The Netherlands should work with the international community to establish a special international tribunal to prosecute pirates, say Dutch experts in international law. The current system, under which pirates are only prosecuted if there is a national interest at stake for the arresting country, is just not working.
Somali pirates - and the international community's frustrated attempts to stop them - have been dominating the news for weeks. So when word came last weekend that the Dutch navy had succeeded in not just foiling a hijack attempt but in apprehending the hijackers as well, it seemed like very good news indeed.
Dutch navy soldiers from the frigate 'De Zeven Provinciën' on Saturday boarded a fishing boat in the Gulf of Aden with nine Somalis on board who had attempted to kidnap a Greek-owned freighter. The soldiers confiscated machine guns and an anti-tank missile, and freed sixteen Yemeni fishermen who had been held captive on their own boat and used for forced labour for the past week. But after interrogating the Somalis, the Dutch commander let the pirates go - in their own speedboats.
No mandate
Both government and opposition parties in the Dutch parliament now want the government to explain why.
Liesbeth Zegveld, a professor in international law, says she is surprised by the navy's decision. Just last month, defence minister Eimert van Middelkoop and justice minister Ernst Hirsch Ballin wrote to parliament that prosecution of piracy suspects is a matter for the public prosecutor's office to decide. The latter said it wasn't consulted at all by the Dutch frigate. De Zeven Provinciën has a deputy officer from the justice ministry on board, but it wasn't clear how the decision to release the pirates was reached.
"You don't leave a decision of this importance to a deputy officer," says Zegveld. "It is strange that the public prosecutor's office was not contacted."
The decision whether or not to prosecute detained pirates is left up to the Netherlands because De Zeven Provinciën is part of a Nato-mission and the alliance has not made any agreements about prosecution. The European Union, which has its own mission off the coast of Somalia, has an agreement with Kenya, where several dozens of pirates who were apprehended by European navy soldiers are currently on trial.
Why has Nato not made similar agreements? A Nato spokesman explains that the Nato mission was put together in much less time than the European mission. "There was no time to make agreements with Kenya." But he admits that a situation like the Dutch faced last weekend was "foreseeable".
Reuters quoted the commander of another Nato ship in the Gulf of Aden, the Portuguese Corte-Real, as saying his Dutch colleague had no legal power to arrest the pirates.
"Nato does not have a detainment policy. The warship must follow its national law," lieutenant commander Alexandre Fernandes said. "They can only arrest them if the pirates are from the Netherlands, the victims are from the Netherlands, or if they are in Netherlands waters."
Arbitrary justice
Geert-Jan Knoops, another Dutch professor in international law, disagrees. He says there was no lack of legislation to prosecute last weekend's pirates. International law allows any country in the world to prosecute pirates wherever the piracy was committed. But in their letter to parliament, Van Middelkoop and Hirsch Ballin said prosecution and detention in the Netherlands is advised only if there is a "clear Dutch interest".
"The government is covering its bases," says Knoops. "They want to be able to say no when prosecution is not convenient." The Netherlands did detain and prosecute five Somalis who hijacked a ship sailing under the flag of the Dutch Antilles in January. "The existing legislation allowed for the prosecution of last weekend's Somalis too," says Knoops. ""The fact that they weren't makes for arbitrary justice."
Zegveld says she understands the government's position. "They don't want to find themselves with 250 pirates on their hands," she says. But she agrees with Knoops' criticism of the arbitrariness of the judicial system.
Germany, Denmark and the US have all let pirates go in the past. The Canadian navy on Saturday faced a similar situation to that of the Dutch frigate. The frigate Winnipeg disarmed seven Somalis in a small boat, and let them go. We have no mandate, the Canadians said.
Zegveld: "It undermines the international approach to piracy is every country will only prosecute if there is a national interest. International law has to be interpreted more broadly."
Both professors advocate an international tribunal for pirates, comparable to the international criminal court. "Then the same rules would apply to all suspects, and there would be specialised prosecutors to deal with piracy. It is high time."
