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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.
Prosecuting piracy in the horn of Africa: The case of Kenya 241 As the piracy problem escalated in 2008, patrolling nations caught hundreds of pirates. Unwilling to bring them back to their countries for trial, the patrolling vessels destroyed their firearms and equipment but released them. 43 To date, only four non-Western states – China, India, Kenya and Yemen – have used universal jurisdiction to prosecute piracy. 44 Kenya, which is perhaps the only State that readily accepted and prosecuted Somali pirates, 45 has at certain times wavered. At some point, Kenya’s Foreign Affairs Minister, Moses Wetangula, was quoted as saying; ‘for the last two weeks we have declined to accept captured pirates from some of our friendly countries and told them to try it elsewhere’. 46 The official further stated: ‘We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility’. 47 Kenya’s own Attorney General has wondered: ‘why then are these countries afraid to prosecute the pirates arrested by their naval forces in the high seas?’ 48 Jurisdictional problems may also arise because of conflict between national and international law. It is possible that national law may provide for a different jurisdictional criterion from that stipulated at the international level. 49 This scenario has operated in Kenya. Prior to the enactment of the Merchant Shipping Act in 2009, the Penal Code did enunciate a restricted jurisdiction for all crimes including piracy. Section 5 of this law which also relates to piracy provides that national courts have criminal jurisdiction extending to every place within the State, including territorial waters - but not beyond. Further the Penal Code stipulates that municipal courts could only seize jurisdiction where the suspected criminals are Kenyans. There was, it follows, real danger that without purposeful reading of statute, courts of law were likely to avert adjudicating over offences committed in the high seas or those involving non-Kenyans. This predicament did arise in the case of R v Hassan M Ahmed and 9 Others. 50 The defendants were accused of jointly attacking and detaining an Indian vessel, MV Safina Al Bisarat 275 – 280 off the coast of Somali. They allegedly attacked the crew and demanded $50 000 and a satellite 43 Kontorovich & Art (n 35 above) 437. 44 As above. 45 As pointed out elsewhere herein, in July 2010 Seychelles convicted Somali pirates. 46 See RTT News, http://www.rttnews.com (accessed on 12 April 2010). 47 RTT News, http://www.rttnews.com (accessed on 12 April 2010). 48 See F Mukinda & A Shiundu, 30 March 2010. Daily Nation news, available at http:// allafrica.com, (accessed 24 April 2010). 49 Shaw (n 21 above) 470 where it is stated: Piracy under international law (or piracy jure gentium) must be distinguished from piracy under municipal law. Offences that may be characterized as piratical under municipal laws do not necessarily fall within the definition of piracy in international law, and thus are not susceptible to universal jurisdiction (depending of course upon the content and form of international conventions), 50 Criminal Case No 434 of 2006.
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Prosecuting International Crimes in
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1 2 TABLE OF CONTENTS FOREWORD ix C
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6 7 8 6 Relevance of the jurisprude
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12 13 14 4 Conclusion 246 PART IV:
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FOREWORD I write this foreword with
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CONTRIBUTORS Benson Olugbuo is a So
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1 INTRODUCTION Chacha Murungu* & Ja
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Introduction 3 The commission of in
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Introduction 5 Apart from internati
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Introduction 7 resort. The conclusi
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PART I: GENERAL ISSUES IN THE PROSE
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12 Chapter 1 oblige states to prose
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14 Chapter 1 3 The obligation to pr
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16 Chapter 1 perpetrators of these
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18 Chapter 1 namely, national, ethn
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20 Chapter 1 the International Crim
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22 Chapter 1 amnesties for serious
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24 Chapter 1 payment of compensatio
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26 Chapter 1 punish international c
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28 Chapter 1 notorious violations o
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30 Chapter 1 in the case of the cou
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CHAPTER 2 1 Introduction IMMUNITY O
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Immunity of state officials and pro
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PART II: INTERNATIONAL COURTS AND P
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64 Chapter 3 evidentiary areas of i
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66 Chapter 3 pioneering effort in a
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68 Chapter 3 particular group, the
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70 Chapter 3 Indisputably, the abse
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72 Chapter 3 The Akayesu judgment,
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74 Chapter 3 particularly in light
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76 Chapter 3 for the destruction of
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78 Chapter 3 being of persons, in p
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80 Chapter 3 conflict - the ‘war
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82 Chapter 3 Chamber had itself fou
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84 Chapter 3 found in the first pla
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86 Chapter 3 of the Statute than
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88 Chapter 3 The majority’s appro
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90 Chapter 3 duties as a superior e
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92 Chapter 3 present at the trial,
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94 Chapter 3 international crimes.
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96 Chapter 3 advanced nor argued an
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98 Chapter 4 Unlike the Internation
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100 Chapter 4 years imprisonment wh
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102 Chapter 4 The Prosecutor’s de
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104 Chapter 4 2.3 SCSL and the Trut
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106 Chapter 4 who bear the greatest
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108 Chapter 4 responsibility for in
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110 Chapter 4 population’. 76 The
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112 Chapter 4 2.5.1 Acts of terrori
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114 Chapter 4 and Additional Protoc
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116 Chapter 4 Essentially, there mu
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118 Chapter 4 conscription of child
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120 Chapter 5 The United Nations Se
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122 Chapter 5 There are two main th
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124 Chapter 5 goal of rehabilitatio
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126 Chapter 5 that punitur quia pec
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128 Chapter 5 circumstances of the
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130 Chapter 5 retribution, deterren
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132 Chapter 5 Another argument in t
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134 Chapter 5 children. 111 Those o
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136 Chapter 5 assessed’. 119 In m
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138 Chapter 5 that there were no mi
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140 Chapter 5 Santigie Borbor Kanu
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142 Chapter 5 Chamber found no reas
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144 Chapter 5 has adopted a tone th
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146 Chapter 6 However, with the adv
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148 Chapter 6 2. 1 Africa-ICC relat
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150 Chapter 6 national elections, c
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152 Chapter 6 resolution may be ill
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154 Chapter 6 He has added that his
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156 Chapter 6 out of a desire to av
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158 Chapter 6 (b) US legislation to
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160 Chapter 6 encourage countries o
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CHAPTER 7 1 Introduction THE TRIAL
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The trial of Mengistu and other Der
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CHAPTER 8 1 Introduction THE TRIAL
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The trial of Hissène Habré in Sen
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Page 209 and 210: CHAPTER 9 1 Introduction PROSECUTIN
Page 211 and 212: 2 Genesis of the conflict Prosecuti
Page 213 and 214: Prosecuting international crimes by
Page 233 and 234: CHAPTER 10 1 Introduction GENOCIDE
Page 235 and 236: Genocide as prosecuted by the ICTR
Page 243: 8 Reparations Genocide as prosecute
Page 246 and 247: 234 Chapter 11 losses in excess of
Page 248 and 249: 236 Chapter 11 piracy’. 14 In add
Page 250 and 251: 238 Chapter 11 aircraft in accordan
Page 254 and 255: 242 Chapter 11 phone. They took ove
Page 256 and 257: 244 Chapter 11 3.3 Capacity problem
Page 258 and 259: 246 Chapter 11 support us. They did
Page 261 and 262: CHAPTER 12 Benson 1 Introduction PO
Page 263 and 264: Positive complementarity and the fi
Page 287: Positive complementarity and the fi
Page 290 and 291: 278 Chapter 13 international crimin
Page 292 and 293: 280 Chapter 13 Africa’s involveme
Page 294 and 295: 282 Chapter 13 countries has tended
Page 296 and 297: 284 Chapter 13 passed domesticating
Page 298 and 299: 286 Chapter 13 crimes within their
Page 300 and 301: 288 Chapter 13 offences. Procedural
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290 Chapter 13 Constitution, 62 thi
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292 Chapter 13 4.1.3 The law regula
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294 Chapter 13 either reciprocal or
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296 Chapter 13 committed to fightin
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298 Chapter 13 The procedure for th
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300 Chapter 13 trial. While the Rom
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302 Chapter 13 Having draft legisla
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CHAPTER 14 Lee 1 Introduction IMPLE
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Implementation of the Rome Statute
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Books SELECTED BIBLIOGRAPHY Allen,
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Selected bibliography 333 Neier A (
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Selected bibliography 335 Chitiyo,
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Selected bibliography 337 Jalloh, C
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Selected bibliography 339 Roht-Arri
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Selected bibliography 341 Report on
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Table of cases 343 Right of Passage
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Table of cases 345 Prosecutor v Vas
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Table of cases 347 Muhimana v Prose
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Table of cases 349 Prosecutor v Rut
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Table of cases 351 and the Governme
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Table of cases 353 Prosecutor v Ses
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Table of cases 355 GAOR, 45th Sess.
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Table of cases 357 R v Bow Street M
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360 Subject index Domestication ...
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362 Subject index S Selective justi
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