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Piracy: an “off shore” Somali tribunal would be the best option according to the EU

weapons seized from suspects (credit: Spanish Ministry of Defense / Armada)

(BRUSSELS2) On the table of the 27 EU ambassadors, this Tuesday, was a recurring file on the fight against pirates in the Gulf of Aden and the Indian Ocean: what to do with (Somali) pirates once arrested?

The stakes are not small. But, paradoxically, the subject had not really been debated for many months in this forum. While according to official figures, more than 700 suspects or proven pirates had to be released, in the first half, by international navies deployed in the Gulf and the Indian Ocean, due to a lack of host countries and a suitable legal system (1 ). Today, only Kenya and the Seychelles, and soon Mauritius (1), agree to prosecute suspects arrested by European ships based on agreements signed with the EU. Puntland does the same, but bilaterally or informally (2), while Yemen welcomes suspects from other states.

Four options put on the table…

The ambassadors had at their disposal a paper from the CMPD (the EU civil-military planning directorate) which considered four possible options, according to a simpler and more condensed formulation than the 7 options of the UN paper presented by Ban. Ki Moon (4):

  • 1) a Somali jurisdiction, operating outside Somalia if necessary;
  • 2) jurisdictions of states other than Somalia;
  • 3) a regional court (based on the African Court of Human Rights or the East African Court of Justice or an ad hoc agreement);
  • 4) an international jurisdiction (on the TpiY model).

The advantages and disadvantages of each solution have been carefully weighed by the experts and debated by the ambassadors. But the need for a rapid solution seems to prevail at European level.

Thus, solutions 3 and 4 require an international agreement or the modification of a pre-existing agreement. Which is " long, expensive and complex explains a European expert. They are therefore rather part of a vision to " long term » unrealistic in relation to the needs on the ground.

Solution 2 has the advantage of being part of an existing penal framework, of being able to be quickly implemented. It was advocated during the " workshop » in Seychelles in May. The Indian Ocean archipelago has even applied to host such a tribunal, on condition that the detention is ensured by another country; a law is being prepared allowing prisoners to be transferred to third countries (while respecting human rights). But this solution requires having more agreements than today and financial support is also necessary.

Advantages and difficulties of an “off shore” Somali court

Solution 1 (which could be combined with solution 2), a Court established under Somali law in a third country and operating under Somali law. It has the advantage of legitimacy, a common language and legal simplicity », of the appropriation (“ownership”) by the Somalis without counting that of the continuity of the action – so prized by jurists – between the arrest (Somali citizen), the judgment (judge and Somali law) and the 'imprisonment. An agreement could be reached quite easily with the TFG and/or the autonomous provinces of Puntland and Somaliland. This solution is also part of a continuum action by the international community: rehabilitation of courts in Garowe, Galakayo, Bossasso and Gardo (Puntland); construction of 4 new courts in the south-central part of Somalia, training of judges and prosecutors from Puntland and Somaliland…

However, all difficulties are not over: if a draft legislation is being agreed between the TFG, Puntland and Somaliland, under the auspices of UNODC (the United Nations Office on Drugs and crime), it should not be denied that three Somali parties now have different justice systems. Moreover, no one is hiding it now, the GFT, fully supported by the international community, is in total disrepair – “A patient on life support” summarizes, in a concise formula (but which seems fair), a European diplomat. Financial assistance and the presence of external staff (judges, clerks, etc.) will also be necessary. To the point that the EU is also considering a new mission for the PeSDC, profiled “Justice”, which would also be necessary in the case of the other solutions (particularly solution 2). Read here.

(1) 700 pirates freed in the first half. Latest assessment… official
(2) Mauritius says yes to EU to bring pirates to justice
(3) Legal treatment of pirates: the French solution
(4) Ban Ki Moon's 7 Options for Bringing Pirates to Justice

(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).