Piracy – A crime and a challenge for democracies
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on 28 April 2010
(14th Sitting) (see Doc. 12193,
report of the Political Affairs Committee, rapporteur: Mrs Keleş). Text adopted by the Assembly on
28 April 2010 (15th Sitting).
- Thesaurus
1. The Parliamentary Assembly is concerned
about the upsurge in piracy, now endemic in certain maritime areas,
which leads to billions of dollars in economic losses every year,
great suffering, as people are being kidnapped, traumatised, injured
or killed, and which may serve to finance extremist or terrorist
groups. This phenomenon is directly related to the inability of
coastal states to enforce police control in or around their territorial
waters, due to lack of good governance.
2. Since 2009, the sea off the coast of Somalia has become the
worldwide hotspot for pirate activities, from Somali territorial
waters to the Gulf of Aden, Kenya, Madagascar, the Seychelles and
Tanzania. In addition, pirates use increasingly sophisticated weapons
and technology.
3. So far, the main emphasis of the counter-piracy framework
has been on military deterrence: 45 countries have dispatched warships
off the coast of Somalia to escort merchant vessels flying their
flags or vessels in which they have a particular interest, due to
the nationality of the crew or the nature of their cargo.
4. States have started to co-operate and set up collective security
systems, with a view to deterring, defending against and disrupting
pirate attacks on ships, irrespective of their flag. In this context,
the Assembly commends the efforts undertaken by NATO and the European
Union, since 2008, with a number of successive military operations,
which have made it possible to deliver safely thousands of tons
of humanitarian aid to the Somali civilian population, thwart dozens
of pirate attacks and provide assistance to victims.
5. Military deterrence has managed to reduce the ratio of successful
attacks off the coast of Somalia from 1 out of 3 in 2006 to 1 out
of 6 in 2009. At the same time, the capacity of commercial ships
to avoid or escape pirate attacks on their own has increased considerably,
making them less and less reliant on private security firms.
6. The Assembly is convinced, however, that military deterrence
cannot provide a long-term solution to the problem of piracy as
its root causes are ashore. A comprehensive approach is needed to
address poverty, instability and lack of governance in Somalia and
other countries in which piracy flourishes.
7. The practice of some Council of Europe member states to set
free suspected pirates is a matter of concern. A comprehensive approach
to piracy requires ensuring effective prosecution as an integral
part of any credible deterrence effort and as a demonstration of
a strong political commitment to enforcing the rule of law.
8. The Assembly acknowledges that a number of hurdles prevent
the effective prosecution of suspected pirates, the main hurdle
being that the majority of attacks take place in a state’s territorial
waters: in such cases, according to international law, the sole
responsibility for apprehending and prosecuting the authors of acts
of piracy lies with the coastal state, as the principle of universal
jurisdiction does not apply, with the exception of Somalia by virtue
of Resolution 1851 (2008) of the United Nations Security Council.
9. In addition, some Council of Europe member states are reluctant
to enforce prosecution, on the grounds that their domestic legislation
is obsolete, unclear or unsuitable to deal with today’s forms of
piracy. Furthermore, in the case of international operations or
when a number of countries are involved, there are no clear rules
on which state should undertake prosecution, and in which order
of precedence.
10. The Assembly notes that the European Union has signed agreements
with the governments of Kenya and the Seychelles for the transfer
and prosecution of persons suspected of having committed acts of
piracy on the high seas and apprehended by navies of the European
Union Naval Force (EU NAVFOR); the Netherlands, the United Kingdom
and the United States have done likewise. The Assembly regrets that
these arrangements seem inappropriate to deal with the size and
the scale of the problem.
11. While acknowledging that the transfer of pirate suspects to
a third country is not per se unlawful, and that geographical proximity
with the scene of pirate attacks is important in order to facilitate
further investigations, collect evidence and hear witnesses, the
Assembly recalls that Council of Europe member states must ensure
the compliance with all commitments entered into on ratification
of the European Convention on Human Rights (ETS No. 5) and other
relevant human rights instruments. It also recalls that the states
could be held to account for breaching the Convention, for instance
when transferring individuals to a country where they might be subjected
to torture or inhuman and degrading treatment or where they would
not be given a fair trial.
12. The Assembly also recalls that compliance with the European
Convention on Human Rights is mandatory for Council of Europe member
states when exercising extraterritorial jurisdiction: thus, they
must abide by the relevant provisions of the Convention in the course
of apprehension, onboard detention or transfer of suspected pirates,
irrespective of where they take place.
13. Although lack of transparency surrounds most piracy cases,
especially those involving protracted kidnappings, there are grounds
to believe that the majority of them end with the payment of ransoms.
Council of Europe member states should introduce clear policies
and legislation to address this issue, in order to avoid further
encouraging piracy and the use of ransom payments to finance extremist
or terrorist groups.
14. In the light of these considerations, with regard to military
deterrence, the Assembly:
14.1 encourages
Council of Europe member states to provide a naval escort to ships
crossing areas at risk of piracy;
14.2 asks the North Atlantic Treaty Organization (NATO), the
European Union and countries concerned to renew and strengthen their
anti-piracy operations off the coast of Somalia;
14.3 recalling its
Recommendation
1858 (2009) on private military and security firms and
the erosion of the state monopoly on the use of force, encourages
Council of Europe member states to regulate the hiring of private
security firms by shipping companies.
15. As regards prosecution, the Assembly calls on Council of Europe
member states to:
15.1 modernise
and develop a common and more relevant domestic legal framework
in order to criminalise acts of piracy wherever they take place
and ensure prosecution in Council of Europe member states, or introduce
appropriate legislation where it does not exist;
15.2 introduce legal provisions to allow the arrest, transfer
and prosecution of suspected pirates apprehended in Somali territorial
waters or on Somali territory, pursuant to Resolution 1851 of the
United Nations Security Council;
15.3 draw up rules on the treatment of suspected pirates while
on board their military ships, ensuring full compliance with the
European Convention on Human Rights and other relevant international
human rights instruments;
15.4 step up international co-operation and agree on clear
rules for identifying the state responsible for the prosecution
of suspected pirates;
15.5 seek appropriate ways in which the existing international
legal framework can be adapted to face current policing needs at
sea and consider creating, provided all existing disadvantages in
this field are removed, a special mechanism (international or with
international participation) for the prosecution of persons suspected
of piracy.
16. The Assembly calls on Council of Europe member states and
the European Union to:
16.1 conclude
agreements with third countries on the transfer and prosecution
of suspected pirates and ensure that these agreements comply fully
with the European Convention on Human Rights and other relevant
international human rights instruments;
16.2 monitor closely the treatment of suspected pirates after
their transfer to a third country, in particular as regards detention
conditions and access to a fair trial, and ensure there is no risk
of torture and inhuman and degrading treatment or capital punishment.
17. Finally, as regards the elaboration of a comprehensive counter-piracy
framework, the Assembly calls on Council of Europe member states
to:
17.1 address the root causes
of piracy by supporting measures aimed at reducing poverty, promoting economic
recovery and development and strengthening assistance to countries
in which piracy flourishes, in particular Somalia;
17.2 support the efforts of the Federal Transitional Government
of Somalia and of the international community, in particular the
United Nations and the European Union, to restore peace and stability
in Somalia;
17.3 step up assistance to Somalia, directly or through the
World Food Programme, the United Nations High Commissioner for Refugees
and other human rights and humanitarian organisations;
17.4 establish clear policies and legislation against the payment
of ransoms, and ensure compliance by both private actors and state
authorities;
17.5 enhance international co-operation in order to identify
the criminal networks, based in Somalia or elsewhere, which mastermind
pirate attacks and ensure that those responsible are brought to
justice;
17.6 investigate whether ransom payments are used to finance
extremist or terrorist groups and, if so, take all necessary action
to stop this and prevent it from reoccurring.
