Pirates have attacked more than 80 boats off Somalia first three and a half months of 2009, according to the International Maritime Bureau's Piracy Reporting Centre in Kuala Lumpur. They now hold at least 18 ships. At the time of this writing, the pirates are holding more than 310 crew hostage since the beginning of 2009.
There were two pirate attacks on the 18th of April. In the first, pirates seized a Belgian-flagged ship carrying 10 foreign crew members near the Seychelles islands and start towing it toward Somalia. NATO ships were tracking it.
The second, unsuccessful attack was on a tanker. A Dutch frigate from the NATO force trailed those pirates to a fishing dhow seized on the 16th by the pirates and released 20 fishermen being held captive. It trailed the pirates on a small white skiff, which tried to evade and proceed toward a Yemeni-flagged fishing dhow that had been sized by the pirates the previous week. The Yemeni vessel was a ‘mother ship’ which is a larger boat that allows the pirates' tiny skiffs to operate far off the Somali coast.
The pirates boarded the dhow and Dutch marine commandos followed soon after, freeing 20 fishermen whose nationalities were not known. There was no exchange of fire between the commandos and the pirates and the Dutch forces seized seven Kalashnikov rifles and one rocket-propelled grenade launcher. Seven Somali pirates were detained, but they were soon released because NATO does not have any policy or authority with respect to detaining pirates they capture in the Indian Ocean.
The seven could not be arrested or held because the pirates were not Dutch nationals and neither was the ship the pirates seized, or the ones used by the pirates, Dutch.
The reason for this inaction with respect to arresting the pirates is because the mandate of NATO limits the organization's authority to Europe and North America, which explains why the invasion of the British Falkland Islands did not result in NATO involvement and why any warships acting under the auspices of NATO cannot arrest the pirates in the Indian Ocean.
On the 18th, a Canadian warship hunting pirates in the Gulf of Aden outsailed. a boatload of bandits in the dark, foiling an attack on a Norwegian tanker. Called to the rescue by the crew of the MV Front Ardennes, HMCS Winnipeg extinguished her own lights and vanished into the night for the seven-hour chase, which ended when the massive warship caught up with the pirates’ skiff and forced them to a halt. The Canadians had to let them go without the remaining weapons found on board the skiff including a rocket-propelled grenade that the pirates hadn’t thrown overboard.
Because of complex maritime laws – and the fact that no Canadians were involved in the pirate attack – sailors in the Canadian boarding party released the pirates after searching the skiff because they couldn’t be prosecuted under Canadian Law.
The Canadian Criminal Code unfortunately only deals with pirates when a pirate steals a Canadian ship or throws overboard, damages or destroys any part of the Canadian ship or its cargo.
Prime Minister Stephen Harper (of Canada) said after stopping the pirates from successfully attacking the Norwegian tanker, "We obviously acted within our legal authority and within our capacity. In this case, we did briefly detain pirates and disarm them. Those were the appropriate measures under the circumstances.” unquote
Most countries just release captured pirates. The releasing of the pirates underscores the difficulties of stopping piracy around the Horn of Africa. .
Releasing them is about as stupid as releasing a murderer because you don't think you have the authority to arrest him. Just as ordinary citizens can arrest criminals they see fleeing from a crime, anyone can arrest pirates who are committing the crime of piracy at the time of their arrest or are fleeing from their crimes of piracy.
The United States did not release the fourth pirate they had in their custody when they shot the other three pirates to death with sniper fire. The fourth pirate is now in the United States facing prosecution.
Section 1651 of Title 18, Part I , Chapter 81 of the US Code states; “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”
The Americans have created a law that gives them the right to arrest and prosecute anyone who is a pirate on the high seas.
The United Nations Security Council responded proactively throughout 2008, adopting Resolutions that for the first time conferred upon maritime powers the capacity to enter Somali waters to conduct anti-piracy operations and to facilitate the prosecution of suspected pirates. The NATO forces that rescued the fishermen and the Canadian warship that temporarily detained the pirates who attempted to board the Norwegian ship had the legal authority to arrest and detain the pirates so that they could be prosecuted for piracy
Article 100 of the United Nations covenant on piracy states; “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”
Article 101 states; “Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).
Article 105 states that; “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.”
Article 107 states that; “A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.”
The Dutch and Canadian warships had the legal authority to arrest the pirates. The problem however was; where do they take them for trial? Since neither of those two countries has laws that would permit the pirates they seize to be tried by their courts, they would probably have to release them unless they were prepared to turn them over to the Somali government authorities. However, since that government is in a state of disarray, that wouldn’t appear to be a viable option.
What is needed is a United Nations Tribunal on Piracy. This would make it possible for pirates to be tried in such a court and sentenced to terms of imprisonment. Until such a UN body is created and operational, we may have to hope that more pirates are captured by the Americans and tried in their federal courts and sentenced to their prisons.
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