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Piracy – a crime and a challenge for democracies

Resolution 1722 (2010)1

1.       The
Parliamentary Assembly is concerned at the upsurge of piracy,
which has become endemic in some stretches of sea, causes an
economic loss of billions of dollars every year, great human
suffering, with people being kidnapped, injured, traumatised
or killed and may serve to finance extremist or terrorist
groups. This phenomenon is directly related to the inability
of the coastal state to enforce police control in its
territorial waters or their proximity, due to lack of good
governance.

2.       Since
2009, the sea off the coast of Somalia has become the main
hotspot worldwilde with pirate activities expanding from
Somali territorial waters to the Gulf of Aden, Kenya,
Madagascar, the Seychelles and Tanzania and pirates using
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
the cargo on board.

4.       States
have started to co-operate and set up collective security
systems, with a view to deterring, defending against and
disrupting pirate attacks against 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 which generate piracy.

7.       The
practice of some Council of Europe member states to set free
pirate suspects 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
way to demonstrate genuine political commitment to enforcing
the rule of law.

8.       The
Assembly acknowledges that a number of hurdles prevent the
effective prosecution of pirate suspects, the main being that
the majority of pirate attacks take place in a state’s
territorial waters: in such cases, according to international
law, the sole responsibility for apprehension and prosecution
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 fit the
reality of today’s 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 (EUNAVFOR); the
Netherlands, the United Kingdom and the United States have
done likewise. The Assembly regrets that these arrangements do
not seem appropriate 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 theatre 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 of all the
agreements which they conclude with the European Convention on
Human Rights and other relevant human rights instruments. It
also recalls that they could be held responsible for breaches
of 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 of 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, detention on board or transfer of pirate
suspects irrespective of where they take place.

13.
Although lack of transparency surrounds the solution of 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, the Assembly, as regards
military deterrence:

14.1. encourages Council of Europe member
states to provide naval escort to ships crossing areas at
risk of piracy;

14.2. asks 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 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 the act of piracy wherever it takes 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 apprehension, transfer and prosecution of pirate
suspects apprehended in Somali territorial waters or on
Somali territory, pursuant to
Resolution 1851 (2008) of the United Nations Security
Council;

15.3. draw up rules on the treatment of
pirate suspects 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 prosecution of pirate suspects;

15.5. seek appropriate ways in which the
existing international legal framework can be adapted to
face current needs of policing 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 pirate suspects
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
pirate suspects after their transfer to a third country, in
particular as regards detention conditions, availability of
a fair trial, absence 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 generating piracy, in particular Somalia;

17.2.
support the efforts of the Federal Transitional Government
of Somalia as well as 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
outside, which mastermind pirate attacks and ensure that
they 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 occurring.

1 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).

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