News Blogmaritime piracy

Judging pirates: not in my backyard, say Europeans

(BRUSSELS2, mood) While the Kenyan courts have rejected any jurisdiction to judge in Kenya pirates apprehended on the high seas, in particular those caught by European forces (1), it seems to become urgent for the Europeans to adopt a somewhat more courageous on the legal treatment of pirates.

On the European side, it’s dead calm for the moment…

I had already asked the question in the past (2) and published an analysis on the subject (3). Today I took up the pilgrim's staff to try to find out where the transposition in the European Union of the Montego Bay Convention and the Security Council resolutions on the need to pursue pirates was. Result: ... it's a race to discard. Each directorate-general and commissioner continues to blame the other. Finally I asked the question at the European Commission's daily press briefing. A question that was not surprising since I had been asking for an answer for several days. And the answer is…: " we do not know. We'll come back to you as soon as we know more ". At the bottom of the steps, a Commission spokesperson gets away with a pirouette explaining that this is a competence of the Member States. And that the European Commission has no competence in this matter. This amounts, in fact, to an admission of failure. There…

Honestly, how can we convince African states to change their criminal law, to transpose the Montego Bay convention, then subsequently agree to prosecute pirates in their countries, if European countries do not even want to cross the start of the first step, required of African States, namely: studying how to adopt a modern and consistent law.

Because it must be remembered, on the high seas, it is first and foremost the law of the flag that counts – that of the attacked boat, the aggressor boat or the boat which caught the pirates in the act. Clearly, from a legal point of view, European States are just as concerned as African States. From an economic point of view, this is even more the case. But that’s where it gets stuck politically.

What are we talking about ? This involves implementing the Montego Bay Convention and Security Council resolutions. That is to say, to place legislation in each Member State which transposes universal jurisdiction in matters of maritime piracy and allows prosecutions according to modern law and not legislation dating from last centuries, which harmonizes criminal procedures (cf. judgment of the European Court of Human Rights) and avoids conflicts of jurisdiction (negative or positive). Concretely, what is piracy: hostage-taking and organized crime.

The legal bases at European level

Contrary to what people want to hear, there are indeed legal bases in the European Treaty which allow action. In particular articles 82 (judicial cooperation) and 83 (minimum criminal requirements). Article 91 (transport safety) could also apply.

  • Article 83. The European Parliament and the Council, acting by means of directives in accordance with the ordinary legislative procedure, may establish minimum rules relating to the definition of criminal offenses and sanctions in areas of particularly serious crime having a cross-border dimension resulting from the character or incidences of these offenses or a particular need to combat them on common bases.

Read also:

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).