, NAIROBI, Kenya, Apr 18 – Arresting Somali pirates may be the easy part. Foreign navies in the region have detained dozens of them but the ensuing legal avenues are ill-defined and raise human rights concerns.
Since piracy surged dramatically in the Indian Ocean and Gulf of Aden in late 2007, the growing fleet of foreign warships in the area have detained scores of pirates in a bid to curb a scourge threatening world trade.
The French navy alone has captured 71 suspected pirates.
Only 15 of them, involved in the hijackings of French vessels, have been brought to France for trial, while most of the others were handed over to the authorities of the breakaway Somali state of Puntland, a major piracy hub.
In an operation a week ago to free the captain of a US ship held hostage on a lifeboat, American naval forces shot dead three pirates and captured the fourth, who is to face charges in a New York court.
Whether they end up in France, Kenya, Puntland or Netherlands – where five pirates are facing trial – critics say the international legal framework is insufficient and that the suspects’ rights are not guaranteed.
Puntland’s institutions need to be built from scratch and its human rights record has repeatedly come under fire, but the three-month-old administration of President Abdurahman Mohamed Farole insists it is up to the task.
"We have started to increase the capacity of our security forces… and our capacity to bring pirates to justice," Farole told AFP. "We are strengthening our legal system, by employing more judges and increasing their salaries."
On Wednesday, Puntland’s supreme court handed down three-year jail terms to 37 pirates who had been captured by the US and French navies.
The lack of legal provisions on piracy and criminal activities at sea has meant that dozens of pirates have simply been allowed to sail free or been dumped back on the shores of Somalia.
The Law of the Sea Convention gives foreign warships the right to prevent, deter and respond to acts of piracy but it does not apply to territorial waters and inadequately addressed the issue of transfer ashore.
In a working document for a UN-sponsored conference in December, it was also pointed out that human rights were an issue, "particularly the standard of treatment that a suspected pirate would experience both in custody and at trial."
When Le Ponant, a luxury French yacht, was hijacked in April 2008, French commandos pursued pirates on land after the ransom was paid and the ship freed, arresting six of them.
A year later, they have not been charged and court-appointed defence lawyer Romain Ruth argued that the five days the captured pirates spent on a French warship before being transferred were a violation of the law.
Veteran Somali rights activist Abdullahi Daib says foreign powers are missing the point by seeking to prosecute pirates.
"These pirates catching the boats are like children. They don’t know their rights and they are the ones getting the big money," he told AFP.
"After 19 years without a government, Somalia is a country that needs help, not a military or a legal crackdown. Many of these young people have no future; the only job they can find nowadays is in piracy."
Many pirates netted by the 20-odd foreign warships plying the region’s seas are now brought to Kenya, the only coastal nation to have dedicated agreements with major naval powers.
Critics have argued that capturing Somali pirates and handing them over to a third state is tantamount to rendition.
"The Kenyan judicial system is inefficient, fairly corrupt and lacks capacity," said Peter Chalk, a piracy and terrorism expert with the US-based Rand Corporation think tank.
But UN expert Stefan Liller argued that it was one of the few options immediately available.
"Nobody thinks that Kenya has a perfect legal system but Kenya is one of the few solutions. Nobody is willing to send suspects to Yemen for example, where punishment for piracy is crucifixion," said Liller, who works with the UN Office on Drugs and Crime.
"There are a lot of ideas being floated, such as a special piracy tribunal, but everyone is basically struggling to find out what the best way forward is."