All the difficulties of Operation Atalanta centre on the arrest and, in particular, the judging of pirate suspects. Hence the importance of the legal framework of the operation and the arrests. All of this is complicated by the different international and national provisions that do not fit perfectly into a judicial procedure. A simple procedural error can mean that suspects have to be freed.

AUTHORISATION

The basis of the joint action is in Article 14, Article 25, third indentation, and Paragraph 3 of Article 28 of the EU Treaties. Article 14 governs joint actions: “Joint actions shall address specific situations where operational action by the Union is deemed to be required.” Article 25 refers to the Political and Security Committee with regard to “the political control and strategic direction” of crisis management operations. Article 28 is the basis for the financial mechanism (solidarity mechanism between member states, outside the Athena mechanism).

UN resolutions, along with the Convention of Montego Bay, provide not just for the legitimate use of force but also the authorisation to go into territorial waters and air space adjacent to Somalia in order to counter piracy. Resolution 1816 of the UN Security Council, adopted on 2 June, authorises, for six months (renewable), states cooperating with the Somali transitional government to “enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea”.

States are given the possibility to “use all necessary means” while respecting “international law provisions concerning actions on the high seas”. The Somali transitional government must be notified of all the “offers of cooperation”. The EU also sent a letter, on 30 October 2008, to the Somali transitional government, “which contains proposals regarding the exercise of jurisdiction against people arrested in the territorial waters of Somalia”. Resolution 1846 of the UN Security Council, adopted on 2 December, extends this authorisation for twelve months.

ARRESTS

EU ships can pursue and arrest pirates on the high seas – as international law allows them to (Convention of Montego Bay) and in the territorial waters of Somalia – as allowed by UN Resolutions 1816 and 1838 – where other third states have agreed to it. Djibouti has already given its consent and other agreements are being negotiated, notably with the Seychelles. But there are loopholes in the provisions obliging a state to judge people guilty of piracy committed on another territory (or on the high seas) on its territory. UN Security Council Resolutions 1816 and 1838 do not resolve his legal vacuum. They simply make it possible to counter piracy in the territorial waters of Somalia but do not oblige any change in national criminal law. Based on existing international law and differences in national law between member states, Atalanta lawyers have therefore had to craft a preferred legal mode of action.

DEFINITIONS

The international law of the sea has set the framework for intervention against piracy. Thus the 1982 Montego Bay Convention on the Law of the Sea defines piracy and specifies the conditions in which military ships can seize pirate ships. The definition of piracy is very precise: “Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed against another ship or aircraft, or against persons or property on board”. Piracy only applies “on the high seas” or “in a place outside the jurisdiction of any state”. NB: in territorial waters, one talks of ‘armed robbery’. Faced with an act of piracy, “any state can intervene”. There are two conditions: it must be “on the high seas” or “in a place outside the jurisdiction of any state” and only “warships or military aircraft” can intervene as well as ships or aircraft on government service (Article 107). They can seize the pirate ship, the ship taken hostage, the goods of pirates and arrest the pirates.

The convention foresees the right of visit on any ship which “is engaged in piracy” or is “without nationality”. The ship that does the boarding must dispatch a ship “under the command of an officer”. It can check the documents authorising the ship to fly its flag and “if suspicion remains […] it may proceed to a further examination on board the ship, which must be carried out with all possible consideration”. “If the suspicions prove to be unfounded and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.”

The courts of the state which carried out the seizure may decide upon the penalties to be imposed. It is also the state which ensures responsibility “in case of arbitrary seizure”. “Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the state making the seizure shall be liable to the state the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure” (Article 106).

As for the 1988 Convention of Rome for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, developed by the International Maritime Organisation, it obliges all member states to foresee in their national laws the suppression of acts of piracy which take place in its territorial waters or against one of its ships flying its flag or committed by one of its nationals. Fifty-two states are part of it, including European states and the Seychelles, but not Somalia.

COMMUNITY FRAMEWORK

There is no minimal legal framework at the European level. “We don’t intend to propose such a framework,” said the cabinet of Jacques Barrot, the EU’s justice, freedom and security commissioner. But while piracy is not one of the offences where a European arrest warrant can be used, “unlawful seizure of ships” and “organised or armed robbery” are.

Only five states – Germany, Sweden, Finland, the Netherlands (according to a law dating back to the 17th century) and Spain (since November 2008) - have in their laws an expanded jurisdiction allowing them to sit in judgement on pirates of any nationality. Several other states, such as France, can bring pirates to justice if the national interest (the flag borne by the ship attacked or the nationality of the victim) is at stake, wherever the offence took place. Then it is a matter of political or judicial will to pursue the perpetrators of the offence in national jurisdictions.

RULES OF JURISDICTION

People having committed or suspected of having committed acts of piracy or armed robbery in the territorial waters of Somalia or on the high seas, and who are arrested and held for judicial proceedings, as well as the goods that have been used to carry out these acts, are transferred according to the rules set by Operation Atalanta.

– to the competent authorities of the member state or third state taking part in the operation whose flag the ship that carried out their capture flies

- or, if this state cannot or does not want to exercise its jurisdiction, to a member state or any third state that wants to exercise it on the abovementioned people or goods.

One condition is placed on the transfer to a third state. “None of the people can be transferred to a third state if the conditions of this transfer have not been decided with this third state in a manner complying with applicable international law, especially international human rights law, to guarantee in particular that no-one is subjected to the death penalty, torture or any other cruel, inhuman or degrading conduct.” Clearly that excludes any transfers to Somalia, admitted a diplomat, given that it is not a state based on the rule of law.

But Yemen also refuses to get rid of the death penalty. In fact, said another diplomat, “few neighbouring states, apart from Kenya, respect this condition”.

The big difficulty for Atalanta legal experts (on board the ships or at the HQ) is to know which country’s justice system the pirate will be handed over very quickly. The questioning, court hearing and proof-gathering procedures vary depending on the case. In that sense, the agreement signed with Kenya has simplified the task. Ships’ commanders apply the Anglo-Saxon procedure of common law, which is in force in Kenya. A guidebook has been produced, setting out the essential rules and conduct for commanders to adhere to.

AGREEMENT WITH KENYA

Approved by the EU, on 26 February, an agreement, in the form of an exchange of letters, was reached with Kenya, on 6 March. Under the agreement, some of the pirates - or people suspected of acts of piracy or armed robbery - arrested by the ships taking part in the Atalanta military operation (whether they belong to the EU or not) can be brought to justice in Kenya. This exchange of letters has the value of an international agreement and is based on Article 24 of the EU’s Treaty, which allows international agreements to be signed in the area of the Common Foreign Security Policy. Funds were released at Community level (initially €1.7 million) to help countries bear the cost of court cases and transferring suspects to their prisons.

EXTRADITION

The text amounts to a real extradition agreement. It contains a number of details on the transfer procedure and the rights of the people transferred. It gives EUNAVFOR representatives the right to check that the people transferred are being treated well, something which few of those responsible for military operations normally have in a traditional jurisdictional system (except for the EU’s rule of law mission, EULEX, in Kosovo).

Kenya accepts the transfer of people detained by EUNAVFOR in connection with piracy and transfers them to the competent authority for investigation and proceedings (the same goes for goods seized). It will not be able to transfer this person to another state without EUNAVFOR’s permission.

TRANSFER PROCEDURE

All transfers require the signature of the EUNAVFOR representative and the relevant representative for the Kenyan legal authorities. EUNAVFOR provides Kenya with data on the person being transferred with, as far as possible, the physical condition of the person being transferred, the duration of the transfer, the reason for the arrest, when and where the arrest took place as well as any decision taken with regard to the arrest.

Kenya must keep a precise account of all the people transferred as well as the preceding data. These data are available to the EU and EUNAVFOR (upon a written request to the Kenyan Foreign Affairs Ministry). Kenya also notifies EUNAVFOR of where any person transferred is being held as well as any (possible) worsening of their physical condition and any allegation of ill treatment.

Representatives of the EU and EUNAVFOR can have access to people who are transferred for as long as they are in pre-trial detention. International or national humanitarian agencies can, upon request, be authorised to visit the people who are transferred.

EUNAVFOR must provide assistance to the Kenyan authorities in accordance with its means and possibilities: handing over arrest information, proof, witness statements or affidavits (statements made on oath) or handing over seized goods. Any dispute or problem of interpretation between the EU and Kenya is resolved via diplomatic channels.

RIGHTS OF THOSE TRANSFERRED

A certain number of guarantees are written down so that the person transferred enjoys all his/her fundamental rights:

• Presumption of innocence

• The right to be treated humanely and not subject to torture or degrading, inhuman or cruel treatment or punishment. The person incarcerated must in particular be given adequate shelter and food as well as access to medical treatment and to be able to carry out his/her religious rites

• The right to rapidly appear before a judge or legal officer, who must decide, without delay, on the legality of the detention and must order his/her release if it is not legal

• The right to be brought before a court in a reasonable period of time or to be released

• The right to a public and fair hearing by an impartial, independent and competent court established by the law

• The right to be informed rapidly and in detail, in a language he/she understands, of the nature and reason for the charges against him/her; adequate time and means to prepare his/her defence and communicate with the counsel of his/her choice. The suspect must be present when he/she is being judged and can defend himself/herself or be defended by legal help of his/her choice. He/she must benefit from legal help if his/her means do not allow him/her to pay for counsel

• The right to examine the evidence and testimonies for the prosecution

• The right to free assistance from an interpreter if the suspect does not understand or speak the language of the court

• The right not to testify against himself/herself or to admit guilt

• The right to appeal the sentence to a higher court, according to the law in force in Kenya

• The death penalty cannot be applied. Any penalty must be commuted to a prison penalty

In spite of the reticence of some countries (Finland in particular), European diplomats stress that this document gives enough guarantees for the death penalty not to be applied and for suspects not to be subjected to degrading or inhuman treatment. This position can be reviewed in cases of ‘serious doubts’ as to respect for provisions of the international convention, it states.