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

240 Chapter 11
and it is easy to avoid the jurisdiction of any state’. 38 The SS Lotus case
arrived at the same position, except perhaps that it seems to suggest that
the ‘universal jurisdiction’ lies with the state that captures the pirates. As
Moore J held:
[b]y [the] law of nations … [as a matter of] universal jurisdiction, under which
the person charged with the offence may be tried and punished by any nation
into whose jurisdiction he may come … [The pirate] is treated as an outlaw, as
the enemy of all mankind – hostis humani generis –whom any nation may in the
interest of all capture and punish. 39
Thus, numerous states have jurisdiction to both arrest and punish pirates
so long as they have been apprehended on the high seas or within the
territory of the state concerned.
The implication of these broad jurisdictional criteria is that a State
which seizes a vessel, one whose ship is the target of piracy, one who’s
national is suspected for committing piracy, that in which a stateless
person is habitually resident, and the victims’ State may all simultaneously
claim jurisdiction. Not to mention just any other member of the
international community capturing the pirates and seizing the doctrine of
universal jurisdiction. Such multi-faceted approach to jurisdiction should
ordinarily cause confusion and conflicting claims to jurisdiction. It is
perhaps why in the face of escalating piracy off the coast of Somali the UN
Security Council called upon ‘all States, and in particular flag, port and
coastal States, States of the nationality of victims and perpetrators of piracy
and armed robbery, and other States with relevant jurisdiction under
international law and national legislation’, to cooperate in determining
jurisdiction. 40 This could have been an effort at averting jurisdictional
conflicts.
In practice however, jurisdiction over pirate cases – especially off the
coast of Somalia - has not been treated as a trophy. It has hardly been
contested. In fact, most states are unwilling to prosecute such cases. Silva
has lamented that ‘although the Security Council resolutions authorize the
pursuit of pirates into Somali waters, most nations have been reluctant to
take pirates into custody for prosecution in their own domestic courts.’ 41
In April 2009, for instance, Dutch Naval Forces captured and released 7
Somali pirates, a happening that illustrates their reluctance to resort to
prosecution. 42 Another account has noted:
38
Write (n 37 above) 159.
39 SS Lotus (France v Turkey), 1927 PCIJ (ser. A), No 9 at 70. Emphasis added.
40 Resolution 1816, UN Security Council, paragraph 11.
41
Silva (n 6 above) 576.
42 E Labott ‘Clinton says releasing pirates sends wrong signal’, CNN, 20 April 2009.