Counter-piracy operations in the Gulf of Aden
Expert meeting on multinational law enforcement and sea piracy held at the Max Planck Institute for Foreign and International Criminal Law
A year after the first deployment of military ships in the Gulf of Aden, piracy and armed robbery at sea continue to pose a threat to the safety of commercial maritime routes and to the delivery of humanitarian aid to Somalia. Hence, it is not surprising that the United Nations Security Council renewed the authorization to fight piracy in the territorial waters of Somalia and on the Somali mainland for another year on November 30, 2009. Against this background, leading experts from academia and practice met at the Max Planck Institute for Foreign and International Criminal Law to discuss issues and challenges that arise in the context of counter-piracy operations in the Gulf of Aden.
Two of the main questions discussed at the Expert Meeting were whether the legal framework set up by the Security Council to fight piracy in Somalia was practical and what type of operational challenges the law enforcement missions in the Gulf of Aden currently face. In addition, the experts focused on the various avenues for criminal prosecution of captured pirates. Finally, the issue of whether new legal instruments are necessary to combat piracy successfully was addressed. There was general agreement among the participants in the Expert Meeting on Multinational Law Enforcement and Sea Piracy that the enforcement regime against piracy and armed robbery at sea as set up by the Security Council is sufficient from a legal point of view. In December 2008, the Security Council considerably enlarged enforcement powers against pirates and armed robbers and, on November 30, 2009, extended this new regime for another 12 months. As far as the high sea is concerned, the United Nations Convention on the Law of the Sea (UNCLOS) continues to govern enforcement powers against pirates. Thus, States can seize pirate ships, arrest alleged pirates, and seize property on board. Under the Security Council Resolutions, however, States are now allowed to take these enforcement measures in the territorial waters of Somalia as well -actions that would otherwise be reserved to the coastal state of Somalia. Moreover, the Security Council authorized States to take all necessary means on the Somali mainland to combat piracy and armed robbery at sea.
From the contributions and comments made by representatives of the NATO OPERATION OCEAN SHIELD, the EU MISSION ATALANTA, and INTERPOL at the Expert Meeting, it became apparent that, despite the completeness of the legal framework on enforcement, the fight against piracy in the Gulf of Aden faces numerous operational challenges. Among these are the problem of identifying pirate ships, many of which are difficult to distinguish from fishing or smuggling boats. The mere sighting of weapons on board is not sufficient to prove that a boat is engaged in piracy since in this region of the world most ships carry arms for purposes of self-defense. Furthermore, the investigation following the identification and interception of a pirate ship also constitutes a major operational challenge. In that phase - one that is crucial for the gathering and collection of evidence for later criminal proceedings - the dual nature of counter-piracy missions becomes evident: military means and military personnel are used for a genuine law enforcement task. Military personnel are first and foremost trained and equipped for the conduct of hostilities and not for policing functions. Thus, it has happened again and again that "the militaries poisoned the investigation" in not securing evidence correctly. Evidence such as weapons has even - literally - been thrown overboard. The resulting lack of evidence may inhibit the substantiation of criminal charges or even lead to acquittals.
The experts discussed various ways of improving the policing capacity aboard military ships, such as including military police in the units deployed in the Gulf of Aden. The lack of knowledge about criminal investigation and evidence techniques could also be compensated by bringing shipriders on board military vessels. Shipriders are law enforcement officials (such as police officers) from third States who are embarked on a military ship in order to take enforcement or investigative measures in lieu of the flag State. As an alternative to shipriders, some experts proposed the use of Interpol’s incident response teams to carry out the police tasks of securing and preserving evidence. Even without such changes in the composition of the personnel on board, the investigation phase could be improved by "translating" relevant investigation and evidence provisions and procedures into military rules of engagement. Also, initiatives such as the elaboration of a template by the UN CONTACT GROUP ON PIRACY OFF THE COAST OF SOMALIA on how to gather evidence in accordance with the standards set by Kenyan evidence law would help overcome challenges arising from the fact that militaries are policing the sea.
The greatest need for action identified by the experts involves dealing with captured pirates and armed robbers at sea and their criminal prosecution. So far only a few States participating in the law enforcement missions in the Gulf of Aden - namely, France, Spain, the United States, and the Netherlands - have been willing or able to initiate criminal proceedings against arrested suspects. Against this background, the idea of an international(ized) piracy tribunal has gained momentum. The experts were resistant to the idea, however, that such a tribunal could - similar to the ad hoc tribunals for the former Yugoslavia and Rwanda - be based on Chapter VII of the UN Charter, given that piracy as such hardly constitutes a threat to international peace and security as the taking of such measures requires. Moreover, the gravity of the crime of piracy is not comparable to war crimes, crimes against humanity, or genocide. A majority of the experts also discarded the idea of creating a specialized chamber for piracy within the International Tribunal for the Law of the Sea, given that this would entail amending the UNCLOS. Not only would this be a time-consuming undertaking but States would be more than reluctant to touch this instrument, which governs issues considered by many to be much more important than piracy. The majority of experts opined that the most viable option would be the creation of specialized or dedicated piracy chambers within the domestic criminal justice systems of States willing and able to prosecute pirates, as proposed by the UN CONTACT GROUP ON PIRACY OFF THE COAST OF SOMALIA. These specialized chambers could feature international elements ranging from financial support to international staff. Even if an international(ized) piracy court were to be established, however, the enforcement of prison sentences would have to take place on a national level. Whether the will of States to enforce sentences against pirates would be greater than the will to pronounce them is, however, doubtful.
Despite the many initiatives begun and improvements achieved in the fight against piracy, the participants in the Expert Meeting had little hope that the goal of a "full eradication of piracy" as proclaimed by the Security Council could be achieved. While it was felt that the securing of free navigation in the Gulf of Aden would be a more realistic objective, there was general agreement that this goal cannot be attained solely by means of law enforcement measures; rather, piracy must be seen as a symptom of Somalia’s structural problems. Hence, the successful combating of piracy requires the identification and elimination of its root causes.