The problems of pirate punishment

INTRODUCTION Somali piracy prosecutions offer a unique case study in the interaction between international criminal law and domestic legal systems. An international naval effort to suppress the Somali piracy epidemic has led to the prosecutions of suspected Somali pirates in national courts around the world. Fifteen nations on four continents have convicted Somali pirates, and there are numerous other cases pending. Within a few years, piracy on the high seas went from being largely unpunished to being one of the most broadly enforced international crimes. In terms of the number of defendants prosecuted outside of their home countries, piracy has quickly become perhaps the largest part of the international criminal docket. Successful pirate prosecutions raise many unexplored questions about sentencing for international crimes. Although the outlawing of piracy by international law is well established, international law provides no standard for the appropriate punishment. This chapter suggests that there is massive cross-national variance in sentences for Somali pirates. To be sure, one would not expect prosecutions of international crimes in different national courts to result in equivalent sentences. Yet with Somali piracy, the variance in sentences is massive. Moreover, Somali pirates represent a single pool or class of offenders who are tried for similar conduct within one geopolitical context. The variance among the particular severity of cases is far less than it is for other international crimes, such as torture or genocide. A lack of a “minimum of uniformity and coherence in the sentencing of international crimes” for similarly situated defendants raises basic questions of fairness. Some commentators argue that such uniformity should be required across different courts that prosecute international crimes. Even putting issues of equity aside, the sentences raise the question of what is driving the variance in punishment, as well as the normative question of the optimal approach to pirate punishment from the perspective of retribution, deterrence, and vertical equity with other international crimes.