[Viewpoint] Bringing pirates here is problematicThe Cheonghae Naval Unit of the Korean Navy successfully overcame the Somali pirates and rescued the crew members of the merchant vessel Samho Jewelry. We celebrated the bravery of the naval unit, but now, it is about time we regain composure and think about how to deal with the captured pirates.
Article 101 of the UN Convention on the Law of the Sea defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft.” Every country may seize a pirate ship, arrest pirates and seize property on board in any other place outside the jurisdiction of any state.
In other words, piracy is a crime under international jurisdiction, and any state in the world may suppress pirate activities.
The abduction of the Samho Jewelry is clearly an act of piracy. Moreover, the international community is unanimous in that the behavior of the Somali pirates is criminal.
Lately, there have been various opinions on how to deal with the pirates. The Korean government announced that the captured pirates will be brought to Korea and be indicted according to Korean law. In order to bring them to justice properly, however, we need to review international laws more thoroughly.
According to Clause 6 of the Korean criminal laws, Korean laws may be applied to foreigners who commit crimes against Korea or its citizens outside of the country. It is legal, therefore, to punish the pirates.
However, there are a few obstacles in applying Korean law to punish the pirates.
First, confirming the identities of the captured pirates will be a challenge. In court, the pirates are likely to claim that they are fishermen. In this case, confirming their identity could be very difficult. In fact, the U.S. government struggled to confirm the identities of alleged Al Qaeda agents captured in Afghanistan. They claimed that they were laborers, tourists and spectators. Most of them did not have identification.
Second, the expense and resources associated with the handling of the pirates may be high, but unavoidable. The government has to take care of the consular service and interpretation assistance, transportation and housing for the accused, transportation for the witnesses, identification of the victims and their presence at the court, and the cost associated with the lengthy custody of the pirates.
Because of these kinds of difficulties, Great Britain ordered pirate control vessels not to extradite pirates to the U.K. Instead, the British government signed an MOU with Kenya in 2008 so that captured pirates stand trial in Kenya. Denmark, another EU member, suggested that pirates cannot be punished.
In contrast, China captured pirates who kidnapped a Chinese cargo ship and executed 13 of them and sentenced 25 to life in prison in November 1998. Seoul actually tried to send the pirates to Kenya, but the Kenyan government rejected the request.
We may want to consider an alternative to punishing the pirates under Korean law, such as handing them over to a third country. However, most countries are reluctant to accept accused pirates in fear of international criticism. What would happen, for example, if the pirates claim they are refugees?
Refugee status is determined by the UN High Commissioner for Refugees. Political refugees are protected according to the Universal Declaration of Human Rights and the Convention Relating to the Status of Refugees.
They may claim that they are economic refugees, but they are not protected if pirate activities are confirmed. The general idea today is that a state has the right to provide protection to refugees defined by the international law but does not have the duty to protect them.
The Somali pirates may be brought to Korea and stand trial according to Korean law, and then the pirates would be punished according to the sentencing or be deported. However, execution or deportation may lead to human rights concerns.
The most desirable way for effective punishment is the British solution: to entrust the judgment to a country near the pirates’ activities. The government needs to come up with long-term plans like signing an MOU with African countries such as Kenya on the handling of pirates.
*The writer is a professor of international law at Inha University.
By Kim Hyun-soo