Detention in the Maritime Domain - Counter-Piracy Operations

Rob McLaughlin

Australian NationalUniversity

Outline

• Background

• Legal Framework– Quick refresh

• Current Challenges

• Future Challenges

UNODC Support to Piracy Prosecutions

in Kenya

UNODC Support to Piracy Prosecutions

in Seychelles

Objective Two: Humane & Secure Imprisonment

for pirates in Somalia

Objective One: Fair & Efficient Trials and Humane & Secure Imprisonment

in Regional Prosecuting States

Objective Three: Fair & Efficient Piracy Trials

in Somalia

UNODC Piracy Prisoner Transfer Programme, PPTP

UNODC Support to Piracy Prosecutions

in Mauritius

Development of Programme for 4th

Prosecuting State

In place Commenced Not yet commenced

UNODC CPP Strategic Plan

UNDP Piracy Trials Programme

Judiciary (UNDP)

Law Reform (UNDP)Prosecution (UNODC)

Defence (UNDP)

Pirates currently detained• 20 States; 990 detained on remand or serving sentences

• The Three Somalias - 338

• Kenya – 143

• Yemen - 120

• India – 119

• Seychelles – 70

• Others include:

– Netherlands - 29

– US - 28

– France - 15

– Germany – 10

• Detained cadre very roughly estimated to be 10-20% of active pirate cadre

Fundamentals – outside armed conflict, when can you detain on the High Seas?

• Flag State request / consent

• Occasions when Flag State consent not required

– Art 110 LOSC 1982

• Piracy

• Slave trading

• Unauthorised broadcasting

• No flag

• Suspect own flag

• UNSC Ch VII Resolution

– But only if uses certain particular phrases

– Art 51 national self-defence

– Certain treaty-based arrangements

Detention and Piracy - Legal Framework

• International law on piracy

– Universal jurisdiction and CIL

– LOSC 1982

– UNSC Resolutions

• Situationally relevant, but not law creating

– Law enforcement, not armed conflict

• Domestic law

• Varieties of incorporation

– A Minister’s consent?

– Define acts in the TS as ‘piracy’?

– Define further categories of act as ‘piratical acts’, but without an essential element of piracy (eg 2 ship rule)?

– Define by reference to concept, not elements (piracy jure gentium; piracy as understood, from time to time, by the law of nations)

UNSCRs – critical elements re: detention• Explicit recognition of authority to

– Board and search– Detain– Seize and dispose of vessels, arms, related equipment

• Broadened geographical scope to include the Territorial Sea of Somalia. – Enter into the TS of Somalia for the purpose of repressing acts of piracy and

armed robbery at sea– Use, within the TS of Somalia, ‘all necessary means’ to repress acts of piracy and

armed robbery at sea• But detain? It is still a TS...

• All in accordance with LOSC 1982, and no change to international law

• Other authorisations related to territory of Somalia – not relevant for the issue of detention on the High Seas– But… what if you go ashore to disrupt a pirate nest – can you detain during that

operation?– It is a different context and thus a different regime

The detention decision is complicated...

• You find a mother-ship and 2 skiffs loitering near a SLOC, with 11 Somali men on board, RPG, AK47, lots of fuel, and a long ladder– Detain? For who to prosecute?

– Does the prosecuting State’s law account for the ‘fitted out for piracy’ part of ‘piracy’? (Seychelles example)

– Does it allow for ‘attempt’? Or ‘preparatory acts’? (Mauritius example)

– Have that state’s courts taken any particular views as to jurisdictional reach into the HS? (Kenya MV Sherry and MV Courier examples)

• During the boarding, one of the pirates attacks someone and causes serious injury / death– Detain? For who to prosecute?– What sort of additional jurisdiction might the State you hand over to

be able to exercise? (Tanzania example)

Detain – take home?

• Detention / custody lawful ab initio?– Power of arrest?

• Citizens arrest?

• Criminalised in Australian domestic law?– Caveats?

• Collecting evidence?– Navy? AFP?

• Getting suspects to Australia for prosecution?– Through where? How? Who? Other requirements?

• What if it does not succeed?

Some detention and transfer issues (1)• UJ for piracy opens up many more jurisdictional options than land based detention

operations

– Ashore, there will generally be a primary sovereignty and a detaining power which has to work within that broader sovereignty

– At sea, the only limits on available jurisdictions are:

• Has the proposed receiving State actually criminalised the offence? (Tanzania example)

• Will it take them (political will)

• But with wider choice comes greater complexity

– What MOU or other arrangements; what IHRL issues / mitigation / assurances?

• Complex matrix of EU and single State transfer arrangements creates wide jurisdictional choice, but also jurisdictional confusion

– Multiple evidential and handover regimes

• Tanzania search warrant issue

Some detention and transfer issues (2)• ‘Fair and efficient trial’ in the receiving jurisdiction?

– What standard do we apply – our own, or a reasonable regional standard?

• Timelines

• 50% of prison population in Kenya and Tanzania is on remand

– Remand review project

• ‘Humane imprisonment’?

– By what standard?

• Overcrowding in East African prison systems is endemic

– Lost punishment warrants?

– Support for sentenced persons repatriation processes?

• Happy to see prisoners we detained repatriated to Somalia to serve sentences?

– Conditions?

– Corruption?

Some detention and transfer issues (3)• Local prosecutors attending handovers from detaining unit?

– Kenya always do so– Seychelles will not (as is risk the prosecutor might be called by the

defence as a witness)

• If a photograph is used, the person who took it will need to appear– Kenya and Tanzania still require photographers to be gazetted by the

AG

• Need to have evidence pack well advanced at handover– In Kenya, the authorities must arraign the suspect before a Magistrate

within 24 hours of the arrest on the wharf in Mombasa

• Attitude of judiciary to when ‘arrest’ is effected?

• Status of any ‘questioning’ conducted by the detaining warship– Admissions, confessions, credibility evidence? – Seychelles; Kenya examples

Some future challenges• Catch, seize equipment, then release

– Disruption is clearly much easier than detention

– But does not necessarily achieve the mission, longer term?

• Collection of detailed evidence while in temporary detention, even if going to release?

– Information fusion

– Ultimately seek to conduct ‘normal’ law enforcement operations against financiers, organizers etc?

• If (when?) piracy – terrorism nexus becomes evident…

– Has important legal ramifications for some issue (eg ransoms)

– But will this change the detention regime?

• Are the pirates still just pirates?

• Or are they fighters members of an OAG?

• Does it even matter – do context and status change the detention regime in terms of actual application

• Does it change / limit handover options?

Thank You