The anti-piracy operation in Somalia, a legal challenge?

(BRUSSELS2) The operation, which the European Union is going to launch against pirates off the coast of Somalia, will not be a simple military action. It includes an important public order component, which is similar to an international police operation. The question of the criminal law applicable to pirates, of their possible bringing before a court, and of the procedures to be applied must, in fact, be precisely defined. How to bring to justice a pirate of another nationality (or worse who refuses to decline the nationality) and who has no connection with the State which apprehended him (no act against a national boat or a national) ?

When the military stops, the police start

When a pirate ship is pursued, seized, and its perpetrators apprehended, the military action is over. But the police or legal action has only just begun. And that is not the easiest! The expeditious solution of yesteryear of hanging "high and short" or of the passage to the "board" towards deep water and the sharks is no longer applicable today. And if an international law exists - the convention of Montego Bay and the convention of Rome of 1998 on the repression of the illicit acts - it does not allow everything. And all the national laws of the Member States of the European Union have not planned to be able to judge pirates - who have no direct link with the State. Thus, according to a maritime expert, there are only two countries in Europe which have provided in their internal law for the possibility of judging pirates.

See a short analysis of the Montego bay convention and French criminal law.

Example of this "legal vacuum"

A few weeks ago, a Danish warship which had apprehended pirates had to resolve to free them - release them on a beach - because there was no legal provision to bring them to justice! As for the weapons seized, they (fortunately) tipped “inadvertently” overboard.

The "Legad" on board ships

"Intense work has therefore begun at the legal level", specifies a European diplomat. This is one of the "particularly important challenges such as never before in an ESDP operation", adds another. From an operational point of view, “the legal structure will be particularly strengthened, both on board the ships and in the headquarters, with the Legad (legal advisers such as Legal Adviser)” trained in these issues. It is also not excluded that officers with judicial police powers can take on board, to avoid what happened a few days ago.

At European Union level, harmonization of applicable law may therefore be necessary. This requires action in terms of criminal cooperation, known as the “third pillar”. We think about it...

(Nicolas Gros-Verheyde)