There is panic in the voices. Screams across the ocean. The radio on the bridge of HMCS Winnipeg is crackling with desperate calls from cargo ships under fire, assaulted by bands of pirates off the coast of Somalia.

The 46 warships patrolling these waters, including the Winnipeg, often thwart pirate attacks by catching up to their speedboats and boarding them with heavily armed commando-like teams.


Canadian sailors board a suspected pirate skiff in the Gulf of Aden in May 2009. (Ed Middleton/CBC)

Despite their successes, though, very few pirates have been charged.

In fact, these boarding teams keep coming across many of the same young men they've seen, disarmed and then freed before.

Why is this being tolerated?

Because these interventions are coming about before pirates actually break the law and, when they do, it's too late.

Loitering with intent

Take two examples, witnessed by our CBC crew while on board HMCS Winnipeg this month.

In the first, the warship's helicopter spotted a speedboat carrying weapons and a ladder (often used to board and hijack merchant ships).

There was no question in anyone's mind what the speedboat operators were up to: they were waiting for a target ship to pass and to attempt to seize it.

To see a photo gallery of David Common's time aboard the HMCS Winnipeg chasing pirates, click here.

For his video report, click here (runs 3:16).

Even so, that's little more than loitering with intent — not a crime under international law.

In the second instance, the skiff was actually spotted attempting to board a vessel. But "attempting" is not illegal either.

In both cases, the Somali pirates had their weapons seized — which is allowed under international law — and are thus temporarily disabled.

But in both cases, these alleged pirates go on their way.

New laws needed

If the world is serious about combating piracy, countries will have to alter international laws to define new crimes and new ways of prosecuting.


A photograph taken from HMCS Winnipeg Sea King helicopter as it pursues two pirate skiffs in the Gulf of Aden on May 17, 2009. (Cpl. Rick Ayer/Combat Camera)

As the Law of the Sea currently reads, "every state may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board."

But then it is up to the courts of the apprehending country — in the case of HMCS Winnipeg, Canada — to judge the crime and apportion the penalties, something few Western countries are prepared to do.

One of the new crimes the international community might contemplate is "belonging to a pirate group," much as membership in or association with organized crime is illegal in many Western nations.

But even that definition might be problematic for certain countries and there are other problems as well.

For example, pirates often dump the evidence (ladders and weapons) overboard when a warship is giving chase and military helicopters don't always arrive on the scene early enough to catch photographic or video evidence of an attempted hijacking.

Then there is the fact that the mostly transient crews of cargo ships aren't much interested in leaving their jobs and its pay to testify in some far away court.

Piracy will always be a legal matter and without evidence you can't prove your case beyond a reasonable doubt.


Never mind that, until fairly recently, very few people had been charged with piracy, or "sea robbery," as it was called in a 17th century law, in 150 years. It's not an area many lawyers, judges or jurisdictions have much expertise in.

That raises questions about where pirates will be tried. At the moment, Kenya seems to be the answer, largely because it is willing and not far from the centre of the action. Britain, the U.S. and the European Union have now signed agreements allowing pirates to be brought to the Kenyan city of Mombasa for trial.

The Americans have also brought one Somali pirate to the U.S. to face prosecution. But they had a vested interest in that case as it involved the hijacking of an American ship and the hostage-taking of an American captain.

The French had a similar situation with the yacht Le Ponant last year and the legal run-up to that case has become something of a gong show in France.

The Russians caught 26 pirates and threw them into the brig of a warship. After several weeks, they're still there. No one knows what to do with them or how to prove exactly that they were involved in piracy.

The Netherlands nabbed a couple of pirates who are, apparently, quite pleased with their arrest: they told a Dutch newspaper that life with a flushable toilet and three meals a day is utopia and that they hope for long prison sentences.

Navies patrolling the Gulf of Aden off Somalia hope word of this doesn't get out. If it does, Somalian speedboats may be surrendering en masse.

Of course, all this legal confusion is very frustrating for the Canadian sailors working their patch of the Gulf of Aden. This fight is not unlike trying to prosecute a street gang — until they do something illegal, you can't throw them in jail.

And most governments — including Canada — have told their navies not to intervene once a hijacking has actually taken place, out of fear for the lives of any hostages.

It's almost the classic Catch-22. Pirates can't be prosecuted until they hijack, but once they hijack, it's unlikely anyone will try to stop them.