, PARIS, Nov 20 – With pirates terrorising the shipping industry by hijackings in the busy waterway off Somalia\’s coast, legal experts are chasing their tails trying to find a way to put them in the dock.
Some suspected pirates have been taken to face justice in Germany, where 10 Somalis are due to go on trial in Hamburg on Monday accused of attacking a German cargo ship.
But Kenya, which last year signed a deal with western states to try suspected pirates in its courts, was forced to acquit 26 suspected Somali pirates this month and said handling the cases was too big a burden.
Pirates based in lawless Somali territory have been bagging millions of dollars in ransoms for boats seized around the Gulf of Aden, though warships from various countries patrolling the passage have overpowered some.
But even if the pirates are caught, the lack of central rule in Somalia since a 1991 civil war makes it impossible to put them on trial there, experts say.
A lawyer specialising in maritime law, Isabelle Corbier, said Somali suspects arrested in international waters fall into a "legal void".
The suspects in the German case were arrested by the Dutch navy when it freed the ship and flown to the Netherlands after Germany issued European arrest warrants. A Dutch court ruled they could be extradited to Germany.
But observers say the scourge can only really be tackled by setting up effective courts in Somalia itself — a risky and complicated task in a volatile land largely controlled by Islamist militants.
"For an effective jurisdictional system, the Somalis absolutely must be involved," said Jack Lang, a French former minister who is now a United Nations special adviser on piracy.
"The ideal thing would be for legal authorities to intercede on Somali territory," starting with the relatively stable autonomous regions of Somaliland and Puntland, he told AFP.
Constituting such a court would be tricky given Somalia\’s diverse forms of common, Koranic and clan law, and its disjointed leadership, experts say.
"In Somaliland, a territory where there is authority, they do not like pirates. If that was made the case throughout Somalia, they would go to jail for 20 years," said Gerard Prunier, a regional specialist.
"In Puntland, an entity without total legitimacy where lots of the pirates come from, they will spend two weeks in prison," he added. "As for the Somali federal transition government, it has completely lost its legitimacy."
More than 700 suspected and convicted pirates are now in detention in 12 countries, more than half of them in Somalia, the executive director of the UN Office on Drugs and Crime (UNODOC), Yury Fedotov, said earlier this month.
To try them, UN Secretary General Ban Ki-moon has proposed among other plans setting up a court under Somali authority in a neighbouring country. Efforts by some countries to try pirates in their own courts have faltered.
Kenya is trying 69 suspected pirates and has convicted 50 and the Seychelles has convicted 22, Fedotov told the Security Council. But he added that the trials "pose a heavy burden for countries in the region."
Courts in the Kenyan port city of Mombasa acquitted 17 Somali suspects for lack of evidence on November 5 and a high court ruled in the case of nine other suspects that Kenya had no jurisdiction over piracy in international waters.
Kenya has indicated it is not ready to renew the agreement allowing it to try Somali pirates. Acting Foreign Minister George Saitoti said it put a heavy burden on the country\’s resources and called for an international conference on the issue.