Ending the “Catch and Release” Game: Enhancing International Efforts to Prosecute Somali Pirates under Universal Jurisdiction

Abstract

Once thought relegated to the dustbins of history, living on only through Hollywood’s romanticized portrayals of the swashbucklers of old, maritime piracy reemerged in the public eye with a vengeance in the last few years, highlighted by the surge in hijackings off the coast of Somalia in 2008. While piracy on the high seas was certainly not wholly extinct, widespread pirate activity had been successfully suppressed to a large degree for centuries by a combination of robust naval enforcement and a highly-responsive and reliable legal establishment. That piracy not only reemerged but boldly thrived off the Horn of Africa has been both puzzling and deeply concerning for many policymakers, security specialists, and legal experts alike. At a time when international law has been increasingly trumpeted as an answer to such sensitive global crimes as genocide and aggression, the international legal regime’s inability to resolve what some have referred to as the international law equivalent of an ordinary street crime serves as a glaring embarrassment to international order. While successful hijackings and ransoms off the coast of Somalia have abated over the past year, the inability of the international community to provide an effective and consistent legal deterrent to pirate activity remains. Even as military efforts and regional coordination help to thwart pirates at the literal point of attack, the prevailing policy of “catch and release” enables pirate activity to persist in international waters – allowing criminals to roam the seas as a constant threat to commercial shipping and with a sense of impunity. This thesis explores the weaknesses of the international legal regime in combating piracy, focusing on the inability and unwillingness of states to prosecute captured pirates under universal jurisdiction. Accordingly, this thesis first examines the relevant international law that both defines piracy and provides for its criminalization and punishment by individual states. In order to ground the successes and failures of international prosecution efforts in their all-important context, this thesis also explores the characteristics of Somali piracy, including the root causes of pirate activity and the mechanics of piracy operations. Likewise, this text surveys the conventional efforts to combat piracy in the region and the interaction between naval personnel and captured piracy suspects. Additionally, this thesis focuses on the legal capability of states to arrest and prosecute pirates that are captured on the high seas. This thesis highlights that one of the greatest impediments to prosecutions is a lack of legal capacity by states to charge and punish individuals for the crime of piracy. An absence of domestic legislation either criminalizing piracy or providing for the exercise of universal jurisdiction directly prohibits certain nations from bringing to justice many of the pirates captured on the high seas. This thesis also presents evidentiary issues as a crucial factor in the persistence of the “catch and release” policy. Accordingly, this text explores how the adoption of “equipment articles” could mitigate some of these issues and facilitate the prosecution of maritime piracy. Furthermore, the thesis directly addresses how equipment articles and domestic legislation would be added to the current international legal framework. While the conclusions in this thesis are specifically tailored to the pirate activity off the coast of Somalia and the unique characteristics of this incidence, wider implications for the deterrence of global maritime piracy can be gleaned from the analysis and arguments herein.