Jurisdiction to Prosecute Non-National Pirates Captured by Third States Under Kenyan and International Law

Abstract:     
On January 16, 2009, Kenya and the United States signed a Memorandum of Understanding (MOU) under which Kenya agreed to try suspected pirates captured by the U.S. In addition, Kenya signed a similar MOU with the European Union on March 6, 2009. Another is planned between Kenya and China.

This paper examines Kenya's decision to receive and prosecute these suspects, as well as an important new Merchant Shipping law, (currently awaiting Presidential assent), that confers on Kenyan Courts jurisdiction over non-nationals for hijacking and robbery committed on the high seas. This statute effectively establishes universal jurisdiction over piracy. This new law supplements the offense of piracy jure gentium in the Penal Code which has been used to successfully prosecute pirates at least once before.

After analyzing the jurisdiction of Kenyan courts to undertake prosecutions under both international and Kenyan law, the paper concludes that that the High Court of Kenya, rather than the subordinate courts in the country is the Court with jurisdiction to entertain prosecutions of suspected non-national pirates for offences allegedly committed in the high seas.

While Kenya's new Merchant Shipping law gives Kenyan courts broad jurisdiction over such suspects, the broad sweep of this new law go far beyond Kenya's obligations under both the SUA Convention and UNCLOS, which in their express terms only allow capturing states the right to prosecute. However, the inability of Somalia to arrest and prosecute such suspects suggests Kenya may exercise such jurisdiction as part of its contribution to the burden sharing in the prosecution of captured suspects. In addition, the Kenyan legislation is consistent with the common law norm that crimes defined by international law require domestic law to try or punish them.

The paper also addresses several possible challenges to the broad extra-territorial scope over non-nationals created by this law under international law. It also briefly touches on some of the international humanitarian legal issues that are posed by the increasingly militarization of the multinational anti-piracy mission off the Coast of Somalia. Ultimately, the paper argues that only limited prosecutions are feasible in Kenya particularly in light of the congestion and related challenges in the country's criminal justice system.

Keywords: Pirates, UNCLOS, SUA Convention, Kenya, Universal Jurisdiction, Extra-Territoriality, International Law

Working Paper Series