What to do with arrested pirates? Where to judge them? Where to imprison them? Answers…

(BRUXELLES2, analysis, exclusive) The release of arrested suspects is a concern for the international community. But minds are changing, as noted by B2 during a 'solo' interview with a high-level diplomat very familiar with these issues (he preferred, to be more free, to speak anonymously).

A very interesting interview because we were able to get to the bottom of two main subjects: why certain suspects are released; how can the prosecution of those who are arrested be carried out. And what practical solution is envisaged in the short term.

Why are the pirates released?

The release of suspects is indeed a problem. But is it is sometimes inevitable. " We investigated why suspects are released. And it is necessary to distinguish certain hypotheses. »

1. “The people approached are sometimes real fishermen. Others may be human traffickers or other criminals, for which we have no warrant. », contrary to piracy, established as an offense and giving competence to the public powers of arrest.
2. The lack of evidence. Can we have " any indications that hackers are going to do something or have done something. But no sufficient evidence to allow a prosecution. For example, if we take an individual carrying a life jacket or belongings from a hostage ship, there is great doubt that he participated in this act. But there is also no reason to suppose that he did not find or that he was given these effects. Anyway, nothing specific. (the causal link as we say in French law) to bring him to justice ". A lot of work has been started at Interpol, to collect all the evidence relating to the pirates who attempted to commit an act, or who committed it, but who were released. A database has been set up - for the time being in Virginia and which will be transferred to Lyon (interpol headquarters later). Database that can be consulted in real time by the various ships participating in anti-piracy operations. The interest is to be able to identify cases of recurrence.
3. The presence of evidence but not sufficient to go for a procedure. " We may have set the bar too high. explains the diplomat to B2. " Perhaps this scale of evidence needs to be reviewed. We discussed it with some judicial authorities in the region who did not have the same scale as us ". Judicial officers could be embarked on certain coalition ships in order to perfect coordination or to collect the first evidence according to the laws in force, particularly in the Seychelles.

How can the prosecution of those who are arrested take place?

Rather than setting up an international tribunal, which seems complicated, international experts are working mainly on the problem of the detention of Somali pirates, once they are convicted. " We started from the 7 options presented by the UN Secretary General, to the three options in Jack Lang's report and finally to two options: continuation in Somalia or in the countries of the region ". Exit, therefore, the hypothesis of an international jurisdiction that is too long and complicated to set up.

The "Somali" solution is also very complicated to implement. " At best, it will take several years, the experts tell us.. And then there is also the fixed principle. Despite all the obstacles, there are about “ 1000 pirates who are in front of a judge today around the world, mostly in the countries of the region but also in the United States, Europe, Korea and India. " Imagine what that means in charge for Somali courts ". There is also the cultural gap. " Our European concept of “Rule of Law” is quite difficult to transpose to Somalia, even quite “surprising”.

Finally, the solution of the judgment in the countries of the flag, or of the victims, that is to say in the countries of the "north", comes up against various political and/or legal obstacles. Some European states still do not have adequate legislation. " Not everyone has accepted universal jurisdiction for pirates. If the French, the Americans, the Japanese did it, not the British or the Danes for example. » This solution is not completely excluded. It responds to various concerns. "We can see the need for burden sharing in the lawsuit. »

What practical short-term solution?

The practical solution retained in the short term is therefore a trial in a few countries of the region and transfer to serve the sentence, once the judgment has been served in a Somali prison. This has the advantage of being able to more easily reintegrate the Somali pirate into his original society and avoid importing several hundred cases into other countries in the region or into Europe. Simple to say, harder to do.

The work is " more complicated and slower than one might suppose. The entire penal and judicial chain must indeed be put in place: from judgment to imprisonment, passing through the authorization of transfer to judicial control, criminal legislation, prison, judicial control.

On the prison side, work is already advanced. It is indeed necessary to have both prisons that comply with certain standards both in terms of humane treatment and security (avoid sieve prisons). The prison of Harghisa (in Somaliland) has just been redone, with the help of Unodc (the UN organization in charge of the fight against crime; work is beginning in Bossasso (in Puntland).

For criminal legislation, on the other hand, it is not yet there. Somalia - at the level of the Transitional Federal Government (TFG) - did not foresee that piracy was a crime that could be prosecuted. " It is a problem - recognize our interlocutor - Somali lawmakers have yet to approve this law as well as the prison transfer law ».

Finally, on the transfer side, it is a complex subject. An agreement must be worked out between the countries concerned: the country of origin and the country of destination (Somalia). But it is also necessary to obtain the agreement of each State which arrested the prisoners (or of the European Union in the case of the EUNavfor operation). A first transfer agreement was thus negotiated between the Seychelles and the various Somali entities, with a slight delay, only on the Somaliland side. The latter initially refused to accept prisoners other than those from Somaliland in its prisons. This almost reduced the interest of the text to nothing. In fact, it was above all the reception of prisoners from Puntland that posed a problem. Eventually he agreed to also take in prisoners from southern Somalia and accepted the deal. A first transfer could take place in the coming weeks, or months, from the Seychelles to Somaliland. A " test case ", rather " easy », probably concerning a prisoner from southern Somalia.