Appendix 1 to the reply – Comments by the European Committee
on Crime Problems (CDPC)
1. At its 1085th meeting on 26 May
2010, the Committee of Ministers’ Deputies communicated the Parliamentary
Assembly’s
Recommendation
1913 (2010) on “The necessity to take additional legal steps to deal
with sea-piracy” to the CDPC for information and possible comments.
2. The CDPC welcomes the opportunity to provide an opinion on
the important issue of combating sea‑piracy.
3. The Committee notes that there exist various international
legal instruments and guidelines dealing with the issue of prevention
and combating of acts of violence against ships on the high seas
or their passengers: the International Maritime Organisation’s (IMO’s)
Convention for the Suppression of Unlawful Acts Against the Safety
of Maritime Navigation (‘SUA Convention‘ of 1988 and the 2005 Protocol
thereto; the United Nations’ (‘UN’) Convention on the Law of the
Sea (‘UNCLOS’) of 1982, articles 101-107, as well as the IMO’s Code
of Practice for the Investigation of Crimes of Piracy and Armed
Robbery against Ships (Resolution A.922(22)) specifically dealing
with piracy in the waters off Somalia there is the (‘IMO’) Code
of Conduct concerning the Repression of Piracy and Armed Robbery
against Ships in the Western Indian Ocean and the Gulf of Aden.
4. Both the United Nations Security Council and the Contact Group
on Piracy off the Coast of Somalia deal with sea-piracy and related
issues on a regular basis. In his report to the Security Council
of 26 July 2010 (doc. S/2010/394) on possible options to further
the aim of prosecuting and imprisoning persons responsible for acts of
piracy and armed robbery at sea off the coast of Somalia, the Secretary
General of the UN has outlined a number of options concerning the
establishment of regional or international tribunals to try persons
alleged to have committed acts of piracy. The Committee also notes
that UNODC runs assistance programmes in the region, in particular
in favour of Kenya, Seychelles and the Puntland and Somaliland regions
of Somalia. Kenya and Seychelles also benefit from assistance provided
by the European Union and the states that have concluded transfer
arrangements with them. The assistance provided by the European
Union and these states is principally delivered under the UNODC
Counter-Piracy Programme, although some of them also provide substantial
assistance on a bilateral basis.
5. The Committee further notes the existence of the Regional
Co-operation Agreement on Combating Piracy and Armed Robbery against
Ships in Asia (‘RECAAP’).
6. The Committee stresses that bringing alleged pirates to justice
is an important element of the overall efforts of the international
anti-piracy coalition. To ensure, without delay, criminal investigation
and prosecution of persons suspected of committing acts of piracy
and of financing or otherwise assisting in the preparation of such
acts would enhance the effectiveness of combating piracy. Impunity,
on the contrary, as in any other criminal activity, encourages more
individuals to get involved.
7. Some CDPC delegations consider that existing international
instruments are for now sufficient, and that what it is needed is
more action-orientated tactics and, for those countries facing specific
legal problems, a thorough review of national relevant laws with
the aim of assessing whether or not those existing instruments are
properly implemented on a more global scale than that possible within
Council of Europe member states’ geographic scope.
8. The Committee is of the opinion that a further review is required
in order to determine if existing ad hoc arrangements to deal with
piracy in national and international waters, including the aforementioned
RECAAP, should be further supported by a detailed and consistent
international legal framework prescribing the criminalisation of
acts of piracy at sea and providing a firm basis for co-operation
between participating states with regard to criminal law and administrative
measures in order to effectively combat piracy at sea, including by
ensuring that alleged pirates are brought to justice.
9. In the view of the Committee, the current international legal
framework could at the very least be examined to determine the extent
to which it may be insufficient, with particular regard to the following:
- While UNCLOS provides for a
clear definition of acts of piracy, it does not require states to
criminalise acts of piracy or armed robbery;
- UNCLOS also does not contain any provisions on international
co-operation in the fight against piracy or armed robbery;
- UNCLOS, however, includes a provision allowing other states
than the flag state to seize a pirate ship or a ship taken by pirates
and arrest and prosecute the pirates;
- The SUA Convention and its 2005 Protocol are not specifically
directed at acts of piracy for private ends (as defined in article
101 of UNCLOS); not all acts of piracy can be considered to fall
under the provisions of the SUA Convention and its 2005 Protocol;
- The 2005 SUA Protocol foresees, where applicable, a mechanism
to request a flag state’s authorisation to stop, board and search
a ship, its cargo and persons on board and a mechanism to request
the flag state’s consent to exercise jurisdiction including seizure,
forfeiture, arrest and prosecution;
- There may be uncertainty as to the application of the
SUA Convention in the fight against piracy at sea and in particular
the applicability of its provision on jurisdiction in case pirates
are captured by warships patrolling the sea.
10. In addition, experience in the fight against piracy has shown
that there are a number of difficult legal issues involved in case
of anti-piracy measures taken by naval ships far away from their
home state. In particular, this applies to the questions of detention
of pirates (detention periods, needs and possibilities for judicial
review) and transfer of pirates to other states that may agree to
accept the detained persons for the purpose of criminal investigation
and prosecution.
11. The CDPC is of the opinion that an in-depth review should
be undertaken on the basis of reliable data and in close co-operation
with other relevant international organisations and experts in the
field to evaluate current legal difficulties that arise in the fight
against piracy and that may call for a comprehensive international criminal
law instrument against piracy at sea.
12. The Committee considers on a preliminary basis that such an
instrument may deal with the following elements regarding international
criminal law:
- provide a clear
definition of ‘piracy at sea’;
- criminalise acts of piracy and those closely related to
piracy;
- establish a clear jurisdictional framework for the efficient
international co-ordination of policing, investigation, apprehension,
transfer or extradition and prosecution in piracy cases;
- where necessary, establish means to protect suspects in
case they are being transferred to third countries for the purpose
of criminal prosecution, as well as for victims and witnesses in
piracy cases;
- establish rules on the collection of evidence that will
facilitate their admissibility.
13. The Committee believes that a small expert team should be
set up, working under the auspices of the CDPC in close co-operation
with the CAHDI and the Committee of Ministers, to further study
the needs for such an international legal instrument and the feasibility
for its development in the framework of the Council of Europe.
