Somali pirates have not exactly had a banner month. Last week, 11 pirates charged with firing on two U.S. Navy warships were hauled into a U.S. federal court in Norfolk, Virginia, where they could be sentenced to life imprisonment. Other Navies have also captured their share of buccaneers, including the French, who nabbed six, and the Spanish, who took another eight. Dozens of ships from various countries are currently patrolling the Gulf of Aden and parts of the Indian Ocean, looking to round up marauders.
Unfortunately though, better (albeit still very imperfect) enforcement is leading to its own headaches. Yes, it looks great for the United States and other countries to be tossing more and more pirates into the brig. But the problem of what to do when the pirates land there is turning every pirate-hunter into a scholar of international law, and may make all the heightened security look a bit useless.
At least in theory, there should be no legal ambiguity about putting pirates behind bars. Pirates, after all, have been regarded from time immemorial by the Law of Nations (jus gentium) as enemies of the entire human race, subject to the universal jurisdiction of any state that could get its hands on them. That spirit was codified in the U.N. Convention on the Law of the Sea, which has been ratified by 160 countries (albeit not by the United States).
And the U.N. Security Council has worked to shore up the international legal framework even further. Two years ago, a resolution authorized states cooperating with Somalia's largely moribund Transitional Federal Government to "enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy."
But the devil is in the details. Many countries either lack the right legal code to dub piracy a criminal offense or the procedural provisions to do so. Even in countries with the right laws are on the books, conducting successful prosecutions can be extremely difficult. There are few lawyers skilled in the minutiae of piracy law, gathering evidence at sea is logistically very hard, and transporting witnesses from the Gulf of Aden is no small task. The United States is about to learn this lesson now with the trial of Abduwali Abdukhadir Muse, the sole survivor of the four-man pirate gang who attacked the MV Maersk Alabama in April 2009 and held Captain Richard Phillips hostage for nearly four days. In fact, to avoid a complicated trial, prosecutors may allow him plead guilty to a lesser offense.