Maritime Piracy: Nature, Impact and Legal Frameworks for Prosecution

By Clark, Karen K. | International Journal of Criminal Justice Sciences, January-June 2009 | Go to article overview

Maritime Piracy: Nature, Impact and Legal Frameworks for Prosecution


Clark, Karen K., International Journal of Criminal Justice Sciences


Introduction

Maritime piracy is a form of larceny or grand theft and "one of the oldest international crimes" (Andersen, Brockman-Hawe, & Goff, 2009, p. 2). The 1982 United Nations Law of the Sea Convention (UNCLOS) defined it as "[a]ny robbery or other violent action for private ends and without authorization by public authority, committed on the seas...outside the normal jurisdiction of any state...without state authority, [with] private and not political intent" (page 61). Although acts of unlawful warfare and acts of insurgents and revolutionists have been defined as piracy by some national laws and by special treaties, they do not in most cases fall under the heading of piracy in terms of the law of nations. Classical piracy happens on the "high seas," that is, not within the territorial waters of a nation-state. The IMB offers its definition: "the boarding of any vessel with the intent to commit theft or other crime and with the capability to use force in the furtherance of the act" (International Chamber of Commerce, 2004, pg 3). This definition, however, fails to distinguish between maritime robbery and piracy since it includes acts of interdiction and robbery that happen at port.

According to the domestic laws of various nations piracy may include any act on a ship that is not moored or anchored. But this definition is too broad. The UNCLOS definition puts piracy into a "high seas" context. Territorial water crime is a form of armed robbery. But it cannot be ascertained from IMB data how many of the reported piracy cases are armed robbery or the hijacking of vessels. According to Captain Pottengal Mukundan, Director of the IMB, a third definition specifies the seizure of a vessel that takes place in one body of water followed by the offloading of cargo in a second body of water. Mukundan calls this "shipjacking." If a case occurs in more than one nation's territory, then the country whose representatives apprehend the suspects must decide whether they have justifiable cause to remand the pirates or if they are required to repatriate them. The problem lies in the fact that often the country to which the pirates will be repatriated is unlikely to launch a criminal case against them.

The IMB, established by the International Chamber of Commerce in 1979, was founded to address maritime fraud. IMB officials noted that maritime piratical attacks were reported as far back as 1970. This led to the creation of the Regional Piracy Center, a specialized unit of the IMB whose purpose is to receive and monitor all reports of piracy.

In 1983, the Maritime Safety Committee (MSC), the International Maritime Organization's (IMO) most senior technical body, addressed the issue for the first time, indicating that as piratical attacks had grown to such an extent that the situations was "alarming." In April 1984 the MSC established definitions for piracy and armed robbery against ships. The Committee set up a reporting system and solicited reports on piracy submitted by member governments and international organizations on a consultative status. The goal was to determine locations of incidents and the scale of the problem.

The lack of precision in the IMB's definition allows for disputes as to the actual rates of piracy. It is clear, however, that piracy has become an increasingly lucrative trade with each passing year. In 1996, 194 crewmembers were taken hostage by pirates carrying guns or knives. By 1997, that figure reached 400 (International Chamber of Commerce Report, January 1998). Regardless of which definition is applied, it is clear that maritime piracy has increasingly become a problem over the last thirty years.

Paradoxically, the issue of lack of precise definition is coupled with lack of literature on contemporary maritime piracy from a criminological perspective. The absence of a body of criminological literature on piracy has been indicated by Mueller and Adler.

We searched every conceivable library for an assessment of the problem of crime on the seas and for proposed solutions. …

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