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Jurisdiction over pirates: Am I missing something?

Over the past year or so, there has been a great deal of press coverage of piracy off the coast of Somalia. On Tuesday, the New York Times reported:

Two Somali men were arraigned on kidnapping charges in a Spanish court on Tuesday in a case that underscores the legal ambiguity of trying people suspected of piracy in international waters. The case involves the still-unresolved capture of a tuna fishing ship in the Indian Ocean. The ship, the Alakrana, was taken 12 days ago off Somalia with a crew of 36, including 16 Spaniards. Spanish naval forces captured the defendants two days later as they tried to sail away from the trawler in a skiff.

The ship remains anchored off Somalia, where the crew is reported to be well, although a leader of the pirates told Reuters that they would not negotiate until the two defendants were released.

Judge Baltazar Garzón of National Court ordered the transfer last week of the two men, whom prosecutors identified as Cabdiweli Cabdullahi and Raageggesey Hassan Haji. Mr. Haji was shot once during the Spanish Navy’s assault on their small vessel.

In transferring the men to Spain, officials have argued that it has jurisdiction because its citizens are involved and because the detention occurred outside the maritime perimeter agreed upon by the European Union as part of an operation to capture pirates and turn them over to Kenya.

On Tuesday, most of the day went to confirming whether the two men were more than 18 years old. Afterward, they were each arraigned on 36 counts of kidnapping, each carrying a penalty up to five years in prison, as well as armed assault.

The two claimed innocence and said that they, too, had been taken by the pirates, Jesús Alonso, the prosecutor in the case, said after interviewing the defendants.

When asked about the issue of jurisdiction, Mr. Alonso said each country had to act to protect its interests. “If you have to act against a crime, you can’t think of the consequences,” he said.

The Alakrana case follows similar trials in France, the Netherlands and the United States, but this is the first time Somalis suspected of piracy will face trial while the attacked ship is still being held. This is the second time a Spanish ship has been held for ransom, although the first time the ship was released after less than a week and reportedly after a ransom of more than $1 million was paid.

Before an agreement signed in March with Kenya, most piracy cases were tried in the country where a ship is registered.

The agreement between Kenya and other parties — including the European Union, the United States and Denmark — provides a temporary fix to the lack of an international legal framework to capture, prosecute and jail pirates for crimes on international waters or in countries like Somalia that lack their own working judicial system, analysts said.

“There is a lot of gray area in terms of a legal system and jurisdiction, and obviously with each navy and national laws,” said Cyrus Mody, manager of the International Maritime Bureau, a London-based division of the International Chamber of Commerce. “Pirates caught carrying out an attack have to be tried. That is the only agreement. Where exactly the pirates are tried is a matter of individual countries.”

Kenya gets financial help to centralize the pirate prosecution program. “It is a lot cheaper to hand the pirates over to Kenya,” Mr. Mody said. (emphasis added)

What am I missing?  Why does the Times author claim there is “ the lack of an international legal framework to capture, prosecute and jail pirates for crimes on international waters . . .”?

This is simply not correct. It should not be necessary, but given that the Times seems to be completely off base, let’s take a look at the law.

Piracy: A definition

Piracy has a well-accepted definition under international law. Article 101 of the 1982 Convention on the Law of the Sea– which reflects customary international law on this issue– provides:

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).

This definition seems rather clear: acts of piracy are committed on the high seas (‘international waters”) or some other place outside the jurisdiction of any one state by persons on board a private ship (or aircraft) against another ship (or aircraft)  for private ends.

Jurisdiction over Pirates

There are two types of jurisdiction under international law: prescriptive and enforcement. Prescriptive jurisdiction relates to the authority of a state to make its laws applicable to certain persons. If a state has prescriptive jurisdiction over someone, it means that the laws of that state apply to that person’s behavior. Enforcement jurisdiction means that the state has the authority to enforce those laws– it has the right to arrest, the right to try, the right to imprison, the right to seize assets, etc.

Piracy is a crime of universal jurisdiction. This means that all states have prescriptive jurisdiction over pirates. That is, they have the right to make their criminal laws applicable to piracy even if their is no connection to the states. It does not matter whether the pirates are their nationals; it does not matter whether the victims are their nationals; it does not matter where in the world the piratical act takes places. Because piracy has been recognized for centuries as a crime against all humanity, all states have been able to apply their criminal laws to any act of piracy. This means that if a pirate is found in the territory of a state,  and that state has made its criminal law applicable to piratical behavior, that state has the right to arrest, try, and punish the pirate. Moreover, international law also grants special enforcement jurisdiction to all states while pirates are on the high seas. In other words, any state can seize a pirate vessel and its crew while the vessel is on the high seas. Again, the 1982 Convention on the Law of the Sea provides:

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.

This could not be clearer.  How is it that there is any legal ambiguity about jurisdiction over pirates? The only thing I can think of relates to the article’s mention of  crimes that take place ‘in countries like Somalia that lack their own working judicial system.” But such crimes are not actually “piracy” and such acts, while horrible, do not seem to be the main concern of the international community. So again, I ask, am I missing something?

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.