Maritime piracy has been the subject of many recently published works, but this edited collection is designed to fill ‘a very conspicuous gap’ in the literature, as the editors labelled it, and concerns the prosecution of pirates. The book is an edited collection of the findings of the High-Level Piracy Working Group, which was convened at the request of Public International Law and Policy Group (PILPG) and was tasked with examining the numerous legal and practical challenges arising from prosecuting pirates. The members of the working group and authors of the book have been providing legal assistance to prosecuting States such as Kenya, the Seychelles and Mauritius, and working closely with those actively involved in modern piracy prosecutions, including the UN Office of Drugs and Crime (UNODC) and the UN Contact Group on Piracy. The insights gained by the authors are reflected in this collection through the presentation of empirical data and information not available to the wider public, making the book a significant contribution to the literature on modern piracy.
The book has four parts focusing on different stages of domestic prosecution, including the pursuit, apprehension, trial, punishment and detention of pirates. The first theme of the collection concerns the legal foundations of pirate prosecutions. Despite some overlaps, the first four chapters offer an in-depth analysis of the meaning of piracy and how pirates can be prosecuted according to international law and domestic legislation adopted by States affected by piracy in response to the upsurge of pirate attacks. Sandra L Hodgkinson (Chapter 1) explains how piracy can be prosecuted on the basis of customary international law, the 1982 UN Convention on the Law of the Sea (UNCLOS) and the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA). The author argues that the existing regime offers the widest grant of prosecutorial authority possible, but any remaining gaps could only be eliminated by States enacting domestic legislation on piracy. Hodgkinson (Chapter 2) compares and contrasts how various States incorporated piracy in their domestic legislation and whether this legislation can contribute to effective prosecution of pirates. The author explains that national piracy laws reflect the economic and geopolitical interests of each State, but only if domestic legislation is standardized will maritime piracy be effectively prosecuted. Ved P Nanda (Chapter 3) discusses the exercise of universal jurisdiction over piracy. The study of the well-established legal framework of universal jurisdiction over piracy is contrasted with the practical lacunae that arise from the unwillingness of States to exercise such jurisdiction over pirates. Having explained the inadequacy of international law to ensure effective prosecutions, the author concludes that only if all States criminalize piracy and authorize their courts to prosecute pirates, will maritime piracy be deterred and supressed. Milena Sterio (Chapter 4) concludes the discussion of the first part of the book by presenting how the most important piracy-prosecuting States have incorporated the international law on piracy into their domestic legislation. The author explains that universal jurisdiction exists within the legal systems of those States, but reiterates the need for more States to enact national anti-piracy laws that could support effective prosecutions.
The second part of the book has two themes; the use of force during counter-piracy operations (Chapters 5 and 6) and the pre-trial detention of pirates (Chapters 7 and 8). Laurie R Blank (Chapter 5) examines the law applicable to counter-piracy operations. The author explains that the UNCLOS, the UN Security Council Resolutions and the law of armed conflict set out clear principles as to how force can be used against pirates, but inconsistencies occur in practice due to the various interpretations of the legal framework by multinational counter-piracy task forces. Mark V Vlasic and Jeffrey DeSousa (Chapter 6) complete the discussion on the use of force in the context of piracy by examining whether private actors, such as private armed security guards, can use force against pirates. It is explained that States cannot authorize private actors to use force against pirates, and if they do civil liability may arise for the authorizing States and private actors in the US Courts. The authors also discuss whether pirates can claim violations of due process rights if they have been mistreated upon their arrest. It is concluded that it is unlikely that an American Court or other domestic Courts prosecuting pirates in the Gulf of Aden would dismiss a case due to an allegation of mistreatment. Frederick Lorenz and Laura Eshbach (Chapter 7) analyse the challenges relating to the transfer of suspected and convicted pirates. The chapter provides a detailed account of the human rights issues that arise from the transfer of a pirate to another State to face prosecution or serve a sentence and offers critical comments on how the legal and practical problems can be addressed. Milena Sterio (Chapter 8) discusses the pirates’ right to a speedy trial. The author engages in a comparative analysis of how the right to a speedy trial is recognized and safeguarded by domestic courts and international tribunals, and concludes that the majority of piracy-prosecuting States, and especially those handling the majority of piracy cases, such as Kenya, have respected pirates’ rights in this regard.
The third part of the book offers a novel examination of key issues intertwined with modern piracy prosecutions. These are the use of evidence in pirate trials, the possible command responsibility of piracy leaders and the problem of juvenile piracy. Frederick Lorenz and Kelly Paradis (Chapter 9) analyse the difficulties in collecting admissible evidence for piracy prosecutions and appraise the international efforts to resolve evidentiary issues. The authors discuss the importance of evidence to an effective prosecution and suggest that only if States enact legislation that criminalizes the possession of piratical equipment will piracy prosecutions be facilitated. Michael A Newton (Chapter 10) discusses the importance of the doctrine of command responsibility and its relevance to piracy. The author argues that while command responsibility could be crucial to effective piracy prosecutions, as it could allow for the prosecution of pirate leaders and financiers who currently escape justice, the interpretation of the doctrine in recent case law does not justify its application to pirate gangs. Jon Bellish (Chapter 11) examines the problem of juvenile piracy, explaining that ‘up to one-third of all pirates operating off the coast of Somalia at any given time are less than 15 years old’. This means that prosecuting States have to adopt additional safeguards to protect the rights of juvenile offenders. Following an analysis of the international legal framework on the treatment of juvenile offenders and the various ways this has been incorporated into the legal systems of piracy-prosecuting States, the author concludes that inconsistencies in the treatment of young pirates are unavoidable.
Part IV considers issues arising from sentencing pirates and their post-sentence treatment. Eugene Kontorovich (Chapter 12) offers an overview of sentences that pirates have been given by American, European, African and Asian Courts and highlights that there are wide inconsistencies depending on which domestic courts hear pirate cases. The author examines the factors piracy-prosecuting States consider when sentences are decided and concludes that it is almost impossible to standardize sentences, which means that inequities in sentences may be the cost we have to pay for piracy prosecutions. Yvonne M Dutton (Chapter 13) explains why pirates cannot claim asylum after their sentences in the US and Europe. The chapter also argues that piracy does not end with prosecution and stresses the importance of reintegrating pirates into Somalia. The author provides specific recommendations as to how reintegration can be achieved and serve as a tool to deter piracy. Michael P Scharf (Chapter 14) concludes by addressing the oft-asked question of whether there is a case for an International Piracy Court and he suggests that a number of obstacles prevent the establishment of an international tribunal, but new solutions might be urged if financiers and kingpins of piracy are finally brought to justice.
Piracy prosecutions have been considered a key tool in the fight against piracy, but are also shrouded by legal and practical complexities. Therefore, this edited collection sheds light on a very important issue—what happens once pirates are apprehended. The book is designed to offer a clear and accessible introduction into the subject of piracy prosecutions, while also providing a sophisticated analysis of the complexities of prosecuting modern piracy and clear-cut recommendations for making piracy prosecutions effective and compatible with international law. This timely and thorough analysis of piracy prosecutions makes the collection of interest to students, scholars and policymakers.
