Piracy Off Somalia: Prosecutions, Procrastination And Progress

This article looks at some of the legal and practical problems involved in prosecuting suspected pirates detained by warships off Somalia, and reports on the progress being made towards enhancing the criminal justice systems in regional states where trials are held, and in establishing humane detention facilities in Somaliland and Puntland for convicted pirates.

One striking feature of the various counter-piracy naval operations in the Indian Ocean and the Gulf of Aden is that, while warships of many nations have been successful in preventing many hijackings, more pirates and suspected pirates have been released—often being repatriated to Somalia without any weapons but with fresh supplies of food and clothes—than have been detained for prosecution. This has happened even when pirates have been captured while holding hostages. At first sight, this suggests that in such instances there was either ample evidence of guilt, or the naval forces were confiscating possessions in dubious circumstances.

The reality is more disturbing. There is a notable lack of political will on the part of most nations to become involved in prosecutions. It is simply too much trouble and too disruptive and expensive, and there are fears that convicted pirates may ultimately be able to secure rights of asylum. And this, despite the much-publicised agreements reached by the United Kingdom, the US, the EU and others, with countries such as Kenya, for suspects to be detained and tried.

Hostage Rescues

In April 2008 French special forces captured six Somalis believed to have been among those who hijacked the luxury yacht Le Ponant. Later, in September 2008, they rescued hostages held on board the yacht Carré d'As IV, killing one pirate and capturing six more. All the captured pirates were transferred to Paris for trial, and it seemed as if a reliable method had been developed for responding to hijacks.1

Further Encounters with Pirates—the Danish experience

But soon there were events that cast grave doubt on the wisdom of relying on prosecutions, as illustrated by the experience of the Danish Command and Support ship HDMS Absalon. This vessel, in terms of disrupting attempted hijackings, performed a commendable service to merchant shipping, and was the most successful member during her time with the Coalition Maritime Force's Combined Task Force150 ("CTF-150"), part of Operation Enduring Freedom. CTF-150 was under Danish command between 15 September 2008 and 12 January 2009. Subsequently, Absalon formed part of CTF-151. Unfortunately, much of what she achieved was undone by the release of suspects for legal, political or other reasons—leaving those suspects able to attack other ships—which must have been a frustrating experience for the Danish sailors who detained them.

In September 2008 Absalon intervened in two attacks by pirates, preventing hijackings, and on 17 September captured ten pirates in two skiffs, along with various weapons and boarding ladders. So far, so good. But it appears that the Danish authorities then realised that there could be some legal difficulties, possibly as no Danish interests had been directly at risk; and there was also strong opposition from within Denmark to the idea of a home prosecution. No other country contacted by Denmark was willing to undertake a prosecution. Accordingly, the Danish authorities ordered the release of the ten suspects, who were put ashore on a Somali beach six days after capture. Danish Defence Minister Soeren Gade said that the Ministry of Justice had assessed that the suspects could not be prosecuted under Danish law. And Capt. Dan B. Termansen, Absalon's commander, said that it would be an illusion to think that the pirates would have been brought to trial if they had been handed over to the authorities in Somalia, and added that there was nothing else that could be done.2

Meanwhile, on 20 September the Absalon had encountered two more boats of pirates, who also had rocket launchers and other weapons. On that occasion, mindful of the embarrassment caused by the earlier arrests, the warship seized the weapons but released the men and their boats.

Subsequently, on 4 December 2008, Absalon intercepted a boat drifting off the coast of Yemen because of engine failure, and discovered seven crew members who had been without food and water for several days. The boarding party also found a number of rocket-propelled grenade launchers and AK-47 rifles. A quick solution was found, and the suspects were handed over to the Yemeni authorities.

In an incident during the following month, on 2 January 2009, Absalon attended the Samanyolu, a Dutch Antilles general cargo ship which was being attacked by pirates. The crew of the Samanyolu had fired flares at the pirates' boat, setting fire to it. Five pirates jumped overboard and were rescued by Absalon. They were eventually handed over to The Netherlands to be prosecuted, pursuant to an ad hoc agreement reached between the two countries.

On the day after that incident, on 3 January 2009, Absalon intercepted three suspected pirate vessels containing a total of ten men armed with rocket-propelled grenade launchers, machine guns and pistols. On this occasion the...