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If states were willing and able to prosecute pirates consistent with prevailing human rights norms and standards, issues would still remain regarding what to do with those pirates after their conviction or acquittal. One challenge prosecuting states face is whether they may at some point return a pirate to his or her country of origin, even if that country is one like war-torn Somalia – the country from which most pirates over the past decade have hailed. Indeed, anecdotal evidence indicates that some states are wary of prosecuting pirates in their domestic jurisdictions for fear that convicted pirates will then bring asylum claims seeking refuge there for themselves and their families. Even if states are permitted to return convicted pirates to Somalia, however, additional challenges remain, given that one of the long-term goals of any counter-piracy strategy is to rehabilitate Somali pirates so that they will not become repeat offenders who continue to prey on innocent seafarers. States thus face the related challenge of how to ensure that Somalis charged with piracy offenses are eventually successfully reintegrated into their local communities.
This chapter addresses both of these post-trial concerns. First, it explores whether international law prohibits individuals who are prosecuted for piracy offenses from seeking asylum in the jurisdictions where they are prosecuted. To determine whether states can lawfully return pirates to their countries of origin post-trial, we then analyze relevant international refugee law and international human rights law. We conclude that these laws are unlikely to aid individuals who are subject to prosecution for piracy and might attempt to seek asylum or protection against refoulement. Pursuant to the Geneva Convention Relating to the Status of Refugees (Refugee Convention), in order to obtain asylum in the prosecuting state, a pirate must first provide substantial, credible evidence that he or she fears persecution if expelled on the basis of his or her race, religion, nationality, membership in a particular social group, or political opinion.
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