Practicalities of pirate prosecution raises questions

Hey there, time traveller!
This article was published 22/05/2009 (5994 days ago), so information in it may no longer be current.

ON BOARD HMCS WINNIPEG in the GULF OF ADEN — With his frantic tone, the captain of the Maria K. left no doubt that he was facing a world of trouble.

Without warning, a light-blue skiff with nine pirates fired several rocket-propelled grenades (RPGs) launcher at the Maria K. The captain attempted evasive maneuvers but like most of the slow, awkward merchant vessels that travel the trade route through the Gulf of Aden, they were sitting ducks.

And then, at the last moment, the pirates disengaged and headed toward another container ship, the Maersk Virginia. Perhaps because the pirates got up close to the Maria K. and found she had troublesome counter measures, or perhaps because the Maersk Virginia held the promise of more robust loot, the chase was on with new quarry.

The radio on the bridge of HMCS Winnipeg vibrated with the rapid-fire transmissions going back and forth between the two merchant ships and several warships in the area. Although this incident was outside the Winnipeg’s patrol box, Commander Craig Baines immediately steered his frigate towards the coordinates of the Maersk Virginia, and sent word to ready Winnipeg’s Sea King helicopter, for immediate dispatch.

The confrontation was unfolding some 70 miles north of Winnipeg’s position. At the frigate’s top speed of 30 knots, it would take more than two hours to reach the Maersk Virginia; fortunately, the helicopter can travel the same distance in about 20 minutes.

"There’s no question now that we’re going to get them," said Baines. "It’s only a matter of time."

The Canadian captain’s confidence was not unfounded. The pirate skiff had, against heavy odds, wandered into an area surrounded by five warships. By the time the Sea King got within four miles of the Maersk Virginia, an Italian warship, the Maestrale, had confronted the skiff with warning shots from its helicopter and repelled the attack. Eventually, the pirates surrendered and, having already ditched all of their weapons, allow the Italians to board.

"It appears the pirates just picked a bad spot today," Baines said with a slight grin.

As he watches and listens to the chatter between warships and merchant vessels, Baines listens carefully to a Judge Advocate General (JAG) lawyer for the Canadian Forces, Major Warren Fensom, who advises the commander on the legal complexities of the anti-piracy mission. It is unusual to have military lawyer on the front-line of mission like this, but then again, this mission is unusually complex.

Piracy is a criminal act where it is often unclear which nation if any has jurisdiction over the alleged criminals. Legal jurisdiction can be impacted by the flag the merchant ship is flying under, the nationality of the captain and crew, the owners of the ship and even the owners of the cargo. Finally, jurisdiction is further complicated by the nationality of the warship that responds to the merchant vessel’s distress call.

And then there are the evidentiary issues. Somali pirates may come from humble origins, but they know enough to frustrate efforts to build a case against them.

Once confronted by a warship, a pirate skiff will dump its ladders, grappling hooks and other boarding tools into the sea. (The ready availability and affordable price of military grade weaponry in Somalia’s black markets make ditching an RPG launcher or AK-47 an easy decision for most pirates.)

The legal peculiarities of anti-piracy operations came fully into focus following the well-publicized incident on April 18 that saw the Winnipeg board and detain a pirate skiff. To the amazement of many Canadians, after seizing weaponry and other evidence of their nefarious purpose, the suspects were released.

The blowback from this incident was almost immediate. Media commentators from across the country challenged the efficacy of the anti-piracy mission. Ottawa was chastised for running a "catch-and-release" program.The fact that Canada’s Criminal Code allows for prosecution of pirates in Canadian courts caused further confusion and concern.

However, a more careful examination of the legal context, and the challenges of mustering evidence in such difficult circumstances, suggest that trying pirates in Canada may not be a good value.

Only two nations are attempting to try alleged Somali pirates — The Netherlands and the United States — and in both instances the trials have unearthed a series of complex issues.

There are political concerns some of the pirates are too willing to be captured and taken for trial to developed country. Media interviews with the pirates in The Netherlands have suggested that some use prosecution as an opportunity to claim refugee status. This has unleashed a torrent of skepticism about the practical value of prosecution.

In Canada’s case, a number of legal questions remain unanswered. Would evidence from a search, seizure and arrest of alleged pirates carried out under the terms of an United Nations resolution be considered admissible in a Canadian court governed by the Charter of Rights and Freedoms?

One could assume that a good defense lawyer would find fertile grounds to challenge the legality of the broad and wide-ranging powers granted to warships in the Gulf of Aden, powers that easily exceed those granted to law enforcement agencies in Canada.

Canada is currently negotiating to have any alleged pirates it detains taken to Kenya for trial. By all accounts Ottawa began these discussions prior to the arrival of HMCS Winnipeg in the Gulf of Aden. The fact that an accord with Kenya was not in place earlier suggests that Canada, and other NATO countries, may have underestimated the willingness of the Somali pirates to continue attacking merchant vessels after warships populated the region.

The simple fact remains that while piracy remains a constant threat in this important trade corridor, successful attacks are way down. This suggests that repelling the attacks, while it doesn’t eliminate the threat, it does have practical value.

However, there is no reason to believe the attacks won’t pick up in frequency and ferocity if and when the warships leave the gulf. There are currently 28 warships serving in five different international forces, but some, like the NATO group that includes HMCS Winnipeg, are expecting to wind up their operations in June.

For now, it appears that international forces charged with repelling the pirate attacks will consider prosecution if necessary, but not necessarily prosecution to get the job done.

dan.lett@freepress.mb.ca