Bringing Pirates to Justice: A Case for Including Piracy within the Jurisdiction of the International Criminal Court

I. INTRODUCTION Pirates do not only exist in legends and on rides at Disneyland. Modern pirates are armed with machine guns and rocket launchers and roam the seas in high-speed maneuverable skiffs that are supported by "mother ships," enabling them to launch attacks from a distance of up to 500 nautical miles.1 According to the October 2009 Report of the International Maritime Bureau Piracy Reporting Center (1MB), worldwide actual and attempted pirate attacks in the first nine months of 2009 exceeded the total number of attacks in each of the prior four years.2 In the first nine months of 2009, pirates boarded vessels in 114 cases, hijacked them in thirty-four instances, took 661 crew members hostage, kidnapped twelve, and killed six.3 Not only is piracy alive and well, but its negative effects are felt by the international community as a whole. Although the highest number of pirate attacks in 2009 occurred off the Gulf of Aden and the east coast of Somalia, significant attacks were also reported by Nigeria, Malaysia, Bangladesh, India, and Peru.4 Victims of the attacks include flag states, ship owners, crew members, and cargo from all over the globe.5 Furthermore, about 80 percent of the world economy's goods - including critical energy supplies like oil - flow through shared sea lanes.6 Thus, piracy disrupts international trade. The presence of piracy also threatens to destabilize those states that depend on revenues from international shipping, such as Sudan, Saudi Arabia, Eritrea, Djibouti, Yemen, Oman, and Kenya.7 Piracy even impedes the delivery of foreign aid and contributes to instability in already impoverished and unstable nations: the UN World Food Program had to suspend deliveries of food aid to Somalia in 2007 because of the dangers experienced in traveling through pirate-infested waters.8 Finally, because many of the ships that do flow through narrow sea lanes are carrying oil or other vulnerable supplies, piracy also creates the risk of a major international environmental disaster.9 Yet, despite the presence of piracy and its effects on the security of ships, crews, and cargo passing through international and territorial waters, individual nations and the international community as a whole are doing Uttie to ensure that pirates who succeed in committing their violent attacks are arrested, prosecuted, and punished.10 Rather, it seems most nations are shunning their judicial responsibiUty to prosecute the pirates who commit crimes in their territory or against their ships and crews. The apparent reasons for this refusal to accept these judicial burdens are many: for example, inadequate or non-existent national laws criminaUzing the acts committed,11 concerns about the safety and impartiaUty of local judges, the difficulties of obtaining and preserving evidence, and fears that if convicted, the pirates wiU be able to remain in the country where they are prosecuted.12 But if pirates are not arrested, prosecuted, and ultimately punished, it is unUkely they wul be deterred - particularly given the high rewards avaUable to them in the form of escalating ransom payments.13 This Article is concerned with the present failure of the international community to ensure that pirates are brought to justice and punished for violendy attacking the ships and crews of many nationalities that pass through shared public sea lanes. Although nations have implemented a variety of measures aimed at disrupting piratical attacks - for example, by forming naval patrols that roam pirate-infested waters - such measures alone are not sufficient to deter all or most acts of piracy. Instead, pirate attacks are on the rise.14 Criminal prosecutions of pirates, however, could do much to deter and prevent future piratical attacks.15 Therefore, this Article argues that piracy is a serious crime affecting the international community and investigates international legal solutions ripe for consideration. This Article further suggests that the International Criminal Court (ICC) is the best international forum to bring an end to the culture of impunity that surrounds piracy offenses. …