In 1991, the Somali rebels overthrew the government of the then president Said Bare who for a long time was perceived as a dictator by both locals and the international community. This created a vacuum in the leadership of that country as each of the clans in Somalia want to have their man as the president. From then on till today Somalia has not had a stable government that is able to claim full control of the country. It is a result of these events that gangs have managed to come together and began a new wave of crime off the Somalia coastline. As Kraska & Wilson (2008) says, the gangs have been hijacking cargo ships in the Indian Ocean. In order to secure its release these pirates demand ransom from the ship owners.
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To what extent may European nations claim jurisdiction over acts of piracy committed off the Horn of Africa?
Jurisdiction refers to the constitutionality of a court to hear and decide on a case. Kraska and Wilson (2008) have noted that the acts of ship hijacking are a new phenomenon that began to attract the attention of the international community in the year 2005 to 2008 when cases of ship hijacking increased rapidly. According to them, majority of the ships hijacked by these pirates belong to shipping companies from Europe. Therefore, in order to protect their business route the European governments have tried to come up with numerous ways of fighting piracy. For instance Muratore (2010), points out that security personnel have been sent to patrol the Indian Ocean Coastline from South Africa to the Red Sea which has been the centre of many attacks on the ships.
It is within the jurisdiction of the European nations to prosecute pirates in the Horn of Africa because under the United Nations Convention on the Law of the Sea (LOSC) piracy refers to an illegal act of violence, committed for personal gains in places outside the jurisdiction of a state. Kraska and Wilson (2008) argue that this definition applies as well to the ungoverned parts of Somalia territorial sea. As a result of this, they contend that any country in the world can take action against any individuals involved in acts of piracy. In addition, they note that international law gives a lee way for any country to assert jurisdiction over piracy.
In addition Guilfoyle (2008) notes that Somalia herself lacks a centralized government that can prosecute these individuals involved in acts of piracy. Furthermore Somalia security agencies lack proper equipments to fight piracy in the Indian Ocean. As a result he underscores the importance of having the pirates being tried in these European countries. Furthermore he notes that piracy in the Horn of Africa is contributing to rise of global terrorism (Kraska & Wilson, 2008). He says that the money paid to the pirates is being used in the spread of terrorism. As a result, prosecuting these pirates in these countries he says reduces the number of hijackings reported thus preventing the spread of terrorism significantly (Guilfoyle, 2008).
Furthermore, the European nations are the major users of these routes and therefore piracy being regarded as an international crime by the United Nations, it is upon them to protect and safe guard the route to ensure that their business is not interfered with. The American Journal of International Law says that piracy in Somalia has brought world trade to stagnation especially the export of oil and other finished goods from Middle East and Europe to East and Central Africa. As a way of protecting their business it agrees that the Europeans have a right to prosecute the pirates in order to boost their business. According to it some countries like Kenya and Tanzania that are the main victims of piracy in the East Africa are unwilling to prosecute these pirates in their countries. It attributes this to court orders that have said that it is unconstitutional to try suspects in their country for crimes committed beyond their boundaries. As a result this leaves the European countries with no other option other than to take the responsibility of prosecuting these pirates.
In a United Nations Council meeting of 2008 Kontorovich & Art (2010) says that there was adoption of the Resolution 1816. Under this resolution the countries were supposed to help in the fight against piracy and armed robbery inside the areas occupied by the Somalis. Therefore, they say that European countries agreed o this resolution and decided to take upon themselves the tasks of prosecuting these pirates who have continued to create tension in the entire region of Horn of Africa.
However despite their efforts to counter the rise of piracy there are some people who think that it is wrong for the European nations to prosecute these pirates. African Journal states that these crimes take place far away from Europe and therefore it should be the responsibility of the countries near Somalia responsible for prosecuting the pirates (Nitro professional, 2010). It says that European nations have vested interests in the coastline of Somalia and therefore they not only wish to fight with pirates but also to explore available opportunities through which they can deprive Somalia and other countries of their resources. It gives an example of the invasion of Iraq by the United States of America and her allies on allegations that she possessed weapons of massive destruction. However after their operation nothing of their said weapons was discovered and therefore it was concluded that United States and her allies were only looking at ways siphoning Iraq’s oil in an illegal way.
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What barriers to successful prosecution of Somali piracy exists?
Muratore (2010) points out that there are a number of challenges that hinders the successful prosecution of the Somali pirates. At first he says that the pirates have various ways of attacking and eventually hijacking their targeted ship. One of the method used by these pirates include the use of weapons such as rocket launchers. Therefore, this becomes difficult for the naval forces to attack the pirates because by doing so they might compromise the safety of the crew in the ship. As a result the pirates avoid being arrested and thus this motivates others into venturing into such a ‘lucrative’ business hence inability successfully punish these pirates. In addition the pirates have extended their areas of operation to the high seas far away from the Somalia territorial waters. The American Journal of International Law states that as a result manning this area has become a difficult task for the few NATO naval forces sent to patrol the area (Gates, 2009). He says that these pirates have managed to acquire motor boats that move at a high speed and also able to with stand the huge waves in the high seas. Therefore they are able to go after a targeted ship in a faster way before the naval forces can come to the rescue of the ship (Muratore, 2010).
Article 100-108 of UNCLOS
UNCLOS stands for United Nations Convention on the law of the Sea. Kontorovich & Art (2010) says that it was formed after the third United Nations Conference that happened from 1973 and signed on December 10, 1982 in Montego Bay by 160 parties. However, it became fully operational on November 16, 1994. Article 100 of the UNCLOS states that, all countries should cooperate in the fight against piracy in the sea or other areas beyond their jurisdiction. Article 101 provides the definition of the term piracy and what it consist of while Article 102 states that if the security agents of a country have mutinied and taken control of a ship or an aircraft then the act is considered to be committed by private ship or aircraft. Article 103 provides for the definition of a pirate ship or aircraft, while Article 104 addresses the issue of nationality of the pirate ship or aircraft. Article 105 states what should happen to the ship and the pirates arrested by the government security agencies while Article 106 gives direction on what should be done if the ship suspected to belong to pirates is seized only to be discovered that the occupants aren’t pirates. Article 107 states that arrests on account of piracy should only be carried out by warships or military aircrafts. Article 108 addresses the issue of how nations should cooperate to deal with the issue of drugs and other narcotics (Kontorovich & Art, 2010)
Piracy is an act that is hurting not only the economy of Somalia but also the world’s economy at large. Therefore efforts to fight it should be doubled and this can only be possible if all countries came together and send their troops to wipe them out of the sea. In addition there should be efforts to help Somalia form a strong unitary government so that stability is restored.
Gates, R. (2009). Security Council Meets to Discuss Piracy. African Journal, pp126-133
Guilfoyle, D. (2008). Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter Piracy Efforts. Journal of International and Comparative Law Quarterly, pp.690-699
Kontorovich, E & Art, S. (2010). An empirical examination of Universal Jurisdiction for Piracy. The American Journal of International Law, pp 436-455
Kraska, J & Wilson, B. (2008). Maritime Diplomacy and Piracy in the horn of Africa. Journal of Maritime Studies, pp.13-18
Muratore, A. (2010). EU-NATO Co-operation and the Pirates of the Gulf of Aden. Australian Journal of Maritime and Ocean Affairs, pp.1-14
Nitro professional. (2010). Eleven from Somalia to be tried for piracy in the Federal Court in Virginia. The American Journal of International Law, pp. 500-501