Kenya has formally announced it wishes to stop the prosecution of suspected Somali pirates and cancel the agreements it has to that effect with several naval powers, diplomats said Thursday. The Kenyan authorities have sent “cancellation notes” to at least two of those powers’ diplomatic representations in Nairobi, arguing it could no longer bear the burden on its prison and court systems.Trying pirates in courts in these enlightened days is a far cry from the days of drumhead justice, as noted here:
Kenya has memoranda of understanding with the European Union, United States, Canada, Denmark, China and United Kingdom whereby it takes in suspects intercepted at sea and prosecutes them in courts in Mombasa.
More than 100 suspects have been transferred to Kenya by the Western and other warships patrolling the Indian Ocean to combat piracy.
Kenya, with the Seychelles the only littoral state that has agreed to take in suspects for prosecution, has recently complained that the strain on its over-populated prisons and congested courts was too heavy.
The agreements allowing foreign naval powers to hand over suspects to Kenya instead of taking them back home for prosecution include financial support from the UN Office on Drugs and Crime.
One million dollars have already been paid to Kenya for the development of its judicial and prison capacity.
What to do with pirates after they have been apprehended is a particularly sticky issue and it has been approached ad hoc. It is the duty of every state to act against piracy according to the U.N. Convention on the Law of the Sea (UNCLOS). UNCLOS provides the general guidelines for how states must address the issue of piracy. The Convention allows for the reasonable boarding of a suspected pirate vessel and the arrest of those on board. It also provides that any state has the power to try pirates under its own law.Maybe there is something to be said for letting the crews of attacked ships sit in judgment of captured pirates who have been shooting at those same crews...
Normally under UNCLOS, Somalia would try Somali pirates caught off its coast; however, Somalia’s judicial system is essentially nonexistent. Thus, if pirates are to be tried at all, they must be tried in other countries. UNCLOS allows all states to exercise universal jurisdiction over pirates. Currently, pirates are standing trial in countries like Kenya, France and the Netherlands.
Despite the permissive provisions of UNCLOS, there are certain legal and practical road blocks in prosecuting pirates outside their home country. Many countries have particularly strict rules for prosecution. For example, Denmark and Germany can prosecute pirates only if they have threatened national interests or citizens. U.S. courts are reluctant to exercise jurisdiction unless the vessel involved is American. Most courts prefer that pirates be tried near where they are apprehended or in their home country.