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Prosecuting pirates is not my job, says the European Commission

ArrestPiratesEquipVisit-En100501.jpg (BRUSSELS2) It has been almost two years since the Europeans decided to tackle the issue of maritime piracy in the Indian Ocean. Two years since several hundred sailors – around a fifth of them Europeans – were taken hostage by Somali pirates and several million $ in ransoms were paid to recover boats and personnel. During this time, a coordination of maritime resources was first launched (EUNAVCO), then a maritime and air military mission off the Somali coast (EUNAVFOR Atalanta).

Several agreements have been made with neighboring states to deal with pirates. And several projects designed to tackle the causes of piracy, including strengthening the stability of the Somali state (EUTM Somalia mission). But, for two years, there is one sector where no progress has been made: the harmonization of European laws on piracy in this area.

Veto of the Commission to study this file

This file was first under the responsibility of French Commissioner Jacques Barrot and is now under the responsibility of Commissioners Malmström (Home Affairs) and Viviane Reding (Justice). But he didn't advance an inch. I have questioned my interlocutors at the Commission on several occasions. The answer was (at best!): “this is not on the agenda"And"we do not understand the meaning of your question".

In fact, it seems, according to some indiscretions collected, that this project has been studied. But not for very long, nor in very depth. No directive was given and the decision was quickly made to the highest level of the hierarchy. Treating and prosecuting pirates in the flag State or the victims is not very sanctimonious in certain Member States, which do not want to be subject to a general European obligation and prefer to stick to “case by case” treatment. ”, or even no treatment at all.

A sign of the Commission's notable disinterest: no representative of the Justice or Home Affairs directorate was present on Thursday during the piracy seminar organized by the Spanish presidency at the European Parliament, while all the other DGs (external affairs, development, fisheries, transport…) had delegated a representative.

A rather anachronistic situation as the EU continues to repeat around the world how great the need is to pursue pirates... Perhaps it is time to take this issue head on.

Do what I say, not what I do

First of all it is a question of credibility for the EU. How can we convince African states, such as Kenya, Tanzania, Mauritius, South Africa – which are not very well endowed with judicial and penitentiary capacity – to continue to pursue pirates for the first time, to change their law? criminal, for others, in order to provide for broad piracy incrimination, including acts that did not occur in their territorial waters; while the vast majority of EU member states have not enacted this principle of universal jurisdiction in their own laws (only five of them have done so and, again, of the five, almost none 'applied !). In several member states, there is no or almost no legislation on piracy, when the law does not date from previous centuries (17th century for the Netherlands!). In others, it is being implemented.

Then, this seems to me to be fair respect for international law. According to the Montego Bay Convention, and its article 105, it is the State which carried out the arrests which is competent. “ LThe courts of the State which carried out the seizure which can rule on the penalties to be imposed, as well as on the measures to be taken with regard to the ship, the aircraft or the property, subject to third parties in good faith. » It is the flag State of the boat attacked or of the one which apprehended the pirates which may have primary jurisdiction. The ECHR recently recognized that the Montego Bay Convention establishes a rule of “universal jurisdiction”.

It is also a practical and legal question: having a body of legislation, up to date, operational and fully respectful of the international convention. This is not the case currently. Only a few states that can be counted on the fingers of one hand have up-to-date legislation, others (Spain and France) for example are in the process of modifying their law. And the European Court of Human Rights was obliged to intervene to set a course of action regarding respect for procedural rights and human rights. A European law giving minimum requirements on the existence of an offense of piracy, the modalities of prosecution, compliance with procedures, settlement of conflicts of jurisdiction or law as well as transfer between the different Member States, seems necessary.

Finally, it must be remembered that the EU has a major role in global maritime transport. It controls 40% of maritime trade. And 9500 merchant ships carry the flag of one of the 27 member states.

What does Viviane do!

This file is now the responsibility of Viviane Reding, now European Commissioner responsible for Justice (if my information is correct because, in fact, everyone passes the hot potato). A Luxembourger who, despite her somewhat good-natured appearance, can turn out to be a real “candy breaker” when she decides to take on a case. We remember his firmness in leading the “roaming” file which is undoubtedly one of the rare successes of the first Barroso commission. Seizing it would undoubtedly be a serious helping hand to his colleague Cathy Ashton, to then convince African states to sign conventions for the treatment of pirates.

(Nicolas Gros-Verheyde)

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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