Pirates and Privateers

Even though universal jurisdiction gives a country the right to prosecute pirates, not all countries are willing to do so. It’s easier to capture them than it is to prosecute them. Some laws require that they be caught in the act, but oftentimes, the act of piracy has already occurred or failed by the time the authorities holding the power to arrest them come upon the scene.

Another difficulty is that not all states’ laws treat pirates as pirates; instead, they are seen as “boat people” or illegal immigrants and if they set foot in some countries, including the United Kingdom, the pirates can request asylum because if they returned to their homeland, they can be beheaded or have a limb amputated.

Just as in the past when British officials discovered it was too expensive to transport captured pirates to England for trial, the same is true today, and it’s not just the cost of the physical means of transportation. Those costs include securing witnesses, holding the trials, housing and feeding, etc. Not all countries are willing to foot those bills. Some countries, including the United States and the Netherlands, do. Shortly before the Maersk Alabama incident, the Royal Netherlands Navy captured five pirates. The accused were taken to the Netherlands for trial, but doing so long term is not feasible.

Although each nation must enact its own laws against piracy so that those accused of such crimes can be tried within the boundaries of that country, two conventions define piracy and outline the rules that allow for the suppression of this crime under universal jurisdiction. The first is The United Nations Convention on the Law of the Sea (UNCLOS) and the second is the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (often referred to as the SUA Convention).¹⁰

Here again, the definition of piracy comes into play. UNCLOS defines it in Article 101 as follows:

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). (Rubin, 431)

The SUA Convention is a broader document and doesn’t specifically mention piracy, although it can be applied to this illegal act.

Article 3

1. Any person commits an offense if that person unlawfully and intentionally:

(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

(b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or

(c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or

(d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

(e) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

(f) communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).

2. Any person also commits an offence if that person:

(a) attempts to commit any of the offences set forth in paragraph 1; or

(b) abets the commission of any of the offences set forth in paragraph 1 perpetrated by any person or is otherwise an accomplice of a person who commits such an offence; or

(c) threatens, with or without a condition, as is provided for under national law, aimed at compelling a physical or juridical person to do or refrain from doing any act, to commit any of the offences set forth in paragraph I, subparagraphs (b), (c) and (e), if that threat is likely to endanger the safe navigation of the ship in question. (Convention)

What is noteworthy about the SUA Convention are its instructions on what to do with prisoners upon capture. In theory, such pirates can be extradited to third-party countries that have agreed to prosecute pirates because of agreements with the nations that technically should do the prosecuting. When it comes to Somali piracy, however, the SUA Convention doesn’t work because acts of piracy must take place on the high seas, rather than in territorial waters, and warships are usually the vessels that capture the pirates. This often means that the flag nation of the warship is responsible for prosecution.

One way countries have dealt with the desire to prosecute without incurring all the involved costs or without allowing suspected pirates to claim asylum, is to “rent out” another country’s justice system. Such an agreement was reached between the United Kingdom and Kenya.

In essence, these agreements amounted to extradition treaties where there existed no legal reason why the capturing states could not prosecute offenders in their own court systems. (Bahadur, 158)

This proved to be a temporary arrangement because Kenya’s prison system is overcrowded and difficulties exist in managing these institutions, not to mention a prosecution backlog in their court system. Nor does Kenya wish to become a dumping ground for other countries’ accused pirates.

For a time, Kenyan courts did prosecute pirates. The first trial occurred in 2006, in Mombasa and involved the defendants accused of hijacking Safina Al Bisaraat. Earlier that year, after ten pirates captured this trading dhow, they used it as a mother ship from which they could attack other prey. Their first two targets escaped, but one ship’s bridge was damaged when the pirates fired a rocket-propelled grenade. Attacking MV Delta Ranger resulted in a three-hour standoff between the pirates and USS Winston Churchill. The former either tossed their weapons into the sea or hid them on the bulk carrier before navy personnel came aboard Delta Ranger and arrested the pirates.

USS Winston S. Churchill follows suspected pirate vessel in Indian Ocean in 2006
(Source: Wayback Machine - Navy NewsStand)

When Jay Bahadur, a Canadian author and investigator, interviewed the accused pirates in Kenya’s Maivasha prison, Hassan claimed that he and the others were fishermen.

[W]e were fishing when we were captured. But the Americans destroyed all the evidence: our boats and our nets. (Bahadur, 160)

According to Hassan, they didn’t even have legal representation, although a lawyer did defend them at their trial and even filed an appeal on their behalf.¹¹ Hassan also insisted “no evidence was brought against us. And no witnesses, either.” (Bahadur, 160) As far as he was concerned, he and his cohorts “were not proved guilty beyond a reasonable doubt.” (Bahadur, 160) According to the BBC, the opposite was true. Several of the crew from the dhow bore witness against the pirates, including saying they had been tortured by them.

Hassan believed he should have been tried in Somalia where he would have received a fair trial. It didn’t matter that the conditions in that jail were far worse than in his present place of incarceration, assuming a Somali court sent him to prison at all.

Each pirate had to serve seven years’ imprisonment. Three years of that time had passed when Hassan spoke to Bahadur. He and his fellow pirates already had no plans to ever return to their homeland.

What we want is to be granted refugee status, or residency permits. Whatever we need to stay in Kenya. . . . [W]e’ll be businessmen. All we need is a little capital to start off with. (Bahadur, 161)

Prosecuting pirates in Kenya was not without issues. Its parliament didn’t incorporate UNCLOS into their laws until February 2009, with the passage of the Merchant Shipping Act. Part XVI addressed maritime security and paragraph 369 defined piracy as

(a) any act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed –

(i) against another ship or aircraft, or against persons or property on board such ship or aircraft; or
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any voluntary act of participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; or

(c) any act of inciting or of intentionally facilitating an act described in paragraph (a) or (b);

“pirate ship or aircraft” means a ship or aircraft under the dominant control of persons who –

(a) intend to use such ship or aircraft for piracy; or
(b) have used such ship or aircraft for piracy, so long as it remains under the control of those persons;

“private ship” and “private aircraft” mean a ship or aircraft that is not owned by the Government or held by a person on behalf of, or for the benefit of, the Government; and

“UNCLOS” means the United Nations Convention on the Law of the Sea, 1982.

(2) Piracy committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft is assimilated to piracy committed by a private ship or aircraft.

(3) This Part applies to aircraft only when they are on the high seas, that is to say, in those parts of the sea to which Part VII of UNCLOS is applicable, in accordance with Article 86 of UNCLOS. (Merchant)

The Act further stipulated the punishment for piracy in paragraph 371.

Any person who –
(a) commits any act of piracy;
(b) in territorial waters, commits any act of armed robbery against ships,
shall be liable, upon conviction, to imprisonment for life. (Merchant)

One additional insertion in this document was that Kenya’s parliament “assumed jurisdiction over piracy offenses” no matter where the ship was at the time, be it in international or territorial waters, and no matter the suspected pirate’s nationality.

Those arrested as pirates end up near Mombasa in Shimo La Tewa (“Shimo” for short), which Kenyans.co.ke describes as one of the country’s “most dangerous prisons” and is often “referred to as the camp of death.”¹²

In 2010, with the assistance of the United Nations’ Office on Drugs and Crime (UNODC), Kenya opened a new courtroom at Shimo “to meet increased judicial needs relating to piracy.” (UNODC) This facility allows for “increased trial capacity and . . . a secure, modern environment suitable for trying piracy cases.” The prison has also been refurbished, and UNODC supports and trains “prosecutors and police” so Kenya can prosecute those awaiting trial for piracy in a timely and legal fashion. Rehabilitation has also become a cornerstone of this prison: “[I]f prisoners do not understand that what they have done is wrong, and if they are not equipped with alternate tools for when they are released, we cannot counter recidivism.” (Shimo)

Despite the new facilities, Kenya closed its doors to prosecuting pirates in September 2010, when their agreements with the European Union, as well as the United States, the United Kingdom, Canada, and China expired. Reasons given for the nonrenewal were a lack of financial support, as well as judicial and technical expertise, and security risks, even though the United States and UNODC denied this. Yet in January 2025, Kenya pledged to renew its prosecution of suspected pirates arrested by the European Union Naval Force (EUNAVFOR), which cannot legally detain or prosecute suspects who have not been formally charged with crimes. According to Acting Director General Isaiah Nakoru of Kenya’s Department for Shipping and Maritime Affairs,

We have to work together to ensure that we achieve the aspiration for ensuring sustainability and security, and all activities that threaten the livelihoods of people and movements of people have to be addressed in partnership with all those who have a stake. (Africa)

The United States and other nations also prosecute pirates. In 2010, a band of seven Somali pirates attacked a cargo ship transiting the Gulf of Aden. Except she wasn’t a cargo ship; she was USS Ashland. The warship fired back, killing one pirate and destroying their boat. Mohamed Farah and Abdi Abshir Osman each received a sentence of life plus ten years, while Mohamed Abdi Jama and Abdicasiis Cabaase’s convictions resulted in life plus thirty years, after being convicted in February 2013. The remaining pirates received lesser sentences: Jama Idle Ibrahim fifteen years and Mohamed Ali Said thirty-three years.

Germany prosecuted ten pirates in 2010, following an attack on MS Taipan. The crew of the German ship secured themselves in the container vessel’s security room and shut down the engines, making it impossible for the pirates to take the ship back to Somalia. Members of the Royal Netherlands Navy captured the pirates and eventually turned them over to German officials. The trial, held in 2012, was the first time the country had prosecuted pirates in about 400 years, and became one of the longest in postwar Germany because of language differences and resolving how old each pirate was. After 105 days, a Hamburg court sentenced seven of the pirates to between two and seven years in jail; three were released because they were minors, who attended school in Germany. During the trial, defense attorney Rainer Pohlen said, “We are presuming here to apply law according to our German ideas on people whose living situations we cannot even begin to imagine.” (Court) The chief judge, Bernd Steinmetz, told the courtroom that the court felt “certain that all 10 defendants should be convicted,” in part because each one expected to receive a share of the ransom had they succeeded in their venture. In response to the court’s ruling, Ralf Nagel of Verband Deutscher Reeder (German Shipowners’ Association), said, “Piracy is a crime, and criminals belong in court.” (Court)¹³

Liberation of MS Taipan by Royal Netherlands Navy
(Source: Wikimedia Commons)

Also in 2010, Choizil left Dar es Salaam, Tanzania on her way to South Africa in late October. The skipper of the South African yacht was Peter Eldridge, and two of his crew were Deborah Calitz and Bruno Pelizzari. When Calitz first spotted the pirates’ speed boats, she mistook them for “three whales crashing their tails.” (Kidnapped) Instead, they were pirates who boarded the boat.

The leader aimed a bazooka at us. Five other guys came on board. They looked like they were taking some sort of drug. (Kidnapped)

Initially, Eldridge, Calitz, and Pelizzari were taken ashore and separated. Calitz shared the following:

They said they were going to slit my throat . . . so I started talking about light and love. I told my interrogator that we all had a choice in life. We could either choose love or darkness. He didn’t know what to do with me . . . [and] finally gave up and went and sat somewhere else. (Kidnapped)

Pelizzari endured beatings and was forced to stand on top of a roof in the hot sun. He had to hold his hands on his head.

One pointed a rifle at me and fired. You could actually hear the empty chamber click. There were no bullets. He did this several times. (Kidnapped)

When they rejoined Eldridge, they discovered that he had bargained for their survival in exchange for his life. “He was ready to die.” Eldridge returned to the yacht with five of the twenty pirates. Although the pair did hear gunfire and assumed their captain had been killed or was wounded, he actually was rescued by the antipiracy task force from the European Union (EUNAVFOR) and returned to South Africa. Calitz and Pelizzari weren’t as lucky. They remained kidnapped victims for twenty months and endured psychological torture, before they

were blindfolded and moved into the boot of a smaller car. We thought they were going to kill us and bury us in the desert. The car drove for about 10m. We were then taken out and put into another car. (Kidnapped)

Despite these fears, the couple was on their home.

When the Dutch navy rescued Eldridge, they also captured five pirates. South Africa refused to prosecute the suspects, so the Netherlands opted to do so. Eldridge “positively identified the accused men as being among the armed pirates who had hijacked” his yacht. (Stuijt) Testifying did not lessen his trauma. “It is probably something I will never get over.” (Stuijt)

The trial took place in the Court of First Instance of Rotterdam, and while pronouncing sentence, Judge Jacco Janssen said, “During the attack . . . extreme violence was used. The crew thought their last hour had arrived.” (Somali) The pirates received sentences of four-and-a-half to seven years’ imprisonment. On appeal, one was resentenced to five years with credit for time served in 2012.

Republic of Korea Navy's Choi Young pursued Somali pirates after they attecked MV Samho Jewelry
Source: Wikimedia Commons

Universal jurisdiction was also implemented in 2011, after Somali pirates attacked MV Samho Jewelry, which was carrying chemicals when captured in the Indian Ocean.¹⁴ Commandos of the Republic of Korea Navy engaged the pirates after boarding the ship following a week of pursuit; eight pirates were killed and five were captured. The crew was rescued, although the master was badly wounded. When none of the regional countries accepted the captured pirates, they were taken to South Korea and charged with

eight counts of criminal acts of piracy including forced taking of the ship, forced taking of property on the ship, forced operation of the ship, demand of ransom for the release of hostages, firing at soldiers, physical assault, threat and bodily harm inflicted upon the crew, use of the crew as “human shields,” and firing upon the captain. (Lee)

Additional charges were also filed. At one point prior to the court rendering its verdict, the prosecutor learned that this wasn’t the first attack by these pirates.

We showed photos of the pirates who captured the Samho Jewelry to the Samho Dream crew, and some of them remembered four or five pirates, saying they saw them while they were captured. (Rahn)

Further investigation confirmed that “piracy is conducted through ‘operation groups’ that hijack ships, ‘investors’ who provide the pirates with jet boats, arms and food, and ‘negotiators’ in charge of talks with shipping companies.” (Rahn) According to prosecutor Jeong Jeom-sik, learning more about these people proved impossible because “the chief and vice chief of the pirate group, who may have known the investors well, died.” (Rahn) Nor was this a random attack. The pirates were aware of the ship’s route prior to the attack and “specifically targeted [her] after learning that another ship owned by the same shipping company was released in November last year after paying a huge ransom.” (Hyo-sik)¹⁵

The court convicted the pirates and sentences of thirteen to fifteen years were imposed, with the exception of the pirate who was convicted of shooting the ship’s master Seok Hae-kyun.¹⁶ Arai Mohamed received a life sentence for his conviction on attempted murder. Although appeals were filed, the Supreme Court upheld the verdicts and sentences. One outcome of the trial was that it “revealed challenges to the Korean legal system that need to be addressed to handle the prosecution of pirates.” (Lee)

One pirate, Serum Abdullah, hopes to stay in South Korea after his release. Some of his fellow pirates said “the detention center is better than most hotels in Africa.” (Hyo-sik)


Notes:

10. Although the United States helped to draft the United Nations’ UNCLOS and signed the 1994 agreement that amended the 1982 convention, Congress has never ratified it. The country is one of thirteen members of the UN that has not formally approved and confirmed UNCLOS.

11. Piracy is not a capital offense under Kenyan statutes. If a defendant doesn’t have or can’t afford a lawyer, the court is only permitted to assign someone to defend the accused in cases where he/she is charged with murder or violence during the commission of a robbery. The agreement with the European Union does stipulate, however, that accused pirates will have attorneys to defend them, so pirates tried in Kenyan courts are assigned attorneys.

12. In 1995, Kenyan journalist Mutonya Njunguna labeled the prison as “belonging in a horror film.” (Bahadur, 152) Inmates’ beds were the floor. They endured sweltering heat and unsanitary conditions – not surprising since the maximum number of inmates was supposed to be 1,000, but the prison actually housed 3,500. Despite the changes and refurbishments that Shimo has undergone because of the housing and prosecuting of pirates, Mwanza’s assertions quoted in this article were published in 2020.

13. The German trial involved “[f]our judges, four lay judges, two prosecutors, 10 other court employees, 20 defense attorneys and three Somali language interpreters – along with numerous expert witnesses.” Der Spiegel reporter Beate Lakotta questioned why the prosecutors wanted the defendants to be incarcerated for “a total of 81 years”, since it would neither deter Somali pirates from attacking ships nor help the pirates rejoin society. Especially, given that upon their releases, they are more likely to stay in Germany “at public expense” rather than return to their homeland. (Lakotta)

14. Samho Jewelry is registered in Malta, which means that Malta had jurisdiction in this pirate case.

15. The previous attack had been on Samho Dream, which was carrying Iraqi oil to the United States when it was boarded. The shipping company negotiated a ransom of $9,000,000 for the release of the twenty-four crew members. This didn’t sit well with the Korean public. They perceived that “the government seemed unprepared, or unwilling, to react aggressively when faced with threats.” President Lee Myung Bak said, “We will not tolerate any behavior that threatens the lives and safety of our people in the future,” so the navy was given the go-ahead to storm the freighter. (Wagner)

16. Shot in the stomach, Seok Hae-kyun was conscious at the hospital where he was to undergo surgery. “He underwent three to four hours of surgery and wore a cast as both of his legs and his left arm were broken.” (Wounded) He did recover from his injuries.

To be continued . . .

Part 1: Law and Order: Pirate Edition               Part 2: What Is a Pirate?

Part 3: The Evolution & Suppression Continues

Part 4: A Test Case          Part 5: Suppressing a Proliferation

Part 6: A New Nation Joins the Fight against Piracy

Part 7: Who Will Try the Case?

Part 8: Universal Jurisdiction

Resources (The list is so extensive that I have placed it on a separate page.)

Copyright ©2025 Cindy Vallar

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