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However, the SUA Convention is unsuited to the Somali pirate situation for two reasons. First, the terms of the convention permit only the arresting state party—or another state with a demonstrable interest in the offence (for example, if its own citizens are the victims)—to assume jurisdiction over the accused. As a result, the home government of a given warship should usually be stuck with the responsibility of prosecuting. In theory, this obstacle could be overcome through the use of “shipriders,” officials from a third state brought on board a foreign warship in order to conduct the arrest and subsequent judicial process under the laws of their own country. This arrangement, which would legally authorize neighbouring countries (such as Kenya) to step in as the prosecuting authority, has yet to be put into practice.

Second, as an international treaty the SUA Convention applies only to the high seas and has no effect in the territorial waters of a state, which extend twelve nautical miles from its base shoreline.2 Somalia has no functioning government to administer justice in its seas, but the state remains a legal entity, and its phantom rights persist; by entering Somali waters, foreign navies are technically in breach of international law. In an effort to address this problem, in June 2008 the UN Security Council passed Resolution 1816, a stopgap attempt to use the moral stature of the United Nations to patch the obvious cracks in the existing legal structure. The resolution decreed that states authorized by Somalia’s figurehead Transitional Federal Government (TFG)—a collection of former warlords and self-styled moderate Islamists controlling a few checkpoints in Mogadishu—would be allowed, for a period of six months, to enter the territorial waters of Somalia and use “all necessary means” to repress acts of piracy and armed robbery at sea.3 The token permission of the TFG was allegedly granted through a letter delivered to the Security Council by the UN permanent representative to Somalia, Ahmedou Ould-Abdullah, though this mysterious document was never made public.4 In reality, Resolution 1816 merely legitimized the status quo, wherein foreign navies routinely violated Somali waters when necessity demanded (on occasion, states have sought the TFG’s explicit permission, as when French forces pursued Boyah’s gang inland following the Le Ponant hijacking). Six months later, Resolution 1851 went as far as to authorize the use of ground forces on Somali soil; not surprisingly, no country has volunteered its troops.

In a world without failed states, any Somali caught in the act of piracy—whether in international or Somali national waters—would be handed over to the government of Somalia for prosecution. As noted in earlier chapters, many piracy suspects are turned over to the government of Puntland, and occasionally that of Somaliland. Yet, for just cause, international actors doubt the will and capacity of these makeshift governments to seriously prosecute the offenders; furthermore, there is the problem of what to do with suspects originating from southern Somalia, who would undoubtedly go free if returned home.

Since late 2008, the long-term solution has been, in effect, to “rent out” the Kenyan justice system in order to process the backlog of pirate detainees captured by Western warships. In December 2008, Kenya signed a memorandum of understanding (MOU) with the United Kingdom to receive and prosecute pirate suspects apprehended on the high seas, and it entered into a similar agreement with the European Union in March.5 In the same month, American forces handed over seven pirate suspects to the Kenyan authorities, inaugurating a bilateral pact signed two months earlier.6 In essence, these agreements amounted to extradition treaties where there existed no legal reason why the capturing states could not prosecute offenders in their own court systems.

With one of the most overcrowded prison systems in the world and institutional