If Piracy is illegal, why don't we fight it?
Written by: Davide de Bernardin; freelance researcher and analyst on maritime economics & international security.
The latest news on Somali piracy comes from India: the prospect of jail in the country will no longer dissuade Somali pirates from pursuing their ends. Why? Because the government has just decided not to arrest pirates any more.
Legislation
The fight between pirates and India started in 1999 when, after the capture of the Alondra Rainbow, the authorities found that they had no specific law against piracy and so, after a further 6 years, in 2005, the pirates were released. Even after this event, it took another 5 years to get to a decision to implement a new legislation relating to piracy at sea; just to surrender in front of the aggressive strategy by Somali pirates.
The ‘game changer’ has been the release, on 15th April 2011, of the tanker Asphalt Venture by Somali pirates, thanks to the usual payment of a ransom. Nevertheless, 7 Indian members of the crew are still being held by the gang in retaliation for the arrest at the beginning on the year of a growing number of their comrades by the Indian Navy and Coast Guard.
Resolution
This fact brings the usual confrontation between pirates and shipowners to a new level of direct clash with the governments, showing the alarming power of these gangs and demonstrating how much is necessary to introduce a common anti-piracy legislation into national Penal Codes. This is the recommendation by the UN Security Council and the IMO, stated in every Resolution in the last 3 years (the first Resolution against piracy was 1816, 2nd June 2008) with little or no impact on the behavior of the greater part of the governments involved in this issue.
Penal Code
Most countries still judge pirates without specific rules against this particular international crime, using national laws that do not fit the case. As an example, when the Italian tanker Rosalia d'Amato was captured on 24th April 2011, the Italian prosecutor (the Procura di Roma) decided to consider it “a kidnapping with terrorism ends”, which is a total mistake, given the huge legal difference between piracy and terrorism. The Procura was forced to take this decision by the lack, in the Italian Penal Code, of any reference to piracy, that it is considered a crime only against the national Navigation Code.
Navies
It is obvious that this weakness prevents the navies’ efforts from achieving meaningful success in combating piracy, particularly in the Indian Ocean, leading to the release of hundreds of arrested criminals, given the unlikelihood of taking them to the country's courts (only a few reported cases). Facing its own inadequacy, after the empowering of the three main multinational operations against piracy (EUNAVFOR, NATO’s Allied Provider, then Ocean Shield, and the Coalition Maritime Force’s Combined Task Force 151) the international community has then, decided to give a sense of responsibility to the littoral states in the area and, in particular, to those bordering Somalia.
Regional Courts
These efforts led to the creation of regional courts in Somaliland and the Seychelles dedicated to combating piracy, with the financial and technical help of the UNODC. On the other hand, the use of Kenya's courts, surrounded by many legal issues, not least jurisdiction has proved unsuccessful. The country has been hesitant about whether or not to extend the agreements with other European countries and the USA, which would allow them to take the prisoners to Mombasa or other courts for prosecution. The final decision seems to enable lower courts to judge pirates arrested by foreign navies, but the next months will put this to the test.
Regional Countries
However, despite the stated important tools, it is uncertain whether regional countries, who have great difficulty to control their own waters and are dealing with internal integrity troubles, like Djibouti (failing state, according to the Failed States Index), Yemen, Ethiopia and Eritrea (failed states), could be pivotal to the solution.
Responsibility
This clearly demonstrates that, to defeat this crime, each country has to do their part in the judicial process, as well as the naval operations, and cannot simply redirect responsibility for the prisoners to someone else. If the international community wants to seriously face this great challenge once and for all, the first, and unavoidable, step is to harmonize their national laws following the guidelines of the eight (and counting) UN Resolutions.
Contributor: Davide De Bernardin
Davide de Bernardin is a freelance researcher and analyst on maritime economics and international security. He has worked for the Italian Trade Commission in Israel and has studied International Science, Diplomatic Relations, Logistics and Transport in universities in Italy. He is a contributor to publications on international economic ties between Italy, Libya and Tunisia.
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