The InterDependent

As American courts and lawyers wrestle with the questions of how and where to try Somali pirates captured off the Horn of Africa, Secretary-General Ban Ki-moon recently sent a few ideas to the Security Council that the United States might find interesting. He has also appointed Jack Lang, 70, a former French minister and professor of international law, to be the United Nations' special adviser on piracy.

Normally, and especially in today’s nasty political climate in Washington, the topic of international legal solutions for American problems would ignite partisan fires among those who see any institutions that cross borders as a threat. The overheated opposition to the International Criminal Court is the best example. But pirates – who would really want to fight over how pirates, caught thousands of miles away, are brought to justice? Their targets are apparently random and opportunistic, and only a few attacks involve Americans. This is one problem the Obama administration could easily turn over to the UN.

The Security Council asked the secretary-general on April 27 to compile a report on the international options for prosecutions, from special domestic courts with international components (maybe not a good idea right now in the US, but some African nations would welcome help for their overworked courts) to purpose-built international tribunals.
Ban’s report went to the council in late July.

The report suggested seven options.

1: Help for countries in the region where the piracy is happening to strengthen their judicial systems to deal with the issue. A model is already operating in Kenya, where a high-security courtroom opened in Mombasa in June, built by the United Nations Office on Drugs and Crime counterpiracy program.

2: A Somali court established in another country in the region, with or without UN help. There are precedents. Though very different in many ways, the war crimes tribunal for Sierra Leone sits in The Hague because of fears that the trials could not be held effectively in the country itself. The Rwanda tribunal, for example, is in Tanzania.

3: A special chamber in another country’s national court system, without UN participation.

4: The same formula but with UN participation.

5: A regional tribunal set up by several countries with UN participation.

6: An international tribunal as a partnership between the UN and a regional nation.

7: An international tribunal established by the Security Council under a Chapter VII resolution, allowing for enforcement of its orders.

In all cases, the court or tribunal established would be expected to operate permanently, with no cutoff dates, to handle piracy and other crimes in international waters in the Red Sea between Africa and the Arabian Peninsula. An international “contact group” of nations has been working on the piracy problem and contributed to the report’s suggestions. The appointment of Jack Lang as special adviser on piracy at the UN will mean an intensified focus on exploring these mechanisms for coping with piracy.

Security Council Reports, an independent expert monitoring and information organization in New York, which stays abreast or ahead of developments on council issues, said in its most recent forecast that there has been uncertainty and some disagreement among council members about whether or how to proceed on tackling piracy. The organization noted that while Russia was instrumental in pushing for the April resolution, which asked all nations to criminalize piracy, Russian forces set free 10 pirates it detained on May 6 after an attack on a Russian tanker. (www.securitycouncilreport.org )

Taking a different approach, a court in The Netherlands convicted five Somalis of piracy and sentenced them to five years imprisonment in June for a failed attempt to hijack a Netherlands-Antilles flagged freighter last year in the Gulf of Aden.

Worldwide, pirate attacks actually dropped in the first half of this year, according to the International Maritime Bureau, but incidents off the coast of Somalia accounted for half of the global total of 196 occurrences, and new attacks in the region are reported almost weekly on the bureau’s online Live Piracy Report (found on the International Chamber of Commerce Web site, http://www.icc-ccs.org ). The bureau’s current warning says that aggressive Somali pirates, now armed with rocket-propelled grenades, have moved into seas off Kenya, Tanzania, Seychelles and Madagascar and across the Indian Ocean as far as the west coast of India and the Maldives. “Somali pirates are dangerous and are prepared to fire their automatic weapons and RPGs at vessels in order to stop them,” the bureau says.

Patricia O'Brien, the UN legal counsel, noted in a UN statement that the challenges in fighting piracy include the large number of suspects, the fact that the mechanisms would not be addressing the root causes of piracy and the lack of a completion date for the mechanism's work.
"It is for these reasons that sufficient political and financial commitment by States would be necessary, not only to establish a new mechanism, but also to sustain it."

In the US, where about a dozen Somali pirates have been brought for trial, the cases were sent into disarray on Aug. 17 when a federal judge in Virginia threw out charges of piracy against six of them, saying that their attack on a US Navy ship off the African coast did not meet the technical definition of piracy, which under an 1819 international agreement and an 1820 Supreme Court case reading of it could carry a life sentence.

The Supreme Court had defined piracy as robbery at sea, and the lawyers for the Somalis said that there had been no robbery. The judge, Raymond Jackson, refused to consider internationally agreed definitions of piracy, a lot of them less than 190 years old. “The court’s reliance on these international sources as authoritative would not meet Constitutional muster and must therefore be rejected,” he said.

Maybe it would not be so easy to get in line with a UN-brokered system after all.