SUMMARY OF THE SURVEY FINDINGS

INTRODUCTION

Since the project, its actions, partners, rationale and general framework have been described in the introductory chapter, in this section, we will focus on important issues concerning the survey, which basically means the methodology, the results and discussion of the results.

First, the authors will address the traditional five Ws- and one H questions, central to every information-gathering process. First of all, the motive for the survey (why?) and, next: the time schedule (when?), the content (what?), the respondents (who?), and the distribution (where?) - all of which can be summarised in the methodology (how?). Methodology obviously covers both the design of the questionnaire and the analysis of the results.

MOTIVES AND FIRST STEPS TOWARDS A QUESTIONNAIRE: THE WORKSHOP

From the beginning, it was stated in the project description that a needs analysis of the parties involved in the questioning of children was necessary. It became clear that the domain of Interpreter-mediated Questioning of Minors (ImQM) had hardly been explored, as has been shown in the literature review: several publications deal with questioning of minors in criminal (and civil) proceedings, but little has been published on the situation when minors do not speak the language of the court/jurisdiction. Moreover, in this kind of setting, we are dealing with different professionals ranging from the - specially trained - police officer to the psychologist, the child support worker, the youth lawyer, the youth judge and the interpreter. A trust person is possibly present but (s)he is not necessarily an expert and/or professional; this person may be or mostly is a parent, a family member, or a close friend.

To perform a needs analysis, it is very important to pose the right questions and to know exactly what the aims are. To explore the questioning of minors with an interpreter in more depth, a twofold methodology was applied: first, a literature review, which has been discussed in Section 1.1; secondly, since questionnaire design is extremely important, we decided to organise a workshop where experts of the different domains involved in interpreter-mediated questioning of minors could have a face-to-face meeting.

This book is the result of a research project entitled CO-Minor-IN/QUEST (JUST/201 l/JPEN/AG/2961), carried out under the supervision and with the support of the Criminal Justice Programme (DG Justice) of the European Union.

The project was developed in response to Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JH. Within the group of victims, we decided to focus on a particularly vulnerable group: minors. Once the project started, it became clear that was not easy to completely set victims apart from other procedural categories in criminal proceedings (e.g. suspects and witnesses). A suspect may ultimately appear to be a victim, or a victim can be an important witness, or a witness can even become a suspect upon closer investigation. Along the way, it also became less self-evident to define vulnerability as a concept as such in an interview context involving minors. Children are vulnerable by definition and that is why it was particularly difficult to draw the line between vulnerability and extreme vulnerability. In this publication, however, we try to offer some suggestions on the subject without pretending this to be the absolute truth.

First, the project acronym requires some further explanation: cooperation in interpreter mediated questioning of minors. The meaning of the CO-prefix can be read in a double way. It first of all symbolises the cooperation between the members of the project's research consortium located in six Member States: Belgium, France, Hungary, Italy, the Netherlands and the United Kingdom (Scotland). Secondly, it represents the cooperation between the different professionals involved in interpreter-mediated questioning of minors: legal actors (ranging from police to judges and lawyers in court), child support workers, psychologists, other professionals (e.g. paediatricians) and of course -specific to this context - interpreters.

It is clear that the term “Minor” in the title refers to children and young people under the age of 18, as defined in the 2012/19/EU Directive.

The abbreviation IN refers to the figure of the interpreter. Both letters are capitalised because in this particular setting the interpreter may often be considered a rather unexpected participant, one you do not think of at first.

I.

After 200 years of quiescence, maritime piracy has recently reemerged as a major economic and humanitarian problem. Whereas piracy was historically associated with such places as the Barbary Coast or the Caribbean, the modern version is centered on Somalia, one of the poorest and most dysfunctional countries in the world. In the past few years, Somali pirates have seized more than 179 vessels, taken more than 1,000 crewmembers and passengers hostage, and extracted more than $400 million in ransom. A recent report found that piracy off the coast of Somalia cost the world more than $12 billion in 2012 – the price of everything from counter-piracy naval operations to increased insurance rates for commercial shippers to ransom payments. Piracy is also significantly hampering the delivery of food aid to perennially drought-stricken Somalia, resulting in untold thousands of deaths. Although the world saw a temporary downturn in Somali piracy in 2013 and 2014, many experts believe the problem will soon get much worse as the international community begins to draw down its anti-pirate armada off the east coast of Africa. Meanwhile, piracy is proliferating to Africa's west coast, transforming the threat into a two-ocean challenge.

In combating modern piracy, one of the key initiatives has been the increase in prosecutions across the globe. As Professor Eugene Kontorovich observes, Somali piracy has become perhaps the highest-volume area of international criminal law by national courts prosecuting extraterritorial crimes. Between 2008 and 2012, more than 1,000 Somali pirates were brought to justice in 20 different countries. Government attorneys have creatively and aggressively prosecuted these modern pirates with a panoply of new legal authorities and approaches. Meanwhile, modern pirates are increasingly represented by sophisticated defense counsel who have raised novel issues never before litigated. As a result, there have been far more developments in the law relating to piracy in the past 6 years than there were in the preceding 200 years.

INTRODUCTION

To address the rise in piracy cases over the past several years, many states have been going through a process of incorporating the international laws of piracy, such as the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) discussed in Chapter 1, into their own domestic criminal law statutes. This chapter compares and contrasts how states have incorporated the international law of piracy into their own domestic legal frameworks and the different approaches states have taken to define piracy in their national courts. Specifically, this chapter examines how the piracy definition has been developed in the United States, the Netherlands, South Korea, Tanzania, Somalia, India, Kenya, the Seychelles, and Mauritius. It then describes how countries such as Japan, the Philippines, and Singapore have used their national antiterrorism laws to address acts of piracy.

INCORPORATING INTERNATIONAL LAW OF PIRACY INTO DOMESTIC LAW

States have taken different approaches to prosecuting pirates on the basis of their own national laws, histories, and interests. Another key factor in their differing approaches may well come from the ways in which the current pirate attacks are occurring. Although some of the basic elements of pirate attacks are similar wherever they occur – for example, pirates generally attack vessels at sea rather than in port, where there is more security and lighting – there are also differences in the current trends that may have implications for legal approaches to combating piracy.

Different Types of Domestic Piracy Require Different Laws

Somali-style piracy, as discussed in Chapter 1, occur mostly on the high seas off of Somalia, with some attacks in the territorial seas and some attacks initiated from land. Lower-level footsoldiers from Somalia generally use smaller ships, utilizing arms and modern GPS systems to take larger vessels by force. They generally raise their money by kidnapping crewmembers for ransom.

INTRODUCTION

Because several states have demonstrated a growing willingness to prosecute acts of maritime piracy in their national courts, the incorporation of international law by such prosecuting states into their respective national legislations has become particularly salient. A number of major international treaties provide the possible bases for prosecuting suspected pirates. However, if pirates are to be prosecuted in domestic courts using an international law-provided jurisdiction base, such international law needs to be incorporated into a state's domestic legal system.

Although states take a variety of approaches to incorporating international law, two basic models of incorporation exist. The first model, monism, refers to states that incorporate treaties and conventions directly and automatically into their domestic law. In other words, once ratified, the treaty has binding domestic effect. The second model, dualism, refers to states that require implementing legislation in order for a ratified treaty or convention to have domestic effect. States usually do not fit either pole perfectly: most monist states usually require implementing legislation for some treaty provisions, and dualist states are often willing to rely on ratified but unimplemented treaties as the basis for judicial rulings.

This chapter examines how some of the most important piracy-prosecuting nations, including the Netherlands, South Korea, Tanzania, India, and Kenya, incorporate international law into domestic law. Each of these nations is relevant for the purpose of globally combatting piracy; and each nation's relevance is unique, given that each one has played a different role in such anti-piracy efforts. The Netherlands is an example of a strong maritime nation that has been involved in both patrolling international waters and apprehending suspected pirates, as well as prosecuting some suspects. Kenya and Tanzania are prosecuting nations that have concluded transfer agreements with different patrolling and apprehending nations, and as such, they have been at the forefront of Somali piracy prosecutions. Finally, South Korea and India are nations that have been involved in combatting piracy in a different geographic region (Asia); it is thus interesting to examine how they have handled the challenge of domestic piracy prosecutions.

Maritime piracy is a “violent, acquisitive crime” that is transnational in nature because a ship is considered the sovereign territory of the nation whose flag it flies. Somalia and the Gulf of Aden have experienced the largest share of global piracy attacks in recent years, as instability ashore has created a growing sea-based phenomena. Currently, improving the capacity of regional forum states is the most effective way to deal with the prosecution and imprisonment of suspected pirates. For the purposes of this chapter, the term “forum states” refers to Kenya, the Seychelles, Mauritius, and the United Republic of Tanzania. These are the states in the region that are either prosecuting piracy cases with UN assistance or are engaged with the United Nations Office of Drugs and Crime (UNODC). The UNODC has a Maritime Crime Programme that is currently in its fourth year of operation.

International collaboration in the world community is also critical to the fight against piracy in the region. The establishment of the Regional Anti-Piracy Prosecutions and Intelligence Coordination Centre (RAPPICC), an anti-piracy center in the Seychelles, was a major development in this area. By 2014, RAPPICC had evolved from a purely piracy-focused mission into REFLECS-3, which has a broad mission focused on maritime security and organized crime. REFLECS-3 has various international partners, including the United Kingdom, the United States, Australia, the European Union, and the UNODC, as well as regional partners, such as the Seychelles, Kenya, Tanzania, and South Africa. REFLECS-3 is designed to gather intelligence about piracy from joint intelligence teams, EUROPOL, and INTERPOL, along with international law enforcement, military partners, and the maritime industry. Additionally, REFLECS-3 uses collected data to assemble “evidence packs” for use in prosecutions, to analyze the piracy business model and track money sources, and to coordinate with international law enforcement partners to tactically disrupt the business of piracy.

On January 13, 2012, British Royal Marines stormed a stolen Yemeni fishing vessel that was being used for pirate attacks on shipping in the Gulf of Aden. A few months later, a combat helicopter operated by European Union Naval Forces struck a pirate base in Xaradheere, a town on the central coast of Somalia, destroying pirate skiffs and other equipment. Naval forces of many different nations patrol the waters off the Horn of Africa as part of three multinational counter-piracy task forces to protect shipping in this vital transit corridor and to respond to pirate attacks. The array of military force engaged in counter-piracy operations combined with the significant violent capabilities of the pirates highlight a range of questions regarding the nature and degree of force that can be used against pirates and the appropriate legal frameworks to govern that use of force.

Although the number of pirate attacks has been decreasing over the past few years, piracy remains a significant danger to commercial and private shipping in several locations around the world. In the first two months of 2014 alone, the International Chamber of Commerce (ICC) recorded 10 pirate attacks in locations as diverse as Bangladesh, Nigeria, and the Congo, and in 2013, “more than 300 people were taken hostage at sea … and 21 were injured, nearly all with guns or knives. A total of 12 vessels were hijacked, 202 were boarded, 22 were fired upon and a further 28 reported attempted attacks.” Since 2008, piracy off the coast of Somalia has produced significant and severe destabilizing effects on maritime commerce, and it has demanded the commitment of extensive naval and financial resources from nations around the world in the form of multinational task forces, armed guards, and other counter-piracy measures. Understanding the available and relevant tools for combatting this scourge, whether off the coast of Somalia, in the archipelagic waters of Indonesia, or in other locations, is essential for effective counter-piracy operations now and in the future.

INTRODUCTION

Somali piracy prosecutions offer a unique case study in the interaction between international criminal law and domestic legal systems. An international naval effort to suppress the Somali piracy epidemic has led to the prosecutions of suspected Somali pirates in national courts around the world. Fifteen nations on four continents have convicted Somali pirates, and there are numerous other cases pending. Within a few years, piracy on the high seas went from being largely unpunished to being one of the most broadly enforced international crimes. In terms of the number of defendants prosecuted outside of their home countries, piracy has quickly become perhaps the largest part of the international criminal docket.

Successful pirate prosecutions raise many unexplored questions about sentencing for international crimes. Although the outlawing of piracy by international law is well established, international law provides no standard for the appropriate punishment. This chapter suggests that there is massive cross-national variance in sentences for Somali pirates. To be sure, one would not expect prosecutions of international crimes in different national courts to result in equivalent sentences. Yet with Somali piracy, the variance in sentences is massive. Moreover, Somali pirates represent a single pool or class of offenders who are tried for similar conduct within one geopolitical context. The variance among the particular severity of cases is far less than it is for other international crimes, such as torture or genocide.

A lack of a “minimum of uniformity and coherence in the sentencing of international crimes” for similarly situated defendants raises basic questions of fairness. Some commentators argue that such uniformity should be required across different courts that prosecute international crimes. Even putting issues of equity aside, the sentences raise the question of what is driving the variance in punishment, as well as the normative question of the optimal approach to pirate punishment from the perspective of retribution, deterrence, and vertical equity with other international crimes.

Piracy returned as a serious international threat after two centuries of relative dormancy because the international community was unable to solve the problem of the failed state of Somalia. The Somali pirates have demonstrated that the pirate business model could be lucrative in the twenty-first century, and piracy is now proliferating to other countries faster than anti-pirate efforts can keep pace.

As described throughout this book, the current international counter-piracy practices include using force in self-defense without attempting to capture pirates, disarming pirates and either setting them adrift or returning them to Somalia, and finally capturing pirates and turning them over to non-Somali courts for prosecution. Even with international assistance, it may be many years before Somalia will be able to provide fair and effective trials of accused pirates or be able to detain them in prisons that meet international standards, so 20 countries have currently stepped in to fill the void. The preceding chapters have identified the prospects and problems associated with trying maritime pirates in national courts around the globe using universal jurisdiction. Those challenges are perceived to be especially acute in cases of pirate financiers and kingpins.

This concluding chapter, therefore, examines the idea of an internationalized tribunal as a final prosecutorial tool in the anti-piracy arsenal. To deal with difficult cases of international criminality, over the past two decades, the international community has established ad hoc international criminal tribunals (e.g., the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague and International Criminal Tribunal for Rwanda (ICTR) in Arusha), hybrid international criminal tribunals (e.g., the Special Court for Sierra Leone in Freetown and the Extraordinary Chambers in the Courts of Cambodia in Phnom Penh), regional international criminal tribunals (e.g., the Extraordinary African Chambers in Senegal), and internationalized domestic courts (e.g., the Iraqi High Tribunal in Baghdad and the War Crimes Chamber in Bosnia Herzegovina). Various experts have advocated each of those models as a solution to the challenges of prosecuting Somali and other maritime pirates.

INTRODUCTION

Somalia currently has one of the world's least developed economies. According to the United Nations Development Programme, Somalia's GDP per capita of U.S. $284 is the fourth lowest in the world, and 73 percent of all Somalis purchase less than $2 worth of goods and services per day. Somalia's youth bear the brunt of this weak economy. In 2012, Somalia's overall unemployment rate was 54 percent, and its youth unemployment was a full 67 percent. This is all the more striking in a country where an estimated 73 percent of the entire population is below the age of 30.

With this limited economic opportunity for such a large group of Somalia's youth, it is no surprise that juveniles have turned to maritime piracy, a livelihood that may be illicit and dangerous but is also potentially lucrative, netting even a low-level pirate thousands of dollars in the event of a successful hijacking. In March 2011, the Indian Navy apprehended a group of 61 pirates and found that 25 of them were below the age of 15 and at least 4 of them were around the age of 11. Overall, it is likely that up to one-third of all pirates operating off the coast of Somalia at any given time are less than 15 years old.

The prevalence of juveniles among those captured by international naval forces patrolling the Indian Ocean complicates the treatment of pirates at all phases of the judicial process, from the moment of capture to the moment of repatriation or sentencing. Piracy's status as a crime of universal jurisdiction has resulted in a multiplicity of jurisdictions being confronted with these issues and a diversity of approaches that inevitably results from varied legal frameworks, norms, and resource constraints. The purpose of this chapter is to introduce the legal and practical issues associated specifically with the prosecution of juvenile pirates and to discuss state practice as it relates to those issues.

INTRODUCTION

This chapter examines the difficulties in transposing the doctrine of command responsibility from its historic mooring in the laws and customs of warfare into the context of piracy prosecutions. To be clear at the outset, there is no nation on earth that currently incorporates a domesticated analogue to the command responsibility regime into its domestic criminal law for ameliorating the effects of piracy. At the same time, in view of the persistent threats posed by transnational piracy and the demonstrated inability of local law enforcement mechanisms to solve the problem, the question of whether an alternative form of liability is both suited to and sufficient for addressing acts of piracy is wholly appropriate. In the context of an armed conflict, the independent emergence of the principle that the commander's orders operate with the force of law to limit the application of violence in widely disparate cultures and historical periods suggests that a viable theory of command responsibility is more than just a legal technicality; it is fundamental to the nature of warfare itself. By logical extension, commanders or those who exercise de facto military authority may be held accountable and prosecuted for the acts of their subordinates.

As the other chapters in this volume have aptly documented, the status quo with respect to piracy prosecutions provides insufficient leverage to make a lasting dent in the commission of pirate acts. For every lower level perpetrator prosecuted, there are dozens who are ready and willing to take their place because of the financial incentives, the social consciousness of the perpetrators, and simple human greed. Prosecutions using existing mechanisms simply cannot eradicate the threat. Deterrence is, at best, a flimsy aspiration when it comes to the effects of prosecutions on potential low-level perpetrators. Extending the doctrine of command responsibility into the context of piracy could, in theory, provide another tool for targeting the real authority figures who control pirate operations.

INTRODUCTION

There is a lack of consensus about the extent to which universal jurisdiction can be validly applied or should be applied as a matter of policy. But notwithstanding the controversy and ongoing debate over which international crimes fall under universal jurisdiction, it is widely recognized that under customary international law, piracy is a jus gentium crime and hence is subject to international law. This recognition is unchallenged despite the general disagreement about what rationale justifies the application of universal jurisdiction to piracy. Currently, the applicable legal framework to combat piracy consists of several conventions, including especially the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which retained the provisions relating to piracy of the 1958 Convention on the High Seas, as well as a number of UN Security Council and General Assembly resolutions, regional and sub-regional arrangements, and national efforts.

It is worth noting that a minority of states have provided for universal jurisdiction in their domestic laws by enacting legislation to criminalize piracy and to prosecute alleged pirates in their courts. Even among these states, such laws frequently require a traditional connecting factor for the exercise of jurisdiction, such as the physical presence of the accused in the state or the victim being a national of that state. States are also generally reluctant to prosecute captured pirates.

This chapter covers jurisdictional issues involved in national and international efforts to address the menace of maritime piracy, which poses a serious threat to commercial shipping. The next section discusses universal jurisdiction over piracy as customary international law. The section after that studies universal jurisdiction over piracy via treaties and the work of the United Nations. The lacunae in this legal framework are considered next, followed by the conclusion.

UNIVERSAL JURISDICTION OVER PIRACY AS CUSTOMARY INTERNATIONAL LAW

As a principle of customary international law, the universality principle or the universal jurisdiction doctrine authorizes a state to enact laws under which it exercises criminal jurisdiction over certain conduct when the traditional bases for exercising or asserting jurisdiction are not present.