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

238 Chapter 11
aircraft in accordance with international law’ 26 in the repression of piracy
in the East African coast.
Once captured, there is a genuine expectation that the seizing state
shall penalize those arrested. It is instructive however, that UNCLOS does
not place express responsibility on the seizing state to specifically
prosecute arrested suspects. It simply empowers ‘the courts of the State
which carried out seizure’ to determine the penalties to be imposed
including ‘the action to be taken with regard to the ships, aircraft or
property subject to the rights of third parties acting in good faith’. 27
Commenting on a similiar question earlier, the International Law
Commission took the position that ‘the State must be allowed certain
latitude as to measures it should take to this end in any individual case’. 28
Such discretionary penalties may include prosecution.
It would seem, from the practice, that the decision to prosecute
arrested suspected pirates is mostly a difficult one. This often is because of
a number of attendant challenges relating to jurisdiction; associated risks
and fears and capacity problems. In this respect, Kenya’s recent attempt at
prosecuting Somali pirates is particularly illustrative.
3.1 Jurisdictional problems
Jurisdictional problems arise first because international law cedes
jurisdiction to many parties even in a single instance. Although UNCLOS
recognizes jurisdiction only for the State which seizes the pirate, 29 through
other criteria, international law may yield jurisdiction to many and
different states. Under the Convention for the Suppression of Unlawful
Acts of Violence Against the Safety of Maritime Navigation (the SUA
Convention), 30 which proscribes certain unlawful acts inter alia amounting
to piracy, 31 States are required to take necessary measures to establish
26
Resolution 1838 of the UN Security Council.
27 Art 19 of the High Seas Convention 1958; Article 105, UNCLOS. According to Shaw:
The fact that every state may arrest and try persons accused of piracy makes that crime
quite exceptional in international law, where so much emphasis is placed upon the
sovereignty and jurisdiction of each particular state within its territory.
28 (1956) II Yearbook of International Law Commission, 282.
29
Art 105.
30 Adopted in 10 March 1988; entered into force on 1 March 1992.
31
Arts 3 of the SUA Convention reads:
Any person commits an offence if that person unlawfully and intentionally: (1)
Seizes or exercises control over a ship by force or threat thereof or any other
form of intimidation; or (2) 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
(3) Destroys a ship or causes damage to a ship or its cargo which is likely to