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We Caught a Pirate, Now What?

We've been hearing about those pesky Somali pirates for some time, but now that the United States has actually caught one red-handed, we're going to have to start dusting off old laws to figure out what to do with these guys. A story from the Associated Press this morning sums up the situation:

As the international community grapples with the question of how and where to try captured pirates, the Netherlands and France have led the way by prosecuting them in their own courts. However, other countries are wary of hauling in pirates for trial for fear of being saddled with them after they serve out prison terms.

Several countries are now calling for piracy cases to be prosecuted in the Kenyan port city of Mombasa; there is even talk of setting up a special piracy tribunal there akin to the International Criminal Court in the Hague.

The sole surviving pirate from Sunday's dramatic rescue of an American ship captain (three U.S. Navy snipers took out three of the four Somali pirates, each using night-vision scopes to fire a single shot in the dark) will be tried in New York, according to the story. Officials say they chose New York because the FBI office there has experience with crimes against Americans committed in Africa -- its agents investigated the 1998 al-Qaida bombings of U.S. embassies in Kenya and Tanzania.

But hundreds of ships from dozens of countries have been attacked by pirates in the Gulf of Aden in recent years, and there's no sign of them slowing down. The day after the American rescue there were four more sea hijackings. Reportedly, most of the Somali pirates treat their captives relatively well and float away with multi-million-dollar ransoms. Those who are caught are often just turned loose on or close to shore, according to The Christian Science Monitor. But some legal experts in the U.S. and Europe hope that Kenya, Somalia's neighbor to the south, will create an international tribunal that can try these pirates. From the CSM:

Britain, the US, and the European Union have signed memorandums of understanding with Nairobi in recent months. Legal action is underway in Kenya for several Somali pirates already turned over by the US and Germany, in a pre-trial phase being closely watched for its legal acuity. [...]

Yet it is not clear – and now with Somali pirate lords talking about retaliation -- that Kenya is entirely keen to be the world's judicial dumping ground for marauders of the high seas. Nor is it clear that Kenya's fragile politics can support a potentially controversial initiative on piracy, or that its troubled judicial system can deliver the quality of justice that many European nations, such as Germany, say they require in turning over the accused.

And it isn't simply a question of which court system is best-equipped to handle these cases. The AP article says legal experts are worried about what happens to the pirates once they've served their sentences in another country. Can we send them back to Somalia -- an anarchic corner of East Africa that hasn't had a functioning central government since 1991 -- or do they become wards of the state that imprisoned them?

So, all you Patrick O'Brian fans out there, how should we handle all these bilge-sucking buccaneers? Julian Ku at Opinio Juris suggests that in the case of the pirate captured by Americans, a Kenyan court would probably end up giving a light sentence, while a U.S. court would provide him with constitutional rights -- but neither option will create much deterrence of future piracy. Over at The Volokh Conspiracy, Eric Posner weighs the possibilities and decides we're probably best off just paying the ransom. Any lawyers in need of advice on how exactly you deliver a few million dollars in cash to a small boat in the middle of the Arabian Sea (and avoid tripping over the Foreign Corrupt Practices Act) might want to see this interview with Seward & Kissel lawyer Lawrence Rutkowski, who helped negotiate the release of a hijacked cargo ship for his Stamford, Conn.-based shipping client a few months ago.

[Hat tip to Georgetown Law's Center on National Security and the Law]

Posted by Laurel Newby on April 17, 2009 at 04:51 PM | Permalink | Comments (2)

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