11 suspected Somali pirates are being transferred to Virginia from East Africa, for prosecution in a American federal district court, for their alleged acts of piracy off the coast of Somalia (click here to read the story: http://www.cnn.com/2010/CRIME/04/22/pirates.us.prosecution/index.html) . In March of this year, 5 of the same individuals were involved in an attack on USS Nicholas, while 6 others were involved in an attack on USS Ashland in early April. The attacks were unsuccessful, and the suspected pirates were captured quickly thereafter by U.S. forces. After the capture, U.S. authorities decided to bring the pirates to the United States for prosecution - a move that is somewhat unprecedented. Pirate prosecutions are logistically difficult, costly, and politically unfavorable. Many have advocated the need to find an "African" solution for the African problem of piracy, thus arguing against domestic prosecutions in the United States. In fact, until now, only one suspected Somali pirate was transferred to the United States for prosecution. All other captured pirates were either released (a truly undesirable outcome!), or transferred to other countries. The United States has signed a Memorandum of Understanding (MOU) with Kenya, whereby Kenya accepted to prosecute suspected pirates captured by U.S. forces in the Indian Ocean. Thus, several pirates have been prosecuted in Kenya, and close to one hundred are currently detained and awaiting prosecution in Kenyan jails. In sum, until now, the United States had largely preferred not to open its courts for the purpose of Somali pirate prosecutions.
American stakes in the situation may have changed in light of the fact that American ships have been targeted by the Somali pirates. The first Somali pirate to be transferred to an American jurisdiction, mentioned above, was detained after an unsuccessful attack on a U.S. ship, USS Alabama, in April 2009. The 11 pirates currently being transferred to the U.S. were clearly involved in attacks on American ships. Jurisdictionally speaking, these prosecutions no longer entail the exercise of absolute universal jurisdiction - a situation where the prosecuting jurisdiction has no nexus to the crime or the perpetrators. Instead, these pirate prosecutions entail a case of territorial jurisdiction (to the extent that the U.S. ships attacked are considered American soil), passive personality jurisdiction (if U.S. victims are involved), or the protective principle (if U.S. interests are directly threatened by the pirates). Also, these prosecutions can be viewed as an exercise of modified universal jurisdiction - a situation where the crime itself, because of its atrocious nature, warrants the exercise of universal jurisdiction, but where the prosecuting jurisdiction actually has ties to the crime or its perpetrators. This fortified case of universal jurisdiction is politically more tenable and legally unquestionable.
The United States should however be prepared to exercise true universal jurisdiction and to prosecute suspected pirates, in those cases where pirates are captured after attacks on non-American ships. Such prosecutions would strengthen the law enforcement structure applicable to the Somali pirates and would significantly contribute to regional and global anti-piracy operations. Knowing that no pirates would be released after capture would send a potent deterrence message to pirates and could possibly entice other maritime nations to extend their domestic courts toward piracy prosecutions. Then, the world would stand a chance of winning the piracy wars.