Transfers of Piracy Suspects - A Crucial Element of the Regional Prosecution Strategy in Light of Human Rights Law

Abstract

Patrolling naval States only exceptionally prosecute piracy suspects they took captive in their domestic courts. The majority of suspects are instead put on trial in third States, mainly located in the region prone to piracy. Transfers are the prevalent means by which to put alleged pirates in the hands of the ultimately prosecuting State and thus to implement this regional prosecution strategy. This article explores - from a human rights perspective - the legality of transfers of piracy suspects as such and, in greater detail, the legality of the transfer procedure currently being pursued in counter-piracy operations off the coast of Somalia and the region. The conclusion is that human rights law does not offer an absolute right not to be transferred for prosecution, but that the principle of non-refoulement can bar the transfer of a specific suspect to a specific destination. It is further asserted that the current transfer procedure is not necessarily in line with the procedural requirements flowing from the principle of non-refoulement. Lastly, it discusses how respect for these procedural prescripts can be reconciled with the operational constraints and specificities of counter-piracy operations, most notably that piracy suspects are often detained on board law enforcement vessels and never enter the land territory of the transferring State.