Pirates in the dock

Teenager Abde Wale Abdul Kadhir Muse is led into court in New York in April

By Kathryn Westcott
BBC News

The appearance of five suspected Somali pirates in court in the Netherlands this week and the scheduled court hearing of a Somali teenager in New York on Thursday have focused attention once more on the legal challenges posed by 21st-century piracy.

Reports that some of the suspects were enjoying their stay in Dutch prison cells and were considering eventually claiming asylum, were met with disdain by the country's foreign minister who was quoted as saying he would prefer it if they were being tried in Kenya under UN auspices.

KENYA'S ROLE By Odhiambo Joseph , BBC News, Mombasa There are a total of 87 suspected Somali pirates in prison in Kenya. Ten of those are serving seven years each after being convicted in a year-long case. Seven other cases involving 77 suspects are either being tried or awaiting trial in Mombasa. But lawyers defending the suspects argue that Kenya does not have legal jurisdiction to handle the cases. Jared Magolo has sought to have two piracy cases dismissed on grounds that his clients are in the wrong courts. "Although Kenya is a signatory to the United Nations Law of the Sea which covers piracy, it has not incorporated this into its domestic jurisdiction," he said. Local politicians and legal experts claim that the courts are not competent enough to deal with piracy cases, especially when they already have a long backlog. It is a routine for foreign observers from diplomatic missions in Kenya to be present at trials. German ambassador to Kenya Walter Lindner has attended some of the court proceedings on the 17 suspected Somali pirates transferred by the German navy in March.

Maxime Verhagen was quoted as saying that in his opinion, penalties should "deter" pirates, and that he did not want them to end up living happily in the Netherlands.

Mr Verhagen's comments reflect the difficulties many nations find themselves in, when deciding what to do with a suspect pirate once they are arrested.

Around 20 warships from the navies of half a dozen countries operating under US, European Union and Nato commands police the pirate-infested waters off the coast of Somalia.

But differences over laws concerning the arrest of pirates are hampering efforts to curtail piracy, naval officials told an anti-piracy conference in Malaysia this week.

The Dutch and US trials are among just a handful of pirate prosecutions taking place outside Africa. France has charged 15 suspected pirates - six of whom were apprehended in April 2008.

But, as Cyrus Mody from the International Maritime Bureau points out, the length of time taken bringing some of these cases to trial indicates the complexities involved.

The logistical and legal burdens involved in transporting pirate suspects to Western countries can be daunting, he says.

"It is difficult getting the pieces together, the evidence, the witnesses. Who's going to pay for it all?

"And if a prosecution fails, the burden lies with that country. There is always the prospect the suspected pirate might then claim asylum," he told the BBC.

Because of such difficulties, countries are reluctant to conduct their own trials.

Geoffrey Till, professor of Maritime Studies at Kings College in London, told the anti-piracy conference that some navies were wary of bringing suspects back for trial because of European Union human rights laws, which guarantee all people, including pirates, respect for their basic rights.

Piracy is defined by UN conventions as a universal crime and each country may arrest pirates at sea and prosecute them at home.

But whether a country can prosecute arrested pirates depends on its own laws. Several countries do not know how to incorporate the convention into their domestic jurisdiction.

For some, Kenya is increasingly becoming the venue of choice for trying suspects.

The EU and the US have both signed an agreement to transfer suspects for trial in the country.

But Kenya needs more support from the international community for this to be effective, say legal experts.

Suspects are held on warships while officials decide where to send them

"The problem is that any state would need to ensure an individual receives a fair trial in accordance with international standards," Mark Ellis executive director of the International Bar Association, told the BBC News website.

Mr Ellis questions whether Kenya, which has failed to prosecute those involved in its post-election turmoil in 2008, is up to the costly and complicated task.

"Dumping the alleged perpetrators in Kenya without ensuring the international standards of fair trials is inappropriate and possibly illegal," he says.

One Somali suspect has already filed a lawsuit against Germany for what he has called his inhumane treatment since being handed over to Kenya, according to court papers filed in Berlin.

Evidence

The UK leads the EU's naval mission, and this week Katharine Shepherd, legal advisor for the UK Foreign Office, said they were looking at ways to support Kenya's trials.

She told the conference in Malaysia that details had been prepared so that "our sailors know precisely how to put together the evidence in a form that is most useful to Kenyan prosecutors."

AWAITING TRIAL An artist's drawing of suspected pirates in Rotterdam A Somali teenager has been charged with 10 counts in New York and faces a life sentence. 15 suspects in France for trial. Five suspects in the Netherlands. They face up to nine years in prison.

"It has been our experience that before you go looking for pirates, it's a good idea to be clear about who will be assuming jurisdiction of the pirates first, so that you can put in places protocols to ensure any evidential requirements will be met," she continued.

But there is no consensus as to sending suspects to a third country.

Nato, Russia and India, for example, have not signed a deal with Kenya and so their navies need to determine whether or not to bring pirates home for trial.

The Russian navy has been holding 29 suspected pirates aboard one of its warships for three weeks while it determines whether to prosecute them in Russia.

This week, it was reported that they were to be transferred to an unnamed third country.

In some cases, suspects are simply released shortly after they are caught because of the potential legal headaches.

Recently, a Portuguese naval ship intercepted pirates and released them after confiscating their weapons.

This practice of what is known as "catch and release" is bedevilling attempts to stamp out piracy, commentators say.

There have been calls for an international tribunal to be established to deal with the prosecutions. But this option is viewed by many as costly and judicially cumbersome.

For the time being, the UN is looking at extending the trial process to a number of Somalia's neighbours because of Kenya's inability to cope with the sheer weight of the problem. But this would still require donor money funding.

But UK government officials, and others from nations involved in tackling piracy, acknowledge privately that, despite all their military and judicial efforts so far, little seems to have been effective in deterring these gangs, which continue to launch attacks on an almost daily basis.