The United Nations Secretary General has recently submitted a report to the Security Council in which he sets out 7 options for dealing with piracy off the coast of Somalia. The incidence of piracy off the coast of Somalia continues to be very high.
“7. … The number of attacks off the coast of Somalia has steadily increased since 1991, and over the past two years has increased from 111 vessels attacked in 2008 to 217 vessels attacked in 2009. . . There were 30 attacks during the first quarter of 2010. According to the United Nations Office on Drugs and Crime, the pirates operate from around 70 camps on beaches on the Somali coast, which is approximately 1,800 miles long. Their methods have become increasingly sophisticated, indicating greater planning, financing and organization. . . .
8. While the number of attacks remains high, increased naval patrols off the Horn of Africa and in the Gulf of Aden have effectively reduced the success rate of these attacks. In 2007, 63 per cent of attacks were successful; in 2008, 34 per cent were successful; in 2009, 21 per cent were successful; and the figure for 2010 is likely to be below 20 per cent.2 The decrease in success is attributable to the additional defensive measures put in place by merchant ships, their more cautious navigational routes, and effective naval operations. Nevertheless, as at 15 May 2010, some 450 mariners were being held hostage on vessels captured by pirates off the coast of Somalia. The involvement of naval vessels from more than 30 States represents one of the largest peacetime naval operations ever.”
In April of this year, the Security Council in resolution 1918 requested the Secretary-General to present a report exploring the options for prosecuting the persons responsible for piracy and armed robbery at sea off the coast of Somalia. In his report , the Secretary General has set out 7 options:
Option 1: The enhancement of United Nations assistance to build capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia
Option 2: The establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation
Option 3: The establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation
Option 4: The establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation
Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation
Option 6: The establishment of an international tribunal on the basis of an agreement between a State in the region and the United Nations
Option 7: The establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the United Nations
The Secretary General has dismissed as a viable option the extension of the jurisdiction of existing international courts to include prosecution of piracy. So proposals to allow the International Tribunal for the Law of the Sea, the International Criminal Court or the African Court of Human Rights to prosecute the crime of piracy have not been accepted by the Secretary General. However, it may well be that the option of allowing the African Court of Human Rights to prosecute pirates returns to the fore when the African Union discusses the extension of the jurisdiction of that Court to include prosecution of international crimes. That discussion, which is gathering steam, is primarily about attempts to create a regional African Court to prosecute ICC crimes but I would not be surprised to see piracy included in the jurisdiction of that Court, if the attempt succeeds.
The Secretary General’s Option 1 is already being pursued with the opening of a special anti-piracy court in Kenya. If there is sufficient assistance to States and domestic courts to undertake these prosecutions it is not quite clear to me why an international (or even a regional) tribunal is needed, especially given the cost of establishing such tribunals. In the Security Council debate about the report, it appears that the UK and France were also not keen on establishing a new international tribunal.