CHALLENGES ARISING IN PROSECUTING MARITIME PIRACY SUSPECTS
Updated: Sep 17
Author: Pushpesh Srivastava, V year of B.B.A.,LL.B(Hons.) From Amity University, Lucknow.
For resisting maritime piracy the legal mechanism is facing lots of issues. It becomes vital to underline some legal issues arising from the prosecution of suspected piracy. Identification of those legal challenges will help the lawmakers in investigating if some kind of resolution, amendment or any further development is required associated with the legal regime of the current maritime piracy. Costal states are continuously suffering with this maritime piracy problem. It is necessary for the states to investigate such legal issues in their specific legal system and to take relevant steps to resolve them. Because of the improvement of weapons and boats, the problem of maritime piracy rising up every few years. Maritime piracy has always served as a source of enduring hazard towards the safety, security and peace of maritime shipping. Factors including enforcement of weak laws, maritime security, cultural and geographical influence, economic dislocation and because of insufficient domestic laws on punishment have offered this piracy activities. As a result, states are facing numbers of challenges in prosecuting the pirates. This paper discusses the legal issues arising from the prosecution of maritime piracy suspects in the States.
Piracy also recognized as a first crime against international law. It is an unauthorized act of violence with an intention to cause plunder by a vessel against another vessel. The legal arrangements have been successfully controlling and monitoring the crime of maritime piracy to some extent but because of cultural and geographical influence, complete eradication of this crime does not seem to be possible. As per the economic point of view, piracy has an adverse influence on creating scenarios such as cheating, stolen cargos and delayed trips which also lead to the disturbance regarding the ability of a trading states. In political scenario, this maritime piracy can be involved in crucial role in uplifting corruption among administration and elected officials which in return would eventually weaken or diminish the authenticity of governing law. Piracy could encourage an environmental disaster, mostly in the scenarios in which an attacked ship is left to deviate on the shipping lane, due to which ships may crash.
The United Nations Convention on the Law of the Sea (UNCLOS) provides for the provisions on piracy as enunciated in Articles 100 to 107b is an illegal act of violence, detention, or depredation or that act which is illegal is committed for private purpose, the illegal act are committed on the high seas, it involves atleast two ships.
Article 100 of UNCLOS, mentioned that it is an obligation for all states to cooperate as fully as possible in the suppression of piracy. Prosecuting suspected pirates is seen as an important potential discouragement. Piracy remains a threat to international shipping, primarily because of the failure to prosecute suspected pirates for the offense of piracy. UNCLOS allows each state to confine a pirate ship with all belongingness on board and to arrest persons at a locality outer side of the jurisdiction of any state or on the high seas. Also authorize the state to choose the penalty to be imposed and to decide the approach to be taken in relation to the property, aircraft or ship. The act of piracy is also responsible for causing heinous damage and other kinds of financial loss, because of which there exist no public interest which again have adverse influence on the success of procedure adopted for prosecuting maritime suspects.
Basically, states are divided into two categories:
1) Regional states obliged to prosecute pirates on the basis of transfer agreements.
2) Those states involved directly in an incident.
The first category includes the states of Kenya, Seychelles and Mauritius.
When a coastal state transfers captured pirates for prosecution, it is not only considered as a legal obligation for custodial state, but it is also a moral obligation to either prosecute and punish the criminals before a domestic court or hand over them for prosecution to another interested state. With the growing threat of piracy every day, it can be expected that the government will stick to its word and draft an effective law at the earliest to resolve the legal issue arising from prosecuting maritime piracy suspect.
Kenya has indeed made substantial efforts to contribute towards the initiative to combat piracy, but the international community has not received half of Kenya's support for these efforts; For example, providing substantial aid in the task of prosecuting pirates. Kenya disagrees with this claim, suggesting instead that prosecutors have been the major propel of its efforts. There is a need for a change in law along with the cooperation from both international and regional as the legal arrangements of the states are not much well-furnished and updated to deal with the prosecution along with the procedures associated with it.
The first state to show their zeal to prosecute piracy cases under the regional prosecution model were Kenya, Mauritius and Seychelles. There are issues in prosecuting captured pirates, for example, drafting charges against pirates, jurisdictional issues, political and technical concerns, and technical issues that require a state to drop charges and release the pirates. To meet these issues and deliberately wipe out the legal issues arising, it is recommended for effective protocols applicable against pirates and for States to expand their combined efforts to prosecute them.
The citizenship status of the victims should be taken into account as they have a definite attention in prosecuting the pirates since the citizens of the state were killed or injured. Finally, another interested state for prosecuting pirates as the act of piracy is also considered as an international crime and rival of humankind and also subject to universal jurisdiction. It is still much important to assemble a reasonable legal system for anti-piracy, especially in the areas that need long-term and huge investment, like enactment, legislation, law enforcement, prosecutions, and trials.
Criminalization of piracy
The United Nations Convention on the Law of the Sea (UNCLOS), 1982, comes with provisions on piracy, as mentioned under Articles 100 to 107, which are requisite on all the states, even those are not in favor. However, specialist on international piracy affirm the inability of states to incorporate international law into their domestic law as one of the challenges hindering the prosecution of pirates. But many other logistical and legal and issues also play a vital part in making delays and also to make it more difficult to relocate or prosecute pirates once caught.
Article 105 of the UNCLOS provides universal jurisdiction over the high seas to intercept pirate ships and to arrest individuals and confined the property on board. It also agrees with the universal jurisdiction of the state courts that seized the ship, and the fines to be imposed should be decided.
Therefore, states can criminalize piracy in their national law and prescribe the relevant sentences to be awarded to those who are convicted for acts of piracy. In US v. Hasan, the court ruled the failed and unsuccessful attempts to commit piracy that constitutes the piracy jure gentium. The commentary of ILC's provided that the ILC "did not consider it necessary to go into details relating to penalties to be imposed and other measures taken by the courts. However, in exercise of their freedom to decide with respect to Article 105 of the UNCLOS, the States shall note their duty to "co-operate to the fullest extent possible in the suppression of piracy".
Defects on piracy legislation
Naval forces were again and again many times forced to release suspects without any sanctions, whether there is sufficient evidence to prosecute them or not. This has also undermined international efforts against Somali pirates. The failure to criminalize piracy and establish universal jurisdiction in domestic sphere results in the lack of a basis for combating piracy at the national level. Even in the states that have criminalized piracy and accepted universal jurisdiction over piracy in their domestic law, there are still many loopholes in the law.
The very first loophole is in the definition of piracy is not uniform at all between the international law and domestic law. This lack of consistency will create to operational trouble in applying universal jurisdiction. Even if an act incorporates “piracy” under domestic law, it does not accordingly mean that universal jurisdictions applicable, and there is a need to differentiate whether the so-called “piracy” obey to the UNCLOS definition.
This increases the difficulty of implementation and can easily confuse.
The sentences or punishment which are imposed on pirates, the universal jurisdiction over piracy on the basis of domestic law is not much well established. Lawsuits of universal jurisdiction over piracy are public goods that assist the entire international community.Thereupon, it is essential to examine the sentences for piracy in separate States, relatively. There should not be wide variation in punishment for similar crimes, otherwise they may lead to injustice. However, as of 2010, the highest maximum sentence was a life sentence, for an example Kenya, and in Seychelles the maximum sentence was 30 years.
The State exercising universal jurisdiction may possibly also have to endure other risks associated with it all alone, such as Kenya’s motive to exit from the handover agreement to receive pirates in March 2010 when it claimed that it was menaced with retaliation or some kinds of attacks from pirates’ allies.
Many of the states have not fully acquired domestic legislations and a jurisdictional framework which is based on the idea or approach of universal jurisdiction provided under UNCLOS. There is a lack of procedural provisions in the application of extraterritorial law, necessary procedural elements such as the rights of pirates, detention, treatment and transfer, boarding procedures and inspections and evidence collection procedures are rarely included in domestic law. If any of the states failed to meet with those issues, it may lead to infringement of human rights provided under law.
Integrating law between states will assist in maritime law enforcement cooperation, the transfer and reception of pirates, the identification of evidence collected by other states, and law enforcement before and after the transfer of pirates, which are rarely reflected in existing domestic laws. All the efforts taken to harmonize the law within its jurisdiction could further benefit the best practice worldwide.
The attempt or temptation to commit piracy is not explained by UNCLOS in a clear and detailed manner. Although some scholars and intellectuals hold the view that in this case, the corresponding acts do not apply to universal jurisdiction, and only actual pirate attacks can be prosecuted under UNCLOS.
In the cases of Topaz and Nave Atropos in Seychelles, pirate ships attacked the other ships, but failed. All the accused convicted. However, the uncertainty lies as it was absolutely unclear whether the vessel, which has not yet made contact with the vessel being pursued, is a pirate attempt. But the pirate ship showed a clear desire and willingness to attack and began to act on a target which is specific. The verdict of the Darco's case in the Seychelles demonstrated that a conviction can be successfully achieved for chasing a ship as an attempt to commit piracy
The UN Division of Ocean Affairs and Law of the Sea (UN-DOALOS) also stated that the attempted piracy did not connect the UNCLOS definition of piracy. However, the contrary view is that piracy must add attempted piracy under international law.
The UNSC calls on all countries to accentuate the significance of criminalizing attempted piracy. Draco Seychelles' verdict showed that a punishment or conviction for stalking a ship in the form of an attempt to commit piracy could be successfully obtained
Why legal issues arising from the prosecution of maritime piracy suspects
Many writers and policy makers believe that international tribunals are unfit for the crime of piracy. The first difficulty arising for the prosecution of piracy is to identify charges in accordance with the UNCLOS definition of piracy itself. Traditionally, international courts were created to try serious offenses outside the jurisdiction of the state. National governments may be reluctant or unable to exercise jurisdiction over defendants, especially if the defendants are related to government officials. These courts often deal with certain types of cases, for example: war crimes in armed conflict. These characteristics often relate to piracy. can and will be effectively prosecuted in national courts.
In addition, the identification and confirmation of suspects and witnesses is very much essential for the process of an effective investigation and prosecution. It is also observed many times that it is difficult to trace or to find out the witnesses because there were no specific addresses of those who were mainly involved in stateless pirates. As these people mostly do not have proof of age or identity, which creates difficulties and problems at various stages of litigation especially when the matter is related to prosecute minors or underage individuals. The lack of official documents or evidence to identify suspects and witnesses creates lots of trouble and also complicates the overall proceedings to prosecute them. Disclosure of information such as finger marks and impressions, photos or sketches and other biometric information is considered basic information or evidence of suspicion. Even the data collected in some countries is useful for others. This is especially useful if a suspect is suspected of being abducted repeatedly. Tracking piracy often suffers from the exchange of data and information with naval forces.
Searching abroad, gathering evidence and obtaining the necessary information from the victims and witnesses are very much vital and essential elements of effective prosecution. However, collecting all kinds of evidence and witnesses that may be scattered around the world is a major stumbling block to a successful pirate hunt. It is difficult for prosecutors to present evidence because there is always a risk and high probability of damage to the evidence on the ship due to the effects of weather conditions, such as humidity and strong winds, or a certain location.
Defense counsel may introduce various kinds of complications associated with the overall litigation and its procedure and others kinds of objection during the prosecution of trial. In some of the scenarios, suspects also opted for hunger strikes, make an attempt to overboard, escapes and also put the demand for better conditions. In addition to this one more issue arises on ships, since there are usually no jails on ships. It is also important to note that these kinds of issues are hardly ever put forward, there is always a space and scope for more awareness and it is also vital for prosecutors to be aware of these kinds of situation actually prevailing in the background having adverse effect on prosecutions of pirates.
To facilitate the transfer agreements for the prosecution of cases involving act of piracy in national courts of the region with proper and relevant qualified support. The initiative for this process led by Kenya and the Seychelles and then Mauritius. In principle, Seychelles and Mauritius guarantee the protection of the human rights of displaced or transferred persons.
Some of the countries do not have a domestic law criminalizing piracy, and since then, many states have not faced the challenge of making or approving piracy laws. Seychelles and Mauritius are some of the few countries that have done this. The first piracy prosecution conducted by Seychelles in the year of 2009 in the case of Dahir But there are still having lots of serious loopholes in laws”. Makers and intellectuals are currently focusing on piracy-related issues, lets take an example, children are used to commit the act of piracy, jurisdictional issues, financing piracy, the use of private armed guards, and money laundering. Prosecution in the region was at stake, which could be a short to medium term solution rather than a long-term solution and it is also driven by political will, resource allocation and international support for criminals.
Meanwhile, during the interrogation, witnesses or victims must remain on board until the investigators have finished interrogation, which is very stressful for anyone, especially if they cannot understand each other due to difference in language. On the other hand, they completed their sailing and service and new sailors appeared on the ship, and in the latter case, it can be difficult to get them all as all sailors belongs to different nationalities. Piracy is a form of crime in which crew members can be held as security for the fulfilment of a condition for months, so crime scenes are usually tainted when investigators start the process of investigation which is an essential process for the prosecution of pirates.
The extradition of captured pirates is no enclosed by UNCLOS. Whilst UNCLOS and other treaties provide for the basic framework of law for the prosecution of pirates, the anti-piracy regulatory environment lacks uniformity and consistency. Different countries have different local laws, and the world's first great powers, mostly “conquerors,” rarely enjoy universal jurisdiction. This reluctance and lack of regularity in law enforcement has led to the establishment of UNODC-funded Indian Ocean Pirate Prosecution Centers and transfer agreements with third - party states.
Seychelles, one of these states appears to have become an ad hoc international piracy court. It is a small country with limited legal knowledge, expertise and capacity. There is a need put forward the clear and straight guidelines associated with the limit of universal jurisdiction, especially since international law differs from municipal rules.
The issue of jurisdiction is problematic because, in many cases, the arrest of pirates bridges the gap between international and domestic law and jurisdiction. Kenya received several contentious judgments in this regard, and the matter was left to the discretion of the Court of Appeal. As Petreto notes, "the intersection of different geographic areas and national jurisdictions is a major challenge in the fight against piracy." The crime scene and seizure must be reviewed before the case is approved. Extradition may be requested if one country has jurisdiction and the suspect is arrested or resides in another states.
At the same time, more bilateral and multilateral agreements are needed between the states to check of restraint the issues arising in prosecuting the pirates. Bilateral and multilateral agreements can help to create commitment involving an obligation between the states and mainly address and deal with the issues of jurisdiction and its enforcement. In line with current international trends, the cooperation and coordination of regional piracy courts should play an indispensable role in identifying international pirates and providing legal assistance to countries seeking to prosecute international pirates. In this way, international organizations such as the United Nations and IMO can merge existing regional cooperation with the IMB's investigative competence as the basis for the creation of a regional piracy court.
Generally, the prosecutions of these pirate's mean a significance burden in terms of finance on states, one of the logics behind this is that acts of pirates are criminal in nature that is done by a group of people in an organized form by because of which there are always a greater number of suspects or multiple suspects and these types of cases are mostly decided only on the basis of the victim’s remark. Thus, the evidences, pirates, victims, witnesses need to be moved to the place of trial and it also occur some cost.
Burden of proof and regulatory requirements poses many challenges. It can be called as “ancient law of proof,” which does not provide evidence based on photographs or videos. In addition, the defendant was also released in some matters due to technical peculiarities or illegal evidence due to ignorance of the pirates' duty to provide evidence. This means another challenge. Kenyan law requires witnesses to testify in person, and many refuses to appear in court, which is costly and time consuming too and has implications, especially for seafarers.
We can't ignore the fact that there is insufficient judicial equipment in the states of Kenya, Seychelles and Mauritius also impedes further prosecutions. In addition, inadequate training of lawyers, such as prosecutors and judges, on piracy issues limits the effectiveness of the courts. Indeed, as the question of these states ability to prosecute the pirates is very disturbing and is of great concern.
The need for fair procedure for prosecution, legal assistance and to take into consideration for human in matters related to maritime piracy raises some serious and great concerns due to exceptional circumstances. Dealing with the minor pirates is one of the challenges of various applicable prosecution laws that require strict adherence to human rights standards. As a rule, juveniles or minors are generally awarded with much lower penalties and special measures in legal proceedings. If the suspect is a minor or is a juvenile, special rules or regulations governing the prosecution of the crime apply. In some countries, such cases are handled by special juvenile courts, these courts are specialized and competent to hear the matters related to juvenile or minors.
When courts are dealing with a minor or a juvenile, courts must take into account the specific actions as well as their specific roles. Whether he only had a weapon or used it on victims or naval personnel. Although they are pirates, they are also human, so they have the right to due process and fair treatment during detention and abuse.
This act of piracy completely has a pessimistic influence on the people and government of Seychelles, Mauritius and Kenya. States can play more valuable and greater role focusing towards prosecuting the pirates. Indeed, state must move ahead and adopt the practices and all kinds of sincere initiatives that will help them to eradicate all kinds of issues and challenges arising in prosecuting the pirates and it will lead towards the peace to global waters. If these states can issue a call to convene the required will in terms of politics to frame such coordinated and brief but comprehensive measures and initiative to tackle the legal issues arising in prosecuting the piracy suspects and the international community can attend and deal with all kinds of concerns regarding capacity and arrangements of finances occurring in prosecuting these piracy suspects. What is needed on the part of these states is to be very much clear to show their willingness and coalition towards establishing the legal provision and its implementation regarding the prosecuting of suspects within the region and the globe; and to resolve all such legal issues arising by using its economic position, political group and by resolving the problems related to the position of geopolitical to address the challenges arising in prosecuting these maritime suspects in the states of Kenya, Mauritius and Seychelles. Undoubtedly, we can say that piracy represent a quantity of challenges and legal issues associated with institutional challenges and political issues and socioeconomic aspects and also legal issues.
As we can see there are lots of problem and legal issues because of which prosecution of suspected pirates and the way their trial procedure facing some defects and because of this only, our legal system is repeatedly failing and lagging behind to prosecute these pirates in the states of Kenya, Mauritius and Seychelles and also creating difficulties for the authorities who are responsible to adjudicate these kinds of maritime piracy cases and to smoothly prosecute the suspects. These kinds of obstacles are arising partly due to some legal complications and partly due to consideration at political level.
In this paper I tried and make an attempt to discuss and summarize the legal aspects and defects responsible for creating loopholes and challenges in prosecuting the suspects of maritime piracy. The necessary components and essentials requirements for conducting a favorable prosecution of these suspects are starts with deciding the jurisdiction and then to put efforts to carry a fair trial and to achieve this investigation process need to be more effective and efficient and collecting of all relevant evidences and also it is vital to take appropriate measures regarding the events and stages after the trial and mode and kinds of punishment to these pirates.
Although the law provides very wide jurisdiction to try these suspected pirates, but this prosecution procedure is still lagging behind because of the issues and challenges arising because of very few and less amount of financial and human resources to bring the changes required to prosecute these suspects. There is a requirement to introduce and implement more focused and overall effective and efficient prosecution strategy to resolve all kinds of legal issues
An international mechanism along its own statute and procedural and evidentiary rules a d regulation could serve as a model and additionally modernize the standards and practices which are more consistent. The development of such kinds of tools drawn on basis of the past experiences of the different kinds of tribunals at international level.
The well-established assistance of all kinds of dedicated material, resources and expedient along with the required specialization, and well examined practical experience as per the need of modern world and it also includes the initiative to put some efforts towards the development of expertise at a professional level, economies of scale and adopting more effective and efficient practices, which are applicable on the law enforcement and prosecution arenas as much as anywhere else.
The legal mechanism for resisting maritime piracy faces lots of issues. It becomes vital to highlight some legal issues arising from the prosecution of maritime piracy suspects. Identification of those legal issues will help the lawmakers in investigating if some kind of resolution, amendment or further development is required associated with the legal regime of the current maritime piracy. Costal states are continuously suffering with this maritime piracy problem. It is necessary for the states to investigate such legal issues in their specific legal system and to take relevant steps to resolve them. Because of the improvement of weapons and boats, the problem of maritime piracy rising up every few years. Maritime piracy has always acted as a source of permanent hazard towards the security and peace of maritime navigation. Factors including enforcement of weak laws, maritime security, cultural and geographical influence, economic dislocation and because of insufficient domestic laws on punishment have offered this piracy activities. As a result states are facing numbers of challenges in prosecuting the pirates. It is also concluded that the criminal accountability for piracy has been slightly very much least, due to logistical and jurisdictional challenges and troubles associated with it. Stipulates the provision of mutual legal assistance among States considering the offences included under the universal legal instruments towards the prevention, investigation, and prosecution of maritime piracy suspects, as well as the terms and conditions mentioned to transfer the accused suspect in custody for the purposes of testimony or establishing it's identity or otherwise providing legal assistance in gathering and collecting all kinds of required relevant evidence for the purpose of investigation or prosecution.
There is a need to join hand with each other by these states to take up the measures effectively and efficiently at global levels to set up various conclusion, strategy, proposal for provisions to be included to eradicate the legal issues arising in prosecuting these suspected maritime pirates as many of the previous measures taken by these states are basically more suitable and restricted to their interest and other kinds of benefits.
At the same time, more bilateral and multilateral agreements are needed between the states. Bilateral and multilateral agreements can help to create commitment involving an obligation between the states and mainly address and deal with the issues of jurisdiction and its law enforcement.
Policy makers and intellectuals are currently focusing on piracy-related issues, such as childrens are used to commit the act of piracy, jurisdictional issues, financing piracy, the use of private armed guards, and money laundering. Prosecution in the region was at stake, which could be a short to medium term solution rather than a long-term solution and it is also driven by political will, resource allocation and international support for criminals. Many of the states have not fully acquired domestic legislations and a jurisdictional framework which is based on the idea or approach of universal jurisdiction provided under UNCLOS. There is a lack of procedural provisions in the application of extraterritorial law, necessary procedural elements such as the rights of pirates, detention, treatment and transfer, boarding procedures and inspections and evidence collection procedures are rarely included in domestic law.
This actually established that the concept and reality of terrorism in the maritime sector and the act of piracy is very much difficult and complex under international law as there isn’t any uniform concord between the States as to what rules and legal provisions should be applied in the prosecutions of suspected pirates. After going through the legal provisions and applicable laws relating to prosecutions of maritime piracy suspects, one of major issues that is concluded is the serious scarcity and lack of an effective legislation to deal with such a crucial menace. There is always a space and scope for more awareness and it is also vital for prosecutors to be aware of these kinds of situation actually prevailing in the background having adverse effect on prosecutions of pirates. Though there are some laws at the international level but lagging behind to serve the purpose. States are continuously facing the legal issues and far as the domestic laws of the states on the subject matter is concerned related to the prosecution, there remain a serious unfilled space or gap which needs to be addressed as soon as possible.