Confusion over 'catch and release'
Despite the successful disruption of several recent attacks in the Gulf of Aden, confusion continues over the jurisdiction of those tasked with intercepting the pirates.
A number of operations in recent weeks have ended not with prosecution, but with pirates simply being released after having their weapons and equipment seized. The problem stems from the lack of a NATO detainment policy, with the crew of warships in the area forced to follow national law. The crew of a Dutch vessel, for example, is unable to arrest suspected pirates unless the attack is targeted at Dutch citizens or takes place in Dutch waters.
Gavin Simmonds, head of international policy at the UK Chamber of Shipping, told Fairplay that the situation can be frustrating: “Ship-owners have always wanted to see a procedure which would be truly effective in discouraging piracy. However, it’s a very complex legal situation; there are numerous military operations in the area now, and each of the operations have different rules of engagement and different legal guidance for the treatment and combating of piracy – and for dealing with the pirates [if they are] captured.”
Conditions in Somalia can make it difficult to reach a satisfactory conclusion when pirates are captured in the area, Simmonds added. “It is challenging to prosecute a case of international policy, and it becomes even more confused when you take human rights legislation into account; some EU member states feel that they are notable to take Somali pirates back to their own jurisdictions for prosecution.”
A recent agreement between the EU and Kenya for the transfer of suspected pirates to Kenya for prosecution is a step in the right direction, said Simmonds. “The EU NAVFOR-Atalanta operation provides member states with recourse to the Kenyan courts. There’s a question of throughput, but the industry is generally very supportive of the agreement.”
Simon Fordham, maritime specialist and partner at BGN Risk, part of the Begbies Traynor Group, told Fairplay that more can be done to resolve jurisdictional problems:
“There’s certainly an ongoing political sensitivity – and that is the role for our international diplomats and politicians. This is where they can have an effect, by making an international law that covers the area effectively. However, there is a lot of work being done at the moment, spearheaded by UN and naval operations, to see how the situation can be improved, to create more stable conditions.”
Fordham agreed that the current proliferation of ‘catch and release’ cases can be seen to be sending out the wrong signal. “When people are caught they need to be seen to go through a normal legal framework – and I think it’s better if that’s done in the region rather than being sent to America, for example,” he said.
Fordham added that the old adage that prevention is better than cure is especially applicable in the current climate: “There’s a clear role here for commercial, industry-led security solutions – the important thing is to prevent the pirates getting near the ship in the first place.”
Julie is a law graduate who qualified with Price Waterhouse in 1994. Julie joined Smith & Williamson in 1997 and became a partner in 2001. With Mike Stevenson, Julie set up Middleton Partners offices in Salisbury and Southampton, both of which are now part of Begbies Traynor.
Julie is a member of the Insolvency Practitioners Association and the None Administrative Receivers Association and is a Fellow of The Association of Business Recovery Professionals. Julie deals with all aspects of Corporate Recovery and turnaround work and takes all form of personal insolvency appointments.