Preventing and prosecuting piracy at sea: legal issues

The resurgence in piracy at sea, particularly hijackings off the coast of Somalia, has prompted a range of efforts to tackle it. These throw up a series of legal issues including the use of force and transferring of suspects for trial or imprisonment.

Naval patrols act as deterrents, using their powers under international law to board vessels where piracy is suspected, and detaining people and either releasing or transferring them for trial. Piracy off the coast of Somalia is not generally viewed as an armed conflict, meaning that only reasonable and necessary force can be used in self-defence. But navies cannot protect every ship, even by putting personnel on board merchant ships.

Shipowners are therefore increasingly turning to private security companies (PSCs) to provide armed guards for their vessels. Private armed security guards (PASGs) cannot board vessels and detain suspected pirates, but they seem to be an effective deterrent – no ship with PASGs on board has been hijacked. The UK has recently changed its position to allow PASGs on UK flagged international passenger ships and large cargo ships in high-risk areas, and has issued interim guidance. However, there are various legal questions around using PASGs at sea. When can they use force, and to what extent? Who gives the order to use force? How can they transport their weapons legally? There are also practical questions such as whether using PASGs would escalate levels of violence, whether they would make non-guarded ships more vulnerable, and whether PSCs should be regulated and accredited.

Prosecuting suspected pirates is seen as a major potential deterrent. Under international law any country can prosecute piracy on the high seas; but in practice few do so unless there are national interests at stake, and many suspected pirates are released without trial. The UK has brought no Somali suspected pirates to the UK for prosecution. Practical capacity (courts, trained judges and particularly prison spaces) and political will are sometimes lacking in countries that might prosecute. Other issues include gathering sufficient evidence for prosecution, and human rights of suspected pirates (including those transferred from one country to another). There is also the question of whether prosecuting the ‘foot soldiers’ is enough – can more be done to prosecute pirate leaders and financers?

Increasing Somalia’s capacity to prosecute its pirates is a main thrust of international efforts, but even with this support it will be many years before Somalia can deal with all suspects. Several countries around Somalia have agreed to prosecute suspected pirates but capacity – particularly prison space – is still an issue. Proposals for an extraterritorial Somali court have encountered significant practical problems, and there is little support for an international piracy court.

Library Standard Notes covering related issues include: Piracy at sea: overview and policy responses; Somalia: recent political, security and humanitarian developments; and Does Somali piracy have any ‘developmental effects’?. The House of Commons Foreign Affairs Committee reported on Piracy off the coast of Somalia in January 2012, and the Government’s response to its recommendations is due in March 2012.