues : Reconciling Public and Private Interests.London : Chatham House

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