Five Somalis are currently on trial in the Netherlands after they failed to hijack a freighter sailing under the Dutch Antilles flag in January. The pirates have expressed their satisfaction with their prison cells, and at least one of them has said he wants to stay in the Netherlands after he is released and hopes to bring his family over.
In the Dutch daily 'NCR Handelsblad' Dutch foreign minister Verhagen stated that 'Prosecution should deter pirates, not encourage them with the prospect of starting a new life in the country that prosecutes them'. In Brussels, Verhagen proposed to establish a regional tribunal under the umbrella of the UN. According to Verhagen 'convicted pirates should than serve their sentence in the region'.
Professor in international humanitarian law, Liesbeth Zegveld, also pleads for a UN pirate tribunal 'Such a tribunal could collect evidence and use specialised indicters. For suspects there’s also legal certainty concerning the applying law. The current Dutch system under which pirates are only prosecuted if there is a national interest at stake for the arresting country, is not working.'
Piracy and universal jurisdiction
In international law, piracy is a crime that can be committed only on or over international waters (including the high seas, exclusive economic zone, and the contiguous zone), in international airspace, and in other places beyond the territorial jurisdiction of any nation. The same acts committed in the internal waters, territorial sea, archipelagic waters, or national airspace of a nation do not constitute piracy in international law but are, instead, crimes within the jurisdiction and sovereignty of the coastal state. International law has long recognized a general duty of all nations to cooperate in the repression of piracy. This traditional obligation is included in the 1958 Geneva Convention on the High Seas and the 1982 UNCLOS Convention, both of which provide: 'All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State'.
By means of universal jurisdiction, any nation should try such pirates under the UN Convention for the Law of the Sea. Nations used to claim universal jurisdiction over pirates, a concept that has been expanded to include violators of fundamental human rights. Instead many states choose to only chase the pirates and disarm them. Why not exercise legal means of universal jurisdiction? Because of juridical unclarity, enforcement problems, or policial or financial interests! However until now captured pirates has been released not only by the Netherlands, but also in Denmark, Germany, USA and Canada.
Besides Dutch foreign minister Verhagen, also Germany and the United Kingdom plead for a anti-piracy tribunal. Even Russia calls for an international pirate court. Boonstra stated in the UN Dispatch that the UN responded with refreshing unanimity on the pirate issue: 'Don't think a Yugoslavia or Rwanda-style tribunal is in the offing just yet. Ad hoc tribunals like Yugoslavia or Rwanda - in addition to being a little on the costly side - are also meant for national reconciliation. Creating a pirate court, on the other hand, would do little to help reconstitute Somalia's shattered law and order system and curb the piracy pandemic. Existing methods of justice, involving extradition to countries with reliable court systems, will likely prevail for now.'
Peace Palace Library catalogue titles on the combination privateering and piracy and UNCLOS convention
See also our earlier PPL blog on piracy