PIRACY – AN AFRICAN EXPERIENCE PROFESSOR HENRI FOUCHE

PERCEIVED PROBLEMS RELATING TO COMBATING PIRACY OFF AFRICA COAST

• The International Maritime Organisation points out that the capture, prosecution and sentencing of pirates and perpetrators of armed robbery against ships is probably the most appropriate deterrent action against piracy available to governments.

• One of the reasons forwarded by many states for not prosecuting pirates is the lack of legislation.

• The special advisor on legal issues related to piracy off the coast of Somalia concludes that the difficulty of assembling evidence is the main reason why pirates escape punishment.

ESTIMATED COST OF CRIMINAL ACTIVITIES OFF THE HORN OF AFRICA

• Global economy 7-12bn US $ per year

• Regional economies 1,2bn US $ per year

• Seychelles economy 6m US $ per year

• Kenya 414m US $ per year

PERPETRATORS NOT BEING PROSECUTED

• Has International Law failed the continent of Africa?

• Why are perpetrators not being prosecuted?

• Does the fault lie with International Criminal Law?

INTERNATIONAL LAW AND CONVENTION

• The sources of international law are described in article 38(1) of the Statute of the International Court of Justice (in Dugard, 2001:26) as:

• international conventions (treaties), whether general or particular;

• international custom, as evidence of a general practice accepted as law;

• the general principles of law recognized by civilized nations; and

• judicial decisions and the teachings of the most highly qualified publicists, as subsidiary means for the determination of rules of law.

UNITED NATIONS SECURITY COUNCIL RESOLUTIONS

• Sir Michael Wood (2006:6) describes the United Nations security council as the principal organ of the United Nations, upon which the members of the organisation have conferred primary responsibility for the maintenance of international peace and security and which has the power to make recommendations and to adopt decisions binding on Members of the United Nations.

Criminalising piracy : national legislations

• UNSC 1950

– calls on states to criminalise piracy under their domestic law & to report to CGPCS within 9 months on progress (from 23/11/2010)

- On 14/07/2011 (8 months later) & 29/03/2012 (a further 9 months later) CGPCS report on legal issues- no indication on progress with regard to criminalising piracy in the national legislation of states which have not yet done so

UNSC Resolutions

• Resolution 1976- adopted 11/04/2011

- expresses concern over large number of persons suspected of piracy having to be released without facing justice

Resolution 2020

- Points out failure to prosecute pirates undermines anti piracy effort

- Considers anti-piracy courts in Somalia and other states in the region

REINFORCING UNSC RESOLUTIONS

• It is recommended that in considering future UNSC Resolutions, particularly those which address the strengthening of legal interventions where international peace and security is at stake, that states be obliged to report (mandatory) to committees created in terms of the particular resolution on actions taken with regard to compliance to the requirement of the UNSCR and that the committees have the mandate to ensure compliance.

• UNSC Resolution 1373 – all member states obliged to take specific actions before a certain date.

• It needs to made mandatory for flag states whose vessels are hijacked to lay a criminal charge against the perpetrators.

RECOMMENDATIONS

• It is recommended that in considering future UNSC Resolutions, particularly those which address the strengthening of legal interventions where international peace and security is at stake, that states be obliged to report (mandatory) to committees created in terms of the particular resolution on actions taken with regard to compliance to the requirement of the UNSCR and that the committees have the mandate to ensure compliance.

• It is also recommended that it be made mandatory for ship owners to lay a criminal charge in the flag state against perpetrators of acts of piracy, hostage taking and kidnapping, to enable Interpol to issue red notices for arrest and extradition to the prosecuting state (for an Interpol red notice to be issued there needs to be a valid arrest warrant in the country requesting extradition).

Preserving Evidence:Challenges to navies

• Need to establish link with law enforcement for

information collection and sharing on people

known to be involved

• Need for military effort to be complemented by

judicial action to ensure successful prosecution

of perpetrators as deterrent

• Need to maximise efforts to preserve evidence

and facilitate prosecution of pirate activity

wherever possible

Evidence collection

• No matter who collects the evidence that person needs to be mindful that more is involved than simply looking for and collecting it. Burstein, H. B. Criminal Investigation. Prentice-Hall,Inc.Upper Saddle River, New Jersey

• The crime scene can be recorded by means of photography, sketches and notes Saferstein

• International model case report proposed for naval forces

IMPLEMENTING INTERNATIONAL CRIMINAL LAW: UNSC RESOLUTIONS

• UNSC Resolution 1950 (2010)

-calls (on deployed naval vessels) to seize and dispose of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery at sea off the coast of Somalia

Equipment used by pirates

Aluminium ladder & grappling hook

Fuel and water

Evidence disposed of in accordance with UNSCR 1950 and ROE’s

Evidence collection

• Naval commanders need to bear in mind

that the difficulty of assembling evidence

is the main why pirates escape

punishment

arrest

• Naval operations should be conducted with a view to possible prosecution in mind.

Information sharing

• Sharing of information remains a major challenge in combating sea piracy due to the tendency of naval forces designating information gathered during their policing role on criminal activity as classified.

• Exchange of operational information such as fingerprints and photographs with law enforcement agencies is essential.

Recommendations

• Rules of engagement for navies should make provision for the protection of possible evidence which can be used in court to secure successful prosecutions

• Details of suspects arrested at sea be communicated to Interpol for assistance with identification and prosecution.

Prosecuting the Pirates – Options for Navies

• Embarked Officers

• Prosecution in the country of the arresting warship

• Prosecution in the flag state

• Hand over to Somali authorities for prosecution

• MOU’s with third states in the region

• International Court

APRIL 2012 MAX PLANCK INSTITUTE FREIBURG Workshop with African Foundation for International

Law

MPICC & AFIL WORKSHOP GERMANY

• April 2012 researcher presented paper at a workshop of the Max Planck Institute for foreign and international criminal law (MPICC) and the African foundation for International law (AFIL) calling for UNSC resolutions to include mandatory clause for compliance and for navies operating off Somalia to change rules of engagement to include protection of physical evidence instead of present ROE’s calling for the destruction of potential evidence. Paper submitted for publication.

JUNE 2012 NATO MARITIME INTERDICTION OPERATIONAL TRAINING CENTRE SOUDA BAY CRETE

NMIOTC • June 2012 researcher presented paper at

NATO’s training college in Crete calling on NATO to request UN to include mandatory clause in future UNSC Resolutions and for NATO to change their ROE’s to protect potential physical evidence for forensic investigation by specialised teams.

• Recommendations approved during discussion and submitted to NATO for consideration. Paper submitted to NMIOTC for publication in NMIOTC Journal.

JULY 2012 SEMINAR AT RICHARDS BAY TO ADDRESS CHALLENGES ENCOUNTERED DURING INVESTIGATION ON IRENE

PARTICIPANTS RICHARDS BAY SEMINAR

PARTICIPANTS BEFORE EMBARCATION POLICE BOATS

SAFETY BRIEFING

DISPERSAL AFTER SAFETY BRIEFING

NKOSAZANA

PARTICIPANTS AT AIRFORCE BRIEFING SESSION

HOIST

BIOLOGY DOG AND HANDLER

RESEARCHER HOIST

FORENSIC INVESTIGATION TEAM

AUGUST 2012 TRAINING PROVIDED TO SA NAVY MOZAMBIQUE CHANNEL DEPLOYMENT

• August 2012 researcher presented paper to crew of SA Navy frigate deployed to Mozambique channel for anti-piracy operations. Paper dealt with protection of evidence and request for SA Navy’s rules of engagement to be adjusted to protect potential physical evidence for presentation at judicial proceedings and legal aspects relating to interdiction, arrest and prosecution.

September 2012 Training for Tanzania

• 19 and 20 September- researcher provided training in Pretoria on prosecuting piracy to five prosecutors from Tanzanian Prosecuting Authority. Training included a visit to the SAPS Forensic Science Laboratory. At the laboratory the information provided included emphasis on evidence collection and maintaining the chain of custody for court purposes.