Prosecuting Pirates: The Contact Group on Piracy off the Coast of Somalia, Governance and International Law
| DOI | http://doi.org/10.1111/j.1758-5899.2012.00190.x |
| Published date | 01 February 2013 |
| Author | Douglas Guilfoyle |
| Date | 01 February 2013 |
Prosecuting Pirates: The Contact
Group on Piracy off the Coast of
Somalia, Governance and
International Law
Douglas Guilfoyle
Faculty of Laws, University College London
Abstract
Since 2008 the response to Somali piracy has been highly decentralised. Criticisms have been made of the seemingly
low rate of piracy prosecutions and centralised solutions, such as an international piracy court, proposed. This article
explores the role of the Contact Group on Piracy off the Coast of Somalia’s Working Group 2 (WG2) as a mechanism
involved in coordinating piracy prosecutions. It reviews the applicable international law and available options. It
suggests that WG2 has had a discernible influence in promoting the decentralised use of national courts over the
creation of a stand-alone international piracy court. It then reflects on WG2 as an example of a ‘new governance’
coordination mechanism.
Somali pirates and the international response
Whatever its early origins, Somali hostage-taking piracy
is now a business. While piracy may have begun as a
response to illegal fishing off Somalia it is now driven by
profit, not grievance.
1
The real victims are now the sea-
farers held hostage (numbering hundreds at any one
time), who are often injured, occasionally killed and
invariably traumatised by violent hijackings and long
periods of captivity.
2
Factors enabling Somali piracy
include: the absence of centralised onshore repression;
the presence of largely functional local communities and
markets; the ransoms paid; and Somalia’s proximity to
exceptionally busy shipping lanes. Although there is evi-
dence that much Somali piracy is controlled by relatively
few financiers and kingpins (United Nations, 2011), the
costs of forming a ‘pirate action group’ are low enough
that small groups can form their own ‘start up’ enter-
prises (Hansen, 2009).
Criticism has often been levelled at the low prosecu-
tion rate of Somali piracy suspects (e.g., Art and Kontoro-
vich, 2010), giving rise to perceptions the international
community is doing too little to punish pirates. Several
facts must be borne in mind. First, given the large will-
ing labour pool of potential pirates (United Nations
International Expert Group on Piracy off the Somali
Coast, 2008), maritime interdiction and subsequent
prosecutions may have only a limited deterrent effect.
Second, there are finite policing resources available to
patrol the vast area over which piracy now occurs in the
Indian Ocean. The current deployment of 25 or more
warships is analogous to patrolling a landmass twice the
size of mainland Europe with 25 police cars (Logan,
2011). Third, decisions to release suspect pirates may
result from a variety of largely practical considerations
discussed further below. Finally, over 1,011 pirates have
actually been captured and sent for trial and conviction
rates in those proceedings are very high.
3
Obviously, it is generally agreed that any solution to
Somali piracy must lie ashore. Thus, while strengthening
the ‘judicial mechanisms’ for dealing with piracy is an
important component of counter-piracy, it can clearly
only be one part of a larger response (United Nations,
2009). In that context this article discusses a principal
cooperative mechanism in counter-piracy, the Contact
Group on Piracy off the Coast of Somalia (CGPCS), and
particularly its Working Group 2 (WG2) on legal issues.
The rise of the CGPCS
While maritime hijacking and hostage-taking off Somalia
was notable as early as 2003 (International Maritime
Organization, 2007), it took the 2008 hijacking of a
French yacht, Le Ponant, to prompt Security Council Res-
olution 1816 on 2 June 2008 (Guilfoyle, 2010). On 30
November 2009, less than 18 months after Resolution
1816, the Security Council noted the scale of the interna-
tional response, including: ‘the efforts of the EU [Naval
Force] operation Atalanta…North Atlantic Treaty Organi-
Global Policy Volume 4 . Issue 1 . February 2013
Global Policy (2013) 4:1 doi: 10.1111/j.1758-5899.2012.00190.x ª2013 University of Durham and John Wiley & Sons, Ltd.
Special Section Article
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