Not the Pirates of Caribbean …but the Pirates of Somalia

June 16th, 20113:02 pm @    


somalian PiratesThe word ‘Pirate’ is one of those few words which has the potential to immediately trigger off a range of vivid and graphic memories in anyone’s mind. From angry waves crashing against sea shores to lucrative treasure chests to be hunted down by notoriously armed bandits, the glamorization of the idea has captured the fancy of millions over the ages. All of us would immediately reckon that there would certainly be heaps of gold coins coupled with a fiery chase across he blue waters of the deadliest oceans.

Later, this chase would end and the disgraced pirates would be brought to the books.

The fantasy tale ends here.

Coming back to the reality, we find that once the pirates are captured, we are clueless as to how proceed further.

The inadequacy of the present framework of laws to deal with this crisis situation involving captured pirates, does not escape us and the glamorization of the whole affair, does not fool us.

For the purposes of the present discussion, we may refer to the sordid state of affairs off the coast, in the Somalian waters. The only reason why this discussion would be of material importance to us is because the nation as a whole is involved in warding off the pirates across the Gulf of Aden as a part of the initiatives entered into by the NATO states and we have a current situation facing us wherein, a comprehensive legislation is underway. An impressive number of pirates have been captured from the coast of Somalia but the nation is in a fix as to what must be done now that they have been detained since we have no specific law in force to deal with them. Hence, it comes as a big surprise that a phenomenon whose mention is liberally strewn across the pages of history and fantasy alike, finds no mention in the legislative structure of our country.

Somalia, in the present context, poses as a special case as Somali pirates took 1,016 hostages in 2010, of which 638 still remain in their custody. A total of 49 ships were hijacked last year. Among these, the pirates seized a total of 175 Indian sailors. Of this, 122 were released while 53 still continue to remain hostage.

The Existing Structure

It remains no secret till date that pirates are considered to be ‘Hostis Humani Generis’ or the ‘Enemy of the human race’. Therefore, as the general Rule applies, pirates are stateless and any state can capture and prosecute them (The Rule of Universal Jurisdiction). The problem that arises here is that International Law does not allow summary executions and hence the question : what should be done with captured pirates?

Theoretically, Pirates may be captured on the high seas or outside the territory of any State. However, as the requirement goes, captured pirates must be tried and punished under the criminal law of the State holding them in Local Courts, not under international law in an international tribunal. Pirates display somewhat unique characteristics and, in that they are can be reasonably nomenclature as a hybrid between a criminal and combatant. They can neither be termed as true civilians nor true belligerents. Therefore, it is not entirely clear whether they are afforded protection by international humanitarian law, such as the Geneva Convention, or even by country-specific protections for the criminally accused.

The problem with Universal Jurisdiction, additionally, is that it does not apply when crimes are committed in territorial waters, nor does it allow authorities to pursue pirates to their sanctuaries inside territorial limits or on land[1].

Definitely notwithstanding this limitation, UN Security Council Resolution 1851 purports to permit states to venture into Somali territory to capture pirates. However, in most cases, governments must be willing to help. It may be noted in this case that, even where the UN resolution prevails, there is reluctance to impinge on Somali sovereignty for political and practical reasons, especially ashore. Universal jurisdiction is effective when it exists in tandem with strong and willing states. Where governance is weak, pirates can take refuge to a land base inside sovereign territory.

The Protection Afforded

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) succinctly provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110[2]. The Security Council has repeatedly reaffirmed “that international law, as reflected in the United Nations Convention on the Law of the Sea of 1982 sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities”[3] .

The General Assembly has also repeatedly encouraged States to cooperate to address piracy and armed robbery at sea in its resolutions on oceans and the law of the sea[4]. Moreover, the The Geneva High Seas Convention 1958 , The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988, The International Convention Against the Taking of Hostages 1979, The United Nations Convention against Transnational Organized Crime 2000, and The Code of Conduct Concerning the Repression of Piracy and Armed Robbery Against Ships in the Western Indian Ocean and the Gulf of Aden 2009additionally aid the main machinery of laws  to combat Piracy.  Further, institution of Organizations such as  International Maritime Organization ,United Nations Office on Drugs and Crime, The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), Contact Group on Piracy off the Coast of Somalia, Maritime Security Centre (Horn of Africa),International Maritime Bureau of the International Chamber of Commerce, INTERPOL and the UNPOS are sufficient privy of the fact that sufficient measure are being taken to sincerely combat it.

The Tribulations

In order to nail the pirates, all efforts with regards to application of the SUA Convention has gone to the dust for the simple reason that even though SUA endeavours apprehension and prosecution of pirates coupled with the transfer of captured SUA offenders ashore and mutual legal assistance between States Parties, it has extensively suffered due to legal and practical challenges. These would include concerns with respect to the security and impartiality of local judges, ambiguity regarding their human rights obligations, difficulties in the process of preserving and transporting evidence, inadequate national laws relating to the crime, and widespread reluctance on the part of countries to prosecute pirates for fear that they will be forced to grant them (and their families) asylum once their sentence has been served.

Hence, the need to draft a plausible solution was felt as time passed.

If the idea of a dispute resolution mechanism at an international plane were to be floated, then, ICC’s jurisdiction to cover treaty crimes including piratical acts, was theoretically possible.

These measures, however, never effectively saw the light of the day as many complex issues as to it’s subsequent enforcement would then duly surface.

Therefore, with such a costly mechanism at hand, what is ironical is the discovery that such an impressive range of legal barriers have still not yielded expected results. The underlying reasons would be numerous in this case including the overbearing costs of overseeing prosecutions which is logistically challenging. Also, pertinent to mention is the fact that the local communities usually benefit from these activities and hence, they are hesitant to oppose their actions. Also, after prosecuting, comes the question of infrastructure support in prosecuting states to imprison convicted pirates or to face their asylum claims upon release.

Where India comes into Picture

With such a chaotic scenario on the international plane, it should hardly come as a surprise that there exists no code till date in India to deal with such a crisis situation[5] wherein, one deal follows the other and negotiations are in process, but still the Somalian pirates are not ready to release the Indian hostages and close to 150 Somalian pirates, in turn, await their fate while in detention in India whilst there is no domestic law to deal with it. Likewise, as was the case in the past , they must be booked under the corresponding sections of the Indian Penal Code as for kidnapping, abduction, attempted murder and the like and must be accordingly dealt with.

In the meanwhile, realizing the gravity of the situation, the Indian Navy and the Ministry of Defense have mooted a draft legislation to amend the Indian Penal Code to include piracy as a separate offense, enabling courts in India, such as the Maritime Bench of the Mumbai High Court to try suspected pirates, also signifying a willingness to take on responsibility for investigation and prosecution of such offenses[6]. Therefore, this piece of legislation has become one of the most anticipated ones in recent times.

The final concern however, would be regarding the prosecution of impoverished pirates who have been captured off the coast of war torn and poverty stricken Somalia. It must be remembered that Somalia whose political instability and vulnerability has caused developed nations, especially European companies to illegally dump hazardous chemicals such as uranium, lead, and mercury in it’s coastal waters, which, in turn has caused the denizens to fall severely ill. It thus becomes increasingly difficult to judge whether the pirates so captured are mere fishermen or vigilantes who have strayed due to circumventing factors; or else they are warlords in guise who seek heavy ransom in return of detained vessels.

The reservation, it seems, is the one which must be dealt by a strict letter of law which would choose to regard or disregard the intervening circumstances and conclude upon the consequent guilt or else……conclude otherwise.


[1] For example: M. Halberstam, “Terrorism on the high seas” (1988) 82 AJIL 269, 276-284; Michael Bahar,

“Attaining Optimal Deterrence at Sea” (2007) 40 Vanderbilt Journal of Transnational Law 1, 32

[2] Article 100 of UNCLOS provides that “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”

[3] Security Council resolution 1897 (2009), adopted on 30 November 2009

[4] Resolution 64/71 of 4 December 2009, the General Assembly recognized “the crucial role of international cooperation at the global, regional, subregional and bilateral levels in combating, in accordance with international law, threats to maritime security, including piracy”.

[5] As many States have not had historically, and still do not have laws adequately criminalising piracy. See: Joseph W.Bingham (reporter), ‘Harvard Research in International Law: Draft Convention on Piracy’, AJIL Sup 26 (1932), 755–756, 760.

[6] http://www.stratpost.com/india-to-provide-aircraft-to-seychelles accessed on 27th May, 2011

 

Article by:

Natasha Sarkar

Student, Dr. Ram Manohar Lohiya National Law University, Lucknow

Article by

Natasha Sarkar is pursuing BA. LLB (Hons) from Dr. Ram Manohar Lohiya National Institute of Law, Lucknow.

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