The Indian Ocean is one of the busiest shipping arenas in the world, connecting Europe and Asia.  The shipping route that connects the two continents passes through the Mediterranean Sea, Suez Canal, Red Sea, Gulf of Aden and the Indian Ocean.  The route has proved itself to be one of the most crucial arteries of the shipping industry as it enables ships to avoid travelling across Africa in order to travel to or from Asia to Europe.  Billions of dollars worth of cargo passes through this route on a daily basis and hence, it is a critical maritime arena for the European and Asian economies.  However, this route has been significantly affected due to maritime piracy.  This has significantly influenced the trade between Europe and Asia and has, at several occasions, acted as a barrier to the inter-continental trade.

Maritime Piracy is a crime that has been a part of maritime history for centuries. Piracy and its severity have evolved over the years.  In the year 1696 AD, piracy was referred to as a sea-term for robbery that was committed within the jurisdiction of Admiralty.  Today, the crime is dealt with much more severity and it must be prioritised with utmost urgency by the international community.

The issue of jurisdiction in prosecuting pirates has always been a major concern for prosecuting States.  The issue of jurisdiction arises when pirates are captured in the high seas where no municipal law applies.   It certainly becomes a question of law when it comes to prosecution of persons who do not belong to the prosecuting state and have not committed an offence within the jurisdiction of the state.  In this case, is it legally justified to prosecute such persons within the prosecuting States?

Another issue that arises is with regards to the applicability of appropriate law in matters related to piracy.  For instance, the courts in Kenya have had a difference of opinion with regards to the choice of law that is to be applied while prosecuting a pirate.  In the case of Hassan M. Ahmed v. Republic, the court of appeal stated that the trial court had not correctly applied the law when it came to determining the valid definition for the term “piracy”.  The court held that the appropriate definition of piracy is one that is mentioned in United Nations Convention on Law of the Sea (UNCLOS, hereinafter) and is also recognized internationally.

Even if countries harmonize laws in order to allow prosecution of pirates, there still lies a question the goes to the very fundamental core of criminal legal jurisprudence.  The international community has established that piracy is an act of crime and is a threat to the whole world.  However, when it comes to lawfully prosecuting the pirates, the international community has sidelined certain fundamental aspects of law.

In order to effectively and efficiently combat piracy there is a need to have a broader approach. The ongoing military operations have certainly helped in reducing the number of attacks on shipping vessels by pirates.  It has also been observed that the success rate of piracy has been reduced over the last few years. Hence, it is uncontested that military operations have been successful in protecting shipping vessels from piracy in the Indian Ocean. While military operations provide assistance to combat piracy, shipping vessels have also resorted to hire private security personnel to provide first-hand armed assistance against acts of piracy or armed robbery and the practice is now being preferred by most shipping vessels passing through the Indian Ocean.

However, it is not to be presumed that military operations and private security personnel have completely eradicated pirate activities in the Indian Ocean. Although the number of acts of piracy has been reduced, pirate bosses continue to operate from vulnerable states. Considering the fact that, direct military action cannot be taken against these pirate bosses, efforts could be taken in order to disrupt their working system. This could be done by providing other financial incentives for the people of such vulnerable states/regions to create a recruitment barrier for the pirate bosses thereby by creating a barrier in their working. An increasing number of African youngsters are not becoming pirates by choice but by desperation.  They find it an easy, or perhaps the only means of earning livelihood.  Hence, other financial opportunities could certainly act as an effective way to reduce the number of people engaged as pirates.  However, the international community would have to devote a significant amount of global wealth in order to do so.  Whether or not re-building of vulnerable/collapsed economies becomes a viable option to combat piracy, is something that would be observed in the times to come.

Marex Media