How should we deal with pirates of the sea?

Pirates have long posed a major maritime problem. Around 500 BC, pirates attacked the many cargo ships that sailed the Mediterranean Sea. Early Greek pirates used small, fast ships that had a shallow bottom. These ships were called triremes and had great maneuverability which allowed the pirates to escape into bays and channels were the larger ships could not go. The Roman law-maker Cicero once dubbed pirates as enemies of all mankind. Cilicia was the kingdom of southern Turkey and when Cilician pirates roamed across the entire Mediterranean, they even attacked the towns of Italy itself.

When those pirates captured Julius Caesar and demanded a ransom of twenty talents, Caesar felt insulted that the pirates thought he was only worth twenty talents. He told them that they didn’t really know who it was that they had captured. He offered to pay the pirates fifty talents to release him. (a Roman talent was 32.3 kilograms---71 pounds of gold) The pirates agreed and Caesar then sent his followers to the various cities in order to raise the money. He stayed behind with one friend and two servants to remain among the most bloodthirsty pirates in the world on a small island where their boat lay at anchor. He treated them so highhandedly that, whenever he wanted to sleep, he would send a message to them telling them to stop talking.

For thirty-eight days, with the greatest unconcern, he joined in all their games and exercises, just as if he was their leader instead of their prisoner. He also wrote poems and speeches which he read aloud to them, and if they failed to admire his work, he would call them to their faces illiterate savages, and would often laughingly threaten to have them all crucified. They were much taken with this and attributed his freedom of speech to a kind of simplicity in his character or boyish playfulness.

The ransom arrived from Miletus (ancient city on the western coast of Anatolia (in what is now Aydin Province, Turkey) and as soon as he had paid it and been set free, he immediately manned some ships and set sail from the harbor of Miletus and sailed towards the pirates who had captured him. He found them still there, their boat lying at anchor off of one of Turkey’s islands. He captured most of them, took their property as spoils of war and put the captured pirates into the prison at Pergamon. (an ancient Greek city in Turkey under the rule of Rome) He then went in person to see Marcus Junius, the Roman governor of Asia, thinking it proper that Junius, as praetor in charge of the province, should see to the punishment of the prisoners. Junius, however, cast longing eyes at the money Caesar had seized, which was a considerable sum in those days and kept telling Caesar that he needed time to look into the case.

Caesar paid no further attention to him. He went to the Pergamon prison, took the pirates out of the prison and crucified the lot of them, just as he had often told them he would do when he was their prisoner on their small island.

With the discovery of the New World, pirates began to move closer to the Caribbean. These pirates were drawn to Spanish merchant ships known as galleons which carried huge amounts of treasure. By the Nineteenth Century, the Americans and Europeans began to get fed up with the pirates. Nations began to build bigger fleets and stronger navies. During this time, countries were experimenting with steam powered ships. Steam powered ships were much faster than the old ones, which depended on the wind. With these new ships, they were able to chase down and capture most of the pirates. The pirates just couldn't out run these powerful new ships. A handsome reward also inspired many people to help capture the pirates.

If a pirate was captured, he was either pardoned or sent to prison in England. The pirates who were given a free pardon were the younger ones and older ones who agreed to certain terms. An example of such a term would be that he (the pirate) had to give up crime and be a model citizen for the rest of his life. Those who refused the offer were to be sent to England but usually they didn't make it that far. If the English ship pulled into an American port, the captured pirates would be removed from the boat and executed by the Americans. If they made it to England, they usually went to Newgate Prison in London. That prison was a dirty and foul place to be. Many prisoners died from diseases in it before they could ever be tried for piracy. If a pirate made it to a trial, he was quickly condemned. The judges wanted to show other pirates who were still at large, what would happen when they were caught. The message stressed was that capture and death was unavoidable and inevitable. When a pirate was condemned to die, it usually meant that he would be hanged. After the hanging took place near the shore in the mornings, his body would remain on the gibbet until the tide came in or alternatively, his body would be put in a metal cage for all to see. Incidentally, their hangings were not done with a simple drop. They strangled at the end of the rope. This eventually put an end of ancient piracy.

Piracy still continues today. The only difference is that some modern day pirates use high-tech gadgets and rely on stealth rather than brute force. Modern day pirates usually plunder a ship in the middle of the night and climb ropes to get on to the deck. It only takes them a few minutes to scourge a ship and take all of the valuables. Then they go back into their boats and disappear into the darkness. Most of the weapons modern pirates have in their possessions, speed boats, automatic rifles, and machine guns. With some of them, their plans are made by computers and by contacting each other with radios. Pirates in the Indian Ocean in the area of Somalia and Yemen aren’t as sophisticated and are generally fishermen but they have managed to get hold of modern-day weapons.

There were initial outbreaks in South East Asia but, more recently, it grew most explosively off Africa's East Coast and beyond through a growing swath of the Red Sea and Indian Ocean.
It has been evident for half a decade now that small-boat piracy, arising from the violent anarchy of Somalia, has become a serious plague for world shipping. The world's most advanced navies have been struggling with extended patrols to stamp out pirate attacks along commercial shipping routes and up to recently, with only limited success.

It has become even more acute in recent months, following the audacious attack last November on the world's largest supertanker, the Sirius Star, off the coast of Somalia. It is not just a question of headline-grabbing attacks on prestige ships. Vessels from many nations across the developed and developing world face the threat of piracy from a new generation of pirates, often from failed or failing states such as Somalia and Yemen.

Piracy became even more prevalent when the pirates discovered that shipping companies would pay large sums as ransoms to free the tankers and freighters and their crews; the sums reaching amounts of millions of dollars.

Piracy is what is known as a universal crime. That means that because the pirates commit their crimes on the high seas, beyond any one country's jurisdiction, they are treated as a threat to every country. In turn, each country may arrest pirates at sea and prosecute them at the country in which their ship is registered. That could be a problem if their ship is registered in a country where it isn’t interested in trying terrorists. They can also take them to their own country if their ship is heading that way.

At least that is how it is supposed to work. In practice, whether a country can prosecute arrested pirates depends on its own laws. It is a problem the Danish Navy came up against last September when the flagship Absalon detained 10 suspected armed pirates in the seas off Somalia after they had allegedly been attacking merchant ships.

Thomas Winkler, a legal expert at the Danish Foreign Ministry said, "We were stuck with them. We only have national criminal jurisdiction if the pirates are attacking a Danish ship or Danish citizens. So we couldn't bring them to Denmark for prosecution. We looked to other states, but the evidence we had was not sufficient for these states. We had to set them free and land them in a safe place on the shore of Somalia."

The Danes are not alone with this dilemma. The German authorities had to release suspected pirates just before Christmas. BBC Radio 4's Law in Action has discovered that on two occasions last year, the Royal Navy also released pirate suspects after confiscating their equipment. Some other navies are reluctant to detain the pirates they catch for fear of becoming legally responsible for them. The problem is particularly acute with Somalia and Yemen because they both lack an effective criminal justice system.

According to Rear Admiral Philip Jones, who heads the European Union's piracy task force Operation Atlanta, when a navy intervenes to stop a pirate attack, they often do not know whether the pirates they catch can be prosecuted. he said, "That depends on where we find them, on the nationality of the ship that arrests them, on the nationality of the pirates themselves and the circumstances in which they are arrested. There is a different response available in almost every case."

The consequences of this legal labyrinth can be seen in official figures released by the US Navy at the beginning of March 2010. Out of the 238 suspected pirates investigated by navies operating off Somalia, barely half were sent for prosecution. Most of them were released.

Of the 57 pirates caught by the French Navy so far, 45 have been handed over to the Puntland authorities. The US Navy sent nine more pirates to Puntland at the beginning of March 2010. Puntland accounts for roughly half of the pirates reported to be facing prosecution. Even these figures overstate the number of pirates that actually face trial because they include those handed over to the authorities in Puntland, the semi-autonomous region in the north-east of Somalia from which most pirates come. According to Roger Middleton, in-house expert on Somali piracy at the Royal Institute of International Affairs, Chatham House, it is often unclear how long the pirates will stay in prison. When asks about how long they remain in prison, he replied, "Often not for very long. They either walk out or someone pays a bribe for them to be released."

In a bid to tackle the apparent impunity with which pirates can operate, the US and the EU have both concluded deals with Somalia's neighbour Kenya to send pirates for prosecution there. Britain sent eight suspected pirates to Kenya last November. The US is in the process of sending another seven. But is using Kenya as the first choice jurisdiction for prosecuting Somali pirates a viable long-term solution?

The Kenyan Foreign Affairs Minister Moses Wetangula has insisted that Kenya will not become a dumping ground for every Somali pirate captured on the high seas, despite the agreements. And human rights groups have raised concerns about the standard of justice that pirate suspects will face there. Ben Rawlence of Human Rights Watch says there are significant problems with Kenya's justice system. he added that "People are routinely beaten in jail. Trials are rarely free and fair. Judges are highly susceptible to corruption." However, the British government insists that the pirate suspects which it sends to Kenya will be treated in accordance with the UK's human rights obligations.

Everybody agrees that the long-term solution to piracy off Somalia is an effective government in Somalia with a well-resourced coast guard and a functional justice system. Until that happens - and with civil strife in Somalia still acute - countries trying to combat piracy face huge problems in bringing pirates to justice.

As the international community ramps up its fight against rampant piracy off the coast of Somalia, the patrolling naval forces have started to capture pirates. As recently as January 2, 2009, France captured pirates in the Gulf of Aden. Because this is not the Age of Sail and international law does not allow summary executions, an important question emerges: what should be done with captured pirates.

Pirates may be captured on the high seas or outside the territory of any state under international law. However, captured pirates are to be tried and punished under the criminal law of the state holding them in local courts, not under international law in an international tribunal. Pirates are somewhat unique in that they are arguably a hybrid between criminal and combatant. They are neither true civilians nor true belligerents. Therefore, it is not entirely clear whether they are protected by international humanitarian law, such as the Geneva Convention, or even by country-specific protections for the criminally accused, such as the U.S. Bill of Rights.

Michael Bahar recently authored an article, Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations published in volume 40 of the Vanderbilt Journal of Transnational Law (2007), in which he argued that the United States should ensure that pirates captured by U.S. warships are afforded protections under the U.S. Constitution.

The Third Geneva Convention grants certain protections to prisoners of war. Pirates are generally not prisoners of war however, whether or not they are prisoners of war in the final analysis, they will sometimes be entitled to status hearings to determine if they are prisoners of war.

The Fourth Geneva Convention grants certain protections to civilians in times of war. There are several textual problems with applying the Fourth Geneva Convention to pirates, including the fact that the Convention speaks of things like “occupation” and “war,” while pirates are captured outside any country (hence no “occupation”) and their acts are not really “war” in the colloquial sense of the word. Therefore, the Fourth Geneva Convention affords no real protections to captured pirates.

The Convention against Torture bars a capturing power from torturing pirates. Perhaps just as important given the areas in which pirates often operate, the Convention against Torture bars a capturing power from turning pirates over for trial in another country if there are substantial grounds for believing that the pirates would be tortured there.

This problem of capturing pirates and putting them on trial has to be resolved before the problem escalates. Some 16 other ships and more than 270 hostages are still held by Somali pirates pending the outcome of negotiations over ransom money for their release. According to the International Maritime Bureau, pirate attacks off lawless Somalia — without an effective central government since 1991 — increased tenfold in the first three months of this year compared with the same period in 2008, jumping from six to 61. The pirates have defied an increased international naval presence to step up attacks during favourable weather, seizing more than 10 vessels in April 2010 alone. Somali pirates attacked more than 130 merchant ships in the Gulf of Aden last year, an increase of more than 200 percent on 2007, according to the International Maritime Bureau, which tracks piracy.

An international counter-piracy naval force Combined Task Force (CTF) 151 is stationed in the area to fight piracy in the Gulf of Aden and the Indian Ocean. CTF 151 was established in January to fight piracy in the Gulf of Aden and the Indian Ocean. More than 150 suspected pirates were arrested by naval patrols in the Gulf in 2008.

Warships patrolling Indian Ocean waters off the Somali coast are enjoying greater success in capturing pirates - but the legal challenges posed by 21st Century piracy raises question on what to do with suspects after they have been caught.

Isn't it the responsibility of the country whose navy apprehended the pirates to prosecute? The United Nations Convention on the Law of the Sea defines piracy as a universal crime and gives sovereign nations the right to seize and prosecute pirates. But whether a country wants to prosecute arrested pirates depends on its own law. Experts say that several countries do not know how to incorporate the convention into their own jurisdiction.

According to the report Fighting Piracy by Commander James Kraska and Captain Brian Wilson: "On the high seas or in any other place outside the jurisdiction of a state, such as Somalia's ungoverned territorial seas, any nation's warship may take action against piracy. Pirated ships may be boarded, the pirates can be detained and the property on board the vessel can be seized and submitted to admiralty and criminal courts. The registry or "flag" of the attacked vessel, the state of nationality of any of the victims or crew, the nationality of the on-scene warship, and, in some cases, coastal and port states, all have a valid basis for asserting jurisdiction. But it can take weeks or months to sort out these logistics and legal issues."

About 20 warships from the navies of half a dozen countries operating under US, European Union and NATO commands police the pirate-infested waters. Many have signed agreements with Kenya, enabling them to send apprehended pirates there for trial. Kenya, which borders Somalia, has signed agreements with the European Union, the US, Britain, Canada, China and Denmark to prosecute and jail pirates. It has been promised financial aid in return. There are more than 100 suspected pirates in custody, either awaiting, or already on trial. But the process is slow - lasting up to a year - and costly. In May 2010, Foreign Affairs Minister Moses Wetangula said Kenya was unwilling to take on any more prosecutions and wants to review the agreements. He said some of the countries had failed to give adequate financial support to Kenya's strained justice system. Kenya has convicted 18 Somalis of piracy since 2007, including eight who were sentenced in March to 20 years imprisonment, and more than 100 others on trial, said Keriako Tobiko, Kenya's director of Public Prosecutions. Kenya halted its trials, citing the high cost of imprisoning suspects and bringing them to court. Last week, however, Kenya announced it will resume taking piracy suspects from the international fleet for trial.

Suspected pirates have been taken to the US, France and the Netherlands, among others, for prosecution. Russia is reportedly considering bringing a group of suspected pirates to Moscow for trial. But maritime experts have pointed out that the length of time taken to bring some of those cases to trial indicates the complexities involved. In some cases, legal arguments have centred on how long the suspects were kept in detention before either getting legal assistance or being charged - possibly violating the legal process of the countries involved.

Cyrus Mody from the International Maritime Bureau says the logistical and legal burdens involved in transporting pirate suspects to Western countries can be daunting. "It is difficult getting the pieces together, the evidence, the witnesses. Who's going to pay for it all? "And if a prosecution fails, the burden lies with that country. There is always the prospect that the suspected pirate might then claim asylum," he told the BBC. In some cases, suspects are simply released after they have been disarmed because of the potential legal headaches.

NATO, Russia and India, among others, have not signed an agreement with Kenya and so their navies need to determine whether or not to bring the pirates home for trial or look for another Gulf of Aden state to prosecute. This has proved difficult. According to reports, the Indian Ocean island nation of the Seychelles is emerging as the second regional centre for trying pirates seized by European Union naval units. Working with the UN, the country recently amended its criminal code to enable it to prosecute pirates under universal jurisdiction. The EU has also opened negotiations with other countries in the region, including South Africa and Tanzania, in the hope of reaching agreements enabling the prosecution of suspected pirates.

Besides the U.S. case, Kenya and the Seychelles have been the only countries prosecuting suspected pirates, but In Seychelles, 40 suspected Somali pirates are on trial, but none has yet been convicted, said president's office press secretary Srdjana Janosevic.

In Europe, piracy suspects are being held in France, Spain and the Netherlands, but the Dutch are the first to put any on trial. Europe's first trial of alleged Somali pirates opened May 25, 2010 in Rotterdam, Netherlands with conflicting accounts from the five suspects, a notable lack of physical evidence and a shortage of witnesses, in a case that illustrates the difficulty of prosecuting piracy cases and why so many captured sea bandits are let go.

Hundreds of pirates have been detained and several have been brought to Europe since the international armada was mobilized, but the majority have been released at sea because of the cost and difficulty of bringing them to trial. The European countries will be watching the Dutch case closely to weigh the merits of bringing piracy suspects to trial. The trial is scheduled to last up to five days, and a verdict is expected next month. The pirates face a maximum 12-year sentence if convicted.
Dutch prosecutors charged the suspects with the 17th-century crime of ‘sea robbery’, though they were allegedly armed with modern weapons — AK47 assault rifles and rocket-propelled grenades — when they attacked a freighter in January 2009 that flew the flag of the Dutch Antilles.

The trial opened with conflicting statements from the suspects on what they were doing at the time of the alleged attack, and the lack of evidence because their skiff was sunk by Danish marines who came to the freighter's rescue.
Whatever the outcome in the Netherlands, the case is not expected to stop the piracy problem. "Such trials will not end piracy," said the spokesman for the European Union's anti-piracy force, Cmdr. Anders Kallin.

In April 2009, The Justice Department in the United States was considering whether to bring a detained Somali pirate to the U.S., Kenya or Somalia to face charges after the harrowing rescue of a cargo ship's U.S. captain. That was the event in which the pirate’s two fellow pirates were shot to death by US snipers. The FBI was preparing a case one of three possible options in what to do with the captured pirate. Both piracy and hostage-taking carry life sentences under U.S. law. The pirate pleaded guilty in a New York court to hijacking the U.S.-flagged ship Maersk Alabama on April 8, 2009, and kidnapping of its captain. He faces a minimum 27 years in prison. Sentencing is set for October 19 2010.

Earlier in May 2010, U.N. Secretary General Ban Ki-moon said there were 406 pirate attacks in 2009, 100 more than in 2008. Most were off the coast of East Africa, which saw a sevenfold increase between 2005 and 2009, he said. Pirates are believed to be holding more than 400 seamen hostage.

In April 2010, the United Nations Security Council adopted a Russian proposal to consider the creation of a new court to deal with piracy. UN Secretary-General Ban Ki-moon will be asked to report within three months on options for "a regional tribunal or an international tribunal and corresponding imprisonment arrangements".
Some experts have argued, however, that this option would be costly and judicially cumbersome. There is still the issue of where convicted pirates would be held. It seems to me that if the Indian Ocean island nation of the Seychelles is willing to consider trying pirates, then perhaps a United Nations International Tribunal on Piracy and a prison can be built on that island with the financial assistance of the UN.

I believe that if NATO forces patrol the seas where piracy is rampant, they will finally eradicate this scourge from the seas. Captured pirates should be transferred to a United Nations International Tribunal for Pirates and if convicted of piracy in which no one was injured, their sentences should be a minimum of ten years at hard labour, if a crew member is injured, a minimum of twenty years in prison at hard labour and if a crew member is killed, natural life in prison at hard labour. If anyone thinks this is being too harsh, consider what the Russians did when they captured some pirates that attacked one of their ships. They cast them adrift hundreds of kilometres off shore in a small rubber dingy with no navigational equipment to assist them to land. The pirates were never seen or heard from again. I guess you could say that they 'walked the plank' a fate ancient pirates subjected their captives to.