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Bringing the pirates to justice. Spring review (Maj)

Arrest of suspected pirates by the Finnish frigate Pohjanmaa, April 2011 (credit: Finnish Navy)

(BRUSSELS2 / Exclusive) After several months when almost no Somali pirate was brought to justice by the anti-piracy forces deployed in the Indian Ocean, we are witnessing a very clear resumption of bringing to justice in recent weeks, according to the assessment that I was able to draw up. Handing over pirates to justice is both the “nerve of the war” – if we can use that expression – and the foundation of this international action. It should therefore not be underestimated.

India's determined action to systematically bring to justice suspects captured by its forces off Indian waters contributes to this. But not only. We are also seeing countries being brought to justice which previously remained passive (United Arab Emirates, Malaysia). And two new developments: the repatriation of pirates who fired on military forces (Netherlands) or the extraction of a suspect, accused of having wanted to negotiate a ransom (United States). On the other hand, trials in Kenya continue to drag on.

And several states outside the area systematically refuse to take charge of arrested suspects. This undeniably constitutes a breach of international universal jurisdiction and causes the rate of prosecution to fall. Knowing that several of the released suspects reoffend, this contributes to, rather than hinders, the development of piracy.

Half of the pirates brought to justice have already been tried

In total, since the resurgence of piracy in the Indian Ocean (in 2008) around 2000 suspects have been arrested, 777 pirates were brought to justice and 305 have already been sentenced to prison terms while 55 others were released by order of a judge. Nearly one in three pirates was handed over to justice. Which isn't wonderful. But not negligible either.

Almost one pirate in two has therefore been tried and convicted. Which is quite a good result. The sentences are generally between 3 years and 20 years in prison with a few exceptions (5 life sentences in the USA and one at 34 years in prison, as well as 7 death sentences in Yemen).

It can be noted that on the side of the anti-piracy forces there are strong differences both in the rate of prosecution (number of pirates brought to justice compared to the number of pirates arrested) and in the rate of loss (number of dead pirates compared to the number of pirates arrested).

Brought to justice: Good score for France, the forces engaged in a national capacity, and EUNAVFOR, bad score for NATO.

However, we can note strong differences between the various anti-piracy forces both in the rate of bringing to justice (number of pirates brought to justice compared to the number of pirates arrested) and in the rate of loss (number of dead pirates compared to the number of pirates arrested).

In terms of bringing them to justice, we can note the excellent score for France – when it intervenes under the national flag – a score which is due to the almost systematic translation of pirates caught to Puntland. A position to be qualified by two elements: since March 2010, no surrender to justice has been reported. Which is surprising given the continued presence of French ships in the region. This may also mean that several arrested pirates were not prosecuted (therefore not reported). France is the only country not to have convicted or released the suspects it arrested 3 years ago now for Ponant, two years for Tanit. That makes a lot.

We can also note the good score of the forces engaged on a national basis as well as the local forces. India with 143 brought to justice – including 120 carried out mainly in recent months in its own justice system – contributes a large majority to the excellent score for the “national” mode of action (*). It is followed by the United States (with 26 suspects brought to justice on its territory, the USA involved in the CTF having also handed over 33 suspects to Kenya) and by Russia (20 suspects handed over to Yemen).

Finally, we notice a continuation score of almost 30% for Eunavfor – thanks to the agreements signed with Kenya and, especially the Seychelles now, and to repatriations to the countries of capture (Germany, Netherlands, Belgium). The CTF's good score is mainly achieved thanks to the bilateral agreements between the Americans and the British with Kenya. The poor score of NATO forces (15%) poses a serious problem for the Atlantic Alliance, which is thus condemned to release the suspects arrested by its ships.

New countries have taken on pirates for trial but some countries remain resistant to the treatment of pirates, which brings down the rate of bringing to justice

In terms of destinations, we can see that Kenya has no longer received suspects since September 2010 (for the MT Sherry). The Seychelles welcomes suspects sparsely but regularly whether they are arrested by multinational forces or by its own forces (read: Seychellois coast guards' quick action to recover a fishing vessel). As for the agreement with Mauritius, it has not yet been signed. While the Maldives still have a very limited reception capacity.

On the other hand, in addition to Puntland, Somaliland and Yemen which bring to justice the pirates arrested by their forces, five new countries bordering the Indian Ocean have also started to deal with pirates arrested by their own forces: Tanzania (September 2010), Madagascar (Zoulfécar, February 2011), United Arab Emirates (Mv Arrilah, April 2011), India (Prantalay 11 and 14, Vega 5, Al Morteza, January to April 2011) and theIran (February 2011).

Outside the Indian Ocean, three new overseas countries have dealt with pirates: Belgium (Pompei, November 2010), South Korea (Samho Jewelry, January 2011), Malaysia (MT Buga Laurel, January 2011). And the United States continues to welcome different suspects when their interests (personal or material) are at stake.

On the other hand, several countries almost systematically refuse to receive suspects arrested by their forces (Australia, Russia, Denmark, Greece, United Kingdom, Turkey, etc.) or by others while their direct interests (nationality of sailors, flag or nationality of the shipowner) are in question.

The loss rate decreases when the action is multinational

According to my sources, there were at least 102 pirates killed during a piracy action, either in defense of the forces on board, or more often during an action to recapture the boat. This pirate mortality rate increases when the action is carried out under the national flag or by local residents (respectively 17% and 5% compared to 2% of NATO and 0,5% of EUNavfor or CTF). There are three explanations for this. On the one hand, the rules of engagement negotiated by multinational forces provide for a succession of actions, before firing, thereby limiting the response. Secondly, the action of certain countries (India, Russia) apparently does not bother with too many complications. Finally, the most offensive actions, the liberation of a ship by force for example, and therefore with the greatest risks, are carried out under the national flag (and not under the multinational flag).

Attention ! The statistics are not perfect…
These statistics suffer from several shortcomings.
1. We often know the hacker better when he is brought to justice than when he is released.
2. Multinational forces are often better counted (not all the time!) than local forces. It is therefore difficult to verify the number of suspects arrested and released in Puntland or Somaliland. This reflects a statistical distortion, with a very good score for bringing to justice.
3. Generally when the action is more offensive, it is carried out under the national flag, which explains a higher rate of prosecution and a higher loss rate.

(*) For practical reasons, of “statistical continuity”, India is counted in national interventions even if from a legal point of view, piracy having moved closer to Indian coasts, it should now rather be counted in “local” mode. But we cannot compare the substantial Indian system with states like the Seychelles, Mauritius or even Kenya which do not automatically have significant coast guard resources.

Download the balance sheet summary

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(updated, April 25: adjustment of certain figures (Iran, Netherlands, Seychelles) and taking into account the resumption of the Gloria.

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).