Emerging Voices: Pirates of the Indian Ocean–Enforcement in the Seychelles

[Tamsin Paige is an M.Phil (Law) Candidate at the Australian National University College of Law]

Piracy originating from the coast of Somalia hit its peak in 2011, with 236 attacks occurring in the Red Sea, Gulf of Aden and the Somali region of the Indian Ocean in that year, according to the IMB’s 2012 piracy report. So far in 2013 the IMB has reported only 9 attacks originating from Somalia, resulting in two hijackings, indicating that significant headway has been made through counter-piracy efforts. As part of my thesis examining the role the law has played in the rise and fall of piracy, in Somalia and throughout history, I had the privilege of being invited by the Seychelles Attorney-General to spend January 2013 observing piracy prosecutions in the Seychelles and conducting confidential interviews with those involved in the investigation, prosecution and incarceration of Somali pirates. This fieldwork yielded a wealth of interesting data, some of which I will share here.

The first thing that struck me about the broader regional prosecution process was the importance that was put on the Seychelles involvement and how it was viewed as key to the continued efforts to engage in regional prosecutions of Somali pirates. The esteem in which the Seychelles government is being held for its efforts in counter piracy is tempered by two of the key issues being faced by the legal enforcement regimes: capacity and the repatriation of convicted pirates to United Nations Office on Drugs and Crime (UNODC) established and mentored prisons Somalia.

The repatriation of convicted pirates from Seychellois prisons to UNODC mentored prisons in Somaliland and Puntland are the key to the continued regional prosecutions. In January 2013 it was estimated that convicted and suspected pirates made up 20% of the prison population in the Seychelles. The repatriation program is referred to as the conveyor belt, as the Seychellois government is reluctant to take any more suspected pirates for prosecution unless it can repatriate an equal number of convicted pirates to Somali prisons. However, a number of capturing nations are disinclined to authorise these transfers as the prisons in Somalia did not meet European standards, even though evidence overwhelmingly shows that they more than meet human rights standards. However, more recently there have been indications that the EU has agreed to future repatriation transfers.

The capacity issues that were highlighted by my observations and by the interview participants are in no way restricted to the size of the prisons. The capacity and structure of the court systems in the region, the administrative capacity of the investigatory bodies and the investigatory capacity of the enforcing navies were all raised (along with other issues) as stumbling blocks to the effective prosecution of Somali pirates. Beyond highlighting the need for more nations within the region to engage in prosecuting captured piracy suspects, the issues being faced with the court system were varied.

One participant argued that the lack of capacity in regional courts was primarily caused by the fact that judges within the region were simply unaccustomed to running a court with a heavy workload of detailed cases. Her* suggestion in dealing with this issue is to provide mentoring judges from busy common law jurisdictions to assist in the running courts so they operate to a higher capacity through increased efficiency. A similar procedure is in place for investigative, prison and prosecutorial services in the region. The concern regarding court capacity is supported by others who pointed to the Jelbut 40 and 48 cases respectively to highlight issues with prosecutorial capacity.

In the case of the Jelbut 40, twenty-five suspects were captured in relation to the hijacking of the Iranian fishing dhow Tahiri, however, only eight stood trial (four in the Seychelles and four in Kenya) with one of these suspects having been captured for piracy and released without charge only six weeks earlier. In the ongoing (at the time of interview) case of the Jelbut 48, sixteen suspects were captured, but only four stood trial due to capacity issues. When I asked how the decision is made about who to prosecute and who to release I was informed that these decision were not made the capturing commanders and were grounded in political and practical concerns relating to capacity. Witness testimony from the MV Super Lady attack case suggested that targeting of these decisions could be greatly improved.

During examination of the naval personnel involved in the capture of suspects for the attack on the MV Super Lady it was stated that they lacked both the training and facilities to engage in any form of forensic evidence gathering, including the lifting of fingerprints off seized weapons. While this is not seen as a critical issue, it was suggested that warships having the capacity to engage in basic forensic evidence gathering may lead to higher prosecution rates and better targeting of prosecutions. However, it is questionable whether it is appropriate or viable for a warship to possess forensic evidence gathering capacity. But this does make clear the inherent problem with asking military personnel to engage in law enforcement, a task which they are not trained to conduct.

The administrative issues faced with regard to the investigatory bodies are simply a matter of training and experience. The participant who raised this issue highlighted that the Seychellois police force lack the experience of dealing with detailed and complicated criminal investigations, and so the investigation files handed over to the prosecution are often poorly organised and difficult to follow. She and others have been engaged in mentoring the relevant police forces in better file management and related techniques; however, these changes have been met with some resistance by the more senior police officers who are often the ones involved in piracy cases.

The Seychellois court system exhibits two significant hurdles for legal enforcement efforts. The first of these is the lack of facilities and legislative framework to allow witnesses to give testimony via video link. This is being addressed both structurally with the building of a new courthouse in the Seychelles and legislatively with bills being drafted to allow this form of witness testimony in the criminal procedure legislation. That said, until the framework is in place (estimated to be ready in mid 2014) the organisation of trials based upon witness availability and the cost of flying witnesses in and out for sometimes only an hour of oral testimony act as a financial and logistical barrier to prosecutions.

The second concern raised regarding the court structure was the manner in which defence counsel are paid for representing the accused at trial and the lack of immediate recognition for foreign qualified defence counsel to practice in the Seychelles. The pay structure for defence counsel is such that they are paid for each case, regardless of the duration of the matter. This combined with the limited pool of experienced criminal defence barristers inadvertently discourages a rigorous defence for piracy suspects. This was most evident during cross-examination of personnel from the MV Super Lady, where they were asked if they attempted to peacefully negotiate with the pirates who were opening fire upon them with automatic weapons and grenade launchers.

Overall, what is clear from the observations and interviews I undertook in January is that the international organisations and nations involved in regional counter piracy efforts have done tremendous work; a fact that is reflected in dramatic drops in the number of attacks taking place. While the work that is being done is having a strong positive impact, it is not without issues and difficulties (and there are questions regarding its sustainability). Those involved are aware of these issues, and all of these issues are things that can be overcome through continued work and experience which can then in turn form a framework for regional counter piracy efforts elsewhere as they arise.