It is commonly reported that numerous suspected Somali pirates encountered by navies are released without being sent for prosecution. This gives rise to a number of arguments, or assertions, including: that we are not prosecuting enough pirates (or not enough to create a deterrent effect); that the applicable international law is inadequate to the task of prosecuting pirates; or that some form of international (or internationally assisted) tribunal is required to ensure more effective prosecution of piracy suspects. Few of these arguments withstand sustained scrutiny. This article provides an overview of how Somali pirates are presently being prosecuted, the practical challenges faced by international navies and the applicable law. It will then consider in detail the options for prosecuting pirates that have been examined in a series of United Nations (UN) reports. These options are, broadly: prosecution before a national court or courts in the region (whether with or without UN assistance); prosecution before a special Somali court, sitting extra-territorially; establishing a regional court based on a treaty; establishing a ‘hybrid’ court in a national system based on a treaty with the UN; and establishing an international tribunal through a Chapter VII Security Council resolution under the UN Charter. It will be argued that international assistance for national prosecutions in the region is the only realistic solution, and that various legal issues working groups realized this and recommended this route as early as 2009. It appears the Security Council may have, finally and belatedly, accepted this view.
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