Somali pirates convicted in the Netherlands
Monday, 15 August 2011 12:48
The Rotterdam District Court in the Netherlands convicted its second set of Somali pirates on Friday, 12 August, to four and a half and seven years. In essence, this case shows the extent and the reach of the Dutch law on piracy as laid down in Article 381 and further in the Dutch Criminal Code. Three of the pirates that were on trial were convicted not for actual acts of violence – which could not be proven – but rather only for knowingly embarking on a ship for the purpose of committing acts of piracy. The other Somalis were convicted for the violent capture of the South African sailing ship Choizil, and taking the crew hostage.
The Dutch Criminal Code goes much further than the piracy statutes and provisions in most countries. Not only does the Netherlands claim the authority to prosecute pirates regardless of location of the piratical acts or the nationality of its authors. Article 381 also makes embarking and serving on a pirate ship a crime, regardless of whether violent acts have been committed or whether concrete plans have been made to do so. Mere knowledge, intention and preparation to pursue piracy are, on the one hand, sufficient to constitute a crime, but, on the other hand, apparently more difficult to prove. News reports are replete with stories about naval vessels that apprehend ships that are stuffed with oil drums, light weapons, gps navigation equipment, ladders and hooks; the recognized hallmarks of a pirate ship. Yet, in most cases the captured suspected pirates are let go for lack of evidence of concrete attacks that have been committed or that are to be committed. Most other countries either do not have piracy provisions on the books, or do not criminalize unsuccessful attempts or riding along on a skiff with pirate equipment. And often, prosecuting authorities use their discretionary authority to not prosecute suspected pirates because there is no connection with the State. The Netherlands used its universal jurisdiction in this latest case, because the pirates had been apprehended by the Dutch navy and after South Africa declined to prosecute.
Short of solving the situation in Somalia itself, national prosecutions remain the only practical option of dealing with pirates together with a massive naval presence in the region for deterrence. While the options for increasing prosecutions by countries in the region and an extraterritorial Somali piracy court are discussed in United Nations fora, such options still face an uphill struggle.