Legal loophole could see half of all piracy suspects walk free
The present dilemma is much more the product of a legal gap than a "loophole." Before late 2009, Kenya simply lacked a law allowing its courts to try pirates captured outside its territorial jurisdiction (interestingly, this point had formed the basis for a legal challenge on behalf of 10 pirates accused of hijacking the Indian trading dhow MV Bisaraat in 2006. The appeal was rejected, and the men sentenced to seven years in Kenyan prison).
In an attempt to patch the holes in its legal code, in February 2009 the Kenyan Parliament passed the Merchant Shipping Act, which gave Kenyan courts jurisdiction over piracy offences irrespective of "whether the ship...is in Kenya or elsewhere," and regardless of the nationality of the accused. However, the bill did not enter into force until 1 September; to avoid applying law retroactively, the judge ruled, all pirates captured before this cutoff had to be released.
The irony is that the Merchant Shipping Act itself rests on extremely tenuous legal ground. The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention)--of which Kenya is a signatory--provides a framework for extraditing suspected piracy offenders under certain conditions. But simply being the only state on the Indian Ocean willing to act as a pirate dumping ground is not sufficient basis for extradition. Kenyan warships are not the ones capturing the pirates, and no Kenyan nationals are involved in the crime, and by extending Kenyan jurisdiction over these cases the Merchant Shipping Act has clearly overstepped the boundaries of international law.
In the end, I suspect the Kenyan government will find some way to bring these men to trial. The alternative would be either a costly repatriation to Somalia, or furnishing them with residency permits and allowing them to remain in Kenya. Given the mounting xenophobia towards the Somali community, it seems unlikely that the government would be able to release dozens of Somali pirates into Kenyan society without incurring a widespread backlash.
The legal regime currently in place to prosecute pirates is in desperate need of an injection of legitimacy. The best course of action would be to establish an international piracy tribunal, headquartered in the region. Though the UN has repeatedly rejected this option, primarily due to the high cost, the international community must recognize that renting out Kenyan courts is not a permanent solution to the problem. With the number of pirate detainees destined to overwhelm Kenya's limited capacities and overcrowded prisons, the Kenyan government's periodic threats to end its piracy trials may soon go beyond mere bluster. Since piracy on the high seas is, at its core, an international problem, an international solution is in order.