The prosecution of Somali pirates has gone global. Today, ten nations on four continents have convicted Somalis who were involved in the epidemic of piracy and armed robbery at sea which began in 2008, and at least six other nations have cases pending. Any nation can arrest suspected pirates on the high seas—piracy is the oldest international crime—yet international law defines only the crime, not the penalty. As a result, the current piracy prosecutions have led to a massive cross-national variance in both actual and possible punishments. The cross-jurisdictional differences appear to have less to do with the underlying conduct or culpability of the pirates than with variations in the municipal statutes, sentencing norms, and judicial views of the nations that happen to take custody of the pirates.
This paper presents the first global empirical study of the penalties for piracy. It compiles an original data set of sentences imposed on Somali pirates outside of Somalia. It examines the sentences in relation to the characteristics of the particular crimes as well as other factors. It finds that worldwide, the sentences imposed on pirates for similar crimes range from four years to life in prison. The average sentence globally is 16 years—quite high in relation to sentences administered by international tribunals for more severe international offenses such as genocide and war crimes. Yet the average belies a massive variance across jurisdictions, with European nations and Kenya giving sentences that are one-third to one-half the global average and the US imposing sentences several times longer. The disparity in sentencing raises the issue of equity among defendants, particularly because the defendants are all engaged in similar conduct buttheir punishments depend on where they happen to be tried.
Several approaches can be taken to mitigate these inequities. First, and most simply, national courts sentencing Somali pirates should consider the sentencing practices of foreign courts in similar cases. Given that most prosecuting nations have not completed more than one or two cases, if any, such external information could be useful in promoting at least some natural convergence. The cross-national variance shows that an increase in the number of prosecuting nations has its costs; thus, second, a dedicated international court or a small number of regional piracy centers would reduce the problem of sentencing being fundamentally inconsistent across countries.