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Atalanta: first assessment six months later (6). The legal aspect of the operation

StopPiratesWeaponsEmden@De100319(B2) It is around the arrest and, above all, the judgment of suspected pirates that all the difficulties of the “Atalanta” operation are concentrated. Hence the importance of the legal framework of the operation as of the arrests. The juxtaposition of international, customary and national provisions which do not fit perfectly into a legal procedure does not simplify the work of seafarers and lawyers. A simple procedural error can lead to the obligation to release suspects or prevent their transfer to justice.

Legal basis of the operation Atalanta

The basis of the Joint Action is Article 14, its Article 25, third paragraph, and its Article 28, paragraph 3. Article 14 generally governs Joint Actions: “ These relate to certain situations where operational action by the Union is deemed necessary. Article 25 aims at the organization of the Political and Security Committee (PSC) to " political control and strategic direction of crisis management operations ". Article 28 organizes the funding mechanism (solidarity mechanism between Member States, extra-budgetary Athena).

It is the UN resolutions, with the Montego Bay Convention, which provide not only the legitimization of the use of force but also the authorization to enter the territorial waters and the "superjacent" airspace of Somalia, for the purpose of repressing piracy.

Resolution (1816) of the Security Council of the United Nations, adopted on June 2, authorizes, for six months renewable, “States cooperating with the Somali Transitional Government (to) enter the territorial waters of Somalia, with the aim of suppressing piracy and armed robbery at sea“. States are empowered to “use all necessary means", while respecting "the provisions of international law concerning action on the high seas".

The Somali transitional government must be warned of all " collaboration offers ". The EU thus sent a letter, on October 30, 2008, to the Somali transitional government, “ which contains proposals regarding the exercise of jurisdiction over persons apprehended in the territorial waters of Somalia ».

Security Council resolution (1846), adopted on December 2, extends this authorization for twelve months.

 Framework of arrests and judgments

EU ships can pursue and arrest pirates on the high seas – as permitted by international law (Montego Bay Convention) and in Somalia's territorial waters – as permitted by the UN resolution (1816 and 1838 lastly) – or other third States which have consented thereto. Djibouti has already given its agreement, other agreements are being negotiated, notably with the Seychelles.

But the provisions obliging a State to try on its territory persons guilty of piracy committed on another territory (or on the high seas) are incomplete. The UN Security Council resolutions (1816 and 1838) do not resolve this legal vacuum. They simply make it possible to fight against piracy in the territorial waters of Somalia, but do not require a modification of the national criminal law.

Depending on existing international law, and the differences in the national laws of the Member States, Atalanta's lawyers therefore had to define a preferred mode of legal action.

International legal framework

The international law of the sea has set the framework for intervention against piracy. Thus the Convention on the Law of the Sea of ​​Montego Bay of 1982 defines piracy and specifies the conditions under which military ships can seize pirate ships.

The definition of piracy is very precise: “any unlawful act of violence or detention or depredation committed by the crew or passengers of a ship, acting for private purposes, and directed against another ship or aircraft, or against persons or property on board them“. Piracy does not applythan on the high seas" or "in a place not under the jurisdiction of any State“. NB: in territorial waters, we speak of “ armed robbery ».

Faced with an act of piracy, “any State can intervene“. Two conditions: it must be “On the high seas" or "in a place not under the jurisdiction of any State” and only the “warships or military aircraft” can intervene as well as ships or aircraft assigned to a public service. They can seize the pirate ship, the hijacked ship, the pirates' property, and apprehend the pirates.

The Convention provides for a right of visit to any boat which “engages in piracy" west "without nationality“. The boarding vessel must dispatch a boat “commanded by an officer”. It can ensure the “verification of titles authorizing the wearing of the flag" and if "suspicions remain (…) examination of the vessel, acting with all possible consideration“. If the suspicions are unfounded, the vessel must be “compensated for any possible loss or damage, provided that he has not committed any act making him suspect".

It is the courts of the State of the boat, which carried out the seizure, which can decide on the penalties to be imposed. It is also the State which ensures responsibility “in case of arbitrary seizure“. Indeed, "when the seizure of a ship or aircraft suspected of piracy has been carried out without sufficient reason, the State which carried out the seizure is responsible to the State whose nationality the ship or aircraft has for any loss or any damage caused thereby".

As for the 1988 Rome Convention on “suppression of illegal acts against the safety of maritime navigation” (SUA), developed by the International Maritime Organization, it obliges all Member States to provide in their national law for the repression of acts of piracy which take place in its territorial waters, or against one of its boats. flying the flag or committed by one of its nationals. 52 states are part of it, including European states and Seychelles but not Somalia.

Community legal framework

No minimum legal framework exists at European level. And " We do not intend to provide such a framework » told us the office of Jacques Barrot, the European Commissioner for Internal Affairs and Justice. In any case, the arrest warrant is applicable between European States. Indeed, if "piracy" does not explicitly appear among the offenses subject to a European arrest warrant, the " hijacking of ships " and " organized or armed theft nevertheless appear there.

Only five states - Germany, Sweden, Finland, the Netherlands (according to a law dating from the 2008th century!) and Spain (since November XNUMX) have broad jurisdiction in their law allowing them to judge pirates universally. Several other states – such as France – have the possibility of bringing pirates to justice if national interest (flag of the boat attacked or nationality of the victim) is in question, regardless of where the offense occurred. Everything is then a question of political or judicial will to prosecute the perpetrators before national courts.

Competence Rule “ Atalanta »

Persons having committed or suspected of having committed acts of piracy or armed robbery apprehended and detained for prosecution in the territorial waters of Somalia or on the high seas, as well as property used to perform these acts, are transferred, according to the rules set by operation “Atalanta”:

– to the competent authorities of the Member State or third State participating in the operation whose flag the vessel which carried out the capture flies;

– or, if that State cannot or does not wish to exercise jurisdiction, to a Member State or any third State which wishes to exercise jurisdiction over persons or
the aforementioned goods.

A condition is placed on the transfer to a third State. " None of the persons may be transferred to a third State, if the conditions of this transfer have not been agreed with that third State in a manner consistent with applicable international law, in particular international human rights law, for guarantee in particular that no one is subjected to the death penalty, torture or any other cruel, inhuman or degrading treatment ". Clearly this excludes any transfer to Somalia, concedes a diplomat, given the state of decay of the country. But also Yemen, which refuses to give up the death penalty. In fact, says another, few riparian states, apart from Kenya, meet this condition ».

All the difficulty for the lawyers of Atalanta (on board the warships or at the Headquarters) is to know very quickly towards the justice of which country the pirate will be handed over. Depending on the case, in fact, the procedure for questioning, hearing and collecting evidence varies. In this, the agreement signed with Kenya has simplified the task. The commanders of ships in fact apply the Anglo-Saxon procedure, the common law, in force in Kenya. A guide has been produced giving ship captains the essential rules and what to do.

Agreement signed with a third State: Kenya

Endorsed on February 26 by the European Union, an agreement, in the form of an exchange of letters, was signed on March 6 with Kenya to bring to Kenyan justice some of the pirates - or people suspected of acts of piracy or armed robbery — apprehended by vessels participating in the military operation “Atalanta” (regardless of their EU membership). This exchange of letters has the value of an international agreement and is moreover based on article 24 of the EU Treaty which allows the signing of international agreements in the area of ​​the CFSP.

A budget was released at Community level (initially 1,7 million euros) to help the country bear the cost of judgments and the transfer of suspects to its prisons.

A real extradition agreement

This text amounts to a real extradition agreement. It therefore contains a number of details on the transfer procedure as well as the rights of the transferred persons (1). It gives EUNAVFOR representatives a power of verification and control over the fate of transferred people, in order to verify that they are well treated, which few people responsible for military operations normally have in a traditional jurisdictional system (except EULEX in Kosovo).

Kenya accepts the transfer of persons detained by EUNAVFOR in connection with piracy and transfers them to the competent authority for investigation and prosecution (same for seized property). He will not be able to transfer this person to another State without authorization from EUNAVFOR.

Transfer procedure

Any transfer requires the signature of the EUNAVFOR representative and the relevant representative of the Kenyan legal authorities.

EUNAVOR provides Kenya with data on the transferred person: the physical condition of the transferred person, the duration of the transfer, the reason for the detention, the start and place of the start of the detention, as well as any decisions taken with regard to their detention. detention…

Kenya must keep an accurate account of all persons transferred as well as previous data. These data are accessible to the EU and EUNAVFOR (upon written request to the Kenyan Minister of Foreign Affairs). Kenya also notifies EUNAVFOR of the place of detention of any transferred person, as well as any (possible) worsening of their physical condition or any allegations of ill-treatment.

EU or EUNAVFOR representatives may have access to transferred persons for as long as they are in preventive detention. International or national humanitarian agencies may, upon request, be authorized to visit transferred persons.

EUNAVFOR must provide assistance to the Kenyan authorities, within its means and possibilities: hand over detention data, evidence, testimony or affidavit (affidavit), handover of seized property, etc.

Any dispute or interpretation problem between the EU and Kenya is resolved diplomatically.

Rights of the transferred person

A certain number of guarantees are included so that the transferred person benefits from all the fundamental rights.

• Presumption of innocence.

• Right to be treated humanely and not to be subjected to torture, degrading, inhuman or cruel treatment or punishment. The incarcerated person must notably receive adequate shelter and food, as well as access to medical treatment and be able to perform their religious rites.

• Right to appear promptly before a judge or judicial officer who must decide, without delay, on the legality of the detention and must order his release if it is not legal.

• Right to be brought before a court within a reasonable time or to be released.

• Right to a fair and public hearing by a court established by law, impartial, independent, competent.

• Right to be informed promptly and in detail, in a language understood, of the nature and reason for the charges brought against them; adequate time and means to prepare his defense and communicate with the counsel of his choice. The suspect must be judged in his presence, and can defend himself either alone or through legal assistance of his choice. He must benefit from legal aid if his means do not allow him to pay for advice.

• Right to examine evidence and testimony against him.

• Right to free assistance of an interpreter, if the suspect does not understand or speak the language of the Court.

• Right not to testify against oneself or to admit guilt.

• Right to appeal the sentence to a higher court, according to the law in force in Kenya.

• The death penalty cannot be applied. Any sentence should be commuted to a prison sentence.

Despite the reluctance of certain countries (Finland in particular), European diplomats emphasize that this document provides sufficient guarantees so that the death penalty is not applied and that suspects are not subjected to degrading or inhuman treatment. This position can be reviewed in the event of “serious doubts” about compliance with the provisions of the international convention, it is specified.

(1) Lire: Agreement with the Kenya for the transfer of pirates ...

(photo credit: Bundeswehr)


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).