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Ban Ki Moon's 7 Options for Bringing Pirates to Justice

(BRUSSELS2) At the UN Security Council, this August 25, there will normally be a question of piracy and in particular the bringing to justice of suspects arrested by international forces in the Indian Ocean (1). Even if this subject may take a back seat with the deteriorating situation around Mogadishu, the plenipotentiaries will certainly have carefully read the report (2) that Ban Ki Moon will have sent to them. Details…

Seven options studied

The UN Secretary General presents seven options: from the mechanism (already started) to support the existing courts in Kenya or the Seychelles (Option 1) to the international court, on the basis of an agreement between a State in the region and the UN (Option 6) or created by a Security Council resolution under Chapter VII of the UN Charter (Option 7) through the establishment of a Somali tribunal sitting in the territory of a State third party in the region, with or without the participation of the UN (option 2), the special chamber under the jurisdiction of a State in the region, without the participation of the UN (option 3), or with the participation of the UN (Option 4), the creation of a regional court on the basis of a multilateral agreement between the States of the region, with the participation of the UN (Option 5).

Each of its solutions is analyzed by weighing the advantages and disadvantages, both in terms of political feasibility, legal difficulties, necessary financial means (a main condition today) and the time required. Clearly the option that Ban Ki Moon prefers is the consolidation of the existing jurisdictions (option 1), or even the creation of a special chamber (option 3). The regional court or international court solutions require a period of implementation (from 2 to 10 years) and will be too expensive, especially in the midst of a period of budgetary austerity. For the record, the annual budget of existing tribunals and other international judicial mechanisms has reached a maximum located “between approximately $36,1 million (Sierra Leone Special Court) and approximately $376,2 million (Criminal Tribunal for the former Yugoslavia for a biennium).”

Realistic options: legal action in the states bordering the Indian Ocean

Option 1 (support for existing structures) is the most realistic, in the short term... And the least expensive. UNODC has already started this program in Kenya and Seychelles. Three other countries are likely to host pirates: Mauritius, Maldives and Tanzania. Mauritius being the most advanced (3). Exploratory missions are still underway. It is in Kenya, the oldest program, that the commitment is heaviest, with in particular the construction of a special court in the grounds of Shimo La Tewa prison, in Mombasa (inaugurated on June 24). ). A budget of $2,3 million, for a period of 18 months, covers around thirty prosecutions. The program in Seychelles benefits from funding of 1,1 million dollars, for a period of 18 months, covering the prosecution of around forty suspects. Furthermore, an orientation manual on transfers established, in collaboration with Kenya and the Seychelles, has enabled “ improve the quality of evidence collected and transferred by States whose vessels carry out patrols, and should help to ensure the smooth running of legal proceedings ". According to UNODC estimates, if Kenya, Seychelles, Tanzania and Mauritius join efforts in this area, they could pursue up to 600 to 800 suspects per year, at cruising speed.

In Somalia (option 2), even if the United Nations has a program for training judicial and police personnel, strengthening means for legal proceedings and reforming the legal system (activities financed by the International Fund for special allocation ($1,2 million for UNODC projects)), it seems too early to envisage that legal proceedings could be established on a regular basis. “ Although in principle such an option could be among the most economical, in practice the assistance that the UN would have to provide would be considerable. The costs would therefore probably be much higher than those of the special chamber, and the time to set up the tribunal much longer. (…) Even if such an option would have the advantage of allowing Somalia to participate directly in resolving the problem posed by the repression of acts of piracy, it is perhaps not possible for the moment » explains the secretary general. It should be noted that this option was not expressly considered in resolution 1918 (2) but had been raised by certain States, notably Portugal.

On the other hand, on the incarceration side, the Somali solution seems not only more likely but necessary in view of the various agreements made with the states bordering the Indian Ocean.

The solution of the special chamber (option 3) is the one which, in the medium term, seems the most feasible and the most sustainable (financially). This is to encourage the creation by a State or several States in the region of a court or a special chamber within its national judicial structure to prosecute the perpetrators of acts of piracy and armed robbery committed at sea off the coast of Somalia. The advantage is to be able to rely on the judicial, police and penitentiary structure of a State and to have proximity (cultural for prisoners, etc.). The disadvantage is the risk of creating, in the country itself, a two-speed justice system (NB: but doesn't it already exist?) or of diverting judicial and penitentiary human resources which are undoubtedly not legion . This solution can be supplemented by the participation of international personnel (option 2), but “ would help to strengthen the capacities of this jurisdiction” and would even allow – if the judicial personnel are chosen from the States of the region – “ better build regional capacity and contribute to long-term efforts to bring peace and stability to Somalia. » But this adds legal complexity (local law permitting) and is a bit more expensive ($14 million annually for East Timor's special chambers).

Regarding the other solutions, we can clearly see that they are considered but require financial and human investment (preparation time) which are not in line with the desire to achieve a short-term result for the States.

The question of imprisonment: in Somalia?

This is a crucial question. Just as much if not more than the legal question. The idea is therefore to be able to judge pirates in one place but, in most cases, to incarcerate them in other countries, the country of origin. Given the spread of piracy, this is not a matter of judging a few dozen people. The Secretary General thus considers that “ incarceration needs could reach 2000 people by the end of 2011 ". A figure much higher than that published by all existing courts. Because we must take into account: the suspects in pre-trial detention and the length of the sentences, quite long, of those who have been convicted (8 to 20 years in Kenya). As one expert from the Contact Group put it, “ the long-term burden imposed by prosecution lies not in the prosecution itself but in the resulting imprisonment. »

And most international experts, like those in the region, believe that it is necessary to incarcerate the convicts in their country of origin, for various considerations. cultural, linguistic and family (we should add: political and security). Added to this is the smallness of certain territories. Thus the 31 suspects placed in pre-trial detention, awaiting trial, in the Seychelles already represent almost " than 10% of the prison population » ! The weight is not identical, of course, in Kenya, where " 123 inmates represent 0,2% of the prison population”.

UNDOC has already started renovating prisons in Somaliland and Puntland, two largely autonomous regions of Somalia where violence is less intense than in the central part.

Somalia (specifically the Puntland region), has “ indicated that it was ready to accept Somalis sentenced to prison in other jurisdictions ". But, underlines the general secretary, assistance needed to bring detention centers up to international standards ". In Somaliland, UNDP and UNODC are completing the construction of a new prison in Somaliland. In Puntland, UNDP will complete the construction of a new prison by the end of 2010 and UNODC is rehabilitating a detention center. A staff training program is also being developed to “improve detention conditions”.

It will then remain to settle the question of the repatriation not only of the condemned but especially of the acquitted. " The problem arises whether charges are dropped for lack of evidence, for example, or the accused is acquitted.. Most welcoming States want to have, now, “ the assurance that these people can be repatriated, generally to Somalia, and that the expenses related to this repatriation are not charged to them ».

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(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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