Extradition and Mutual Legal Assistance in the Prosecution of Serious Maritime Crimes: A Comparative and Critical Analysis of Applicable Legal Frameworks
Hague Centre for Studies and Research, 2013
22 Pages Posted: 4 May 2013
Date Written: May 2, 2013
Despite the international community’s condemnation of piracy and serious maritime crimes, pirates or maritime criminals are often released by law enforcement agencies after being relieved of their illicit cargo or vessel. This may be because these pirates or maritime criminals were apprehended before they had committed any serious harm to particular persons. The law enforcement agencies may belong to a State that is located far away. Significant resources and political will may be needed to transport the apprehended criminals back to the apprehending State for trial. The State concerned must have the legal framework and capacity to conduct such trials. These demands explain why it may be more convenient for law enforcement authorities to release pirates or maritime criminals after confiscating or destroying their arms, ships, or ill-gotten goods. This practice has, however, most recently been condemned by the UN Security Council in the context of Somali piracy. The council has insisted on the investigation and prosecution of apprehended suspects. States have indeed demonstrated an increased political will to prosecute suspected pirates, as reflected in a rise in the number of prosecutions and suspects held for prosecution. The Contact Group on Piracy off the Coast of Somalia, which was established pursuant to Security Council resolution 1851 (2008) has put substantial focus on developing frameworks and strategies to ensure the prosecution of pirates.
Facilitating and ensuring the prosecution of pirates and maritime criminals is not easy due to the many cross-border elements involved. These crimes usually involve perpetrators and victims of different nationalities. They take place on the high seas or across different territorial seas. This is because general international law recognises a variety of jurisdictional grounds based on which a State may prescribe acts as crimes under their domestic laws. General international law, however, does not obligate States to exercise their jurisdictional powers, though this may be required by specific treaties that a State is party to. It could be that no State having a right to jurisdiction under international law is willing to exercise jurisdiction over the accused or case. General international law also prohibits States from impinging on the territorial sovereignty of another State, a situation which may arise when a State is seeking to enforce its jurisdictional powers over accused or evidence located in another State’s territory. One may therefore be faced with a situation where a State willing to investigate or prosecute does not have custody of the accused or the necessary evidence, while the State in whose territory the accused or evidence is located is not willing to investigate or prosecute. The former State is nevertheless prevented from obtaining the accused or evidence by entering the latter State’s territory without its consent, as that would infringe the latter’s territorial sovereignty. One possible answer to this conundrum is to enhance and strengthen the modalities of inter-state cooperation, such as extradition and mutual legal assistance. This will enable States willing to prosecute to do so with the cooperation of other States that have custody of the accused or evidence. Cross-border cooperation will facilitate the transfer of accused persons, the questioning of witnesses, and the exchange of evidence. Efficient inter-state cooperation mechanisms will secure the “procedural continuity” necessary for effective prosecution from the crime’s commission to the prosecution and punishment of those involved.
This paper ascertains and assesses the extent to which existing legal frameworks, at the regional and international levels, facilitate inter-state cooperation and enable the effective prosecution of maritime criminals. There has been a proliferation of regional and international initiatives to combat piracy and serious maritime crimes, particularly in danger zones like Somalia. However, none of these initiatives have particularly focused on extradition or mutual legal assistance. While inter-state cooperation may be facilitated informally at the investigatory stage, more formal legal arrangements, such as extradition and mutual legal assistance, are necessary when a case is being prepared for trial. The UN Secretary General has recognised the need “to expand and formalize the mechanism for investigative and prosecutorial purposes” in the context of addressing piracy off the coast of Somalia. The international community’s response to serious maritime crimes, such as piracy and maritime terrorism, has thus far focused on the development of policing-type enforcement powers, such as interdiction, hot-pursuit, and the seizure of ships. Less attention has been paid to assessing and strengthening inter-State cooperation at the formal and legal level. Such cooperation is nevertheless essential to the successful prosecution and trial of maritime criminals. It is necessary to examine the extent to which existing and applicable international legal instruments provide for such cooperation.
In terms of the types of frameworks examined, this chapter focuses on treaties rather than “softer” versions of international law. As mentioned above, this chapter aims to address a real life problem faced by practitioners in the prosecution of piracy and serious maritime crime. For practitioners, treaties have the advantage of being comparatively clear and certain as compared to other “softer” versions of international law. This chapter will first examine treaties of a general nature, before turning to those that are crime and context-specific. General legal frameworks, such as the United Nations Convention on the Law of the Sea (the UNCLOS), are usually pitched at a more abstract level due to the need to obtain a broad level of consensus. Frameworks that address narrower subject matters are usually more comprehensive, elaborating on and adjusting the default positions set out in more general legal frameworks. By proceeding from more general frameworks to more specific frameworks, this chapter explains why each of these are potentially applicable and how they particularise general default positions articulated in the UNCLOS. In doing so, this chapter also compares the advantages and disadvantages afforded by these different legal frameworks in relation to inter-state cooperation matters. The various treaties may, at first sight, appear to be unrelated to the type of piracy and serious maritime crimes that we commonly encounter today. Some, such as the 2000 UN Convention on Transnational Organised Crime (2000 UNTOC), the UN drug trafficking conventions, and the 2003 UN Convention against Corruption (2003 CAC), may appear more applicable to crimes occurring on land than that at sea. However, they are as applicable to crimes at sea as crimes on land. Some, like the 1988 Convention for the Prevention of Unlawful Acts against the Safety of Maritime Navigation (1988 SUA) or the 1999 Terrorism Financing Convention (1999 TFC), are sometimes misunderstood as only applicable to typical terrorist crimes or crimes with a terrorist-motive. As further explained in my chapter, the relevant treaty provisions do not impose such a motive requirement. Rather, they focus on certain harmful acts committed rather than the objectives underlying the acts. There is no legal obstacle to applying these treaties to piracy or serious maritime crimes if other treaty requirements are met.
A careful appreciation of the acts targeted by these treaties and when they apply is necessary to appreciate the scope and potential of these treaties. Individually, these treaties may not capture the essence of the maritime crime under consideration due to their focus on different acts. For example, the TFC focuses on illegal financing and the 2000 UNTOC focuses on organised crime. But because contemporary maritime crimes often include varied elements, these treaties will potentially apply. States Parties will then be able to benefit from the treaty’s provisions on inter-state cooperation. The first section of this chapter studies the UNCLOS, specifically, its relevance to questions of inter-state cooperation in criminal matters. The second and third sections explore crime-specific treaties applicable to serious maritime crimes. The fourth section examines regional and locale-specific frameworks adopted by the international community. An example of the latter would be action undertaken with respect to acts of piracy and armed robbery occurring off the coast of Somalia. This chapter concludes that there is a need for policy-makers and practitioners to be more aware of the different inter-state cooperation provisions in these frameworks, specifically how they intersect and complement one another. Inter-state cooperation can be pursued based on existing legal frameworks if they are interpreted and applied in a way that maximises their potential application to concrete situations.
Keywords: Piracy, Serious Maritime Crimes, Somalia, Extradition, Mutual Legal Assistance, Prosecution
JEL Classification: K33
Suggested Citation: Suggested Citation