Outcome of UNCGPCS Working Group 2 on legal aspects of piracy
As mentioned in anews piece last weekWorking Group 2 (WG2) of the UN Contact Group on Piracy off the Coast of Somalia (UNCGPCS) held its 5th meeting from 17-18 May 2010 in Copenhagen. The main agenda items of the two-day meeting dealt with ensuring prosecution, apprehension and detention, and legal aspects of countering the financing of piracy.
Ensuring prosecution
A tour de table showed that a number of states are currently in the process of prosecuting suspected pirates in their national court systems. In relation to prosecution by third states, the EU informed that a number of bilateral agreements are being considered in addition to those already in place with Kenya and The Seychelles.
The UN Office of Legal Affairs (UN OLA) informed the WG about UN Security Council Resolution 1918 of 27 April 2010 calling on all states to criminalise piracy under national laws and tasking the UN Secretary General to present a report on possible option to further the aim of prosecuting and imprisoning pirates including, in particular, options for the creation of special domestic chambers, possibly with international components, a regional tribunal, or an international tribunal to that end. WG2 agreed to forward the results of its previous discussions on this issue to the UN Secretariat in order for these to be included in the basis for the Secretary Generals report. It will be recalled that the UNCGPCS at its meeting in January 2010 had called on all states and organisations to step up assistance to targeted judicial capacity building in the region, including in support of the development towards establishing specialised or dedicated piracy chambers.
A number of presentations were given dealing with capacity building, including updates on activities by the UN Office of Drugs and Crime (UNODC) in Nairobi, by the UN Development Programme (UNDP) in Somalia and by the IMO on the implementation of the Djibouti Code of Conduct.
As already mentioned, the agenda also included the question of securing the appearance of seafarers in court in connection with prosecution of pirate suspects. This issue, which was discussed under the agenda item dealing with challenges to prosecution, was introduced through a presentation made by the International Chamber of Shipping (ICS) on the availability of witnesses. Much in line with BIMCOs position, the presentation focused on the difficulties relating to contractual obligations for seafarers to participate as witnesses and on the importance of ensuring incentives to participate and avoid practical obstacles and potential harm of the seafarers affected. It is worth noting in this respect that WG3 on industry matters at its last meeting in March 2010 had formulated a negative reaction towards clauses forcing witness appearance. WG2 agreed to establish cooperation with WG3 in order to produce a list of possible incentives to facilitate seafarers appearance in courts as witnesses and to have the industry launch an information campaign on this issue. BIMCO continues to urge members to bear in mind the importance of active participation of witnesses for the successful prosecution of pirates.
Two more presentations were made under this agenda item: one dealt with the definition of piracy in relation to the possession of piracy related equipment; the other, presented by Interpol, dealt with evidence and sharing of identifying data from piracy incidents/piracy suspects. During this latter presentation Interpol stressed its wish to further co-operate with industry with a view to being able to react more quickly in piracy cases, e.g. to ensure collection of evidence following a ransom payment.
The second day of the WG2 meeting was introduced with an address by the Danish Minister for Foreign Affairs, Ms. Lene Espersen, stressing the threat of piracy to the international community and the need to ensure effective prosecution of suspected pirates, while highlighting the worrying fact that around 60% of pirates are not prosecuted for the time being.
Apprehension and detention
Discussions on apprehension and detention in a human rights perspective took place based on three presentations made respectively by University College London on counter-piracy law enforcement and human rights; by France on the implications of the European Court of Human Rights judgment in the so-called Medvedyev case; and by the UN OLA on international human rights law considerations in the apprehension, detention and transfer of suspected pirates. WG2 underlined the need for all states and organisations engaged in counter-piracy activities to ensure that the human rights of suspected and convicted pirates are taken duly into account.
Countering financial aspects of piracy legal issues
WG2 had a first discussion on the legal aspects of countering the financing of piracy based on a presentation made by the United States. During the presentation, the US stressed its concern with the increased piracy threat and referred to UN Security Council Regulation 1844 of 20 November 2008 (introducing restrictive measures against those who seek to prevent or block a peaceful political process in Somalia, or those who threaten the Transitional Federal Institutions or the African Union Mission in Somalia by force, or take action that undermines stability in Somalia or the region) and to the recent Executive Order by US President Obama dated 13 April 2010 (blocking property of certain persons contributing to the conflict in Somalia), which members have already been informed about in arecent news piece . During the brief discussion on this issue, BIMCO pointed to the legal uncertainties created by the Executive Order in relation to ransom payments and the major potential consequences for crews and vessels and asked for continued cooperation with the US authorities in clarifying the implications of the Executive Order. The WG noted the need for the UNCGPCS to ensure that the issue of countering financing of piracy is dealt with comprehensively, and pointed to the need to include relevant law enforcement agencies in this work.
The outcome of the WG2 meeting will be presented by the Chairman at the upcoming meeting of the UNCGPCS on 10 June 2010.
Source:bimco