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INFO MARITIME SECURITY COLLECTIVE

UNCLAS SECTION 01 OF 05 STATE 058579 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: EWWT MARR PGOV PHSA PHUM PREL
SUBJECT: AN INTERNATIONAL PIRACY COURT:  NOT THE RIGHT 
DIRECTION 
 
SUMMARY 
---------------- 
 
¶1.  Department requests that Posts relay the USG position 
opposing efforts to create an international tribunal to 
prosecute piracy suspects, and seek support for the USG 
position.  Posts should leave behind a non-paper, the text of 
which is provided.  End summary. 
 
OBJECTIVES 
------------------- 
 
¶2.  Participants at the Contact Group for Piracy off the 
Coast of Somalia (CGPCS) including Germany, Canada, Italy, 
the Netherlands, Egypt, and Russia, have espoused the 
creation of an international mechanism, such as an 
international or regional court, to prosecute suspected 
pirates.  The United States opposes the creation of such a 
costly, time-consuming mechanism that only duplicates 
capacity already extant in national legal systems, and the 
creation of which would detract from necessary efforts to 
improve our collective ability to prosecute suspected pirates 
in the short-term and build the necessary legal capacity in 
Somalia and the region in the future.  Posts should relay to 
host governments the USG arguments against the creation of 
such a body, leaving behind the text of this non-paper. 
 
¶3.  Posts should encourage like-minded countries to be 
outspoken in their positions and to develop their own 
argumentation against an international mechanism.  Posts 
should challenge proponents to share arguments for such a 
mechanism, and in particular to demonstrate why such a 
mechanism would be preferable to efforts to support national 
prosecutions. 
 
¶4.  When presenting the U.S. position and non-paper, Posts 
should make a special effort to stress that the United States 
remains supportive of international tribunals as a general 
matter, and believes that in the appropriate circumstances, 
they can be instrumental in achieving international justice. 
 
¶5.  Begin text. 
 
Non-Paper: An International Piracy Court ) Not the Right 
Direction 
 
The question has arisen whether part of the international 
community,s legal response to piracy should be the creation 
of an international piracy court or tribunal.  As a general 
matter, the United States is supportive of international 
tribunals, and believes that in the appropriate 
circumstances, they can be instrumental in achieving 
 
STATE 00058579  002 OF 005 
 
 
international justice.  However, there is an immediate need 
for effective prosecutions and the steps required to stand-up 
an international tribunal make it unfeasible in the 
short-to-medium term.  This leaves a clear need for effective 
national prosecutions, including within the impacted region. 
Beyond this, however, there are several other reasons why an 
international piracy court is not desirable at this time. 
 
First, an international tribunal is not appropriate for this 
type of crime.  International tribunals typically have been 
created to try crimes of the most heinous nature that 
national jurisdictions cannot handle because government 
officials may be among the accused or because national 
governments are politically unwilling or unable to exercise 
jurisdiction over the accused.  Often they relate to a 
specific and limited set of events, such as atrocities during 
armed conflict.  These characteristics are not relevant to 
piracy, which is a common crime that has been with us for 
centuries, exists all over the world today, is subject to 
universal jurisdiction, and has been prosecuted traditionally 
and successfully in national courts. 
 
Second, international tribunals have proven expensive to 
establish and operate and require a significant amount of 
continued oversight.  Many consider that the world,s limited 
financial resources would be put to better use in 
facilitating prosecution, developing prosecution capacity in 
regional and affected states, and in supporting efforts to 
build a stable government in Somalia. 
 
Third, given the legal- and resource- intensive nature of 
establishing and operationalizing an international court, 
such an effort would likely divert energy and resources from 
today,s very real immediate need to ensure effective 
national prosecutions of suspected pirates, including through 
building the capacity of States willing to prosecute but with 
specific needs for assistance.  Building the capacity of 
States also furthers the international community,s broader 
interest in creating legitimate and sustainable judicial 
systems that address all of a society,s needs.  If there are 
impediments to prosecution in national courts, those 
impediments should be addressed as a matter of urgency, not 
deferred in favor of attention to an international tribunal 
that will not soon be available. 
 
Fourth, the lengthy timeline for establishing an 
international court for piracy may obviate the need for such 
a court, as governments are actively working to ensure that 
the piracy problem will soon dissipate.  Because of the 
length of time it would take to reach agreement on the need 
for such a court, to establish the legal framework creating 
it, and to operationalize it, it is not clear that once 
created, the number of piracy suspects to be tried would 
justify the existence of such a body. 
 
Fifth, once an international court/tribunal is established, 
it is difficult to wind down its operations since there are 
 
STATE 00058579  003 OF 005 
 
 
multiple residual functions which must be carried on long 
after actual prosecutions finish (e.g., witness protection, 
sentence enforcement and review, archival maintenance).  The 
international community is currently confronting these 
challenges in connection with the International Criminal 
Tribunal for the former Yugoslavia (ICTY) and the 
International Criminal Tribunal for Rwanda (ICTR). 
 
Sixth, establishment of an international court would raise 
numerous difficult issues, including, inter alia: 
 
-     Where would the tribunal be located?  Hosting an 
international tribunal is not simple.  It requires a 
significant investment of time and resources, as well as 
sufficient infrastructure. 
 
-     Where would suspects (and convicts) be imprisoned? 
Some countries have expressed the view that an international 
tribunal would ease the strain on national prison systems, 
but even if such a tribunal existed, individual nations would 
still need to volunteer to accept convicted persons into 
their correctional systems. 
 
-     How would the tribunal be constituted?  Would it 
require a UN Security Council Resolution or international 
treaty and, if so, what would be the terms of that 
resolution/treaty? 
 
-     What would be the jurisdiction of such a tribunal? 
Would it be limited to cases of piracy in the Horn of Africa? 
 If so, why?  Would it be available for trial of every 
participant in acts of piracy, or only major offenders? 
 
As noted above, reaching international agreement on these and 
related matters would take significant time and resources. 
 
Seventh, an international tribunal, once up and running, 
would face both traditional and novel challenges.  As a new 
judicial institution, every matter before it would be one of 
first impression, and defendants could mount challenges to 
the jurisdiction and legal procedures adopted by a tribunal 
lacking in any established case law or time-tested judicial 
practices. 
 
Against the backdrop of these and other challenges, 
proponents of an international piracy court have the burden 
of demonstrating the advantages that such a court would have 
over national prosecutions.  A systematic approach to the 
issue would identify current impediments to national 
prosecutions (as Working Group 2 of the Contact Group on 
Piracy off the Coast of Somalia has done) and show why such 
impediments would more effectively be overcome by an 
international court.  In those cases, for example, where 
evidentiary deficiencies have been the reason for failure to 
prosecute, it does not appear that an international court 
would have cured the problem. 
 
 
STATE 00058579  004 OF 005 
 
 
The Alternatives 
 
The energy and focus of the international community would be 
better placed on the following options for prosecution of 
suspected pirates: 
 
-     As noted above, affected States should favorably 
consider and make every effort to prosecute.  Affected States 
include the State whose flag is flown by the attacked ship, 
the State(s) from which the owners of the ship in question 
come, and the State from which the crew or passengers come, 
among others. 
 
-     In particular cases, if all affected states are unable 
to prosecute, then the case could be prosecuted in a national 
court in the region where the act of piracy occurred, with 
appropriate enabling support. 
 
-     Additionally, favorable consideration should be given 
to the proposal of the Contact Group on Piracy off the Coast 
of Somalia to explore development of an international trust 
fund that could be used to help defray the expenses of 
national prosecutions in States willing to prosecute but in 
need of assistance to do so. 
 
End text. 
 
REPORTING DEADLINE 
---------------------------------- 
 
¶6.  Post should report any reactions to this demarche by 
cable and by email by June 17 to PM/PPA David Foran, 
forandm@state.sgov.gov, 202-647-7162 and IO/UNP Joseph 
Fitzgerald, fitzgeraldjjo@state.sgov.gov, 202-647-2641. 
 
 
BACKGROUND 
---------------------- 
 
¶7.  Several countries, including at the CGPCS Plenary meeting 
in New York City on May 29, have publicly espoused the 
creation of an international mechanism such as an 
international or regional court to which states that 
apprehend suspected pirates could transfer them for 
prosecution.  Germany, Italy, Canada, the Netherlands, Egypt, 
and Russia, have all endorsed the notion.  Many states, 
including China, Japan, France, the UK, Greece, Sweden, and 
India, have, in the context of the Contact Group,s legal 
working group, expressed reservations and concerns about such 
an approach, and most recently Somalia,s Transitional 
Federal Government also announced opposition.  Dutch FM 
Verhagen intends to organize a meeting in The Hague in July 
to discuss the structure of a putative tribunal that would 
operate in the region and which would convict pirates who 
would serve their sentences in the region, although there is 
some effort to discourage the Netherlands from pursuing a 
meeting outside of the Contact Group structure.  Regardless, 
 
STATE 00058579  005 OF 005 
 
 
the issue will be high on the agenda of the next meeting of 
the legal working group of the Contact Group, likely to take 
place in late August in Copenhagen.  The   non-paper lays out 
the analysis and considerations that inform the USG position. 
CLINTON