The usefulness of universality in Somali piracy: application to other transnational crimes

Maritime piracy off the coast of Somalis between 2007 and 2011 presented countless challenges to the international community, one of which was defining jurisdiction to enable intervening states to attempt prosecution. First, maritime piracy, defined in Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS), can be summarised as acts of violence or detention for private ends against another ship and its crew on the high seas.[1] Given the transnational nature of maritime piracy, several jurisdictions could be involved and therefore could potentially prosecute.

Overarching international law, UNCLOS addresses complexities in jurisdiction. UNCLOS does not require a clear link between the prosecuting state and either the pirate, victims or the vessel attacked. The International Criminal Court established under the Rome Statute enabled by the universality principle to investigate and prosecute crimes when states are unable or unwilling to do so.[2] In the context of Somali piracy, universality means that any state regardless of their link can prosecute a pirate if they are party to UNCLOS. Third states with political will and relevant domestic legal infrastructure prosecute on behalf of other countries, applying universality in their domestic counter-piracy legislation, however this does not always ensure conviction. Kenya, bordering Somalia, was the first to provide extraterritorial courts to facilitate other UN member states unable or unwilling to prosecute pirates sponsored by UNODC and several members states including Australia.[3] Despite some success, in 2010 a Kenyan High Court judge ruled the country had no jurisdiction over piracy committed in international waters.[4] An alternative option was essential. To fill the gap, encouraged by large donations, the Seychelles among other states, offered its courts and correctional facilities to alleviate the pressure. The Seychelles’ tourism industry, particularly that of European yachters dropped substantially due to piracy.[5] In response, the Seychelles Supreme Court put pirates on notice by handing down a 22-year sentence for acts relating to piracy in January 2011.[6]

 

Despite ongoing challenges, universality contributed to the reduction in attacks. Applying this logic, universality may be the missing link to enable third party states to investigate and prosecute other transnational crimes on behalf of the international community in situations when involved states are unable or unwilling. Transnational crimes such as trafficking in drugs, weapons and people, illegal fishing and terrorism, crimes that are not traditionally within the jurisdiction if the Rome Statute[7], could have more successful outcomes if domestic laws facilitate universality. If a state lacks the necessary infrastructure and legislation to prosecute, offenders are likely to be released without any charges, as was previously the case with pirates subject to catch and release[8].[9]

In such cases, other jurisdictions with political will and an enabling criminal justice system could investigate and prosecute. The lack of legal infrastructure might increase risk of organised criminals targeting countries based on the perceived low risk of prosecution, prevented by universality. Out-dated legislation hinders prosecutorial success, and contributes to low conviction rates and inconsistent penalties, commonplace for transnational crimes. Universality may be an important tool to breach the divide in resolving inconsistent and out-dated legislation, particularly in countries that lack political will.[10]

 

Dr Jade Lindley is a Lecturer at The University of Western Australia Law School and Oceans Institute. Her book Somali piracy: A Criminological Perspective was released by Routledge in 2015.

 

[1] United Nations, United Nations Convention on the Law of the Sea (UNCLOS) 1982.

[2] Rome Statute of the International Criminal Court, 17 July 1998 and entered into force 1 July 2002. http://legal.un.org/icc/statute/99_corr/cstatute.htm.  Article 17 (2) and (3)

[3] J Knott, “United Kingdom: Piracy Off Somalia: Prosecutions, Procrastinations and Progress,” 21 January 2010 http://www.mondaq.com/article.asp?articleid=92442.

[4] BBC News, “Q&A: What Do You Do with a Captured Pirate?,” BBC News, November 22 2010. http://www.bbc.co.uk/news/world-africa-11813168; The Republic of Kenya V. Mohamud Mohamed Hashi (and Eight Others), 434 of 2009 (2010).

[5] V Erofeyev, “Save the Seychelles from Pirates,” The New York Times, 11 January 2011. http://www.nytimes.com/2011/01/12/opinion/12iht-ederofeyev12.html.

[6] M White, The Seychelles Counter-Piracy Model.: accessible via secure login.

[7] Ibid. : Article 5 (1).

[8] Catch and release is the process by which naval vessels intercept but return to shore and release the pirates. It undermines the international efforts by giving the pirates a get out of jail free card.

[9] C J Chivers, “Seized Pirates in High-Seas Legal Limbo, with No Formula for Trials,” The New York Times 2012. http://www.nytimes.com/2012/01/28/world/africa/seized-pirates-in-legal-limbo-with-no-formula-for-trials.html?_r=1&emc=eta1.

[10] J Lindley 2015 ‘Somali piracy: A Criminological Perspective’. Routledge Publishing: London.

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