Murky waters: prosecuting pirates and upholding human rights law.

• Author: De Bont, Saoirse

1. INTRODUCTION 104 II. PIRACY IN INTERNATIONAL LAW 107 III. LAWS PROTECTING PARTIES 114 1. LEGAL STATUS OF PIRATES 115 2. THE EXTRATERRITORIAL APPLICATION 116 OF HUMAN RIGHTS LAW 3. THE INTERNATIONAL COVENANT 117 ON CIVIL AND POLITICAL RIGHTS 4. THE CONVENTION AGAINST TORTURE 118 5. THE EUROPEAN CONVENTION ON HUMAN RIGHTS 118 IV. INTERNATIONAL HUMAN RIGHTS LAW AND ITS APPLICATION TO PIRACY OFF THE COAST OF SOMALIA 127 1. DETENTION OF SUSPECTED PIRATES 128 2. CLAIMS OF ASYLUM, AND NON-REFOULEMENT 131 3. TRANSFER OF (SUSPECTED) PIRATES TO A THIRD STATE 133 4. FAIR TRIAL 138 V. THE POLMCS OF COUNTER-PIRACY AND THE TRADE-OFF BETWEEN HUMAN RIGHTS AND EXPEDIENCY 140 VI. CONCLUSION 143 1. Introduction

   In May 2010, Russian forces stormed a hijacked oil tanker in a rescue attempt that culminated with the arrest of ten pirates. The pirates were subsequently set adrift without navigational equipment in a small vessel in the Gulf of Aden (an area covering approximately 205,000 square miles) and are now considered dead. Some ambiguity remains regarding what happened to the pirates. Somalia's Transitional Federal Government (TFG) demanded an explanation and an apology from Russia regarding the treatment of its citizens, while the Russian officials reported that the pirates were released in a boat due to the lack of legal options for prosecution. (1)

   The case above illustrates two important issues that converge, allegedly clash with, and most certainly shape counter-piracy operations. The first is the legal framework that exists to prosecute pirates. The second is the human rights obligations of states that engage in tackling piracy. This article addresses the intersection of these two issues, with special reference to piracy off the coast of Somalia. (2)

   Modern piracy has been a growing phenomenon in recent years, resulting in a flurry of international counter-piracy activities such as the adoption of United Nations Security Council Resolutions (UNSCRs) and the increase in international naval forces patrolling high-risk waters--particularly those near Somalia. Despite these attempts to address the issue, piracy attacks have multiplied rapidly, from 239 in 2006 to 445 in 2010. (3) Moreover, the financial rewards of piracy are increasing. In November 2010, a South Korean oil tanker, Samho Dream, was released, reportedly after a record ransom of $9.5 million was paid. (4) It is estimated that in 2010, the cost of ransoms for ships hijacked by pirates was approximately $238 rnillion. (5) Simultaneously, prosecution for these attacks is unlikely. The US Navy reports that the counter-piracy operation Combined Task Force 151, with cooperating international naval forces, encountered more than 1,129 pirates between 2008 and June 2010. Of those, 638 were disarmed, while 478 were transferred for prosecution. (6) Similarly, of the 275 alleged pirates captured by EU naval forces between March and April 2010, reportedly only forty are to be prosecuted. (7) These figures indicate that around 60-85 per cent of the pirates encountered are simply let go.

   One may question why so many alleged pirates are released without being charged. Addressing piracy is challenging, not least due to the nexus of laws that are applicable to counter-piracy operations, and which incorporate customary law, United Nations Security Council Resolutions, treaty law, national law, and human rights law. Moreover, at times human rights law is perceived as limiting the ability of international forces to combat piracy. (8)

   It appears that fear of violating human rights obligations plays a role in states' prosecution of suspected pirates. This raises the question of whether a trade-off exists between prosecution of pirates and protecting and promoting human rights. This article discusses various aspects of human rights law that apply to counter-piracy operations, to contribute to the current literature that elucidates the human rights obligations of states addressing the problem of piracy, and to emphasize the rights of pirates to ensure that they are treated in accordance with the principle of due process and that efforts are made to prevent incidents like the one cited in the opening paragraph. (9)

   The article proceeds as follows: Part I gives an overview of international law as it pertains to maritime piracy. It examines the concept of universal jurisdiction and the legal framework that regulates the fight against piracy. Part II discusses international law that protects pirates, focusing on jurisdiction. It addresses the extraterritorial application of human rights treaties, as well as their application to states acting as part of international bodies. Part III considers aspects of international human rights law as applied to combating piracy off the coast of Somalia. Specifically, it looks at issues such as detention, right to asylum, non-refoulement, and the transfer of pirates to third parties. Part IV considers the political side of the discussion, and the trade-offs between the protection of human rights and expediency.

   The focus is specifically on Somalia for three main reasons. First, the increase in piracy in recent years can be attributed largely to Somali pirates. (10) Second, the Gulf of Aden, an area under attack by Somali pirates, is one of the most heavily trafficked maritime regions in the world. Situated at the crux of major shipping lanes, approximately 33,000 ships pass through the gulf every year. (11) Third, the waters off Somalia boast one of the largest anti-piracy flotillas in the world--a conglomeration of states and multinational organizations engaged in counter-piracy operations. (12) In addition, since civil war broke out in 1992, Somalia has suffered from protracted conflict and economic collapse, and violence in the country is widespread. It is described by many as a failed state, which is incapable of offering robust protection against human rights violations to its citizens. (13) In such a situation, international human rights obligations, and their application, gain even greater significance.

2. Piracy in International Law

   Piracy occupies a unique position in international law. Described as hostis Inonani generis, "enemies of all mankind," pirates commit the original crime under universal jurisdiction. (14) The principle of universal jurisdiction holds that certain crimes are of such a serious nature that any state is entitled, or even required, to apprehend and prosecute alleged offenders regardless of the nationality of the offenders or victims, or the location where the offense took place. (15) It differs from other forms of international jurisdiction because it is not premised on notions of sovereignty or state consent. (16)

   Dating back to the sixteenth century, universal jurisdiction over piracy has been an established principle of customary international law; (17) today, customary law and international agreements govern jurisdiction over piracy. (18) Notably, customary international law is binding on all states, unlike international agreements, which only govern the actions of the states that are party to them. (19) The relevant international agreements that apply to piracy are the United Nations Convention on the Law of the Sea (UNCLOS) (20) and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA, or the SUA Convention). (21)

   The 1982 United Nations Convention on the Law of the Sear defines piracy as: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). (23) Although UNCLOS is not ratified by all states (a notable non-signatory being the United States), there is general acceptance that the definition of piracy in the Convention is a codification of international customary law.24 Moreover, some states not party to UNCLOS, such as the US, are party to the 1958 High Seas Convention, which contains similar provisions. (25)

   The relevant articles of UNCLOS (Articles 100-107 and Article 110; particularly Article 105) outline the definitions of piracy and pirate ships or aircrafts, as well as delineate some processes of seizing and boarding a ship. However, there are a number of limitations to the Convention.

   First, according to UNCLOS, piracy can only occur on the high seas, and not in territorial waters. (26) Approximately 60 per cent of successful attacks on ships occur within territorial waters, (27) so UNCLOS does not apply to a large number of armed robberies on ships. (28)

   Second, although Article 105 reiterates the concept of universal jurisdiction--stating that on the high seas, any state can seize a pirate ship, arrest the pirates, seize the possessions on board, and prosecute the suspects--there is no obligation on states to exercise jurisdiction, or to prosecute pirates. (29) The language used is permissive, as opposed to prescriptive. Therefore, although many states could prosecute pirates, few ultimately do so, as the prosecution of pirates rests not only on legal structures but also on the attitudes of decision-makers operating within these structures.

   Third, Article 105 is unclear regarding the transfer of suspected pirates from the seizing state to another state for prosecution. Munich Re, a German insurance company, claims that Article 105 only grants prosecution or punishment rights to the state that seized the vessel, while Lanham reports that transferring suspects...