Responding to a “request” in Security Council Resolution 1918 (2010) that he report on options for furthering the prosecution and imprisonment of Somali pirates, United Nations Secretary General Ban Ki-moon has issued a 54-page Report. The report discusses seven options for improving the pirate prosecution picture, but says very little about the imprisonment issue, other than several intimations that convicted pirates would be transferred elsewhere to serve their sentences.  The Secretary General did not make any recommendations or express a preference among the options.

After a discussion, in the nature of an executive summary, of the pros and cons of the various options, the Report has sections on the nature, extent, and causes of Somali piracy; applicable law; the current approach to prosecuting and imprisoning pirates; and a more extensive consideration of the seven options, including consideration of several issues common to most of the options (primacy over host country proceedings, geographic and temporal limits on jurisdiction treatment of juveniles, time to effectuate, costs, and financing arrangements).  Also included in the Report are two annexes—one on the existing UN practice on establishing and participating in tribunals; the other on the Contact Group on Piracy off the Coast of Somalia.

The seven options considered include:

Option 1: The enhancement of United Nations assistance to build capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia

Advantages: Assistance provided to date has had some success; low-cost from UN perspective

Disadvantages: Navies capturing pirates don’t know it there’s anywhere that will accept the pirates for prosecution

Option 2: The establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation

Advantages: Provides a role for Somalia and builds capacity of the Somali justice system enhancing the rule of law

Disadvantages: The time needed to set this option up, as Somalia’s laws and its judicial system are not currently adequate; would cost more than Option 3

Option 3: The establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation

Advantages: The chamber would be part of an existing criminal justice system; cost effectiveness; proximity for transfers of suspects in and convicts out

Disadvantages: Could draw resources from the host country’s justice system, leading to “two-tier” justice; limited capacity of such a tribunal; unclear whether host nation would have to accept all prisoners brought in by navies, whether there would be a limit on the number to be accepted, or whether the country could reject certain transfers

Option 4: The establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation

Advantages: Same as for Option 3, plus capacity building

Disadvantages: Same as for Option 3; additionally, presence of UN judges would require procedural changes in countries that use single judges to conduct trials (all of the most  likely candidates for this option)

Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation

Advantages: Same as for Option 4; possibility for greater capacity building

Disadvantages: Need to establish the tribunal’s jurisdiction, including crimes and procedures;  time needed to set it up; costs likely higher than Option 4; might draw off expertise and resources of regional States

Option 6: The establishment of an international tribunal on the basis of an agreement between a State in the region and the United Nations

Advantages: Capacity building for host State (although less than in Option 4);  proximity for transfers of suspects and convicts

Disadvantages: Time to set it up; costs likely higher than Option 4

Option 7: The establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the United Nations

Advantages: Capacity building through selection of judges from the region; Security Council can require States to cooperate; tribunal would have greater capacity than the chamber in Option 3

Disadvantages: Higher costs; lack of proximity if not in the region; time required to find host nation and negotiate agreement

Suggestions by other parties to expand the jurisdiction of some existing international courts were given short shrift:  The States party to the treaty establishing the International Criminal Court had not taken up the idea at the treaty’s Review Conference in January 2010. Other suggested courts deal with disputes between States and do not have criminal jurisdiction.

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