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A judgment of principle that sows trouble: the High Court of Mombasa releases 9 pirates

(BRUSSELS2, analysis) Bad news for all those fighting against piracy. And a “great” 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.

Judge Mohammed Ibrahim of the Mombasa High Court (credit: Kenyan Ministry of Justice)

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, almost in flagrante delicto, with the help of the American navy. They had just attempted to seize a cargo ship, the MV Courier, registered in Bremen on behalf of a German shipowner but flying the flag of Antigua and Barbuda (1). The soldiers discovered small equipment on board the skiffs: 3 AK 47 rifles, 1 SAR 80 rifle, a pistol, an RPG-7 rocket launcher. Not particularly the kind of tools for going 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 borders. territorial waters and that no court has jurisdiction in the matter. In doing so, he declared the immediate release of the nine suspects, thus definitively closing this case, according to the Kenyan press which gave wide coverage 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 Office of 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 than one way

This affair is symbolic in more than one way. 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 opened an investigation from the start, which it closed very quickly (the government meeting at the highest level 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 inhumane conditions of Kenyan prisons, while another asked for legal costs to be covered. Finally, in Kenya, it was followed with particular attention. The suspects' lawyer, Jared Magolo, has pleaded in several cases (2) including that of Spessart, and has thus become a specialist in piracy, using all procedural possibilities, pleading both on the merits (innocence of suspects, lack of evidence, etc.) than the form (non-competence 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 divergences in the assessment of the law between the different judges (5)), it nevertheless seems to me to be 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 location of the offense. That being said, as I specified, from the start of the EUNAVFOR Atalanta operation, the question of the fight against piracy is above all a matter of police and justice, and therefore a “legal challenge” above all (6) . By stopping pirates at sea, we are only bailing out a boat that is leaking on all sides; the real battle is fought on land, before the courts.

Weapons seized from pirates. (Bundeswehr)

But a legal defeat

Yes all the same! This is a significant legal defeat. Because this acquittal is not linked, as in certain cases, to lack of proof, errors of fact or law, or procedural defects. We are here faced with a question of principle: the competence 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 could occur in first or second instance in the trials currently underway both in Europe, in the USA (7) and in several countries of the Indian Ocean. European countries are not immune from such a decision. And, apart from a few rare exceptions (the Netherlands which apply old law, France, Spain and Belgium which have just or are in the process of updating their criminal law to bring it into conformity with reality and the Montego Bay Convention), most of the 27 preferred to subcontract 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 do not have suitable laws).

It's up to Europe to set an example!

Until a few weeks ago, the European Commission, like the EU Justice Ministers, was reluctant to take up this subject to propose harmonization, at least at a minimum, of the legislation of the 27 on the issue. piracy (8). Which, in my opinion, constitutes both a legal and political error. On the one hand, this arises from an international obligation which is within the competence of the EU (harmonization of criminal offenses linked to a Community transport policy). On the other hand, this serves as a counterexample. How can we ask the States of the region to include universal jurisdiction in their law and apply it, if we ourselves are unable to apply it?

Learn more

(1) Read: 9 pirates apprehended by a German frigate

(2) (From my understanding) The High Court is one of the main courts in the Kenyan judicial system. But it is not unique. There are around fifteen High Courts spread throughout Kenya. But it has multiple jurisdiction: 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 thus intervenes in appeals on decisions of first instance judges.

(3) Some of the pirates are believed to be from Sudan.

(4) Read in particular

(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 began recently in Hamburg (Germany) and Norfolk (United States), one for the attack on the MV Taipan on April 5, 2010, the other for the attack on the military ship USS Nicholas, April 1, 2010.

(8) Read: The missing link against piracy is … in Europe

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).

2 thoughts on “A judgment of principle that sows trouble: the High Court of Mombasa releases 9 pirates"

  • Louis le Hardy de Beaulieu

    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.

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