Legal Challenges and Responses
Edited by Douglas Guilfoyle
Chapter 8: Initiating criminal proceedings with military force: some legal aspects of policing Somali pirates by navies
On a national level criminals are dealt with by the police and prosecuting authorities, courts and perhaps prison authorities. This is done in accordance with inter alia national criminal procedural law. Procedural law now generally incorporates international human rights standards, among them the right to a fair trial. What about crimes under international law? The international community necessarily relies on national forces, including armed forces, to deal with criminals under international law. When this is done in an armed conflict humanitarian law is applicable. There may even be an international court set up to deal with the fallout afterwards. In the absence of armed conflict and an international court the international community, again, relies on national assets. These assets are, however, bound by national law and trained to function primarily in a national setting. National law differs from state to state. The differences are not least important in criminal procedural law, making cooperation between states pursuing criminal activity challenging. In almost all states, however, the armed forces are barred from prosecuting (domestic) crimes committed by civilians. It is in this context that collective operations by naval forces are conducting the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast. We will examine some of the legal challenges operations of this sort give rise to. Pirates are criminals under international law. They are sometimes also regarded as enemies of mankind. This difference in language is interesting because enemies would normally be treated differently from criminals and vice versa.
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