By Ronald Rogo firstname.lastname@example.org
“The code is the law!”
Captain Teague in Pirates of the Caribbean
The fight against piracy has gained urgency in recent times, especially off the coast of the Somalia waters. Perhaps the most troubled waters in the world, the increased incidents of piracy have not only caused unnecessary deaths but increased the costs of doing business. The international community has therefore been forced to seek for solutions to this vice. The United Nations Security Council, for example, has passed several resolutions on combating piracy off the coast of Somalia, most of which give authority to the member states to enter and use force, even within the territorial waters of Somalia, in order to combat piracy. This, in essence, was an echo of the principle of universal jurisdiction which was first enunciated in relation to acts of piracy. The principle of universal jurisdiction, essentially states that any country has the jurisdiction to try certain crimes, irrespective of the fact that there is no clear nexus between the criminal activities and the trial state. The universal jurisdiction of states in relation to acts of piracy is also recognized under the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS). Article 105 gives any signatory state the power to “seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board” whenever a vessel is on the high seas. The rationale is that since the high seas are essentially “no man’s land” criminal activities that occur here should not go unpunished due to the lack of territorial or national jurisdiction by any state.
The issue of the universal jurisdiction of states was expounded in the Kenyan case of Republic V Chief Magistrates Court, Mombasa Ex-Parte Mohamud Mohamed Hashi & 8 Others. In this case the applicants were arrested on the High Seas of the Gulf of Aden in the Indian Ocean by the German Naval Vessel, the FGS Rhineland – PFALZ, with the help a U.S. helicopter assigned to the USS – Monterey. They were then taken to Mombasa Kenya and placed in the custody of the Kenyan police. They were later charged with the offence of piracy jure gentium for attacking the sailing vessel named MV Courier while armed with three AK 47 Rifles, one pistol Tokalev, one RPG-7 portable Rocket Launcher, one SAR 80 Rifle and one Carabire rifle and putting the lives of the crew in fear. The accused persons filed a judicial review application in the High Court of Kenya challenging their charges on the basis that the alleged offense took place in the high seas of the Gulf of Eden. The Kenyan courts, they argued, did not therefore have the jurisdiction to try them since “the offence alleged was committed outside the territorial jurisdiction of Kenya and outside the Kenyan waters…neither a Kenyan citizen or Kenya property was involved…the arrest was made by the German Navy taking part in operations in the Gulf of Aden”. The High Court accepted this argument holding inter alia, that “The High Seas are not and cannot be a place in Kenya or within the territorial waters of Kenya. In fact by definition they are strictly deemed to be outside the jurisdiction of all states in the world or on earth unless some law in the state brings it into their local jurisdiction whether Municipal Law or an International Convention etc”. The High court further held that the trial court “had no jurisdiction over the matter when the charges were preferred, and when the proceedings took place. The said court acted without jurisdiction when they took the pleas of the Applicants and heard the case up to the close of the prosecution case. The whole process was therefore null and void, ab initio. A nullity from the word go”. However, the High Court of Kenya ignored the provisions of UNCLOS providing for universal jurisdiction. This decision was later overturned by the Court of Appeal. The Court of Appeal held that the High Court failed “to appreciate the applicability of the doctrine of universal jurisdiction in reference to the case at hand”.
That said, it is important to note that Article 105 of UNCLOS provides that “the courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith” (emphasis mine). In other words the State that seizes any vessel on the high seas ought to be the one that actually tries the suspected pirates. This rule has largely been ignored in current practice where states in the developed world only arrest the pirates and “dump” them in countries in the developing world. A few examples should suffice to illustrate the point. On February 19, 2012, four suspected Somali pirates, captured by the Danish naval troops, were taken to Kenya after being rejected by the government in Seychelles. In March 2009, seven suspected pirates were arrested in the Gulf of Aden by the US Navy after a tanker, Polaris, sent a distress call that they were being attacked. Eugene Kotnorovich estimates that “universal jurisdiction was used in prosecuting only 0.53% of clearly universally punishable piracy cases between 1998 and 2007, with the figure increasing to 2.5% between 2008 and June 2009, and reporting that Kenya accounts for all but three cases of invoking universal jurisdiction over piracy in the past 12 years, with responsibility for 79% of cases” (emphasis mine).
The reasons for this misnomer are varied. However, the most common issue is the question of what to do with the pirates if they are acquitted or once they have served their sentence. Since the principle of non refoulement applies universally as a peremptory norm of international law, the states where the trials are held will be “stuck” with the pirates either on acquittal or upon serving sentence as they often cannot return them to Somalia and the trial state will be obliged to offer them asylum.William Langeweshice, quotes an Indian official, for example of stating: “What would happen if India convicted and imprisoned them, but after their release Indonesia refused to recognize or accept them? . . . They would become stateless people . . . Then the problem for India would be where to send them”. But this problem creates greater burdens to poorer countries like Kenya and Seychelles which have an additional cost to the trial process. An already overwhelmed police and prison system is further stretched without significant financial assistance from the international community. I therefore hold the view that the current practice is not sustainable. The country that arrests the suspected pirates ought to be the one that prosecutes. After all, universal jurisdiction means just that…universal!
 For more analysis of effects of piracy off the coastal shelf refer to previous posts on this blog on the subject.
 United nations Security Council Resolutions No. 1816, 1838, 1846 and 1851 of 2008, 1897 of 2009, 1918 and 1950 of 2010, 1976, 2015 and 2020 of 2011.
 The common nexus in relation to criminal jurisdiction relates to criminal activities that occur within the territory of a given state. However, some states also have jurisdiction over some criminal activities committed by their nationals overseas and criminal activities overseas where their nationals are victims.
 In Article 86 of UNCLOS, the high seas is taken to mean “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”
  eklr. This case can be accessed online at http://kenyalaw.org/CaseSearch/view_preview1.php?link=78014094678571727310907
 For more analysis on this point go to http://piracy-law.com/2011/01/27/kenya-no-jurisdiction-to-try-piracy/
 The full decision of the Court of Appeal can be accessed online at http://piracylaw.files.wordpress.com/2012/10/kenya-hashi-appeal-opinion.pdf. The same position was held in the case of Hassan M. Ahmed V Republic  eKLR. It can be accessed online at http://kenyalaw.org/CaseSearch/view_preview1.php?link=66028601162227766885163
 Admittedly, the provision is a drafted in permissive rather than in a rigid way. However, it is my view that it represents the rule-of-the-thumb arrangement, only to be departed from in exceptional cases.
 For analysis of the number of piracy related trials held by various countries go to http://www.cbrne-terrorism-newsletter.com/resources/2011%20-%20Prosecuting%20Pirates_Challenges%20for%20the%20Prisons.pdf
 Eugene Kontorovich & Steven Art, An Empirical Examination of Universal Jurisdiction for Piracy (Northwestern Public Law Research Paper No. 09-26, 2010); 104 AM. J. INT‘L. L. 8-9 (forthcoming 2010), available at http://ssrn.com/abstract=1519518
 The principle of non refoulment is also expounded in CAT Article 3(1), ICCPR Article 7, and ECHR Article 3, which all protect individuals from being returned to a country where they are at risk of torture, inhuman or degrading treatment, or punishment.
 William Langewiesche, The Outlaw Sea: Chaos And Crime On The World‘S Oceans 75 (2004)