Anti-Piracy Court Opens in Kenya

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.