Why are we setting pirates free?

Late Saturday, a Canadian warship escorting a shipment of aid through the Gulf of Aden crossed paths with Somali pirates attacking a Norwegian oil tanker. After a seven-hour nighttime chase, which included warning shots fired at the pirates’ skiff, the crew of the HMCS Winnipeg caught up with the pirates, seized a single rocket-propelled grenade from their vessel, and took seven of them prisoner. But there was an anticlimactic end to the Canadian sailors’ hard-won victory: they were told to send the pirates home, releasing them unconditionally.

Such incidents are becoming more common as international authorities have more success at intercepting Somali attacks, and that’s raising a difficult question: if pirates are captured on the high seas, when does the country that captures them have the right to bring them to trial?

So far, there’s no clear answer. Sometimes pirates are held for trial, and sometimes they are released. For instance, earlier in the same day that the Canadian navy captured its quarry, Dutch troops captured nine seafaring thugs in the same area who had been holding 20 Yemenis hostage. As with the Canadian capture, the pirates intercepted by the Dutch were let go almost immediately.

But in an earlier incident, the U.S. Navy captured a Somali teenager believed to have been involved in the hijacking of a U.S.-flagged ship on the Indian Ocean, and they didn’t let him go. Instead, American authorities are pressing ahead with a criminal case. Abdiwali Abdiqadir Muse arrived in New York City earlier his week to face what are believed to be the first piracy charges laid in the U.S. in over a century.

Some say the key determining factor is whether a country’s navy is defending its own citizens, or the citizens of another country. In both the Canadian and Dutch incidents, authorities claimed they couldn’t detain and charge the pirates because their navies were defending ships from other countries. In the U.S. case, it was Americans protecting an American ship.

But Michael Byers, a professor of global politics and international law at the University of British Columbia, says that who’s protecting whom may be a side issue. He says the UN Convention on the Law of the Sea and a UN Security Council resolution adopted last June provide ample legal authority for arresting pirates, no matter whom they’re attacking. Byers suspects that some Western nations have been reluctant to charge pirates not because it’s illegal, but because “bringing a dozen Somali teenagers back to Canada for prosecution wouldn’t actually address the root cause of the problem.” In fact, he argues that NATO’s decision to put the pirates “back into operation by releasing them” may itself contravene international legal principles. “The more interesting question,” he says, “is whether we have the authority to release.”

These questions will have to be resolved soon, as pressure is mounting from the U.S. and other countries to put an end to the catch-and-release approach. In the Netherlands, there is a growing acknowledgement that releasing the captured pirates so quickly was a mistake. The country’s junior defence minister, Jack de Vries, conceded that the sailors involved should have contacted Dutch prosecutors before releasing their captives, and in a joint statement with U.S. Secretary of State Hillary Rodham Clinton on Monday, Dutch Foreign Minister Maxime Verhagen said, “It is essential that those who are guilty of piracy will be prosecuted and not set free.”

Clinton says that releasing captured pirates “sends the wrong signal.” She blames NATO for the confusion, saying the alliance had not provided troops with the proper authority to turn anyone over for criminal prosecution. Both Clinton and Verhagen have pledged to raise the issue with NATO commanders in the near future, which may result in a change in policy.

Until then, however, pirates can expect to keep attacking ships, safe in the knowledge that even if they’re caught, they will likely soon be set free.