FIGHT AGAINST PIRACY THE LEGAL CHALLENGES AMBASSADOR THOMAS WINKLER CHAIRMAN CGPCS WG2 (LEGAL) LEGAL ADVISER MINISTRY OF FOREIGN AFFAIRS OF DENMARK

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1 MINISTRY OF FOREIGN AFFAIRS OF DENMARK FIGHT AGAINST PIRACY THE LEGAL CHALLENGES AMBASSADOR THOMAS WINKLER CHAIRMAN CGPCS WG2 (LEGAL) LEGAL ADVISER MINISTRY OF FOREIGN AFFAIRS OF DENMARK

2 AGENDA 1. CGPCS and WG2 2. WG2 work to date 3. Remaining key legal challenges i. Human rights issues ii. Prosecution i. The basic law ii. Ensuring national prosecution iii. Other mechanisms? 4. Conclusion 2

3 CGPCS and WG2 The need for international cooperation UNSCR 1851 > CGPCS 4 WG WG 2 legal issues Four meetings Next: May in Copenhagen 3

4 THE WG2 APPROACH Informationsharing Discussion of legal issues No text-negotiations practical, legally sound solutions to guide States and organisations the legal tool box 4

5 THE SCENARIOS Engage? Use of force? Apprehend? Detain? Prosecute nationally? Transfer? Post-prosecution transfer? 5

6 WG2 WORK TO DATE Legal basis for engaging pirates (UNCLOS, SUA, UNSCR) Little if any unclarity Use of force: Fight against piracy is a law enforcement operation conducted by military means Not armed conflict; not IHL, human rights law applies Apprehend?: UNCLOS art. 105, shipriders? Little if any unclarity 6

7 THE LEGAL TOOL-BOX Academic texts compilation of relevant international law Informationsharing e.g. on national counterpiracy legislation Check lists e.g. on national prosecution Templates: transfer MoUs, shipriders, evidencegathering Specific advice: hand over guides 7

8 WG2 BASIC CONCLUSION Not a lack of international law The need to understand and interpret the law The implementation into national law 8

9 REMAINING KEY LEGAL CHALLENGES HUMAN RIGHTS ISSUES The rights of suspected pirates when apprehended, detained and transferred E.g.: legal basis, right to legal process, nonhumane treatment, non-refoulement, Key issue at next WG2 meeting Necessary to translate administration of justice standards into RoEs Check list 9

10 PROSECUTION THE BASIC LAW UNCLOS: Universal jurisdiction No express obligation to prosecute Clear basis in international law for any State to prosecute if deciding to do so Main challenge: national law 10

11 ENSURING NATIONAL PROSECUTION THE APPROACH First question: may the apprehending State undertake prosecution? If no > second question: may the flag State of attacked commercial vessel undertake prosecution? If no and only then > third question: may a third State undertake prosecution? 11

12 THE CHALLENGES No universal jurisdiction in national law No national procedures in place No political will 12

13 THE ANSWERS (the WG2 check-list) All affected States should Introduce universal jurisdicion Establish national systems to deal with piracy cases Actually prosecute 13

14 TRANSFER Transfer to States willing to prosecute Need for arrangement (permanent or ad hoc) Need to support States willing to prosecute Current practical constaints: few willing States (the Seychelles, Kenya) the burden of imprisonment Main legal challenge: post prosecution 14 transfer

15 ANOTHER MECHANISM? WG2 assessment: most feasible model is dedicated piracy chambers in one or more States in the region National prosecution by national courts based on national law with financial, technical and personel assistance from the international community. Main practical/legal challenge: post prosecution transfer 15

16 Way ahead - UNSCR 1918: a report to the UNSC from the UN Secretary General Challenges on e.g. willing host States, need for focused international assistance, evidence gathering, witnesses, post prosecution transfer etc. remain regardless of chosen system More work to do for the WG2 16

17 CONCLUSION Only long-term solution to be found on land in Somalia In the mean-time WG2 will strive to 17 ensure comprehensive and adequate systems for prosecution in all affected States focus international assistance in the legal field to all States willing to prosecute Address remaining legal issues, including on post prosecution transfers