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The Nanda Center Occasional Paper Series
Since 2010, well over $100 million has been spent on investigating, prosecuting, and imprisoning pirates operating off the Horn of Africa. These efforts have been subject to two related criticisms. First, compared to enhanced naval coordination, industry best management practices, and the use of private armed guards, threat of prosecution has been a relatively weak deterrent. Second, because of the marked decline in maritime piracy since 2012, improving the effectiveness of piracy prosecutions is no longer an urgent matter. This paper argues that shifting from a prosecutorial strategy that focuses on low level pirates to one that targets organization leadership ameliorates both of these concerns. Not only would the proposed strategic shift be more effective on its own terms, but it would also entail benefits not limited to combating Somalia-based piracy. The paper then looks to the jurisprudence of several international criminal tribunals to identify characteristics that could be used to differentiate low level pirates from pirate leadership, a necessary first step to any shift in strategy. From there, the paper describes the myriad options available to those actors interested in pursuing such a strategic shift, noting that piracy’s status as the paradigmatic crime of universal jurisdiction under international law provides policymakers with exceptional breadth in available options. Based on international law’s permissiveness in this regard, the paper concludes that whatever the structure decided upon by the relevant stakeholders, it should be developed in the service of sustained multi-level cooperation, the lack of which is the true stumbling block to the targeted investigation and prosecution of pirate leadership. View the full paper here.
The paper is the first in a series titled Law, Governance and the Global Commons.