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  • 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 Ministers 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 States 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 states 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

    Detention in the Maritime Domain - Counter-Piracy OperationsOutlineSlide Number 3Pirates currently detainedFundamentals outside armed conflict, when can you detain on the High Seas?Detention and Piracy - Legal FrameworkUNSCRs critical elements re: detentionThe detention decision is complicated...Detain take home?Some detention and transfer issues (1)Some detention and transfer issues (2)Some detention and transfer issues (3)Some future challengesThank You