Child Pirates: Rehabilitation, Reintegration, and Accountability
Mark A. Drumbl
Washington and Lee University - School of Law
September 26, 2013
Washington & Lee Legal Studies Paper No. 2013-16
Maritime piracy is among the original universal jurisdiction crimes. Denounced by customary international law and recognized as a breach of jus cogens, piracy also is defined and proscribed by a number of international treaties. Piracy has garnered recent international attention through its proliferation off the coast of Somalia and the resultant impact on international shipping and trade, not to mention loss of life. While incidents of Somali piracy are decreasing, piratical attacks are on the upswing elsewhere, for example off the Gulf of Guinea in Western Africa.
The United Nations Security Council endorses a criminal justice model in response to acts of piracy. The Security Council thereby promotes a mechanism of judicialization and penalization. So, too, do the United Nations General Assembly, many states, international organizations (such as the International Maritime Organization), trade groups, and the shippers lobby. In the recent past, many detained pirates were perfunctorily captured and released. With the spread of the criminal justice model, however, pirates are increasingly facing prosecution in national courts, mainly in Kenya, Seychelles, and Maldives, but also in Germany, the US, India, France, Spain, Japan, and Somalia – among others.
It has been estimated that approximately one-third of captured pirates are minors, that is, persons under the age of eighteen. This article explores issues of accountability, reintegration, deterrence and rehabilitation in the context of child pirates. It recommends modalities of restorative and reintegrative justice for child pirates that avoid the careless superficiality of immediate release and the retributive heavy-handedness of criminal trials. Regrettably, prevailing imagery that cloaks juveniles enmeshed in international crimes, for example child soldiers, does not favor this middle ground. Instead, this narrative imagery facilitates either perfunctory release (the faultless passive victim image) or criminal trials regardless of age (the demon and bandit image). Unlike the case with child soldiers, however, the position of UN entities when it comes to child pirates tends toward greater punitiveness – assuredly, a concerning development.
Part I of this Article sets out data on piracy generally and addresses some specifics regarding juvenile involvement. Part II summarizes current efforts to criminally prosecute child pirates in instances where capture and release policies are not implemented. Part III explores why juveniles may end up in pirate gangs. Part IV critically assesses the deterrent effect of criminal prosecutions of juvenile pirates and proposes a new path, namely, one that leads toward restorative justice. Part V concludes.
Number of Pages in PDF File: 38
Keywords: children, piracy, international crimes, restorative justice, child soldiers
JEL Classification: K10, K23, K33
Date posted: September 28, 2013