Pirates and Impunity: Is the Threat of Asylum Claims a Reason to Allow Pirates to Escape Justice

Abstract

Pirates are literally getting away with murder. Modern pirates are attacking vessels, hijacking ships at gunpoint, taking hostages, and injuring and killing crew members. They are doing so with increasing frequency. According to the International Maritime Bureau (“IMB”) Piracy Reporting Center’s 2009 Annual Report, there were 406 pirate attacks in 2009—a number that has not been reached since 2003. Yet, in most instances, a culture of impunity reigns whereby nations are not holding pirates accountable for the violent crimes they commit. Only a small portion of those people committing piracy are actually captured and brought to trial, as opposed to captured and released. For example, in September 2008, a Danish warship captured ten Somali pirates, but then later released them on a Somali beach, even though the pirates were found with assault weapons and notes stating how they would split their piracy proceeds with warlords on land. Britain’s Royal Navy has been accused of releasing suspected pirates, as have Canadian naval forces. Only very recently, Russia released captured Somali pirates—after a high-seas shootout between Russian marines and pirates that had attacked a tanker carrying twenty-three crew and US$52 million worth of oil. In May 2010, the United States released ten captured pirates it had been holding for weeks after concluding that its search for a nation to prosecute them was futile. In fact, between March and April 2010, European Union (“EU”) naval forces captured 275 alleged pirates, but only forty face prosecution. Furthermore, when pirates are tried, they are often tried by Kenya or other African nations, rather than by the capturing nation. Kenya has entered into agreements with Canada, China, Denmark, the European Union, the United Kingdom, and the United States to try the pirates these nations capture. Mauritius, Seychelles, and Tanzania have executed similar agreements to prosecute captured pirates. In an effort to aid prosecutions, Western states have pledged money—about US $10 million since May 2009—to alleviate the strain on the “poorly equipped and corrupt criminal justice system” and to cover the cost of transporting witnesses, training police and prosecutors, and upgrading prisons and courts. In fact, in late June 2010, the United Nations Office on Drug and Crimes (“UNODC”) used funds from donor nations to help open a new high-security courtroom in Mombasa, Kenya to prosecute pirates. But why are Western states refusing to prosecute pirates on their own soil even though they—more so than less-developed nations—have the money and institutional capabilities to bring pirates to justice in a swift and fair manner? After all, these states are providing Kenya and other African nations with funds and support to help them conduct piracy trials. They are spending billions to support the various naval patrols that are capturing pirates—but thereafter releasing them to continue their criminal activities. While several reasons have been advanced to explain why nations may not be regularly prosecuting pirates, one reason often given to explain the reluctance of Western nations to try pirates on their own soil is the threat of asylum claims by convicted pirates. This reason has been advanced by academics and government representatives, among others. Roger Middleton, a researcher for Chatham House, the London-based think tank, explained it this way: “These countries don’t want to be bombarded by claims of asylum from the pirates, who would ask not to be deported to Somalia, a country at war.” In fact, in April 2008, the British Foreign Office warned the Royal Navy that detaining pirates at sea could be a violation of their human rights and could also lead to asylum claims by pirates seeking to relocate to Europe. A former Tory chairman stated that ministers in Parliament had indicated privately that the reason captured pirates were not being brought to Britain for trial (including the sixty-six suspected pirates captured by the Royal Navy in 2009—all of whom were thereafter released) was because of fears those pirates might seek asylum in the country. And at least some pirates have actually threatened to seek asylum in the West. Reports indicate that two of the pirates on trial for attacking a Dutch vessel have declared their intention to try to stay on as residents. Nevertheless, although the threat of asylum claims is frequently offered to explain Western nations’ reluctance to prosecute pirates in their territories, what is not addressed is whether this fear has any actual basis in fact or law. Instead, the statement that nations are afraid of asylum claims is followed by little explanation at all—and certainly no legal analysis of the international or domestic laws on which convicted pirates would base their claims for asylum. In any event, even if the fear of asylum claims is well-founded, is this a reason to allow Western nations to avoid their duty to prosecute crimes that violate international law? Although some pirates are being prosecuted, why should others get away with murder solely because Western nations fear asylum claims? This Article is concerned with these issues and examines international refugee law and international human rights law in an effort to determine the likely viability of any asylum claims that may be brought by pirates convicted in the West. Based on an analysis of the text of the main international treaties governing asylum and non-refoulement, as well as interpretations of the provisions contained in those treaties, this Article concludes there is little reason to believe that Western states would be required to grant refugee status (as that term is defined in the 1951 Convention Relating to the Status of Refugees) to convicted pirates. Among other things, pirates are not a group that is subject to persecution, and pirates have committed the types of serious and violent crimes that should exclude them from claiming refugee status—and thus, the residence and other benefits associated with being granted asylum. Second, states should be able to legally expel or deport convicted pirates under international human rights treaties since most pirates are likely unable to show they would face torture if expelled or returned to their country of origin. Even if pirates could show they risk torture or other inhumane treatment upon return, states may be able to satisfy their international obligations regarding non-refoulement and return pirates if the state receives diplomatic assurances that the authorities would not resort to such treatment. Furthermore, under the recent European Qualitative Directive, European Union Member States are not required to grant benefits such as residence permits to individuals who have committed serious and violent crimes, even though the European Convention on Human Rights prohibits refoulement to face torture or other ill treatment. Finally, even if there is some risk that some pirates can mount successful asylum or non-refoulement claims, the risk is one that developed Western states should assume because of the greater good that will come from ensuring that pirates are brought to justice (especially by way of fair trials and processes that respect human rights). Developed nations risk asylum claims (by pirates and others) simply because they are developed—a status that typically carries with it an expectation that the state will protect human rights and enforce the rule of law. In this instance, enforcing the rule of law means that nations must invoke universal jurisdiction or use the prohibitions contained in international treaties and in their own domestic laws to prosecute violent and dangerous pirates even if it means they must consider and adjudicate some additional asylum claims. Bringing to justice the pirates that commit violent acts and disrupt international waters is a goal as worthy as numerous others where nations accept the risk of asylum claims, and pirates are unlikely to be deterred from committing those acts unless nations commit to end the current culture of impunity. Part I of this Article describes the modern piracy problem, including the international law governing piracy, and the culture of impunity that surrounds it. Part II provides a brief overview of the international law providing protection for those seeking asylum, focusing on international refugee law as well as the primary treaties under international human rights law that govern the transfer of persons and specifically prohibit transfer to states where those persons would be subjected to torture or ill treatment. Parts III and IV analyze international refugee law and international human rights law in the context of potential claims by convicted pirates seeking asylum and protection against nonrefoulement. The Article concludes by suggesting that although prosecuting pirates may require states to also consider additional asylum claims, the risk that states will have to grant such claims is small and also a burden they should assume so that pirates may be brought to justice.