The Use of Force Freedom of Commerce, and Double Standards in Prosecuting Pirates in Kenya

40 Pages Posted: 4 Jun 2010

See all articles by James Thuo Gathii

James Thuo Gathii

Loyola University Chicago School of Law


This Article has two primary objectives. The first is to trace the use of force to protect the freedom of travel on the high seas and the right to engage in commerce. This historical context shows that the use of force against piracy off the coast of Somalia is not unprecedented. However, given the increase in military capabilities and the lethality of war in the last century, the use of force against piracy must adhere to the requirements of necessity and proportionality.

The second objective of this Article is to explore the many double standards faced by piracy suspects captured off the coast of Somalia. It argues that piracy prosecutions tend to be more successful in Kenya than they would be in the United States or Europe because of relatively low protections for defendants under Kenyan law. Furthermore, this Article examines the issues in piracy prosecutions in Kenya, including the propriety of long periods of pre-trial detention; the complications of gathering evidence on the high seas; the problem of witness attendance at the trials and its implications on the right to speedy trials; the legal issues relating to identifying the proper complainants; the overreaching of the United Nations Office on Drugs and Crime (UNODC) as a third party in the prosecutions; the legal limitations on the production of video evidence; the decision by Kenyan courts to take judicial notice of certain facts rather than have the prosecution prove them; and the allegations of torture and mistreatment of the piracy suspects.

Keywords: UNODC, United Nations, piracy, Somalia, Kenya

Suggested Citation

Gathii, James Thuo, The Use of Force Freedom of Commerce, and Double Standards in Prosecuting Pirates in Kenya. American University Law Review, Vol. 59, 2010, Albany Law School Research Paper No. 10-08, Available at SSRN:

James Thuo Gathii (Contact Author)

Loyola University Chicago School of Law ( email )

25 East Pearson
Chicago, IL 60611
United States

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