This dissertation does not contain the writings of other persons, unless specifically acknowledged as a source by other researchers. I would like to express my sincere thanks and appreciation to the many people who have helped me during the research and writing of this dissertation.
INTRODUCTION
A good example of the judicial challenges evident in the prosecution of pirates can be found in Kenya. One of the main problems that will be examined in this chapter is the lack of uniformity in the successful prosecution of the crime of piracy.
INTERNATIONAL LAWS AND POLICIES
United Nations Convention on the Law of the Sea
23 Id.; Despite the narrow description in UNCLOS, it is possible that domestic legislation could be enacted to include territorial waters within the scope of the crime of piracy. One of the shortcomings in SUA is that it does not grant the power to signatory States to exercise universal jurisdiction over the crime of piracy.
United Nations Security Council Resolutions
It is imperative that all Member States have a uniform approach to deter piracy. Although the resolutions adopted by the UNSC appear to be a progressive step in deterring piracy in the region off the coast of Somalia, there are several shortcomings.
The International Maritime Organisation
127LEG 98/8/1 Piracy: Elements of national legislation under the United Nations Convention on the Law of the Sea, 18 February 2011. 128LEG 98/8/3 Piracy: Elements of national legislation under the UN Convention on the Law of the Sea, 18 February 2011 .In the case of piracy off the coast of Somalia, such an instrument could be developed within the framework of the implementation of the Djibouti Code of Conduct.
The instrument should take into account the possibility of the participation of states outside the region (those providing naval forces, flag states. One of the ways in which this approach can be strengthened to address prosecution challenges is to include the services of specialized crime fighting units such as the 'Hawks' to obtain evidence which may be linked to the suspected pirates arrested during such operations described Such a process could be included in legislation as proposed in 'Option B' which could cover a variety of other challenges arising from intervening piracy attacks, but also 'flatten' some of the procedural issues relating to the successful prosecution of suspected pirates.
The Regional Cooperation Agreement on Combating Piracy and Armed
ReCAAP also urged Member States to formulate better methods to combat piracy; this was achieved by pooling their research and organizing workshops to improve their anti-piracy capabilities.146. ReCAAP had very effective results in their fight against maritime piracy.147 As a result, Resolution 1851,148 recommended that the Western Indian Ocean states enter into a similar agreement to deter piracy in the Gulf of Aden. 149 This culminated in the Djibouti Code of Conduct (DCoC).150. This would include the processes for obtaining evidence in a uniform, collaborative manner that would ultimately ensure the successful prosecution of suspected pirates.151 Furthermore, Article 12 advocates a formal procedure to be followed by states to extradite suspected pirates.
Nevertheless, ReCAAP has gained great respect in the maritime community by providing actionable methods for success. Wilson 'The Pirates of the Gulf of Aden: The Coalition Is The Strategy' (2009) Volume 45 Stanford Journal of International Law 241, 272. 150IMO, Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden, Annex, IMO Council Doc.
The Djibouti Code of Conduct
The IMB was founded by the International Chamber of Commerce (ICC) in 1981158 to assist the shipping community in dealing with "all types of maritime crime and malfeasance". its efforts to combat piracy. Malaysia.163 The PRC IMB has been effective in patrolling shipping lanes, issuing warnings about pirate 'hotspots' as well as reporting pirate attacks.164. IMB PRC also follows the IMO definition of Armed Robbery under Resolution A Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships, which states:165.
The main purpose of the PRC IMB is firstly to be the single point of contact for the masters of ships around the world under piracy attacks166. The IMB PRC is a 24 hour manned operation that has proven to be quite successful in alerting the maritime industry to pirate waters as well as assisting those who are there. The IMB also publishes a quarterly and annual report on piracy and armed robbery, which is an in-depth document highlighting various risk areas, trends, observations and news updates170.
Comment
This can be useful as the evidence obtained from such investigations can be used to ensure the successful prosecution of accused pirates. Furthermore, the UNSC resolutions, ReCAAP and the DCoC are only directed at specific regions of the world, which do not provide adequate governance to acts of piracy in other parts of the world. However, the IMB PRC appears to be providing an effective service to those in distress at sea around the world, which is a positive step towards a uniform approach in combating the crime of piracy.
In addition, the legal committee papers prepared by the IMO contain several guidelines that states can use to help them revise or legislate new laws that ensure the successful prosecution of maritime pirates.
PROSECUTORIAL PROBLEMS
The Ad Hoc Tribunals in Kenya
In the recent Kenyan case In Re Mohamud Mohamed Dashi & 8 Others34, the Chief Magistrate's Court in Mombasa charged the alleged pirates with the offense of piracy under section 69 of the Kenyan Penal Code.35 The court held that it had no jurisdiction to try pirates who were were detained on the high seas, the suspects in this case were released. The jurisdiction of the courts of Kenya for the purposes of this Code extends to any place in Kenya, including territorial waters.'. Judge Ibrahim thus concluded that because the piracy incident did not take place in Kenya or the state's territorial waters, they did not have jurisdiction to try the case.36 Furthermore, the court alluded to section 69 of the Kenyan Penal Code that :.
35 Penal Code (1967) Chapter 63 of the Laws of Kenya, Section 69; Section 69 of the Criminal Code, subsection 1, which provides that any person who in territorial waters or on the high seas commits any form of piracy jure gentium is guilty of piracy. Pursuant to section 69 of the Criminal Code, subsection 3, life imprisonment is stipulated as punishment for piracy. In view of the above, it appears that several irregularities have occurred in the High Court of Kenya in relation to the prosecution of piracy.
SOUTH AFRICAN LAWS AND POLICIES
Defence Act
In addition to this, Article 24 of the DA, which defines piracy, firstly provides a reiteration of Article 101 of UNCLOS and then sets out additional terms specifically applicable to the Republic. As such, 'reasonable grounds' are cast in broad terms; reasonable suspicion is thus open to the discretion of the defense force and the circumstantial factors of each incident. Jurisdiction in respect of the offense of piracy is contained in sections 10 and 15 of POCDATARA.
Section 15(1)(a) provides that a court in the Republic may exercise jurisdiction over an offense if the accused was arrested within the territory of the State or was on board a South African vessel. In addition, section 15(2) provides for the exercise of jurisdiction over offenses committed by aliens outside the territory of the Republic. That said, it remains the responsibility of the international community not only to combat piracy, but also to successfully prosecute suspected pirates.
RECOMMENDATIONS
Promulgating an International Maritime Piracy Convention
For example, South Africa acceded to and ratified the Rome Statute of the International Criminal Court (Rome Statute),11 which has given the country the authority to try perpetrators of crimes against humanity. Another suggestion that has received some support is the creation of an international court as provided for in Chapter VII of the United Nations. The International Tribunal for the Law of the Sea (ITLOS) is a creation of UNCLOS.20 The purpose of ITLOS is primarily to adjudicate civil interstate matters.21 However, it has been suggested by legal scholars that ITLOS would be 'an ideal forum to convene a trial for piracy.'22 ITLOS may exercise.
Pemberton ‘The International Tribunal for the Law of the Sea as a High Court of Piracy’ (2010) One Earth Foundation Working Paper available at http://oneearthfuture.org/images/imagefiles/ITLOS-. The composition of such a chamber shall be determined by the Tribunal with the approval of the parties. 5) A judgment given by any of the chambers referred to in this Article and in Article 14 of this Annex shall be deemed to have been given by the Tribunal.
CONCLUSION
That said, the effectiveness of the UNSC resolutions is mutually dependent on the efforts of states in revising and implementing domestic legislation that will regulate the crime. Furthermore, the efforts of the IMB PRC have paved the way for a proactive way to deter the crime of piracy. Simply put, arresting vessels can become more skilled and efficient in intervening in more piracy attacks at sea, potentially leading to the successful prosecution of the suspected pirates who detained them.
It is disturbing that there is a lack of uniformity in the interpretation of the international provisions of the crime of piracy, but also that in this particular case it can be concluded that Kenya has refused to pursue criminal proceedings against suspected pirates sit until they receive more funds. from their financiers (UN and other arresting states). South Africa is a member state of the United Nations that has ratified and incorporated the piracy provisions of UNCLOS into its domestic legislation. Finally, in light of the above, it can be concluded that there are several challenges that hinder the successful prosecution of suspected pirates, all of which cannot be remedied in the short term.
BIBLIOGRAPHY
Wilson 'Pirates of the Gulf of Aden: The Coalition Is The Strategy' (2009) Volume 45 Stanford Journal of International Law 241. LEG 98/8/1 Piracy: Elements of National Legislation Pursuant to the United Nations Convention on the Law of Sea, 18 February 2011. LEG 98/8/3 Piracy: Elements of National Legislation in Compliance with the United Nations Convention on the Law of the Sea, 18 February 2011.
UNODC “Frequently Asked Questions on International Legal Aspects of Counter-Terrorism” available at http://www.unodc.org/documents/terrorism/Publicatio ns/FAQ/English.pdf. Chwalisz N.C “Atlantic Memo #16” available at http://www.atlantic-community.org/app/webroot/files/articlepdf/Memo%. Akande, D “Anti-piracy Court Opens in Kenya”, 28 June 2010, available at http://www.ejiltalk.org/anti-piracy-court-opens-in-kenya/.
Pemberton, B ‘The International Tribunal for the Law of the Sea as a High Court of Piracy’ (2010) One Earth Foundation Working Paper beschikbaar op. SASA ‘South Africa, Somalia Established Diplomatic Ties’ (2012) beschikbaar op. http://www.somaliassociation.org/news/node/531.
