Ending the 'Catch and Release' Game: Enhancing International Efforts to Prosecute Somali Pirates Under Universal Jurisdiction

Abstract

While successful hijackings and ransoms off the coast of Somalia have recently receded, the inability of the international community to provide an effective and consistent legal deterrent to pirate activity remains. 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. The text herein explores the weaknesses of the international legal regime in combating maritime piracy, focusing on the inability and unwillingness of states to prosecute captured pirates under universal jurisdiction.

This essay 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 essay directly addresses how equipment articles and domestic legislation would be added to the current international legal framework.

This text 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 essay 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 essay focuses on the legal capability of states to arrest and prosecute pirates that are captured on the high seas.

While the conclusions in this essay 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.

Keywords: piracy, universal jurisdiction, maritime, international law, prosecutions, amnesty, impunity, law of the sea, equipment articles, maritime piracy, human rights, state responsibility, capacity building, treaty power, public international law, Somalia, Horn of Africa, Seychelles

JEL Classification: K14, K19, K30, K33, K40, K41, K42