27 May 2009

What to do with a captured pirate?

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By Sophie Hardach

PARIS, May 26 (Reuters) - As navies from around the world confront Somali gangs off the Horn of Africa, a small legal issue is turning into a major problem for the mission and the governments involved: what to do with the captured pirates?

Faced with escalating pirate attacks in one of the world's busiest shipping routes, European Union forces rushed to the Indian Ocean in December -- only to find that after chasing and detaining the suspects, the next step was unclear.

Many Western governments are reluctant to bring suspects into their own countries, lacking the jurisdiction to do so or fearing the Somalis might try to claim asylum. Lawless Somalia is unlikely to give them a free and fair trial.

Some forces simply set them free again.

Trying to solve the problem, the European Union, the United States and a growing number of other pirate hunters have started outsourcing trial and prosecution to Somalia's neighbour, Kenya.

But Kenya, with an eye on its volatile neighbour, has made clear it cannot take all Somali suspects.

There is already one German lawsuit challenging the Kenyan arrangement. Some lawyers say governments have thrown themselves into a legal experiment that lays them open to compensation claims and raises questions about the maritime operation itself.

"Has it been given a lot of thought? I don't think so. If it had, the legal aspect would have been considered more thoroughly," said Timothee Phelizon, a lawyer whose Somali client, Ismael, is held in a French jail.



PIRATES IN THE DOCK

Ismael and five other Somali men are accused of attacking a French yacht and holding its crew hostage in April 2008. Phelizon said four of them had nothing to do with the hijacking, and would have to be released without charge.

"It's a very political case. Because if in the end there are only two people who will be put on trial, then there are four who will have spent a year in France behind bars. And they can demand compensation and a parliamentary inquiry into why four innocent people spent 12 months behind bars," he told Reuters.

France holds 15 Somali pirates who were caught during or after attacks on French crews. Phelizon argues they cannot be sent back as other pirates will suspect them of having divulged secrets to the French. He expects them to claim asylum here.

Others have been shipped to Mombasa. The EU struck a deal with Kenya in March over suspects seized by its "Operation Atalanta", and has since then transferred more than 50 men.

The United States in January expanded an older deal with Kenya. Like France, it still decided to tackle the issue itself when its national interests were at stake -- a Somali teenager, the sole surviving accused pirate from an attack on U.S. container ship Maersk Alabama in April, was indicted in the United States on ten counts in May.

NATO, which is also operating in the area, is scrambling to hammer out a deal after it was publicly rebuked by the United States for freeing captives. 

Military sources told Reuters that the initial confusion was frustrating for them. Officials have cheered the Kenya deal.

"For us, it's a blessing that we have this rule, that we have a place where we can drop them off," an Atalanta spokesman said.

But despite everyone from Russia to India to the United States patrolling the Gulf of Aden and Somalia's east coast, pirates continue to do their business.

There were 111 attacks in 2008; so far, 2009 has already seen 114, according to the International Maritime Bureau.



"PLAYING POLICE"

Maritime experts believe that successful prosecution will somewhat deter pirates, who pay attention to legal developments.

But human rights activists question Kenya's suitability.

German lawyer Oliver Wallasch, whose links with human rights groups led him to represent a Somali caught by German forces and shipped to Kenya, said he should be tried in Germany.

"When I hear, oh but then they'll ask for asylum -- so what! If Germany takes on the task of playing police down there, then it should also be able to cope with asylum requests from five Somalis," he told Reuters in a phone interview.

Arguing Kenya does not meet EU justice standards, Wallasch is suing Germany's government on behalf of his client.

Germany says it cannot prosecute the men, accused of attacking a German ship with a non-German crew and flag.

An exchange of letters between the EU and Kenya, the legal basis of the deal, includes several human rights provisions. An EU official, who did not wish to be named, told Reuters lawyers are monitoring the Kenyan trials. 

"What happens if my client is sentenced to eight, nine years in jail -- once the media loses interest, who will continue to monitor his jail conditions after eight years?" Wallasch said.

Meanwhile, Western governments are seeking out other suitable partners in the region, such as the Seychelles.

Whatever the result of the talks and legal tussles, lawyers, military officials and maritime experts agree that ultimately, none of this will solve the piracy problem.

As Cyrus Mody, a piracy expert for the International Maritime Bureau, puts it: "At the end we all know that the problem lies with Somalia and its lack of a rule of law."

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