Article 101, Article 105 – We Meet Again

This time last year, I was knee-deep in Somali piracy and making all kinds of predictions. I argued that Article 101 and 105 of the United Nations Convention on the Law of the Sea (UNCLOS) create a mechanical and formalistic definition of piracy, especially with respect to the ‘high seas’ requirement, and legal confusion around the prosecution of Somali pirates in Kenyan courts.

Almost a year after submitting my Masters paper, the Kenyan high court has produced a judgment which ousts the jurisdiction of Kenyan courts in prosecuting suspected pirates, despite Kenya’s agreements with Britain, the US and EU states. In this case, the German navy captured the nine accused in the Gulf of Aden (GOA) after the suspected pirates attacked the MV COURIER in March 2009. The Kenyan court decided that local courts have no jurisdiction to prosecute pirates captured on the high seas because the law, in terms of which the accused were charged, does not have an express definition for the concept of ‘high seas’. Then, in a flash of judicial brilliance, senior Kenyan judge Mohamed Ibrahim, declared that the ‘high seas’ are not within Kenyan territorial waters because the ‘high seas’ are deemed to be outside of the jurisdiction of all states. Therefore, the Judge Ibrahim concludes, Kenyan courts only have jurisdiction to deal with criminal incidents that occur in Kenyan territorial waters.

No Kenya – this is wrong. Let me explain. At a foundational level ‘jurisdiction’, according to John Dugard, is the competence of a state to exercise its government functions by judicial decrees over persons and property. Usually, this competence is limited to incidents occurring within the territory of the state. Universal jurisdiction, however, allows any state to prosecute offenders who have committed international crimes, even if the crime, accused and victims have no connection with the prosecuting state. In terms of customary international law (CIL), piracy is an international crime and pirates are hostes humani generis, an enemy to all mankind. In the 1962 Eichmann case, international crimes were held to be serious crimes that warrant worldwide prosecution and repression. Therefore,  in the instances of piracy, any state can substitute itself for a national or territorial forum. For example, pirates have been tried in Asian countries such as China where Chinese law doesn’t even have a specific legal rule punishing acts of piracy but they’ve used universal jurisdiction and gradually formulated a set of judicial processes in dealing with the crime.

Whereas CIL is criticized for it nebulous nature, it is not vague and uncertain in the area of piracy. Piracy is one of the oldest, clearest and least controversial rules of CIL. Member States may prefer the inherent certainty of treaties but UNCLOS has had a crystallising effect in circumstances that require flexibility. The purpose of UNCLOS is to codify CIL of the sea. Surely, UNCLOS did not intend to throw out universal jurisdiction?

The influence of Article 101 and 105 is present in the Kenyan high courts’ refusal of jurisdiction. Article 101 of UNCLOS restricts ‘piracy’ to acts committed upon the ‘high seas’, beyond the 12 nautical miles of territorial sea or any other area of jurisdiction of any state. Possibly, this is how the Kenyan court formalistically tethered ‘piracy’ to ‘high seas’. Article 105 implies that courts of the capturing states should impose the penalty on pirates. Article 105 casts doubt on the legality of transferring suspected pirates from capturing-states to third-party states for prosecution.

Prosecution has become a huge judicial burden on Kenya in processing large numbers of Somali pirates amidst second-order legal hassles. Once suspected pirates arrive in Mombasa, they’re expected to appear before a judge within 24 hours. There is also the need for counsel and translation services as well as the transport of witnesses and evidence to a foreign court, taking into account the multinational character of merchant shipping crews and the testimony of naval officers in active service. Eventually, after this logistical scramble to prosecute the accused, Kenya is responsible for incarceration of pirates if they are convicted.

I understand how Article 101 and 105 could be strategically invoked to lighten the load. Kenyan law punishes co-conspirators and those caught red-handed, and is thus not without its merits but it should not be used to trump CIL. Recently-arrested suspected pirates will not be affected because the law has since been overhauled. Nonetheless, Kenya’s courts have shot themselves in the foot. The majority of pirates captured in 2008 and 2009 have been charged under the old penal code. This means that pirates tried within the last three months can appeal their conviction amidst the legal confusion, which will only increase the judicial burden on Kenyan courts and adds to the legal conundrum facing anti-piracy operations in the GOA.