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The legal structure of the EUNAV Somalia operation. First elements

(B2)The EU operation against pirates in Somalia (*) presents a “legal challenge" important. Because it is part of a context bordered by international law of the sea, UN resolutions, international law (habeas corpus, international human rights law) and the criminal rules specific to each State (jurisdiction, application of law, rules of criminal procedure, etc.).

To enable the military operation not to turn into a legal fiasco and to maintain its deterrent character (by avoiding the release of pirates), the lawyers of the Council of the EU, the specialists in the law of the sea in the ministries (defense or/and foreign affairs) Member States have been working for a few days (a few weeks rather...) to develop a whole series of mechanisms (essentially agreements and declarations) making it possible to respect all these constraints, and to fit one into the other each mechanism (international law of the sea, criminal law).

Here are some first elements…

(*) Full name: “European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the coast of Somalia”.

Compliance with resolutions

According to UN Security Council resolutions (§ 11 of Resolution 1814 and § 7 of Resolution 1816), an “offer” must be made by the European Union to the Transitional Federal Government (TFG) of Somalia. He transmits it to the Secretary General of the United Nations (UNSG). The decision to launch the operation cannot be formally adopted until the TFG has transmitted to the European Union a copy of this notification made to the UN.

The offer will take the form of a letter from the Secretary General/High Representative (SG/HR) to the TFG which takes up the mandate of the Joint Action and indicates the names of the Member States which wish to participate in the operation (currently or in the future). It also indicates that the participating States will exercise, “if they wish, their jurisdiction over persons and property apprehended in the territorial waters of Somalia”.

Agreement with coastal third countries force reception
A Status of Forces Agreement (SOFA) must be concluded:
− with Djibouti, on whose territory either staff elements or other elements of the force (maritime patrol aircraft) will be stationed,
− with Somalia, to cover the status of forces operating in its territorial waters (including EPE – on-board protection elements) or present temporarily on its land territory or internal waters (stopovers of ships, EPE and aircraft).
− with Kenya, to cover the status of forces accompanying WFP ships in its territorial waters or temporarily present on its land territory or internal waters (ship calls, EPEs and aircraft).

NB: these agreements could take the form of exchanges of letters with Somalia and Kenya and a “traditional” standard agreement with Djibouti.

Treatment of pirates once apprehended
Warships will be able to arrest pirates, detain them for a short period before their transfer to an appropriate country (State of the ship which apprehended, other Member State, coastal third State). But it is necessary – the EU Council believes – that the Commander of the operation – “responsible for the apprehension and then the short-term detention of prisoners on board the force’s vessels” -, have a “perfectly clear vision of the countries to which these prisoners should be transferred”. Certain formalities must therefore be completed “prior to launching the operation”, in particular in the form of a declaration from each Member State or coastal State required to “deal” with the pirate.

Pirate “treated” by a jurisdiction of a Member State

Each Member State participating in the operation must therefore indicate:
− if he wishes to keep on board his warship, for the exercise of his jurisdiction, persons captured by his warship;
− if it agrees to have persons captured by the warship of another Member State transferred on board its warship with a view to exercising its jurisdiction;
− if it cannot or does not wish to exercise its jurisdiction, the other Member State to which it will transfer the persons captured by its warship.

Pirate “transferred” to coastal states

The pirate can be transferred to a coastal state (Kenya for example) in the event:
− where no Member State can or wishes to exercise jurisdiction over persons and property captured by its warships;
− or if it turned out that none of the Member States having the possibility of exercising jurisdiction over persons and property captured by its warships agreed to exercise jurisdiction over persons captured by ships of war of other Member States and detained on board who cannot or do not wish to exercise their jurisdiction.
Each State (welcoming the pirates) will have to make a declaration (similar to that made by a Member State), guaranteeing in particular treatment of prisoners “consistent with international human rights law“. The technical arrangements for transfer (place of surrender, notice, documents to be provided, authorities of the third country to whom the prisoners would be handed over) would be the subject of technical arrangements between the administrative authorities of that country and the operation commander or the local presidency.

NB: Kenya is particularly cited since it is a state with certain legal and governmental structures (stronger than in Somalia), and where many international organizations (Nairobi) as well as the Seafarers Assistance Program are based there. in East Africa (in Mombasa). This is also where several civilian ships are based which provide supplies for the WFP.

Embedded Protection Elements (EPE)
These elements should be present on WFP ships (and pre-identified as such before the launch of the operation) or on other merchant ships “regardless of the flag” (by decision of the operation or force commander “in view of of a case-by-case assessment”).

  • On pre-identified vessels (PAM). The flag State of the vessel (hosting these elements) must make a “unilateral declaration legally binding and specifying the status of the EPE on board WFP merchant vessels. A draft declaration prepared by the Council secretariat is transmitted by Javier Solana to the flag states of vessels chartered by the WFP (currently these are Jordan, Panama, Saint Vincent and Grenadines, Comoros, Saint Kits and Nevis, Korea North).
  • On other ships. The operation commander or force commander will transmit to the flag State a draft declaration (identical to that used for WFP vessels). The flag State of the vessel issues a unilateral declaration legally binding and specifying the status of the EPE on board the merchant vessels concerned.

Participation of third States in the operation

Warships from third countries could (also) detain on board pirates or thieves apprehended within the framework of its mandate by force. Legally speaking, since the apprehension and detention are carried out by maritime force (this will appear in the text of the Joint Action), the transfer to the authorities of this third State must be authorized by the European Union, if these Third states wished to exercise jurisdiction over apprehended people and property. But prisoners must be “guaranteed treatment consistent with International Human Rights Law (IHRL)”.

Each participating third state should therefore sign a legally binding unilateral declaration, prepared by the EU, committing to ensuring treatment of prisoners in accordance with International Human Rights Law (IHRL)”.

(NGV)

Map: DICOD

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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