Anti-Piracy Court Opens in Kenya

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At the end of last week, Kenya opened a special court to try suspected pirates operating from Somalia in the Gulf of Aden (see BBC Report here and here) The Court, which is funded by a number of international organizations and States including the UN, the EU, Australia and Canada, is a significant step in the fight against piracy. All States have universal jurisdiction under customary international law and the UN Convention on the Law of the Sea to prosecute captured pirates but as Douglas Guilfoyle explained in a post here on EJIL:Talk! last year there are a number of practical and legal difficulties with capturing, detaining and prosecuting suspected pirates. He stated that:

 One of the problems with the current attempt to combat piracy is that though, as a matter of international law, all States have jurisdiction to try pirates, few States have adequate national laws for the prosecution of pirates who have not committed offences against either their nationals or flag vessels. This has lead to some startling results, such as the German navy releasing some captured pirates on the basis that they had no authority to detain them.

Attempts have been made to solve this problem since the incidence of piracy in the Gulf of Aden has continued to rise. The Kenyan court is a national court exercising universal jurisdiction on behalf of the international community. It appears that this court will constitute the focal point for the prosecution of piracy since Kenya already has more than 100 suspected pirates in detention. However, in recent weeks and months, there have also been successful prosecutions for piracy in a number of other countries, including convictions in the Netherlands earlier this month (see press reports), Yemen and the United States. Apparently, the international community is also working with the Seychelles  and Tanzania to create the conditions for the prosecution of piracy in those countries, though those countries are also cooperating with the Kenyan special court.

Despite this activity in national courts, proposals have been made to establish an international tribunal or a regional tribunal to exercise jurisdiction over piracy. In April, the United Nations Security Council, in SC Res 1918(2010) asked the UN Secretary General to present within 3 months:

a report on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, including, in particular, options for creating special domestic chambers possibly with international components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements …

It remains to be seen whether a regional or international tribunal would be more effective than national courts in suppressing piracy. Given the costs of other international tribunals it is doubtful that such an option would be cheaper.

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Thomaz Santos says

June 28, 2010

Dear Mr. Akande,

Would this proposed court be in any way similar to the currently existing mixed criminal courts, such as the ones in Sierra Leone and Lebanon, or would it be composed only by Kenyan judges?

Moreover, since piracy is addressed by the UN Convention on the Law of the Sea (UNCLOS), and Somalia is a party to the UNCLOS, wouldn't there be some way for the International Tribunal for the Law of the Sea to address the issue, even if only in terms of Somalia's responsibility for allegedly not complying with the Convention, since it's not "fighting off" pirate activity from its coast?

It seems to me that, before considering a new international court, as proposed, for instance, by the Russian Federation ( one should first consider the available institutional options to try the ones responsible for the acts of piracy or, in turn, the countries allegedly accountable for allowing such actions to occur. Basically, I'm just curious of your views in the matter.

Best regards,

Thomaz Santos

Dapo Akande says

June 29, 2010

Dear Thomas,

The court is not mixed tribunal like the Sierra Leone Special Court or the Special Tribunal for Lebanon. The courts are part of the national courts of Kenya and as far as I am aware are not composed of foreign judges. The International Tribunal for the Law of the Sea is not competent to deal with criminal cases. There was a rumour last year that ITLOS would be tasked with dealing with piracy cases and in April 2009 it made a statement to the effect that:
"Recently certain news organizations have been circulating erroneous information stating that the International Tribunal for the Law of the Sea is prepared to try pirates. This information is inaccurate, since, in accordance with the United Nations Convention on the Law of the Sea, the Tribunal deals mainly with disputes between States Parties to the Convention; it is not a criminal court and has no competence to try pirates."

Somalia is a party to UNCLOS but an inter-State case against Somalia wouldn't do much good in combatting piracy as there is no effective government to take the necessary action.

Thomaz Santos says

June 29, 2010

Dear Dapo,

Thank you for your reply.

I'm aware that the ITLOS has no competence to try criminal matters, but I wonder if in a case involving, two States Parties to the UNCLOS: one State victim of acts of piracy and the other a State allegedly responsibile for allowing such acts to take place in, say, its territorial waters the ITLOS couldn't exercise jurisdiction over the issue, since, technically speaking, it would be a dispute "between States Parties to the Convention". I understand that given the political situation in Somalia this is not the case, but I just wanted to discuss this possibility, even if remote.

Finally, since there is no international court to deal with the crime of piracy, and the crime of drug trafficking and the smuggling of weapons, for that matter, some might begin to wonder if the times are not ripe for such an institution to be born. Personally, I don't believe we need another international criminal court (nor do we need to amend the Rome Statute again to include such crimes). Basically, I would like to know your views on the matter.

Kind regards,

Thomaz Santos

Wojciech Kornacki says

June 29, 2010

Based on my reading of UNCLOS, Somalia may not be in a breach of the convention when it comes to piracy. In Article 100, the convention requires all States to “…cooperate to the fullest possible extent…”. Since Somalia is dealing with numerous very serious national and international issues at the same time, it may be next to impossible to focus all of its attention on suppressing piracy. Since piracy is essentially for a private gain, even when a State’s warship engages in piracy due to mutiny of its crew, most likely the State of Somalia could not be taken to any court for it’s the actions of its mutinous crew.
I see the new piracy court as a positive development for the regional sea commerce. It should cut down the cost of trying pirates all over the world, it should establish predictability, and hopefully with the international support it should be transparent. Similarly to farmers in Afghanistan growing poppies, it may be useful to develop long term ways for people in Somalia to make their ends meet through other means than piracy. International shipping may still prove too tempting for Somalis who make on average $600 per year. If long term solutions are not found, the court may continue to be very busy.