How Do You Prosecute a Pirate?

Like dogs chasing cars, Western powers cruising for Somali pirates are a little stumped about what to do when they’re captured.

Pacific Standard

November 2009

The most eyebrow-raising aspect of Western counter-piracy missions off Somalia is how rarely they arrest a pirate. Last September I spent a few days on a Turkish frigate called the Gediz, one of NATO’s busier ships in the Gulf of Aden, and the captain admitted that even when they catch pirates, they almost never make an arrest.

“NATO doesn’t arrest for piracy,” Capt. Hasan Özyurt told me, “but nations do. It depends on the situation, and it’s case by case. … Each nation has some policy for detention.”

So what happens when NATO stops a pirate boat? “At a minimum,” said NATO Commodore Steve Chick, speaking for the whole alliance, “we will always take measures to ensure that their weapons are destroyed, so as to deny their future use.”

But that’s it. The sailors tend to dump the weapons overboard and deposit the pirates back on a Somali beach.

Last week a group of legal experts gathered for talks in the Netherlands and failed to come up with a single, smart way to navigate the international problems with prosecuting pirates. They wondered if the Hague-based International Criminal Court would expand its remit to pirate cases, and the consensus answer was “no.”

“The ICC does not have an international police or task force to enforce the ICC statute,” said Geert-Jan Knoops, a Utrecht University professor of international criminal law.

This means that no single force, operating under a single set of rules, exists to gather evidence on arrested pirates and bring them to trial in The Hague or any other international court. A single force or a single set of rules would be useful, because one complication with prosecuting pirates is the number of national interests involved.

What if, for example, a Dutch warship chases Somali pirates attacking a Greek-owned vessel, and even catches the mother ship, which happens to be a hijacked Yemeni fishing dhow loaded with plenty of weapons and 20 kidnapped fishermen?

Answer: The Dutch would let the pirates go.

It really happened in April. Dutch law says the Dutch navy can arrest a pirate if he’s in Dutch waters, harms a Dutch citizen or happens to be Dutch himself. Otherwise, the pirate goes free.

Most European nations, including maritime giants like Germany and Denmark, have similar policies. American policy gives the U.S. Navy more leeway, but its principles are largely the same. Fifth Fleet spokesman Lt. Matt Allen told me the Navy doesn’t arrest people on the high seas at all — “Arrest is a law enforcement term,” he said — but the Navy has detained a handful of suspected pirates this year for prosecution in Kenya.

“Each event is reviewed for its evidentiary value,” based on “guidelines provided by the Kenyan government,” he said.

Only one suspect — Abduwali Abdukhadir Muse — has gone to the United States for trial. Muse was arrested by the FBI for his role in kidnapping an American citizen, Richard Phillips, captain of the Maersk Alabama.

Normal protocol in these situations is to let the home nation try its own criminals. But Somalia has no central government, no coherent piracy laws, and it hasn’t signed up to the U.N. Convention of the Law of the Sea. To get around this problem the U.S. as well as the EU have signed “memoranda of understanding” with Kenya to let their navies bring captured pirates to Mombasa, the nearest stable African port.

But it’s a stop-gap measure. Right now at least a hundred suspected pirates are awaiting trial in a dirty Mombasa jail, and it’s not clear they will receive anything like a fair trial.

One reason for the understanding with Kenya is to avoid embarrassing requests for asylum once the pirates have been tried in wealthier nations like the Netherlands or the United States. One Somali pirate convicted in the Netherlands told his lawyer last May that his Dutch prison cell was comfortable; he wanted to bring his family over when his prison term was up. Abduwali Abdukhadir Muse looked exuberant when he first arrived in Manhattan last April — until he was told his visit to America would involve an awful lot of prison time.

The ongoing lack of an international pirate court, combined with the unwillingness of most Western governments to prosecute, should ensure that a few hundred determined Somalis will keep trying to hijack ships. Even U.S. Secretary of State Hillary Clinton, after a talk with her Dutch counterpart in April, admitted that releasing pirates “sends the wrong signal.” But nothing, since then, has changed.

Michael Scott Moore

Politics

Idomeneo in Berlin

Remember the scandal over “Idomeneo” in Berlin? Remember how Islamists went mad when the Deutsche Oper decided to stage a controversial production of Mozart’s opera, unleashing a storm of violence?

By George!

Behind the frosted-glass office doors of an old building on New Montgomery Street in San Francisco you can find a barber shop, a bartending school, and a number of lawyers

Noah and the Dinosaurs

One rule of fundamentalists is that they hate to be interviewed. William Dembski doesn’t. He has a long face and glasses, wears knife-edged slacks and sober ties; he mixes fashion sense with a relaxed wonkishness that announces dedication to reason rather than the Bible-thumping fanaticism he’s been accused

Culture

I Have Landed

The title of Stephen Jay Gould’s twenty-second book on natural science borrows a phrase his grandfather scribbled in an English primer after he arrived at Ellis Island

For the Pleasure of Seeing Her Again

I think Derek Walcott holds the title for Greatest North American Playwright Almost Never Produced in San Francisco, but Michel Tremblay runs a close second.

The Invention of Love

The last time one of Tom Stoppard’s plays had its American premiere in San Francisco, last spring, I wrote that it “wouldn’t be above Stoppard to spin a whole script around a minor and meaningless point of grammar.”

Pirates

Sending in the Marines

NATO, officially, is pleased to have pirates to fight. A mission against sea bandits in the Indian Ocean is not mission creep for the trans-Atlantic alliance, if you talk to its leaders

Battleships Off Somalia

Navies are expensive, and sending warships to Somalia is a hugely inefficient way to fight pirates, considering that the number of successful attacks off the Somali coast this year

How Do You Prosecute a Pirate?

The most eyebrow-raising aspect of Western counter-piracy missions off Somalia is how rarely they arrest a pirate.

Nazis

Ghosts of Dresden

The Allied firebombing of Dresden in 1945 destroyed the baroque center of what Pfc. Kurt Vonnegut called, in a letter home from Germany, “possibly the world’s most beautiful city.”

How to Film Nazis

The big surprise last week during the Berlin Film Festival was a disastrous premiere for a long-awaited feature film, Jud Süß — Rise and Fall, by a talented German director named Oskar Roehler.

Nazis on the Campaign Trail

Holger Apfel is a burly, fat-cheeked 35-year-old with glasses, given to wearing brown suits. He leads a delegation of the neo-Nazi NPD (National Democratic Party of Germany) in the German state parliament of Saxony.

Surfing

It’s Called Soccer

Americans live on what amounts to an enormous island, defended on two shores by the sea, and we’ve evolved a few marsupial traditions that nobody else understands.

One Hundred Years of Hanging Ten

The George Freeth memorial in Redondo Beach is a salt-bitten bust of a lifeguard in an old-fashioned swimming vest, gazing with the stoicism we expect from early surf heroes into the deep mysteries of a concrete parking garage.

Tilting at Turbines (in the Severn River)

The morning was clear and cold, with frost on the church steeple and the cemetery grass. I had a quick English breakfast at a white-cloth table, in my wetsuit, and drove to Newnham, a village on the Severn River in Gloucestershire, parking near the White Hart Inn.

Other Prose

Denis Johnson, Poet of the Fallen World

“I’m kinda like Ozzy Osbourne,” says Denis Johnson in a distracted moment, explaining that he might not remember to call me back. “My wife was just telling me that.”

This Will Kill That

“Here is one,” replied the archdeacon, opening the window of his cell; he pointed to the Cathedral of Notre-Dame, whose two black towers, stone walls, and huge roof

The Curse of El Rojo

I’d packed the car lightly — a bag of clothes, a bag of cassette tapes, a backpack of books, a few essential tools.

Michael Scott Moore is a literary journalist and a novelist, author of a comic novel about L.A., Too Much of Nothing, as well as a travel book about surfing, Sweetness and Blood, which was named a best book of 2010 by The Economist and Popmatters. He was kidnapped in 2012 on a reporting trip to Somalia and held hostage for two and a half years. The Desert and the Sea, a memoir about that ordeal, is out now from HarperCollins.

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The men from the Naham 3 are all friends of mine — a crew of 26 sailors from southeast Asia who worked on a tuna long-liner flagged in Oman but owned by a company in Taiwan, which abandoned them after Somali pirates hijacked the ship in 2012.

While I was in Somalia a man called Geoff Carter wrote about a picture of Indian men surfing on stand-up boards around 1800 off Chennai, which altered the known history of surfing a bit, even though the picture was hiding in plain sight at the Australian National Maritime Museum.

Some people have asked about the Somalia memoir. It’s right on schedule, I promise, but it won’t be out for at least another year. It’s been revised in full, twice (see above), and it’ll need a few more revisions before we get anywhere. Old-fashioned authorship. July, 2018?

A version of what happened in Somalia is available as a Long Read at The Guardian, and, in somewhat shorter form, for German readers, in Der Spiegel. It’s not even near complete. Enormous parts of the story have been left untold.

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