Pirates And How To Deal With Them
Africa Programme/International Law Briefing Note: AFP/IL BN 2009/01
Pirates and How to
Deal With Them
Roger Middleton
Africa Programme and International Law Discussion
Group
22 April 2009
This briefing note draws on a meeting of a roundtable of experts held at
Chatham House on 26 February 2009 by the Africa Programme and the
International Law Discussion Group. It brought together lawyers and
practitioners from the military, industry and diplomatic services to clarify some
of the legal concerns around combating piracy off the Somali coast. The
paper draws on presentations by Agustin Blanco-Bazan of the International
Maritime Organisation (IMO), Commodore Neil Brown of the Royal Navy and
Dr Douglas Guilfoyle from University College London, and on the discussion
that followed. The meeting was chaired by Elizabeth Wilmshurst of Chatham
House.
Chatham House is independent and owes no allegiance to government
or to any political body. It does not hold opinions of its own; the views
expressed in this text are the responsibility of the author. This
document is issued on the understanding that if any extract is used, the
author and Chatham House should be credited, preferably with the date
of the publication.
Briefing Note: Pirates and How to Deal With Them
Introduction
In 2008, piracy off the coast of Somalia went from being an irritation to a
major global concern.1 Now navies from at least 17 states, organized around
three multinational taskforces, are patrolling Somalia’s seas. So far in
20092, 79 ships have been attacked and 19 ships and their crews taken
hostage. Pirates captured by various states’ navies are standing trial in
Puntland, Kenya, France and the Netherlands. Navies have had some
success in their primary aim of disrupting piratical activity and the success
rates for pirate attacks has dropped from around 1 in 3 to about 1 in 4.
However, as well-publicized cases of pirates being released after capture
have demonstrated, there are perceived to be legal constraints on the action
of some states and confusion about the legal powers of others.
The meeting focused on legal issues concerning the arrest and prosecution of
pirates. Other legal concerns such as payment of ransom money to pirates
and the use of private security firms are not addressed here.
Naval or police action cannot provide any long-term solution to piracy in
Somalia. It is very difficult to deal with a law and order problem in a country in
a state of lawlessness. Only addressing the root causes, including the internal
problems of the country, will offer a way to stop piracy. The naval presence
may, however, reduce the severity of the problem, and improving or clarifying
the legal framework in which navies operate will certainly help.
Legal framework
The international legal framework on piracy is drawn from the UN Convention
on the Law of the Sea 1982 (UNCLOS) and the Suppression of Unlawful Acts
against the Safety of Maritime Navigation Convention 1988 (SUA). Not all
states have incorporated UNCLOS into their domestic legislation, and even
fewer have incorporated SUA. But long before these treaties were adopted
piracy was an offence under international law. SUA requires states to accept
delivery of persons responsible for seizing control over a ship by force.
Warships are obliged by UNCLOS to take action against piracy but they are
1 Roger Middleton, Piracy in Somalia: Threatening Global Trade, Feeding Local Wars,
Chatham House Briefing Paper, October 2008,
http://www.chathamhouse.org.uk/publications/papers/view/-/id/665/.
2 International Maritime Bureau - correct at 17 April 2009
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Briefing Note: Pirates and How to Deal With Them
acting in a policing rather than a purely military role when doing so. There is
no basis for a 'war on piracy'; this is a criminal law issue.
The anti-piracy missions are operating under authority granted by UN
Security Council resolutions, including 1816(2008), 1838(2008), 1846(2008),
and 1851(2008). These give cooperating states the right to pursue and
capture pirates in Somali waters and, in the case of resolution 1851, on
Somali land. There is, however, a stipulation that consent must first be
received from the Transitional Federal Government of Somalia and then be
notified to the UN Secretary General. Given this stipulation, the Security
Council resolutions were not strictly necessary, since the Transitional
Government could have granted permission for foreign states to conduct law
enforcement operations within its waters or territory without them. One new
element in the resolutions is the specific mention of the assistance of the EU
and NATO. The resolutions also encourage the use of ship riders, a system
allowing law enforcement personnel from regional states to embark on
warships and effect the arrest of pirates captured by the warship, or to
authorize the pursuit of pirates into the territorial waters of their sending state.
A similar arrangement exists in the Caribbean aimed at combating drugs-
smuggling.
Legal powers to use force in the disruption of piracy
The Rules of Engagement (ROEs) adopted by various navies must take into
account that the actions off the Somali coast are of a police nature rather than
purely military. Article 110 (UNCLOS) provides the legal basis in international
law for the use of force for this purpose. Customary international law provides
basic principles governing the appropriate amount of force to be used where it
is lawful to stop and arrest a ship at sea.3 Navies thus have the right to use
reasonable force in pursuit of their law-enforcement mission.
3 The principles were considered in another context by the International Tribunal for
the Law of the Sea in the case of Saiga 2 (http://www.itlos.org/start2_en.html). See
also the case of S.S. ‘I’m Alone’ (Canada/United States, 1935), U.N.R.I.A.A., Vol. III,
p. 1609 and The Red Crusader case (Commission of Enquiry, Denmark–United Kingdom,
1962), I.L.R., Vol. 35, p. 485.
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Briefing Note: Pirates and How to Deal With Them
The case of the Indian warship Tabar, which attacked a suspected pirate
vessel, sunk the ship and caused loss of life, highlights the importance of
having correct Rules of Engagement. In the Tabar instance, the ship that was
attacked was later identified as a recently hijacked fishing vessel with
hostages on board; it was not a pirate ship. Naval vessels should have a
different approach to ships once pirates have taken hostages. The action
taken by the Tabar would not have been legal in the UK, for example. The
situation should be classified not as piracy but as hostage-taking once
hostages are on board.
Within the shipping industry there is a perception that international law leaves
navies weak and able to do little to combat pirates. There is a well-founded
concern that this perception is also shared by pirates themselves. While there
may be difficulties in the case of individual states (for example the German
constitution allows engagement in counter-terrorism rather than against the
criminal offence of piracy), navies do have sufficient powers under
international law to combat piracy and they are permitted to use reasonable
force against pirates. It is important that this fact is well publicized.
Arrest and detention and the European Convention on
Human Rights (ECHR)
The perception that navies are weak is strengthened by a number of
instances where pirates have been apprehended by naval forces which have
subsequently have had to release them. In some cases this is because of
peculiarities of the laws of a particular country. For example, Denmark and
Germany can prosecute pirates only if they have threatened national interests
or citizens.
Under French law, a captain may apprehend and hold pirates, but only a
judicial authority can arrest and detain them. The issue of terminology is an
important one; between capture and their handing over to a judicial authority
the pirates are ’in the hands of’ the navy, to give one example of the language
used.
Navies whose states are parties to the European Convention on Human
Rights are obliged to comply with the requirements of that Convention. In the
case of Medvedyev4 before the European Court of Human Rights, a French
naval ship had captured a Cambodian-flagged vessel suspected of drug-
4 http://www.echr.coe.int/echr/, No. 3394/03.
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Briefing Note: Pirates and How to Deal With Them
running. The Court ruled against France for failure to properly inform judicial
authorities of the navy’s actions and on the grounds that it did not have a
secure basis in both international and national law for their arrest. France has
appealed to the Grand Chamber and is making changes to its system of
préfets maritimes. However, the Court dismissed a claim that the applicants in
Medvedyev had not been brought promptly before judicial authorities as there
was no reasonable alternative to holding them for the 13 days required to
take them to port.
Given that it can take many days to get from the Gulf of Aden to Kenya, the
most popular destination for captured pirates, navies cannot be expected to
hand over pirates immediately to a judicial authority. There was discussion at
the roundtable as to whether this raised problems of compatibility with the
ECHR (Article 5). Pirates captured in the Gulf of Aden are not arrested until
they arrive in Kenya, where they see a judge within 24 hours. There is a
considerable length of time when pirates are not free but have yet to be
arrested. Drawing on the Medvedyev case, it was agreed that if the pirates
were held in order to hand them over to judicial authorities for arrest and
detention and the pirates were in fact taken to the appropriate country to be
handed over, holding them for the necessary period of time for the naval
vessel to get to that country would not breach the ECHR; nor would the fact of
their holding.
For some navies, however, the issue does not normally arise in that form,
since pirates are not brought onto warships but are left in their own skiffs,
although not allowed to depart. There was discussion about the stage at
which the ECHR would apply. Under Article 1, the ECHR applies to persons
within a state’s jurisdiction, the test for which is now agreed to be a question
of ’control’ in extra-territorial situations. At what stage, then, are pirates under
the control of the military? It was agreed that the ECHR clearly applies where
naval or other public vessels are holding pirates aboard and are in control of
them. However, there was a difference of opinion with regard to the situation
where the pirates are not taken on board the naval vessel, especially in cases
where there are no naval officers aboard the pirate vessel (for example,
where it has been surrounded and subdued). Most EU countries would regard
such a degree of control to be covered by the Convention. But some would
not. The view of the latter probably derives from the fact that application of the
Convention would be problematic if the pirates are not to be taken for
prosecution, but are eventually to be freed. In that case, if the Convention did
apply, it would be difficult to argue that the ‘holding’ of the pirates was
compatible with Article 5.
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Briefing Note: Pirates and How to Deal With Them
A further issue regarding the ECHR relates to the obligations of states which
hand over captured pirates to another country for the purpose of arrest. The
UK is satisfied by the assurances it has received from the Kenyan authorities
regarding the treatment of suspected pirates, and France is likewise satisfied
with assurances it has received from Puntland. Human Rights Watch,
however, has questioned the validity of assurances from Kenya, and jails in
Puntland are known not only to be unpleasant but also to allow escapes.
Jurisdiction to prosecute pirates
UNCLOS allows all states to take universal jurisdiction over piracy; that is, it
allows all states to prohibit and prosecute pirates wherever they operate.
There is some debate about whether states are required by international law
to adopt domestic legislation to enable their authorities to prosecute pirates.
Courts and legislatures are often reluctant to establish jurisdiction over events
occurring outside their territory. However, UNCLOS (Article 100) requires
states to cooperate in the repression of piracy ‘to the fullest possible extent’;
this should be interpreted as meaning that any state having an opportunity of
taking measures against piracy and failing to do so is in breach of its duty
under international law.5 Most of those states that are not parties to UNCLOS
are parties to the 1958 High Seas Convention which preceded it and which
has a similar provision. Most states in the world therefore share this
obligation.
At present Kenya is the closest country with the competence and legislation
to prosecute pirates. Some pirates have been brought to France and the
Netherlands to stand trial but the preference is very much for prosecuting
pirates within the region. France is sending pirates to Puntland, with which it
has an agreement, but is also supportive of EU moves to seek prosecution by
Kenyan authorities. Both the UK and the United States have entered into
Memoranda of Understanding with Kenya on the prosecution of pirates.
At the meeting, an example was given of a trial of pirates in Kenya. Kenyan
authorities were able to begin the trial of pirates captured by HMS
Cumberland within six weeks. (By contrast, in France the evidence-gathering
phase of the Le Ponant case will take at least a year.) Five witnesses from
the Royal Navy were present, as well as the Greek master from the
5 This interpretation is supported by the Commentary of the International Law
Commission on the provision of the 1958 High Seas Convention on which the
UNCLOS provision was based.
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Briefing Note: Pirates and How to Deal With Them
commercial ship involved. The latter’s presence had to be facilitated by the
industry and the navy – there is no power to compel the attendance of
witnesses. Cooperation leading to the criminal proceedings had been a
success, but enormously costly in terms of naval time and resources. A
problem with these cases is that in Kenyan law witnesses must be present in
person at the trial. This requires ships’ captains, leaders of boarding parties
and pilots to be available for the trials, as well as the masters of commercial
vessels that have been attacked. This will require cooperation from the
shipping industry in terms of logistics and finance. Kenyan law has the
advantage of applying not only to those caught red-handed; co-conspirators
may also be prosecuted.
Flag states are not at present very much involved in prosecution; some states
and organizations would like to see this change. Assistance to the Yemeni
coastguard should lead to a situation where pirates can be handed over to the
Yemeni authorities for prosecution, but this will take some time. Analysts of
Yemen have also pointed out that the country is far from stable and may not
make a good or reliable partner. Djibouti, which might have been considered
well located for prosecuting pirates, is reluctant to take the responsibility; but
training of naval and customs officials and prosecutors from elsewhere in the
region is ongoing there.
For future success in dealing with captured pirates, local capacity-building in
Somalia and the region should continue. One difficulty is the absence of
relevant legislation. The International Maritime Organisation and UNDOC (the
United Nations Office on Drugs and Crime) have been involved with
assistance and support for the adoption of local legislation. The Djibouti Code
of Conduct has been signed by nine regional states, with undertakings to
review local laws. Piracy is simply one example of a criminality problem in the
region.
Some hold the view that, even if it were possible to achieve a perfectly
functioning legal process for captured pirates, naval action would remain
focused on deterring and disrupting pirate activity rather than expending the
time and resources to take pirates to local countries for prosecution. It is not
the mission of every naval vessel to take pirates for prosecution, but rather to
suppress piracy by other means including disruption. Many practical problems
arise if ships are to be engaged in sailing to countries to deliver pirates, with
captains having to appear as witnesses, instead of being involved in further
disruption activities. In the view of others, successful prosecutions represent
the best means of deterring piracy.
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Briefing Note: Pirates and How to Deal With Them
Conclusions
It was not the purpose of the meeting on which this briefing note was based to
come to formal conclusions, but the chairman considered that it was possible
to draw the following from the discussion.
1. International law provides sufficient authority for public vessels to use
force for the suppression of piracy in the high seas. Whichever
vessels with public authority are used (whether naval or coastguard,
or naval combined with police), they are undertaking a police function
against the criminal activity of piracy. The degree of force used must
not exceed that reasonably required in the circumstances.
2. For those states which are parties to the European Convention on
Human Rights, there is no legal problem with their public vessels
holding pirates on board for the purpose of taking them to a proper
jurisdiction for arrest and prosecution. There may, however, be a
problem in relation to the holding of pirates on their own vessels, and
not allowing them to go, for the purpose of disruption of piracy, rather
than of detention for prosecution.
3. There were no easy solutions to the problem of prosecution or
extradition of pirates. Capacity-building in the region is the way
forward. The huge difficulties must not be underestimated; these are
not limited to the absence of relevant local legislation. The leadership
of the country concerned may be complicit with the pirates. Prisons
and prison systems – and judicial systems more generally – needed
to be developed. Capturing countries must be able to receive credible
human rights assurances from the states to which they hand over the
pirates for prosecution.
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