Presentation about Maritime Piracy (Slide 1) Good morning, my name is Henny Baan and I am a prosecutor at the National Public Prosecutor's Office in the Netherlands. Thank you very much for inviting me to your meeting. I m asked to tell you something about the fight against maritime piracy by prosecution. I m a Public Prosecutor specialized in criminal investigations in the field of international, organized crime and terrorism, but since the beginning of 2009 I have gained a great deal of experience in combating maritime piracy as well by getting involved in prosecuting several piracy cases. I can assure you that there are more challenges in those cases than you can imagine... (Slide 2) I d like to start with a brief global overview of the prosecutions regarding Somali pirates. As you can see roughly 20 countries are involved in prosecutions against approximately 1000 pirates. The countries who have taken their responsibility in prosecuting pirates will all confirm those trials are though, expensive and long lasting. Nevertheless it is very important to do it to end the impunity of the pirates. You probably will say despite those efforts mentioned still a lot of intercepted pirates walk free after being disarmed by the Navy. A situation you probably will understand at the end of this workshop. (Slide 3) But let me start with a brief explanation of why prosecution is necessary: 1) Maritime piracy is a complex of serious crimes including hijacking, kidnapping, extortion, murder, abuse and money laundering. Without exception, all victims are innocent seamen. They cannot be held responsible for the miserable situation in Somalia, yet these seamen and their families have to pay the price. So when the Navy has apprehended people who can be held responsible for these crimes, it is our professional duty to prosecute them and end the impunity for perpetrators of piracy. 2) The economic damage of maritime piracy is around 12-17 billion US dollars. Damage we as consumers and tax payers all have to pay for. 3) The acts of piracy by Somali pirates happen in a very vulnerable region. The illegal money flow from the ransom money has a destabilizing effect on the weak economic situation in the region and is causing other serious problems. By fighting pirates through prosecution, a country is contributing to maintaining international legal order. (Slide 4) In the prosecution of alleged pirates a distinction can be made between two types of cases: On the one hand the cases against defendants who were more or less caught in the act and were arrested. So far, the majority of cases has been this type of criminal cases. 1
On the other hand there are the cases against the so-called key figures in this type of organized crime. In general, these proceedings can only be brought after a thorough criminal investigation and they have, when compared to the first type of cases, their own unique problems in the fields of jurisdiction and evidence collection. (Slide 5) In the last three years I ve been dealing with four court trials against in total 29 pirates in the Netherlands. In the same period I ve been a liason officer between the Dutch Navy operation in counter-piracy operations and the prosecuters office. In that role I ve jugded a lot of interceptions of suspected pirates. During the mentioned period we have had to face various problems/challenges in different cases. In contact with my collegues in other countries all around the world involved in prosecuting pirates I learned they faced the same problems. I would like to cite some of those challenges on the basis of the three stages we also distinguish in our criminal law: - the apprehension stage - the pre-trial custody stage - the criminal proceedings stage (Slide 6) Some issues playing a role in the apprehension stage: - Where did the interception of the alleged pirates take place? On the basis of the relevant UN resolutions and bilateral conventions, the Navy is entitled to also operate in the territorial waters of Somalia and intercept alleged pirates. Speaking from a criminal-law perspective, sea robbery and piracy are only offences if they are committed on the high seas / in international waters. - What kind of evidence is available in relation to any possible acts of piracy? Experience shows that the suspects often take off at great speed when the Navy approaches and throw all incriminating items such as weapons, ladders, etc. over board. Do we only have a statement by an observer who saw that something was thrown over board, or do we have any photographs, for instance, from the helicopter, which photographs clearly show that weapons are being thrown overboard. - How can evidence be secured so that it will retain its value for future criminal proceedings? As you probably know the evidence rules in common law systems are quite different from those in for example the Dutch system. The Navy is not a law-enforcement organisation, but they are they are the first (and most of the times, the only) at the scene. So someone with experience in evidence collecting with regard to prosecution has to guide them. - Which country has jurisdiction in the case concerned and how can we obtain clarity at short notice whether that country is also prepared to institute prosecution proceedings? - If there is an emergency call from a merchant vessel that is being attacked by pirates, can the Navy then take action if the flag State of 2
that merchant vessel has not beforehand given its permission to board the vessel? (Slide 7) When it has been decided to apprehend the suspects in a criminal law sense, a number of new challenges arise. A small collection: - Is the Navy vessel sufficiently equipped to house a number of suspects for some time? Navy vessels are not prison ships, and depending on the type of naval vessel, the available space aboard the vessel may be minimal. - How can the identity of the suspects be established? Experience teaches us that the suspects never have any kind of identity papers with them and the names are often spelled phonetically, which may lead to a lot of confusion. - How can the age of a suspect be established? Many suspects appear not to have the slightest idea of their exact age and consequently give a completely random year of birth. Unfortunately, that year of birth has often been chosen in such a way that they would come under the category of minors, which leads to certain consequences in relation to punishment and court hearings - How can the time limits pertaining to criminal law be safeguarded? To give you an example: In Dutch legislation is has been laid down that after his arrest, a suspect needs to be brought before an acting public prosecutor who will then review the lawfulness of his arrest. There is no acting public prosecutor on board a Navy ship. Furthermore, it has been laid down that after his arrest, a suspect needs to be brought before an investigative judge within 87 hours. Even in the most optimistic scenario it takes at least 10 days before a person in custody can be flown from the Indian Ocean to the Netherlands. A lot of other countries does even have a shaper time limit, within 24 hours after the apprehension a suspect must be presented to a judge. - How can the rights of the suspects be safeguarded? A suspect is entitled to legal representation. How can this be realised in the middle of the Indian Ocean? How do we tackle the language barrier? (Slide 8) The court hearing stage is not without its own challenges either: - There is a language barrier and a significant cultural difference between the defendants and the other parties in the proceedings; - The possibilities to carry out any additional investigation at the scene are very limited and in most cases non-existent; - Further investigative activities in Somalia are impossible; - Important witnesses can sometimes not be traced anymore, or they can only be heard to a limited extent - after very lengthy and painstaking investigation; - Information gathered within the scope of a military action by the Navy, can usually not be used in a criminal investigation because of its confidential nature. 3
(Slide 9) Finally I d like to share some brief observations about a long-term approach of the piracy problem. Piracy is a type of organized crime and as such it should be dealt with in a criminal law fashion. This implies that more efforts will have to be made to track down and prosecute the key players in piracy, like the principals, the financial backers and the negotiators. For comparison: When combating international drug trafficking, we cannot limit ourselves to tackle only the junkies, but we should especially also tackle the dealers; when combating piracy, we should not only focus on the men being caught on the high seas, but especially on their leaders. Then again this investigation and prosecution stage has its own unique issues. Although information about the pirate leaders may be available, we as prosecutors know that in criminal proceedings there is a big difference between any available information and evidence. The pirate leaders are usually not in the front lines, but on the mainland of Somalia, or elsewhere in the world. It is a generally known fact that at this moment it is practically impossible to have a criminal investigation carried out in Somalia. Then it is also a fact that a relatively small group of pirate leaders, financiers and negotiators can be held responsible for a large number of offences. This may cause quite some jurisdiction issues, for instance when a pirate leader or negotiator is involved in the hijacking of ships sailing under a Greek, Panamanian or German flag, with on board the ship a crew that is being held hostage and crew members coming from the Ukraine, the Philippines and Korea. You will understand that such investigations can only be successful if various countries join forces and cooperate closely. (Slide 10) When I list all these problems, you may wonder why we institute any prosecution proceedings against pirates at all. But we as prosecutor know our job isn t supposed to be easy. In our fight for justice, and especially in piracy cases, I ve learned we need to think in solutions instead of in problems and we need to cooperate in this cases. Thanks to this starting point we ve proven it is possible to have successful prosecutions of pirates. And because of the interests that are at stake we need to enhance our cooperation and share our experience and knowledge with each other. To conclude my presentation I would like to emphasize that the prosecution of pirates is not the ultimate solution to the problem. We all know that the solution lies primarily in the creation of a stable situation in Somalia itself. In the meantime, however, prosecution can certainly contribute to the solution to the problem. It is a useful addition to the Navy's actions at the scene. If we are prepared to intercept pirates with much show of force, then we should also be prepared to take the next step and hold pirates responsible for their acts by bringing them to justice. Despite all the difficulties I have just listed, the prosecution of alleged pirates has appeared to be successful. It s important to keep in mind that piracy is not just the problem of the regions around Somalia: because of its extent and nature piracy is a 4
problem for us all and each country will have to assume responsibility, also in the field of prosecution. Thank you for your attention. Henny Baan Public Prosecutor National Prosecutors Office P.O. Box 395 3000 AJ Rotterdam The Netherlands h.baan@om.nl +31 6 48 130 343 5