A judgment of principle that sows trouble: the High Court of Mombasa releases 9 pirates
(BRUXELLES2, analysis) Bad news for all those who fight against piracy. And a "beautiful" textbook case for Jack Lang, charged by the UN Secretary General with proposing original legal solutions to deal with piracy. THE Tribunal(High Court) of Mombasa in Kenya (1) on Tuesday, November 9, dismissed all charges of piracy against 9 alleged pirates arrested by the German navy in March 2009.
On March 3, 2009, in fact, a German frigate, which is part of the European anti-piracy mission (EUNAVFOR Atalanta), the Rheinland-Pfalz, apprehends 9 pirates, in near flagrante delicto, with the help of the US Navy. They had just attempted to seize a freighter, the MV Courier, registered in Bremen for a German shipowner but flying the flag of Antigua and Barbuda (1). The soldiers discovered on board the skiffs a small paraphernalia: 3 AK 47 rifles, 1 SAR 80 rifle, a pistol, an RPG-7 rocket launcher. Not especially the kind of tools to go fishing...
The judge of the High Court of Mombasa (Mohammed Ibrahim) however considered, in a judgment that can be considered as a matter of principle (2), that Kenya does not have the jurisdictional capacity to intervene in offenses committed outside its territorial waters and that no court has jurisdiction in the matter. In doing so, he pronounced the immediate release of the nine suspects, thus closing this case definitively, according to the Kenyan press which gives a wide echo to this judgment. The judgment also asks the government, in particular the Ministry of Immigration, to facilitate their safe release and return to their respective countries of origin...(3) Failing this, it asks the High Commissioner for Refugees (UNHCR) to take them under its protection, considering them as displaced persons who require its protection and to assist them in their return.
First analysis: Un decision in principle which requires a more appropriate reaction
We can immediately (on the spot) make several series of remarks
A symbolic affair in more ways than one
This case is symbolic in more ways than one. First of all, in Germany, it constituted a case of conscience. This is the first time that German naval troops have arrested people outside their territory in the history of the navy since the end of the Second World War. She was almost tried in Germany. The Hamburg public prosecutor's office had opened an investigation from the start, which it closed very quickly (the government meeting at the highest level had preferred to avoid a trial in Germany and hand over the suspects to Kenya). This did not prevent one of the Somalis from filing a complaint before a German court for "ill-treatment" and the inhuman conditions of Kenyan prisons, while another asked for the payment of legal costs. Finally, in Kenya, it has been followed with particular attention. The suspects' lawyer, Jared Magolo, pleaded in several cases (2) including that of Spessart, and thus became a specialist in piracy, using all procedural possibilities, pleading both on the merits (innocence of suspects, lack of evidence...) than the form (non-jurisdiction of the Kenyan courts). He thus sees his "efforts" rewarded.
A questionable decision
Without wanting to enter into discussions on Kenyan law (there seem to be differences in the appreciation of the law between the different judges (5)), it seems to me however contrary to both the text and the spirit of the Montego Bay Convention on the law of the sea which provides for "universal jurisdiction" for acts of piracy, regardless of the place of the offence. That being said, as I pointed out, from the start of the EUNAVFOR Atalanta operation, the question of the fight against piracy is above all a matter of the police and justice, and therefore above all a "legal challenge" (6) . By stopping the pirates at sea, we only bail out a boat that is leaking on all sides, the real battle is fought on land, before the courts.
But a legal defeat
Yes all the same! It is a legal defeat of consequence. Because this release is not linked, as in certain cases, to lack of evidence, errors of fact or law, or procedural defects. We are here faced with a question of principle: the jurisdiction of the courts of a country in the face of acts committed on the high seas, therefore in international territory. This type of judgment was expected, feared, and could spread.
A risk of oil stain effect
It is, in fact, to be feared that other judgments of the same type may occur in the first or second instance in the trials currently underway in Europe, the USA (7) and in several countries of the Indian Ocean. European countries are not immune to such a decision. And, apart from a few rare exceptions (the Netherlands which apply an old law, France, Spain and Belgium which have just or are in the process of updating their criminal law to bring it into line with reality and the Montego Bay Convention), most of the 27 preferred to outsource the problem of the judicial treatment of pirates to the countries of the region either for internal political reasons (Germany, Finland), or for legal reasons (they have no suitable law).
It's up to Europe to set an example!
Until a few weeks ago, the European Commission, like the EU Ministers of Justice, was reluctant to take up this subject to propose harmonization, at least at the minimum, of the legislation of the 27 on the question piracy (8). Which, in my opinion, constitutes both a legal and a political error. On the one hand, this stems from an international obligation which falls within the competence of the EU (harmonization of criminal offenses linked to a Community transport policy). On the other hand, this has the value of a counter-example. How to ask the States of the region to include in their law a universal jurisdiction and to apply it, if one is in oneself, made unable to apply it.
Learn more
(1) Read: 9 pirates apprehended by a German frigate(2) (As I understand it) The High Court is one of the main courts in the Kenyan judicial system. But she is not unique. There are thus about fifteen High Courts spread over the entire Kenyan territory. But it has multiple powers: criminal, civil, commercial and constitutional. It is thus competent in matters of interpretation of the Constitution as well as in matters of admiralty for the high seas, or the exclusive economic zone as well as piracy. She intervenes in appeals on decisions of first instance judges.
(3) Some of the pirates are believed to be from Sudan.
(4) Read in particular
- 7 pirates arrested by the Spanish navy sentenced to five in prison in Kenya
- 7 pirates arrested by Eunavfor sentenced in Kenya
- The trial of the SPS Spessart hackers continues
- The trial of the 7 pirates arrested by the Spessart continues
(5) A first judgment in May 2009 said somewhat the opposite, if I remember correctly. Read: Piracy: a judgment that could set precedent in Kenya
(6) Read: The anti-piracy operation in Somalia, a "legal" challenge?
(7) Two trials have recently started in Hamburg (Germany) and Norfolk (USA), one for the attack on the MV Taipan on April 5, 2010, the other for the attack on the military vessel USS Nicholas, April 1, 2010.
You conveniently put your finger on one of the difficulties linked to the application of the provisions of the United Nations Convention on the Law of the Sea in matters of piracy: Admittedly, its article 100 indicates that States have an obligation to cooperate "in all possible" to the repression of piracy. But it must be recognized that this provision is largely programmatic and, to be honest, quite incantatory.
Beyond that, articles 105 and 107 of the convention limit themselves to opening a normative competence for the benefit of the States in order to judge the pirates. However, the CDM does not require them to establish their criminal jurisdiction in this area.
On the other hand, it would be possible to rely on article 6 of the Rome Convention of 10 March 1988 for the suppression of unlawful acts against the safety of maritime navigation (known as the SUA Convention) to identify an obligation of the States of establishing their jurisdiction over certain violent offenses at sea. However, a triple condition limits the scope of this provision: the offense must have been committed on a ship or by a national of the legislating State; the offense must have compromised the safety of navigation and finally, the convention is obviously only applicable to its signatories.
Apart from that, it is the greater or lesser good will of parliaments that comes into play and, even in this case, we observe that national laws quite strongly padlock the framework of legal action, the legislators fearing that the exercise of truly universal jurisdiction does not overwhelm their courts and clog their prisons with cases whose processing will not stop at the end of the period of detention of arrested and/or convicted persons.
In this sense, the problem posed by the judgment of the High Court of Mombasa (which I have not yet been able to read in full) should not make us forget the responsibility of each State as much as of the international community. This responsibility is legislative and judicial, but – as you rightly recall – upstream, it is also fundamentally political.