Security Debrief

Last week, news reports indicated that 18 pirates apprehended after attacking a Singaporean vessel in the Indian Ocean were released to “an undisclosed location” because no nation was willing to detain or prosecute them.

That “undisclosed location” was likely the shores of their home country, a place where they can easily make their way back into the pirate’s life and back to attacking more ships.

Countries have long exercised universal jurisdiction over acts of piracy on the high seas. In fact, the founders took piracy so seriously that it is specifically noted in the U.S. Constitution granting Congress specific power to set penal offenses for such acts. Even the United Nations has taken piracy seriously, including giving a nod to both land and sea based anti-piracy operations.

After the April 2009 hijacking of the Maersk Alabama off the coast of Somalia, the United States captured one man and killed three others. The living pirate was sent to the United States for prosecution and sentenced to 33 years in an American prison.

So, why were the 18 set free?

The first problem was that while the pirates attacked a Singaporean vessel, they were saved by a Finnish one (the Pohjanmaa) operating as part of the EU’s counter piracy operation, Operation Atalanta. The Finnish government then refused to prosecute them because “no attempt had been made on any Finnish nationals or ships.”

The EU went further and refused to “release the men to Singapore as they could have faced the death penalty if found guilty there.”

This isn’t the first time that this has been a problem: “In the first six months of 2010, EU and NATO naval forces captured and then released an estimated 700 pirates.”

Kenya had until 2010 signed agreements with the United States and U.K. to accept custody of and prosecute pirates. Now, there is a real legal vacuum in the works because interested nations are playing a game of “not me,” avoiding the real legal legwork that needs to take place.

In response, the Russians have taken to setting apprehended pirates off at sea in an inflatable raft with no navigation equipment. The Russians’ argument? They lacked “sufficient legal grounds to detain them.” Not a serious solution, and certainly not viable for the U.S. or EU countries.

The threat, however, of piracy is growing too much for this problem to be ignored. Since 2003, the number of pirate attacks has escalated rapidly. As my colleagues cite, there is a real need to “move beyond defensive measures and start taking the fight to the pirates, attacking every aspect of the pirate networks.” Without the right legal framework, such an effort will be a much more difficult task.

With no country willing to take these prisoners or prosecute them in their court system, we are essentially giving pirates an invitation to come back for more.