When it comes to fighting sea pirates, bones don’t lie

In the 2013 movie Captain Philips, Tom Hanks playing the role of Captain Richard Phillips says “If the pirates find you, remember, you know the ship. They don’t.” The movie showcased to the world the standoff and negotiations between the pirates and the United States Navy, and the risks faced by seafarers navigating treacherous waters.

Based on the 2009 Maersk Alabama hijacking, the movie evinces the urgent need to strengthen maritime security laws. Today, piracy is a serious threat to maritime transportation, trade, security, and the freedom of the seas. The International Maritime Bureau’s annual report recorded 120 incidents of maritime piracy and armed robbery against ships in 2023 compared to 115 in 2022.

During the progressive development of international law post World War I, the 1926 Draft of the Convention on the Combat with Piracy was presented as one of the 13 commentaries in the 1930 League of Nations Codification Conference. The draft never saw the light of the day. During the first UN Conference on the Law of the Sea, the 1958 Convention on the High Seas was adopted with Article 14 providing for obligations of all States to fully cooperate in the repression of piracy.

The 1982 United Nations Convention on the Law of the Sea provides a legal framework to regulate piracy under Articles 100 to 107 and 110. The 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and the 1988 Protocol for the Suppression of Unlawful Acts are other international documents that provide a framework for the repression of piracy under international law.

The recent capture of pirates in India has renewed the discussions on maritime security and the complexity of the international law regime against piracy. On December 14, pirates hijacked the Bulgarian merchant vessel MV Ruen and demanded a ransom of $60 million to release the crew and the ship. INS Kolkata, India’s Navy warship, during an anti-piracy operation that lasted for over 40 hours managed to take the pirates under their custody while the 17 crew members were rescued without injury. The 35 Somalian pirates were handed over to the Mumbai Police on March 23, and were produced before court on March 25.

Interestingly eight of them claimed that they were minors. The court sent the pirates for medical examination. It was revealed in their ossification tests that two of the eight accused are 21-years-old, while the rest are aged between 19 and 20. An ossification test is an age-determination test that is based on the assessment of the bone framework. They have been booked under relevant sections of kidnapping, extortion, and illegal assembly under the IPC, Unlawful Activities (Prevention) Act and Arms Act. This will also be the first case under India’s new Maritime Anti-Piracy Act 2022.

The claim of pirates that they were minors is a perfect example of the post-arrest modus operandi of pirates. Due to poverty and low human development plaguing Somalia, their teeth and bones do not have robust growth. An adult would bear a resemblance to a minor because of developmental disorders. The benefit of claiming to be minor is that over the years states have used a ‘catch and release’ approach to child pirates as opposed to prosecution and large sentences.

Ascertaining the age of the malnourished child pirates in Somalia can prove to be very difficult for prosecuting courts. Courts often rely on ossification techniques like dental examinations and skeletal x-rays to make an age determination. The 1990 United Nations Convention on the Rights of the Child obligates that “in all actions concerning children in courts of law, the best interests of the child shall be the primary consideration.” In genuine cases where ‘child’ pirates are caught and scientifically ascertained as minors, the State must ensure it does so in accordance with juvenile justice standards.

There are fundamental gaps in the definition of piracy. The financiers and kingpins of piracy often forcibly recruit children en masse while many join voluntarily to escape poverty and hunger. There is a need to develop the definition of pirates to include even the people who are off the field operating from land to also be included within its ambit. Kingpins and financiers should be held accountable by criminal courts.

Countries that monitor the waterways are hesitant to prosecute pirates because of the expenses and challenges related to prosecution. States that capture pirates frequently use a catch-and-release strategy for adults also. There is no effective international legal system for the trial and punishment of captured pirates. National laws in many countries are frequently insufficient to handle the complexity of jurisdictional concerns.

The issues of piracy demand institutional responses at the international and regional levels. There is a need to increase anti-piracy funding to finance maritime security programmes aimed at mitigating maritime crimes. The larger solution to this problem lies in strengthening and building institutions to address significant problems of poor governance, unemployment, and poverty in regions like Somalia.

Adithya Variath teaches at Maharashtra National Law University Mumbai, and is a Fellow at ISLC, University of Milan, Italy.

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.