¬†By Lieutenant Parker Carlisle, U.S. Navy
The current piracy situation off the Horn of Africa has forced an unprecedented level of cooperation between the U.S. Navy and other countries, specifically Kenya and Seychelles, the nations conducting most piracy prosecutions. This cooperation, which includes a transfer-of-custody agreement for prosecution of pirates, should be taken to the next level, with an increased role of shipriders on U.S. naval vessels. 1
Under the concept of Universal Jurisdiction in international law, prosecution of piracy is not limited to the capturing or the victim nations, but can be carried out by any court system willing to prosecute. However, as options increase, so do the associated difficulties. Chief among these is that prosecution of pirates in third-party nations may generate problems related to jurisdiction, and the introduction of evidence at trial.
The problem with jurisdiction is a result of a potential loophole in the United Nations Convention on the Law of the Sea (UNCLOS), which requires that the prosecution be conducted by the arresting state.¬†2¬†Kenya and Seychelles are both signatories to this treaty. Therefore, they are bound to follow it. This convention has not yet been used as a defense, but it has been recognized as a possibility that could be exploited by pirates in future prosecutions.¬†3¬†However, using a shiprider could allow a U.S. Navy visit, board, search, and seizure (VBSS) team to conduct the boarding in coordination with participating nations. This would leave the formal arrest to the shiprider, acting as an agent of the arresting and prosecuting nation. A carefully worded agreement would recognize the arrest as having been conducted by the shiprider, which would ensure the formalities of UNCLOS were met.
A host-nation shiprider would also assist the prosecution in its introduction of evidence to the court. VBSS sailors are not experts on evidence collection, especially in compliance with the laws of Kenya, Seychelles, or any other nations. Even if it were desirable to train U.S. sailors on other nation‚Äôs rules of evidence, VBSS teams would not be able to predict where pirates would be prosecuted. Thus, they would not know which rules to follow for ensuing prosecution.
But a shiprider would ensure that it was known at the time of arrest which nation would be prosecuting the case. Because the shiprider would be a law-enforcement agent of that nation, he would be well trained in the appropriate rules of evidence. Additionally, some nations, such as Kenya, require an oral testimony to accompany the admission of evidence.¬†4¬†Having a shiprider conduct the arrest would allow that testimony to come from the arresting officer. Otherwise, the United States is left with the undesirable and often impossible options of either flying a U.S. sailor to Kenya to testify, perhaps from a currently deployed ship, or allowing the pirates to be acquitted for lack of evidence.
The United States has already felt the impact of this evidentiary rule. In February 2009, the USS¬†Vella Gulf¬†(CG-72) captured suspected pirates attempting to seize the MV¬†Polaris¬†. That June, 11 sailors from the Navy and Coast Guard were flown to Kenya to testify in the prosecution of the accused. But after the sailors‚Äô arrival for the scheduled trial, it was postponed. This meant they had to be flown back to the States and returned in September, when the trial resumed.¬†5
Additionally, a shiprider agreement would provide another, less concrete, advantage to participating nations. Aside from increasing cooperation between arresting and prosecuting nations, it would send the unequivocal message that the international community was serious about ending piracy. As long as there is not a clear procedure for the capture and prosecution of pirates, they will see it as beneficial to continue their operations. An increase in international cooperation will act as a greater deterrent to those considering piracy.
The increase of this activity off the coast of Somalia must be met with new tactics and weapons. The willingness of the pirates to act in the face of a unified international effort would be severely diminished, with the potential for long-term success. The use of shipriders, along with new levels of international cooperation, may be the solution.