From Military Intervention to Judicial Prosecution: Bridging the gap Henri Fouche : University of South Africa (UNISA)

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? IMO guidelines for investigation of piracy-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

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

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.

Legislation One of the reasons forwarded by many states for not prosecuting pirates is the lack of legislation Is international law in relation to piracy sufficient?

SOURCES OF INTERNATIONAL LAW FOR PROSECUTING CRIMINAL ACTS IN TERMS OF NATIONAL LEGISLATION United Nations Convention on the Law of the Sea (UNCLOS) – provides basis on which a littoral states jurisdiction, rights, privileges and obligations at sea are built, few IMO member states, however , fully incorporate the article 101 definition of piracy in UNCLOS, in their national legislations Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) - criminalises maritime violence

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.

IMPLEMENTING INTERNATIONAL CRIMINAL LAW: UNSC RESOLUTIONS -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

Medicine chest

Fuel and water

Evidence destroyed

Evidence collection Naval commanders need to bear in mind that the difficulty of assembling evidence is the main why pirates escape punishment

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.

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

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

Crime scene

Onboard with equipment

Biology dog

Protective clothing

Physical evidence bridge wing

Evidence collection bridge wing

Physical evidence

Physical evidence

Suspects identified by photo album

Taking statements

Evidence collection

Physical evidence

evidence

Evidence collection for removal to forensic science laboratory

Collecting blood samples

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.

Standard operating procedures for communication SOP’s necessary for effective communication between owners, ships agents, law enforcement and responders from the patrolling navies. Information gleaned by boarding parties of first responder essential for IRT teams.

Communication between navies and law enforcement The navy forwards the information gathered to its country or to its countries Interpol NCB which in turn can communicate the information to other NCB’s and Interpol’s general secretariat. The Navy communicates directly with Interpol through an extension of the communication system of the NCB of that country. The exchange of information can take place between Interpol and another international organisation with which Interpol has concluded an agreement (Gottlieb, 2011)

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

FINDINGS Many states have not created domestic legislation relating to piracy, pursuant of their membership of international treaties. Evidence needs to be identified and preserved by navies as first responders with a view to possible prosecution Lack of SOP’s for dealing with an event which includes interaction with the role players who have a stake in the proceedings may lead to misunderstandings and non adherence to crime scene management principles

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).

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.