Thursday, December 18, 2008

Universal Jurisdiction over Pirates

It used to be that when I taught the 1980 Filartiga v. Pena-Irala case on torture and came to the reference to piracy from United States v. Smith (1820), it all seemed like ancient history to my students.  However, the regular news reports in 2008 regarding piracy off the coast of Somalia has renewed interest in the issue of piracy under international law.  In Filartiga, the U.S. Circuit Court opined: "[t]he torturer has become-like the pirate and slave trader before him-hostis humani generis, an enemy of all mankind."  Statements such as these by jurists and others contribute to the international law concept that piracy is a crime over which there is universal jurisdiction, i.e., that all states have the duty to prevent and punish piracy.  Regional and international cooperation will clearly be necessary to reduce or end piracy in the waters surrounding the Horn of Africa.

On December 16, 2008, the United Nations Office on Drugs and Crime (UNDOC) issued a press release proposing measures to stop piracy in the Horn of Africa, which includes a number of measures to deter, arrest and punish pirates.  In this day and age, "[p]irates cannot be keel-hauled or forced to walk the plank, nor should they be dumped off the Somali coast," says UNDOC Executive Director Antonio Maria Costa.  Rather, "they need to be brought to justice."  Somali pirates cannot be tried in Somalia because its criminal justice system has collapsed.  According to Mr. Costa, trials in the countries where the vessels are flagged are also unlikely because those countries do not want to deal with crimes committed thousands of miles away.  Some consideration has been given to the idea that the country that captures the pirates, such as the United States or India, could hold trials; however, Mr. Costa suggests that procedural protections under international human rights law may hinder that idea as well.  Accordingly, UNDOC is proposing that pirates be tried in the region after having been arrested by local policemen.  UNDOC suggests that local policemen from countries such as Kenya, Tanzania or Yemen, be employed as "ship riders" on warships operating off the Horn of Africa and that these "ship riders" effect the arrest of the pirates in the name of their home countries and have the pirates sent to those countries for trial.  According to UNDOC, this practice has been employed in the Caribbean to arrest drug traffickers.


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