But pirates have today, to deal with an increased presence of military ships; the United States leads a multilateral military force of some twenty states, and the European Union has created for this purpose its first joint military force. Their numbers are augmented by the presence of the military ships from several Eastern states. Moreover, the UN Security Council has authorized military ships in the area to pursue suspect vessels inside the Somali territorial waters and even onto the mainland in order to capture the pirates. If both the number of pirates and of military ships in the area increase, we can be almost certain that the two will clash more frequently. This is precisely what has happened in the last weeks.
But once arrested, what becomes of the pirates? The International Law of the Sea does not give rise to problems of interpretation: since the Seventeenth century pirates are considered hostis humani generi and piracy is one of the few crimes, indeed the first crime, for which there exists universal jurisdiction (for a fascinating account of piracy in the Seventeenth and Eighteen Centuries, see Peter T. Leeson The Invisible Hook: The Hidden Economics of Pirates, Princeton University Press, 2009). This means that any state that captures a pirate ship is entitled to try the pirate crew in its tribunals. But the norm is so old and international piracy in the high seas had become so uncommon that states find themselves unprepared. More particularly, several countries do not know how to incorporate this international norm in their domestic jurisdiction.
Up till now, the United States and France are the only two states to have brought pirates home to try them. The United States have brought to New York Abduhl Wal-i-Musi, the teen-ager involved in the hijacking of Maersk Alabama and its Captain Richard Phillips whose age and even name are still uncertain. This will be the first trial held in the United States for piracy for more than a century. The course of the trial promises to be all but predictable: the strategy of the defence is likely to be centred around the age of the defendant, but also on the fact that his arrest took place while he was onboard the American vessel to negotiate the release of the Captain. The fact that he was arrested during a truce in high sea might invalidate the arrest.
The number of pirates detained in France is greater: following two expeditions of the French special squads there are currently twelve prisoners. The first group of six pirates was captured in April 2008 after the kidnapped, payment of a ransom and release of the 30 members of the crew (22 of which were of French nationality) of the yacht "Le Ponant". The second group of six pirates was captured in September 2008 (while a seventh pirate was killed), after they hijacked the yacht of the French couple Delanne. In both cases, the blitzes of the commandos were properly filmed and broadcasted by the French Navy.
These cases have one legal point in common: those who performed the arrest are the same nationality as the hostages. But they have also similarities in terms of political image: Nicolas Sarkozy and Barack Obama have both been directly involved in the process and are portrayed as the decision-makers of last resort who acted to protect their fellow citizens abroad as well as to ensure the guilty parties were punished.
How do the other navies behave, in particular in those cases when hostages of different nationality are involved? The Indian navy has shown more propensity to sink suspect ships rather then arresting pirates. The Dutch and Danish navies, who have captured ships carrying war weapons, have kept the crews onboard their vessels for a few hours but have then chosen to release them. The Dutch, who were operating under a joint NATO mission, have provoked the wrath of the US Secretary of State, Hillary Clinton. But the fact remains, NATO has an agreement to patrol the Gulf of Aden, but it does not have a common policy in relation to making arrests, as frankly acknowledged by NATO Lieutenant Commander Alexandre Fernandes.
It is certainly surprising that there are so many Navy ships patrolling the Gulf of Aden and the outcome is so often that arrested pirates are released. So far, the Navies have had a more preventive than a repressive role. There are not more than one hundred pirates waiting for trial, of which 64 in Kenya, 12 in France and 1 in the United States, but at least double the number of suspected pirates have been captured and then released.
Great Britain has extricated itself from this embarrassing situation by reaching an agreement with Kenya, delegating to the Nairobi tribunals the responsibility to see justice done. The United States and the European Union swiftly followed suit through an "Exchange of Letters between the EU and the Government of Kenya" (pdf). It is an ingenious solution, albeit a contradictory one: states with a proven democratic tradition have surrendered jurisdiction to a country whose justice and detention system they have themselves often denounced as corrupt, inefficient, very slow and infamous because of regular violations of human rights. Surrendering the pirates to a state incapable of guaranteeing a just trial risks becoming a new form of "extraordinary rendition". Moreover, even in Kenya there is a mounting dissatisfaction with these legal arrangements, often not ratified by the Parliament and that may expose the country to reprisals by armed groups in neighbouring countries.
But what alternatives are there? The first is to charge the states which captured the pirates also with the responsibility of carrying out the trial and detention (as the United States are doing). This may prove risky for the countries that arrest pirates. The United States and France, for example, may be asked to justify in front of their own Courts the use of force employed. Were better options available to the killing of the three other pirates involved in the kidnap of Captain Phillips? Was France legally authorized to intervene militarily in Somali territory? All these issues are likely to make the trials controversial and to make the offences of the pirates as minor ones.
The second is the institution of an ad hoc International Tribunal, but this solution is costly and judicially cumbersome.
The third, and possibly best, solution is to give jurisdiction to a state whose judiciary system guarantees that the defendants will not be abused, in other words, not Kenya.
We can be certain of one thing: the pirates' adventures have not only disrupted maritime governance, they are also showing up the faults of the international criminal jurisdiction.
