globeandmail.com: Ottawa's piracy policy flouts law, experts say
Ottawa's piracy policy flouts law, experts say
Government claims of a lack of jurisdiction called 'ludicrous' and 'quite wrong'
May 1, 2009
WASHINGTON -- Canada's catch-and-release approach to countering piracy off Somalia is at odds with other Western navies and flouts Ottawa's obligations under international law, according to maritime and international law experts.
"Its ludicrous for the Harper government to claim that it can't arrest and prosecute pirates," said Michael Byers, who holds the Canadian Research Chair in International Law and Politics at the University of British Columbia. "Canada has a legal obligation under the United Nations and international law to bring pirates to justice."
Pirates seized by French, German, Spanish and other NATO warships have been clapped in irons - or at least detained - and delivered to Kenya, where they are put on trial as part of a broad international effort to punish piracy using a mix of old national and new international law.
The issue has been highlighted by an incident last month in which the HMCS Winnipeg captured a boatload of pirates off Somalia but subsequently released them. While it is not clear how many such incidents have occurred, the release has raised a number of questions with legal experts.
"It's nuts to let them go," said William Tetley, a professor of maritime law at McGill University who is regarded as one of Canada's foremost experts in the field. Mr. Tetley, a former president of the Canadian Maritime Law Association and author of numerous textbooks on maritime law, dismissed government claims of lack of jurisdiction as "quite wrong," adding the Canadians have been "caught with their pants down; they don't have any guts and neither does the Prime Minister."
While Canada is turning loose the pirates it captures, albeit after taking away their guns, other countries are taking a tougher line. In some instances - notably the capture by the U.S. navy of a pirate after Special Forces snipers killed his three companions holding a U.S. captain hostage on a lifeboat - Western countries have charged pirates back in domestic courts.
Earlier this week, tiny Seychelles chased down pirates with a coast guard aircraft and then vowed to put them on trial after a Spanish warship captured them in the wake of a failed attack on a cruise ship.
"Catch and release only encourages pirates to grow bigger and bolder," said Mr. Byers, adding that prosecuting teenage pirates "isn't going to solve the problem" either. Like most experts, he said the international community must deal with the heart of the problem, which is the failed and anarchic state of Somalia, but that releasing pirates only makes things worse.
Canada's unwillingness to prosecute pirates seems especially odd given that only last summer it co-sponsored UN Security Resolution 1816, which "calls upon all states with relevant jurisdiction under international law and national legislation, to co-operate ... in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia ..." Piracy remains on Canada's Criminal Code, with a maximum sentence of life in prison.
Canada is also a signatory to the UN Convention on the Law of the Sea, which makes piracy an international crime, formalizing maritime law that dates back centuries.
Canada is also a signatory to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, which calls for the prosecution of anyone who "seizes or exercises control over ships by force or threat of force or any other form of intimidation."
Usually Canadian governments are strident in the claims that UN Security Council resolutions are binding, and Ottawa takes considerable pride in its claim that it is among the most dutiful of nations in its support of UN and international obligations.
But despite its co-sponsorship of Security Council Resolution 1816, which was specifically written to authorize international action against piracy off Somalia's lawless coast, Canadian officials now claim that resolution doesn't require Canada to bring pirate suspects to justice.
"The wording of paragraph 11 of UNSCR 1816 on 'investigation and prosecution' is not cast so as to create a legally binding decision pursuant to Article 25 of the Charter of the United Nations," the Department of Foreign Affairs said in a written reply that took nearly a week to get departmental and political clearances before being released. Foreign Affairs declined to provide the names of the government lawyers who crafted the reply.
"Canada is fulfilling the expectations of this paragraph. We are participating in international counter-piracy efforts off the coast of Somalia and we are discussing with our UN partners and NATO allies the very complex issues surrounding jurisdiction, investigation and prosecution of suspected pirates," it added.
Marc Isaacs, a maritime law specialist and Adjunct Professor of Admiralty Law at the University of Toronto Law School, said Canada has ample jurisdiction if it wanted to prosecute pirates. "There's not a lot of body of law about piracy," he acknowledged, but added that it's "clear under the Canadian Criminal Code that piracy is an offence in or outside of Canada."
"I cannot give you a cogent reason why the pirates [seized by HMCS Winnipeg] would be released," Mr. Isaacs said.
While Canada is releasing pirates and discussing the situation with partners, other countries are acting.
France has put pirates on trial in Paris. Russian warships seized 29 pirates this week. The German frigate Rheinland-Pfalz delivered seven captured pirates for trial in Mombasa 10 days ago. A Spanish warship landed another groups of captured pirates. More than 70 pirates captured by NATO warships have now been turned over to Kenyan authorities for trial.
Only the Dutch navy is following Canada's example of "catch and release." The Obama administration ignored Canada's release of pirates but when the Dutch did the same thing a week later, State Secretary Hilary Clinton said it "was the wrong signal," adding "there is a need to co-ordinate better the reactions of all of the nations and organizations involved in policing the coastline off of Somalia."
Meanwhile, the Canadian navy declined to say how many times pirates have been captured, however briefly, since Canadian warships were first deployed on anti-piracy patrols off the Somali coast last year. One senior officer said last week that he believed the capture last month of a boatload of pirates after a seven-hour chase by HMCS Winnipeg was the first, but ordered a review of navy logs to determine whether other pirates has been apprehended as opposed to just chased off.
"We're still working on an answer," a Canadian Forces spokesman said Tuesday.
Some navies, notably the British and American, are taking an even tougher line. British commandos, working with the Russian navy, killed pirates that seized a Danish ship last fall. French forces have killed several pirates in operations to retake hijacked vessels.
Foreign Affairs insisted Canada was respecting international law.
"If it becomes necessary to detain individuals, they would be treated humanely, with dignity and in accordance with international law," it said in its written explanation of Canada's policy.