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[Lee Jae-min] Jurisdiction over captured pirates

Last Friday’s rescue of the 21 crew members of Samho Jewelry in the Gulf of Aden was successfully completed against all odds. Korea’s swift action was rather unexpected given that it has preferred low-profile negotiations in previous hostage takings abroad. The Korean naval commando team is now holding five pirates in custody. The successful rescue operation will definitely force future pirates to think twice before plotting to kidnap a Korean cargo vessel again.

Pirates have been perceived as common enemies of mankind for a long time. One of the first pieces of legislation adopted by the United States in the immediate aftermath of its independence was the Alien Tort Statute of 1789 (still in effect today), one of the main objectives of which was to deal with piracy in international waters. By joining hands with other countries in the punishment of piracy, the new country obviously desired to cement its then precarious position as a new member of the international community. This common concern of piracy of the international community eventually led to the establishment of the concept called “universal jurisdiction,” which basically allows any country to become a police officer of the world when it comes to piracy in the high seas. So, any country’s warship can exercise this jurisdiction against pirates found in international waters. This provides the legal underpinnings for last Friday’s rescue operation and it also provides Korea, a country holding pirates (pirate suspects to be precise), with the jurisdiction for the punishment of those in custody; it may turn them over to nearby countries for prosecution and punishment or bring them to Korea for proceedings in accordance with Korean law.

If materialized, this would be the first instance of Korea’s exercise of universal jurisdiction. A rough reference to universal jurisdiction in Korea was made concerning the hijacking of a Chinese civilian airliner in May 1983. In that incident, six Chinese hijacked the civilian airliner in China’s airspace to take it to Taiwan for political asylum in the island country, ultimately landing in a small regional airport in Korea. Passengers and crew members were returned to China and the hijackers were prosecuted and sentenced by the Korean court to one year of imprisonment. After completing the prison term, the asylum seekers were sent to Taiwan. The 1983 incident was actually a political asylum-hijacking case as opposed to a piracy one, so it was not amenable to a conventional universal jurisdiction discussion although the judgment of the Korean court had such a flavor. The recent event off the coast of Somalia therefore would be the first genuine attempt at exercising universal jurisdiction by Korea.

For centuries, prosecution and punishment of foreign pirates has been known for the difficulty of collecting evidence and finding translators. Korea’s prosecution and punishment of the five Somali pirates will probably pose similar problems. Reportedly, they can hardly speak any other language than Somali, so translation will likely be an issue throughout the entire proceedings.

Finding a person speaking Somali understanding legal implication would be a challenge. It is noteworthy that sometimes major trials at the International Criminal Court for genocide and crimes against humanity have been burdened with translation issues. Food and confinement facilities are other logistical issues to be arranged. Or what if the pirates apply for political asylum, as Somali pirates did in another country, refusing to go back to their home country, arguing the possibility of persecution by warlords once they complete the prison term?

All these complications should be addressed in advance for when the pirates are indeed brought to Korea. Certainly, with adequate preparation, the law enforcement authorities will be able to figure out proper solutions to these problems. As much as the international media admired the seamless commando operation, its attention will remain focused on how Korea treats and punishes the pirates through domestic proceedings, as it is this post-arrest treatment which is now many countries’ concern. Care must be taken to ensure that no stones are left unturned throughout the relevant proceedings. In fact, seamless administration of domestic proceedings would offer a good opportunity to prove Korea’s readiness and capability to enforce its criminal jurisdiction in a global setting.

Obviously the rescue operation is an important first step to send a serious warning to international pirate groups about the consequences of kidnapping Korean commercial vessels. It is also an important first step for Korea for the exercise of universal jurisdiction. 

By Lee Jae-min

Lee Jae-min is a professor of law at the School of Law, Hanyang University. ― Ed.
Korea Herald daum