Milena Sterio is Associate Professor at the Cleveland-Marshall College of Law.
Much has been written about Somali piracy. Academics on this forum, as well as others, have debated the best options for the prosecution of suspected Somali pirates. Most pirates are detained by powerful navies of maritime nations, such as the United Kingdom, Denmark, the Netherlands, or by joint maritime fleets such as the EU NAVFOR. Yet, most capturing nations are not interested in prosecuting detained pirates in their national courts under true universal jurisdiction, because such prosecutions are expensive, logistically difficult and politically unattractive. In order to avoid the undesirable policy of catch-and-release, maritime nations concluded transfer agreements with regional states interested in opening their national courtroom doors to Somali piracy prosecutions.
Over the past five years, transfer agreements have been concluded with Kenya and the Seychelles, and dozens of successful prosecutions have taken place in Mombasa and in Victoria. Mauritius joined the “club” or piracy prosecuting nations recently, by concluding similar transfer agreements with the United Kingdom and the European Union; apparently a transfer agreement is also being negotiated with the United States. However, as of today, Mauritius has not actually accepted any detained pirates for prosecution purposes. Professor Michael Scharf of Case Western Reserve University School of Law and I visited Mauritius from December 3- December 7, where we met with various government officials in order to advise them on best strategies for future Somali piracy prosecutions in Mauritian courts. While I have already blogged about Professor Scharf’s and my trip to Mauritius, I will take this opportunity to explore differences between Mauritius and the two other prosecuting venues, Kenya and the Seychelles, and to recommend that Mauritius consider beginning prosecutions in the very near future.
First, Mauritian transfer agreements with the United Kingdom and the European Union contemplate that Mauritius will prosecute pirates detained within the Exclusive Economic Zone (EEZ) of any Indian Ocean Commission nation (Mauritius, France (Reunion, Mayotte), Comores, Seychelles, Madagascar). This geographic limitation imposes a significant hurdle on future pirate transfers, as most Somali pirates are typically detained outside the EEZ of these nations. While some of the Kenyan and Seychellois transfer agreements have never been made public, I am not aware of the presence of any such geographic limitation in these agreements. By all accounts, all transfer agreements (Kenyan, Seychellois, and Mauritian) contain a discretionary clause which enables the prosecuting nation to decline any proposed transfer by the capturing nation for any reason.
Thus, it would have been sufficient for Mauritius to rely on the discretionary clause in its transfer agreements with the United Kingdom and the European Union, in order to decline a proposed transfer. The additional geographic limitation in the Mauritian transfer agreements now provides Mauritian authorities with another escape clause and simply makes it easier to reject a request to prosecute suspected pirates. However, Mauritian authorities have discretion, pursuant to the transfer agreements, to accept suspected pirates detained anywhere (but they are not obligated to accept any pirates detained outside the EEZ of Indian Ocean nations). I hope, therefore, that the geographic limitation will not become a permanent obstacle to all proposed transfers and that the Mauritian authorities will exercise their discretion to accept transfers of pirates detained outside the above-mentioned EEZ’s.
Second, Mauritian national law has been recently revised to encompass an exhaustive definition of piracy. Under Mauritian law, the definition of piracy goes beyond customary law, as represented in the United Nations Convention on the Law of the Sea (UNCLOS), Article 101. In fact, many scholars have written about the limitation of the UNCLOS definition of piracy, and the difficulties that this definition may impose on successful piracy prosecutions. Mauritian authorities, working in conjunction with European Union and United Nations advisers, revised their national law in order to make it broader than the UNCLOS definition and in order to enable Mauritius to prosecute not just traditional pirates, but also those who engage in piracy-like acts on shore, those who enable piracy, those who finance pirate attacks, or those who profit from pirate attacks. Kenyan and Seychellois national laws do not contain such broad definitions of piracy, and it appears that Mauritius will be even better placed to handle complex prosecutions, because of the expansive nature of its national law.
Third, Mauritius, like Kenya and the Seychelles, has benefitted from United Nations Office of Drugs and Crime (UNODC) assistance in order to build appropriate detention facilities, on par with international human rights standards. While we did not have the opportunity to visit these detention facilities, we were assured by both the European Union and United States diplomats that the facilities were adequate. In the past, concerns have been expressed regarding the allegedly inappropriate Kenyan detention standards and facilities, and the possibility that nations bound by human rights treaties would not be able to transfer detainees to Kenya if it did not improve its detention policies.
Fortunately, such concerns were never expressed regarding the Seychelles, and it appears that such concerns will not become a hurdle toward future Mauritian handling of suspected pirates. In addition, we were told by Mauritian prosecutorial staff and the Commissioner of Police that any detained juvenile pirates, should Mauritius accept any such transfer, would be appropriately segregated from the general prison population. It thus appears that Mauritian authorities are very well positioned to receive suspected adult and juvenile pirates, and that detention facilities are more than appropriate for any short or long-term detention of prosecuted or convicted pirates.
Fourth, Mauritius has concluded post-conviction transfer agreements with the Transitional Federal Government of Somalia and with Puntland. Pursuant to the terms of these agreements, pirates convicted in Mauritian courts would be transferred back to Somalia to serve their prison sentences home. These agreements are extremely important for small nations like Mauritius or the Seychelles, which may run into capacity issues and may have to reject future transfers simply because they may be running out of courtroom and jail space. The Seychelles successfully concluded post-conviction transfer agreements with Somaliland and Puntland, and two successful post-conviction transfers toward Somaliland have already taken place. Mauritian authorities anticipate that their trials will last longer than the Seychellois trials (the Seychelles’ prosecutions have been extremely swift, resulting in successful convictions in a matter of months; no pirates have ever appealed convictions pronounced by Seychellois courts) because of skilled defense counsel and because of the strong likelihood of appeals. Thus, Mauritian authorities have been grateful for the conclusion of these post-conviction transfer agreements, which should in all likelihood ease the burden on this small nation’s detention facilities.
Finally, the Mauritius bar counts hundreds of skilled, highly trained attorneys who would be well-placed to handle complex piracy prosecutions, and time-consuming defenses and appellate processes. The UNODC has already conducted various training sessions for Mauritian attorneys and judges, but it appears that even without such training sessions, Mauritian lawyers have more than ample expertise to deal with Somali piracy prosecutions.
In light of all of the above, I eagerly await the start of Mauritian prosecutions of suspected Somali pirates.