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Lack of prosecution poses challenge for foreign navies that catch Somali pirates

By Craig Whitlock
Washington Post Staff Writer
Monday, May 24, 2010; A08

For six weeks, two Navy warships have been cruising the Indian Ocean with some unwanted guests: 10 accused Somali pirates the U.S. government doesn't know what to do with.

The United States and more than 20 allied countries have captured hundreds of pirates since launching joint operations in the Indian Ocean, Arabian Sea and Gulf of Aden last year. But catching the pirates -- almost all from Somalia, a failed state on the Horn of Africa -- has been the easy part. Finding a place to hold them has proved far more complicated.

Kenya, one of only two countries in the region that had been willing to take custody of suspected buccaneers and put them on trial, announced last month that it would stop taking new cases because they had become too much of a burden. On Wednesday, after meeting with European diplomats, Kenya's foreign minister said his government would resume accepting captured pirates. But U.S. officials said Thursday that they were still waiting to hear formally from Kenya and that the suspension remained in effect.

With African countries reluctant to resolve the problem, the U.S., European and other foreign navies that capture pirates increasingly have been confronted with the choice of bringing them all the way home to face trial or simply letting them go -- a practice known as "catch and release."

The Obama administration has argued that prosecution is necessary to deter Somali outlaws who have disrupted some of the world's busiest shipping lanes by hijacking vessels and demanding millions of dollars in ransom. On Tuesday, in the first U.S. piracy case in decades, a Somali teenager pleaded guilty in federal court in New York to involvement in last year's hijacking of the Maersk Alabama, a U.S.-flagged container ship.

Last month, the Navy handed over 11 more suspected pirates for prosecution in federal court in Norfolk. They were captured in two incidents last month after they launched attacks on what they thought -- in the dark of night -- were unarmed merchant vessels but turned out to be U.S. warships on patrol in the Gulf of Aden and the Indian Ocean.

Reluctant hosts

Under international law, any country may prosecute pirates, regardless of whether its citizens or companies were victimized. But the U.S. government has drawn the line at cases involving American interests. As a result, the Navy has been stuck holding 10 other Somalis it captured April 5 after rescuing a vessel under attack in the Arabian Sea.

In that case, the McFaul, a U.S. guided-missile destroyer, apprehended a band of pirates that had hijacked an Indian cargo ship and its nine crew members and was trying to board another Indian vessel. Shortly afterward, the Navy transferred the pirates to the Carney, another U.S. warship in the region, "whose mission could better support further transfer of the suspected pirates to another country for prosecution," said Lt. Matthew Allen, a spokesman for the Navy's 5th Fleet, based in Bahrain.

The handover attempt fell through, however, prompting the Navy to transfer the suspects back to the McFaul, which is on a counter-piracy mission in the Gulf of Aden. The Navy did not identify the country that declined to take the Somalis.

"My preference is that we don't hold the pirates. But when you have them, you have them," said Adm. Gary Roughead, chief of U.S. naval operations. "I'm kind of letting the diplomatic channels work it out."

Meanwhile, the Navy says the accused pirates are detained "in a covered area on the exterior" of the McFaul, where they are fed the same food as the sailors. "The one thing that is for certain is that they gain weight while they're with us," Roughead said.

A senior U.S. official said the Obama administration is hoping to clinch a deal in the next several days for another country to prosecute the accused pirates. The official said prosecuting the Somalis in the United States was not under consideration because the case did not involve U.S. victims or interests.

If no deal is reached, the Navy may have to let the prisoners go. "Catch and release is always the last resort, but on occasion, we have resorted to the last resort," the official said, speaking on the condition of anonymity. "You can't rule it out."

Catch and release

Many European countries, whose navies are contributing to the international flotilla patrolling the waters off Somalia, have been much quicker to employ the catch-and-release approach.

The European Union's naval forces caught 275 pirates off the coast of Somalia in March and April but released 235 of them after confiscating their weapons, said Anders Kallin, a Swedish navy commander and spokesman for the E.U. forces. Ten were taken to Hamburg to face charges of attacking a German-owned container ship, despite some German officials' fears that the suspects might seek asylum. The island nation of Seychelles agreed to prosecute 11 others, while the remaining 19 were handed over to authorities in Puntland, a region in southern Somalia.

In the same period, the U.S. Navy -- which focuses more on capturing terrorists -- caught 39 Somali pirates and released 18 of them.

The increased foreign naval presence has reduced the number of hijackings in the Gulf of Aden, a vital shipping lane leading to the Red Sea and the Suez Canal. But pirates have responded by hunting for prey elsewhere in the region.

Overall, Somali pirates attempted 217 hijackings in 2009, almost double the number from the year before, according to the International Maritime Bureau, a London-based agency. As of March 31, suspected Somali pirates were holding 10 vessels for ransom, along with 178 crew members, the bureau reported.

U.S. Navy commanders say that the region is too vast for them to patrol effectively and that it is incumbent on merchant ships to protect themselves. The only long-term solution, they say, is to restore law and order in Somalia. But the country has lacked a functional central government for two decades, and piracy represents one of the few growth spots in an otherwise shattered economy.

"I don't think we can sustain the level of operation that we have down there forever," Adm. Mark P. Fitzgerald, commander of U.S. naval forces in Europe and Africa, told Pentagon reporters last month. "How do we deal with this? We've got to come to some kind of solution."

Staff researcher Julie Tate contributed to this report.

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