INTERNATIONAL CRIMINAL JUSTICE (2008)

Abstract

This note scrutinizes the complex relationship between international law and national criminal law in the prosecution of piracy. UN Security Council Resolutions on Somalia have marked the beginning of a new era in counter-piracy, with much wider involvement of States and international organizations in patrols in the Horn of Africa and with an increasing number of piracy trials in courts in Europe, the US, and Africa. Increased State cooperation in enforcement and adjudication has evinced the weaknesses and ambiguities inherent in the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) which deal with piracy. This article questions the suitability of the UNCLOS definition of piracy as a standalone legal basis for detention in light of the requirements of legal certainty that must be satisfied in order to permit the arrest and the “pre-transfer arrest” of piracy suspects. This question seems to have been recently overlooked by the Italian Court of Cassation whose reasoning, while correct in relation to the assertion of jurisdiction over the pirates arrested on board the M/V Montecristo, seems flawed with regard to the assumption of jurisdiction over the pirates captured aboard the “mothership” and then transferred to Italy by the British unit participating to the NATO counter-piracy mission.