A case for trying pirates before a U.N. tribunal

By David B. Rivkin Jr. and Carlos Ramos-Mrosovsky
Wednesday, December 8, 2010; 7:00 PM

The international response to Somali piracy just became more complicated. Kenya's second-highest court ruled last month that it has no jurisdiction to try pirates captured outside of Kenyan territorial waters. The decision underscores the need for a comprehensive international legal framework to address the challenges of modern-day piracy.

Thanks to a series of agreements since early 2009 with the United States, the European Union, China and other countries, Kenya has emerged as the favored spot for the world's navies to set captured pirates ashore for trial and imprisonment. The Kenyan judiciary has done its best: Scores of pirates have been convicted and imprisoned. Others have been acquitted, usually for lack of evidence that may have simply sailed away. More than a hundred suspected pirates await trial.

These efforts have strained the capabilities of Kenya's courts, and officials have signaled that Kenya will stop prosecuting pirates captured by foreign navies unless its cash-strapped judicial system receives significant assistance. Whereas pirates can realize millions from the ransom of a single vessel, international aid has been meager in comparison: The U.N. Office on Drugs and Crime, launched in May 2009, allocated just $2.3 million for 18 months of piracy prosecutions.

The ruling's legal foundation is actually suspect: International law classifies pirates as "hostis humani generis" - "enemies" of all mankind - subject to prosecution and punishment by any nation for offenses committed on the high seas. In other words, Kenya's courts may have jurisdiction over piracy regardless of whatever Kenyan statutory law the ruling relied upon.

Yet the real issue is not the actions of a relatively poor East African country but the international community's pusillanimous approach to piracy.

The practice of dumping pirates on Kenyan authorities reflects wealthier governments' extreme reluctance to try pirates in their own courts. A federal court in Virginia just finished trying five Somalis captured in an April attack on a U.S. warship, the first defendants to be tried for high-seas piracy in a U.S. court since 1819. A juvenile court in Hamburg is hearing Germany's first piracy prosecution in 400 years.

Governments in the developed world balk at the high costs of trial and imprisonment, and the risk that defendants may be able to claim asylum in light of Somalia's endemic violence and humanitarian crisis. The same governments that deploy warships to "combat" piracy in the Indian Ocean end up treating the pirates they capture with kid gloves. Hundreds have been disarmed and released to continue their depredations with automatic weapons and grenades.

The costs of deploying warships to conduct such mock deterrence are inestimable. The global economy relies on the movement of goods by sea. But a regime of effective impunity for pirates inevitably encourages instability and violence in one of the world's worst neighborhoods. Short of dealing with pirates extrajudically (as the Russian navy reportedly did in at least one incident; pirates - now presumed dead - were said to have been "released" in mid-ocean without navigational equipment), the convenient solution has been trial in Kenya. Clearly, the prosecution of "enemies" of all mankind must be placed on a more solid framework.

The United Nations passed a resolution in April - Security Council Resolution 1918 - that called on all nations to criminalize piracy in their domestic law, tasked the secretary-general with examining the hodgepodge prosecution of pirates and promised sustained attention. A report from Secretary-General Ban Ki-moon this summer outlined possibilities from more assistance to regional governments (in effect, more of the same) to constructing a dedicated regional or international piracy tribunal.

In the short term, anything would improve on the status quo. The best long-term option would be establishing an international tribunal by the United Nations. The Security Council's authority is manifest: Rampant piracy in the Indian Ocean plainly constitutes a threat to international peace and security, the criteria for action under Chapter VII of the U.N. Charter.

Such a tribunal would most reliably distribute the cost of prosecutions across the international community. Governments would also be more disposed to jail pirates within the context of a U.N.-backed tribunal: More than 20 countries have agreed to enforce sentences handed down by the International Criminal Tribunals for Rwanda or the former Yugoslavia in their prisons.

The tribunal would develop a consistent rule of decision for captured pirates, with specialized rules of evidence and procedure to accommodate the unique challenges of piracy cases, reducing the number of defendants who escape on technicalities or claim asylum. While a few acquitted pirates may still qualify for asylum, this is not too high a price for dealing with the scourge of piracy.

Nor should a piracy tribunal alarm those concerned about the emergence of international judicial bodies with easily politicized mandates: Piracy often takes place beyond the reach of any state's territorial jurisdiction, and the international law of piracy is ancient, universally accepted and clear.

The United States is the world's leading trading nation, and U.S. naval assets form the backbone of the international fleet deployed against Somali pirates. Washington should be at the forefront of legal and military efforts to ensure the freedom of the seas, whatever legal architecture is ultimately decided upon.

David B. Rivkin Jr., a Washington lawyer, served in the Justice Department and the White House counsel's office in the Reagan and George H.W. Bush administrations. He has represented parties before international tribunals. Carlos Ramos-Mrosovsky is a New York-based attorney whose practice focuses on international and federal litigation.

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