Somali Piracy - Part 1: Issues of International Law

Many strategic experts believe that the international anti-piracy fleet operating in the Gulf of Aden would have to number more than 500 ships in order to effectively police the 600,000 square mile Gulf region, a number which others believe would still be insufficient to counter the attacks from smaller fishing boats. Faced with this enormous space, the only viable option is to seek large scale international cooperation and establish coordinated, multinational fleets which form part of broader alliances than those currently operating in the region, thereby engaging the wider community of nations in the task of upholding international maritime law and the peremptory norms of jus cogens. However, international laws of the sea and national civil laws render any proposed military intervention a complex legal issue. In addition to this, the European and NATO coalitions are subject to further stringent rules of engagement, as well as detailed UN Security Council resolutions which establish precisely what sort of action may be taken. Nevertheless, every state is legally eligible to intervene against piracy due to the international nature of the crime and the absence of a state which will grant them protection.

The use of force may be used to interrupt an act of piracy as it is taking place, however international law does not consent to pirate vessels being shot and sunk. The UN Convention on the Law of the Sea only allows for the boarding and confiscation of pirate vessels and for the arrest of crew members. When such action is opposed by pirates, a proportionate use of force may be used whereby the sinking of the vessel is considered an action of last resort, and the use of a disabling fire to stop the motors is preferred. Moreover, a UN Security Council resolution is needed to legitimately attack the pirates’ bases on land unless a single country decides to act unilaterally to defend its national interests, usually by securing the release of hostages. Normally the latter must occur in international waters, as entry into the territorial waters of a sovereign state is prohibited under international law. However, an exception was made following UN Resolution 1851 and the subsequent agreement reached with the Somali transitional government.

One possible solution to the piracy problem would be for the UN to authorise the various naval forces policing the region to block all non-escorted vessels from gaining access to or departing from the Somali coast. However this is impracticable due to the length of the coastline in question. Furthermore, there is no international consensus over how pirates should be tried once they have been captured and detained. The laws of France and Italy, for example, grant jurisdiction for the prosecution of foreign pirates that are captured in international waters. Denmark, on the other hand, whose ship, the Absalon, captured ten men suspected of piracy and detained them for six days, was forced to liberate them on the coast of Puntland on 23rd September 2008 due to the legal impossibility of prosecuting them under Danish law. In contrast, the UK was able to hand over pirates to the Kenyan authorities after detaining them for several days following the conflict involving HMS Cumberland. It is evident therefore, that international bodies such as the UN and EU must aim for legislative harmonisation in this field and place pirates under the jurisdiction of the International Criminal Court. Despite this, it is necessary to remember that piracy is merely the most prominent illegal activity currently taking place in Somalia. A host of crimes, which includes human trafficking, arms and drug smuggling and chemical waste dumping is impossible to resolve without restoring law and order to a failed state.