Prosecuting International Crimes in Africa - PULP - University of ...

Prosecuting piracy in the horn of Africa: The case of Kenya 237
It follows that the coastal state enjoys economic rights in the EEZ
while at the same time provisions on the crime of piracy simultaneously
apply.
Secondly, the offence of piracy becomes operative only when illegal or
violent acts are committed. What amounts to an illegality remains subject
of speculation for it is unclear whether the determination of ‘illegal acts’ is
derived from municipal or international law.
Further, as it has been pointed out, ‘the essence of piracy under
international law is that it must be committed for private ends’. 21
However, the public/private distinction is not always obvious. Often,
private interests take political manifestations and ramifications belying the
broader distinction. It has, for instance, been argued that ‘illegal acts
committed for political rather than private ends also fall outside the
international law definition of piracy’. 22 Shaw agrees stating that ‘any
hijacking or takeover for political reasons is automatically excluded from
the definition of piracy’. 23 Another opinion would be that the distinction
should advisably be between private/public and not private/political. In
this sense, what is public is that which is sanctioned by a State. Any other
item belongs to the realm of ‘private’. Indeed, there is now case law
indicating that politically motivated acts of protests can constitute
piracy. 24 Strictly speaking a war ship or government vessel cannot commit
piracy unless the passengers (naturally military officials) have mutinied.
Finally, UNCLOS’ definition only covers attacks committed from a
private vessel against another vessel. Going by this understanding, seizure
of vessel by its own passengers does not amount to piracy. The
consequence of this limitation is to exclude certain acts of ‘terrorism’ from
the regime of the crime of piracy.
3 Prosecuting piracy: A Kenyan perspective
International law does not just define the offence under review but equally
has explicit provisions on the power of search and seizure of pirate ships
and pirates. 25 States are required to ‘cooperate to the fullest possible extent
in the repression of piracy on the high seas or in any other place outside the
jurisdiction of any state’. It is in pursuance of this mandate that the UN
Security Council recently called for the deployment of ‘vessels and military
21
22
23
24
MN Shaw International law (1998) 423.
Silva (n 6 above) 570.
Shaw (n 21 above) 423.
See Castle John v NV Mabeco (Belgium, Court of Cassation, 1986) 77 International Law
25
Reports 537
See UNCLOS arts 105 – 110.