The very pirates who terrorized the crew of the Maersk Alabama may have been caught and released by the U.S. or navies in the past year.
Given the robust military reaction to the seizure of an American vessel, most people would be surprised to learn that the response of the United States and other nations patrolling the Gulf of Aden to pirate attacks over the past year has been to either avoid arresting the pirates in the first place, or to put them back in the water once caught. Indeed, some European countries have even given pirates in broke-down boats a lift back to port. After all, international law (the UNCLOS treaty) demands solicitude for “distressed mariners.”
The reason for such a strange piracy policy is that the legal obstacles to successfully prosecuting are so daunting that Western nations would rather not risk it. The title of my forthcoming essay in the California Law Review is taken from a quote from the German Foreign Minister, who explained the catch-and-release policy by saying no one wanted a “Guantanamo on the Sea.”
According to news reports, the Administration is debating whether to try the captured pirate in the U.S. or to transfer him to Kenya. The U.S and Britain had made a deal with Kenya to transfer captured pirates there, so that they could be tried under universal jurisdiction. This is analogous to the rendition or third-country solution to the Guantanamo problem, and is similarly limited by Kenya