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Like a tattered quilt that has been patched too many times, the international legal framework governing piracy is worn and inadequate, with legislative stitching like Resolution 1816 and the Merchant Shipping Act barely keeping it from coming apart at the seams. Still, given an array of imperfect solutions, the “dumping ground” option may be the best choice for the present. For all the flaws of its legal system, Kenya is a relatively stable, democratic country. It possesses a large and vibrant Somali community that can lend its support to detainees during the trial process, provide links to their families, and aid in their possible integration into Kenyan society following their release.

In September 2010, hopes for a permanent Kenyan solution were dealt a setback. After months-long wrangling over what the Kenyan government deemed to be unsatisfactory financial assistance from the international community, Kenya barred its prison doors to future waves of captured pirates. Two months later, a senior Kenyan judge issued a controversial ruling ordering the release of the approximately sixty suspected pirates brought into custody prior to the passage of the Merchant Shipping Act.

Spurred by Kenya’s increasing unreliability as a partner, Western countries have since begun to take justice into their own hands. In the first trial of its kind in almost two centuries, on November 29, 2010, a Virginia judge sentenced one pirate to thirty years for his involvement in a (clearly confused) assault on a US warship; five of his colleagues will face possible life imprisonment when they are sentenced in March. At around the same time, Germany announced that it was to try ten pirates captured in an attack on the German cargo vessel MV Taipan, and the following month both Spain and Belgium revealed their intentions to follow suit. In December, the Netherlands became the first European country to prosecute pirates who had not been involved in an attack on its own nationals, agreeing to try five Somalis captured by the HNLMS Amsterdam following an attack on a South African yacht. In January 2011, South Korea joined the fray; following a commando raid on the commandeered oil supertanker MV Samho Jewelry—the first of its kind on a vessel whose crew had not retreated to a secure area—the Koreans flew five surviving pirates back to Seoul, where they were charged with attempted murder (soon after, Somali pirates began appearing as characters on Korean television shows). At present, these à la carte prosecutions seem more piecemeal reactions to specific incidents, rather than a true indication of the “global diversification” of pirate justice. Whether a consistent alternative to the Kenyan solution will be necessary will depend on the outcome of its government’s ongoing feud with the international community.

With all these prosecutions, there is the danger that the defendants’ rights surrounding issues like family access, evidentiary rules, and reintegration following acquittal or release may not be adequately protected. While Nyawinda’s Guantanamo Bay parallels may be alarmist or extreme, a similar kind of legal purgatory could be created by current practices. James Gathii, for instance, warns that the “huge militarization of combating piracy is likely to create large numbers of suspected pirates being held in undisclosed locations inconsistently with their rights to process under international law.”15 The creation of international tribunals composed of representatives from a cross-section of countries—Somalia included—would go a long way towards ensuring that suspected pirates receive a fair trial.16

Some of them, after all, may just have been fishing.

11

Into the Pirates’ Lair

THERE WAS A TIME WHEN THE PIRATES’ OFT-INVOKED FISHING defence was more than mere self-exculpating propaganda. The defence originated in Eyl, among the fishermen-pirate pioneers of the 1990s, born out of just indignation over the abuses of foreign fishing vessels. Since then, what was once a justification has become a rationalization.