Saturday, December 17, 2011

Prosecuting Somali Pirates in the Seychelles: A Great Idea

I recently blogged on IntlawGrrls about my trip to the Seychelles (click here: Below, I explore additional issues related to the prosecution of Somali pirates in countries like the Seychelles.

After a week in the Seychelles,
where I attended meetings with the Seychelles’ Attorney General and Supreme
Court judges, I am back in the United
States, and would like to take this opportunity to reflect on some of the legal
issues related to Somali piracy and prosecutions in the Seychelles’ national
For any nation interested in
prosecuting Somali pirates, the threshold issue is jurisdiction. In other words, if a country wants to
prosecute pirates, it must amend and expand its jurisdictional statute to allow
for such prosecution on the broadest possible basis. The Seychelles has thus revised its national
law to allow for the prosecution of pirates captured on the high seas. This type of universal jurisdiction allows
countries like the Seychelles to prosecute acts of piracy to which they have no
nexus. Many countries, including the
Seychelles before this revision, have jurisdictional statutes that allow for
pirate prosecutions only if the act of piracy is committed in that country’s
territorial sea, a stretch of sea extending 12 nautical miles from the
country’s shore. Thus, acts of piracy
committed outside of such countries’ territorial sea cannot be prosecuted in
those countries’ national courts because of a basic jurisdictional
shortcoming. Mauritius, another island
nation in the Indian Ocean and another potential partner in the global fight
against Somali piracy, has also started tampering with the idea of expanding
its jurisdictional statute to allow for national prosecutions of Somali
pirates. It is unclear however how Mauritius
will revise its statute. Some reports
indicate that Mauritius’ law will only allow for prosecutions of piracy acts
committed in the Mauritius exclusive economic zone, a stretch of sea extending
200 nautical miles from the country’s shore.
This kind of a revision would seriously limit Mauritius’ ability to
prosecute Somali pirates, as acts committed on the high seas would be excluded
from Mauritius’ jurisdictional reach. In
the Seychelles, it appears that jurisdiction will not pose problems, in light
of the new universal jurisdiction statute that this country passed. One issue that remains unclear is whether the
Seychelles’ government will demonstrate an ongoing political willingness to
support piracy prosecutions on a true universal jurisdiction model. In fact, despite the mentioned universal
jurisdiction statute, the Seychelles’ authorities may prove unwilling for
policy reasons to extend their courts to prosecutions of Somali pirates who
have not threatened the Seychelles’ national interests in any way.
Another possible mode of
jurisdiction that countries like the Seychelles may adopt in the future is the
protective principle – a type of jurisdiction that allows for prosecutions of
acts which threaten the national interests of the prosecuting country. While traditionally this mode of jurisdiction
has been used to prosecute offenses such as treason, counterfeiting of national
flags, currency and emblems, and immigration violations, it is possible that
acts of piracy could be conceived of as violating the national interests of
certain countries and thus prosecuted under this model of jurisdiction. The advantage of using the protective principle
may be in the fact that it could allow for the prosecution of acts committed in
preparation of piracy, that do not qualify as piracy itself. For example, certain acts that do not
constitute piracy may nonetheless constitute presumptive offenses, such as
sailing on a skiff with a boarding ladder and weapons. For this type of preparatory act, universal
jurisdiction is of no help because universal jurisdiction statutes only cover
true acts of piracy and do not extend to planning and preparatory offenses. Protective principle jurisdiction, on the
other hand, could be used to cover these kinds of crimes and countries like the
Seychelles may successfully make the argument that the planning of a piratical
act could threaten their national interests, because the act of piracy, even if
committed on the high seas, could potentially be harmful to such countries if
it can be shown that pirates were about to target such countries’ vessels or
nationals or enter such countries’ exclusive economic zone. Using a combination of universal jurisdiction
to cover true acts of piracy with the protective principle to cover preparatory
offenses would enable countries like the Seychelles to prosecute the maximum
number of piracy-related violations occurring on the high seas.
The next issue related to the
prosecution of pirates for countries like the Seychelles is the ability to
prosecute Somali pirates in situations where the latter are detained by the
naval authorities of another country.
Here, the Kenya model of MOU’s which I discussed in my IntLawGrrls post proves useful. The
Seychelles, like Kenya, have thus concluded transfer agreements with the
European Union and the United Kingdom pursuant to which Seychelles has accepted
to prosecute Somali pirates detained by the EU or UK forces on the high
seas. The Seychelles’ Attorney General
has informed us that eleven successful piracy trials have already taken place
in the Seychelles’ courts; in all these cases the pirates had been detained by
the EU/UK forces and transferred to the Seychelles. The pirates have been prosecuted for the
offense of piracy existing under the Seychelles’ domestic criminal law. Moreover, pirates have been prosecuted under
the theory of “common intention,” a mode of joint criminal liability which
allows for combined prosecutions of all pirates involved in a single piracy
incident. This has enabled the Attorney
General to prosecute pirates in groups of ten or eleven, as well as to charge
all those involved in a piracy incident with the same offenses, irrespective of
their role in the incident itself. Thus,
the prosecutors in these cases did not have to bother with proving what exact
role each pirate played in the piracy incident.
Rather, each pirate is charged with the act of piracy itself and each
pirate will potentially be imposed the same criminal sentence. According to the Attorney General, convicted
pirates have received sentences ranging from five to twelve years of
imprisonment, and several other pirates are currently detained and awaiting
The next issue that countries like
the Seychelles face is prison capacity and the adequacy of detainment
conditions. The Seychelles as well as
Kenya have benefitted from financial assistance by major maritime nations as
well as the United Nations. Thus, in the
Seychelles a new prison wing has been built; this wing is “reserved” for the
detention of Somali pirates and arguably coincides with international detention
standards. This in turn will preempt the
non-refoulement human rights argument, that would prevent countries signatory
to major human rights treaties from transferring pirates to any place where
pirates would be likely mistreated. In
fact, the Seychelles has clearly demonstrated that its prosecutions are fair
and neutral, and that pirates are detained pre- and post-trial in humane
conditions. Capturing nations should not
face non-refoulement type issues when deciding whether to transfer detained
Somali pirates to the Seychelles’ authorities.
Finally, countries like the
Seychelles may be faced with post-detention issues – in other words, once
Somali pirates have finished serving their sentences, they may choose to apply
for political asylum in the Seychelles.
While nobody should be blamed for wanting to live in this tropical
haven, it is reasonable for the Seychelles’ authorities to question the need to
extend their country’s protection to individuals who have committed heinous
offenses such as piracy. It is one thing
to detain Somali pirates for a set number of years, it is quite another to
offer them political asylum and the possibility to freely live in the
Seychelles forever. I would be loath to
discourage countries like the Seychelles from prosecuting Somali pirates, but post-detention
issues remain a complex issue that the Seychelles’ authorities may have to
ponder in the near future.
I look forward to blogging about
Somali piracy in the future, and hope that other countries, like Mauritius,
will follow in the footsteps of the Seychelles and seriously consider opening
their courthouse doors to piracy prosecutions.

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