Prosecuting Suspected Pirates

The following notes to assist readers in understanding the difficulties faced by EU NAVFOR in the fight against piracy:

• Once suspected pirates are detained, and as EU NAVFOR has no authority to prosecute suspected pirates, it has to seek a State willing to prosecute them;
• According to international law (and relevant United Nations Security Council resolutions) concerning piracy, all States have jurisdiction to prosecute persons suspected to be involved in piracy;
• According to article 105 of the United Nations Conventions on the Law of the Sea (UNCLOS), the State that seized the suspected pirates has the right to prosecute them;
• If this State doesn’t want to prosecute the suspected pirates, other States will be asked to consider the case;
• In general, the Flag State of the attacked or pirated vessel is the next State to be contacted. Other States that could be asked to prosecute the suspected pirates are States who’s nationality the crew members are from, the State the shipping company is from or any other State that has a national link to the case;
• EU NAVFOR will also contact States with which EU NAVFOR has an agreement to accept piracy cases;
• EU NAVFOR will only contact a State for a transfer of suspected pirates if that State complies with certain standards of human rights (like the absence of the death penalty or corporal punishment).  If the State in question has the death penalty or corporal punishment in its legislation, EU NAVFOR will, before any transfer is made, seek for assurances that these will not be applied to the suspected pirates;
• In the case with FNS POHJANMAA, there was no State willing to prosecute the pirates, and as EU NAVFOR is not able to detain the pirates indefinitely (as this is in breach of the regulations of the European Convention on Human Rights) EU NAVFOR decided to release the suspected pirates.

The key points to understanding the complexities of the capture and detention of suspected pirates are outlined below.

The United Nations Convention on the Law of the Sea (UNCLOS) is the principal piece of international law that governs the use of the high seas and territorial waters of States. Of particular note are Articles 100 and 101 which defines the offence of piracy and permit any State to exercise jurisdiction in repressing and, therefore, prosecuting acts of piracy.  Article 101 states:

‘All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state’.

Article 101 of the same convention articulates the UN definition of piracy:

Piracy consists of any of the following acts:

(a) 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:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or

aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Requisite Criteria

The ability to prosecute suspected pirates is dependent on States’ having the offence of piracy within their national legislation.  Where suspected pirates have been apprehended but where there is no evidence of them having taken part in an actual attack or attempted attack, States may be able to prosecute for conspiracy to commit acts of piracy provided firstly that their own national legislation makes piracy an offence and, secondly, that their conspiracy laws are able to be applied. The legal definition of conspiracy will vary from State to State but essentially is:

‘An agreement between two or more persons to engage jointly in an unlawful or criminal act, or an act that is innocent in itself but becomes unlawful when done by the combination of actors’.

States choosing to exercise their jurisdiction to prosecute suspected pirates will often seek one of or a number of connections before agreeing to prosecute. For example, the nationality of the ship (flag state) or its crew, or the location of the incident, e.g. within a country’s Exclusive Economic Zone.  This connection may be required to be combined with an evidential threshold in order to meet the respective national requirements which can vary considerably from State to State.