Human Rights and Law Enforcement at Sea

Front matter

THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY

Human Rights and Law Enforcement at Sea

Arrest, Detention and Transfer of Piracy Suspects

Conclusion

Lawfulness of Arrest and Detention of Piracy Suspects Elements of Substantive and Procedural Lawfulness a)

b) c)

Under Article 5(1) ECHR

aa) Existence of Legal Basis and Its Characteristics

bb) Duty to Conform to Legal Basis and Its Correct Implementation

cc) Degree of Scrutiny Exercised by Strasbourg Organs

Under Article 9(1) ICCPR

Conclusion

Lawfulness of Piracy Suspect’s Arrest on Suspicion of Criminal Activity a)

By States Pursuing a Criminal Law Approach to Deprivation

of Liberty

By States Perceiving Alleged Pirates as “Extraordinary

156 157 159 160 164 165

197 197

208 211 211 212 212 212

214 215 216

Suspects” aa) Propositions How to Fill the Normative Gap bb) Piracy: Applying the Lawfulness Test to Article 105 UNCLOS cc) Armed Robbery at Sea: Applying the Lawfulness Test to UNSCR 1846 dd) Conclusion c) Within the EUNAVFOR Framework Lawfulness of Piracy Suspect’s Detention with a View to Transfer a) Of Alleged Pirates: Article 105 UNCLOS b) Of Alleged Armed Robbers at Sea: UNSCR 1846 c) Of Alleged “SUA Offenders”: Article 7 SUA Convention d) OfSomali-Based Pirates Detained in EUNAVFOR Framework: EU Law e) Conclusion

D. Non-Arbitrary Arrest and Detention of Piracy Suspects

The Prohibition of Arbitrary Arrest and Detention

Non-Arbitrary Arrest and Detention of Piracy Suspects

Il. | Procedural Safeguards for Piracy Suspects Deprived of Their Liberty A. Right to Information Concerning Deprivation of Liberty

Piracy Suspects Are Beneficiaries of the Right to Information a) Article 5(2) ECHR b) Article 9(2) ICCPR Content and Extent of Information to Be Provided a) Initial Arrest Based on Suspicion of Criminal Activity aa) Article 5(2) ECHR bb) Article 9(2) ICCPR b) Detention Pending Transfer The Bearer, Form and Language of Information Promptness a) Arrest and Detention on Suspicion of Criminal Activity aa) Information about the Reasons of Arrest bb) Information about the Charges b) Detention Pending Transfer

B. Right to Be Brought Promptly before a Judge

2. 3. 4

The Purpose of the Guarantee

The Applicability to Piracy Suspects Scope of Judicial Control

Procedural Features of Judicial Control a) Automatic Judicial Control

b) The Right to Be Heard

220 220

226 228 230

234 235 237 238

246 247 248 248 249 251 251 251 254 255 259 261 261 261 262 263 265 266 266 268 269 269 270 xi xii c) The Right to “Prompt” Judicial Control aa) Article 5(3) ECHR bb) Article 9(3) ICCPR Competent Authority to Exercise Judicial Control Which Judge, When and How: Challenges in the Counter-Piracy Context a) Recalling the Practice aa) Criminal Law Approach to Arrest and Detention of Piracy Suspects bb) Piracy Suspects as “Extraordinary Suspects” b) A Judge of the Seizing or Receiving State? aa) Medvedyev and Rigopoulos: Impertinent to the Issue at Hand bb) Arguments against the Proposition “A Judge Is a Judge” c) Judicial Control by the Seizing State aa) Granting Judicial Control Soon after the Initial Arrest bb) Providing an Opportunity to Be Heard d) Conclusion

C. Right to Judicial Review of the Lawfulness of Detention

Applicability of Habeas Corpus Right to Piracy Suspects Applicability to Short-Term Detention

The Scope of Judicial Review

a) Testing the Lawfulness of Deprivation of Liberty b) Importance of Judicial Review in the Context of Piracy Features of the Procedure and Procedural Safeguards a) Receive Necessary Information

b) Have an Opportunity to Be Heard

c) Be Provided with Access to Counsel

d) Have a Realistic Opportunity of Using the Remedy e) Obtain a Decision Speedily or without Delay

A Court Must Take the Decision - Of Which State?

a) The Notion of “Court”

b) The Courts of the Seizing State

D. Right to Consular Assistance

Conclusions on Arrest and Detention

Transfer Decision Procedure in Light of International

Individual Rights

A Conditional Right Not to Be Transferred: Non-Refoulement

A. No Transfer Prohibition Flowing from the Law of the Sea B. A Conditional Right Not to be Transferred under Human Rights Law

271 271 275 275

276 276

277 277 279

281 283

315 316 316

C.

A.

B.

C.

A.

B.

No Absolute Right Not to Be Transferred under Human Rights Law A Conditional Right Not to Be Transferred: Non-Refoulement a) Similarities: Applicability of Non-Refoulement Principle aa) Extraterritorially on Board Law Enforcement Vessels bb) To Piracy Suspects cc) Tothe Removal Method of Transfers dd) To All Destinations to Which Piracy Suspects Are Sent ee) To Harm Potentially Inflicted upon Transfer and Re-Transfer b) Differences: Harm to Be Prevented by Refoulement Prohibitions aa) Prohibition of Torture and Other Forms of IIl- Treatment bb) Right to Life cc) Right to a Fair Trial dd) Right to Liberty and Security

Conclusions on the Conditional Right Not to Be Transferred Right to an Individual Non-Refoulement Assessment

The Practice: Global Rather than Individual Assessment The Law: Individual Rather than Global Assessment

Transfer Agreements

a) Not All Transfer Agreements Are Public

b) Main Content of Transfer Agreements

Transfer Agreements Cannot Replace Individual Assessment Assessment of Reliability and Effectiveness of

Diplomatic Assurances

Necessity of Individual Non-Refoulement Assessments at Sea

Conclusions on the Right to an Individual Non-Refoulement Assessment

Right to Be a Party to Transfer Proceedings

Current Practice

Procedural Dimension of the Principle of Non-Refoulement

‘lly

The Right to a Non-Refoulement Assessment

a) Assessment Ex Proprio Motu

b) Obligation to Establish an Assessment Procedure

The Right to Review a Removal Decision

a) Right to an Effective Remedy against a Removal Decision aa) ECHR

bb) ICCPR

cc) CAT b) Procedural Requirements Conclusion

320 323 326 326 328 329

365 367

C. Procedural Safeguards Relating to Expulsion: Applicable to Piracy Suspects?

1. 2,

Article 1 of Protocol 7 ECHR Article 13 ICCPR a) Applicability to Piracy Suspects aa) Applicability of Article 13 ICCPR to Extradition bb) Transfers Meet the Committee’s Definition of Extradition cc) Piracy Suspects as “Aliens Lawfully in the Territory of a State Party” b) Removal Pursuant to a Decision Reached in Accordance with Law c) Implicit Due Process Guarantee aa) Impartiality bb) Fairness cc) Equality of Arms d) Explicit Procedural Guarantees aa) The Right to Submit Reasons against Removal bb) Right to Have His Case Reviewed cc) The Right to Be Represented dd) No “Compelling Reasons of National Security” in the Piracy Context e) Conclusion

D. Fair Trial Rights: Applicable to Piracy Suspects?

1. 2.

Equality before Courts and Tribunals Fair Hearing by a Tribunal with Certain Features a) Article 6(1) ECHR aa) No Full Determination of Innocence or Guilt bb) Analogy between Deportation and Extradition Proceedings b) Article 14(1) ICCPR Defence Rights a) Article 6(3) ECHR aa) No Full Determination of Innocence or Guilt bb) Analogy between Deportation and Extradition Proceedings b) Article 14(3) ICCPR Presumption of Innocence a) Article 6(2) ECHR aa) Guarantee Not Limited to Criminal Proceedings bb) Close Link between Impugned Statement and Criminal Proceedings Abroad b) Article 14(2) ICCPR

379 379 381 382 382

420 424 424 425 425

426 427 427 428 428

429 431

Table of Contents XV

5. Juvenile Offenders 431

6. Conclusion 432

E. Conclusions on the Right to Be a Party to Transfer Proceedings 433

IV. Conclusions on Transfer Decision Procedure 435 Concluding Remarks 437 l Bibliography 443 II United Nations Documents 461 III Table of Cases 467 IV Table of Legislation 479

Acknowledgements

This book is a slightly revised version of my doctoral dissertation accepted by the Faculty of Law of the University of Basel, Switzerland, in March 2013. The work reflects doctrine and case law as it stood as of January 2013.

First and foremost, special thanks are due to my supervisor, Professor Dr. Anne Peters from the University of Basel, who perfectly understood how to guide my research while always allowing me to find my own voice. Her extraordinarily prompt and detailed comments certainly enriched the book at hand. I am also greatly indebted to Professor Dr. Sabine Gless from the University of Basel for paving the way for this book (and my academic life in general) in many respects and agreeing to act as my second supervisor. Thanks are also due to Professor Dr. Stephan Breitenmoser from the University of Basel for presiding over the doctoral exam.

I am extremely appreciative for the financial support I received from the Swiss National Science Foundation, which allowed me to focus exclusively on my research for several months and to spend an inspiring and productive period at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law in Lund, Sweden. The research setting at the Raoul Wallenberg Institute was nothing short of excellent and I extend my warmest thanks to the director at the time, Marie Tuma, and the staff for hosting me as a guest researcher and for instantly including me in the team. Moreover, due to this scholarship, I was able to spend a period of time at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany, where I was given full access to its exceptional research library. I am also very grateful for the outstanding work environment provided by the Faculty of Law of the University of Basel.

There is growing interest in maritime law enforcement, especially in connection with its human rights dimension. However, as regards counter-piracy operations, the legal aspects relating to the human rights of persons subject to arrest, detention and transfer remain under-researched. This is mainly due to the restricted and confidential nature of the factual information necessary to conduct a doctrinal analysis of the pertinent legal provisions and case law. It is only because of first-hand information that I received from a number of experts with xviii

Acknowledgements personal knowledge of the arrest, detention and transfer of piracy suspects by virtue of their professional functions or duties that I could conduct the two case studies, which serve as the basis for the ensuing legal analysis. I am incredibly grateful for the experts’ availability and willingness to contribute to the project at hand. For confidentiality reasons, I cannot name them individually - however, those individuals who provided me with the necessary information are well aware that the book at hand could not have been realized without their indispensable input.

Writing a book is quite a solitary endeavour. Discussing legal issues and research strategies with colleagues and friends, as well as the feedback, suggestions and materials they so kindly offered, was essential to the success of this work. In this respect, I owe special thanks to Michael Duttwiler, Maria Orchard and Sanja Dragic, all of whom provided me with extremely helpful comments, information, material and encouragement. Furthermore, engaging in scientific dialogue with persons who share an interest in maritime security and human rights proved fruitful, and I am most appreciative for all the occasions I have had in this regard. In particular, I think of the scholars, practitioners and stakeholders I met within the framework of MARSAFENET (Network of Experts on the Legal Aspects of Maritime Safety and Security, COST Action IS1105), at the roundtable on “Countering Piracy: What Are the Rights and Obligations of States and Private Security Providers?” in Wilton Park, United Kingdom, at the International Conference on Piracy at Sea organized by the World Maritime University in Malmö, Sweden, and those from the German interdisciplinary project PiraT (Piraterie und maritimer Terrorismus als Herausforderung für die Seehandelssicherheit: Indikatoren, Perzeptionen und Handlungsoptionen).

I am also very grateful to Timothy Maldoon, Publications Officer at the Raoul Wallenberg Institute and Managing Editor for the book series at hand, for his meticulous editing work on the manuscript, as well as the entire Martinus Nijhoff Publishers team for providing a first-rate publication process. Lastly, without the remarkable professionalism and availability of my proof-reader, Maria Orchard, I would not have been able to realize this publication. I am extremely appreciative of her support.

The time I spent researching and writing this book was an intense, occasionally frustrating, yet extremely rewarding period in my life. As such, I am deeply grateful for the unconditional love and support I received from my partner Jens, as well as my parents, and for the patience of little Till, who came into this world in the middle of the project. And to all those who contributed in one way or the other to the success of this endeavour: thank you very much!

Anna Petrig Basel

List of Abbreviations

CAT Committee CAT

CCPR CFREU CFSP CJA Comm CRC CTF CUP DK Doc ECHR

EComHR ECtHR ed

edn

eds

eg

EMRK

ETS

Amtsblatt der Europäischen Union

application

British Broadcasting Corporation

contra

Committee against Torture

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment International Covenant on Civil and Political Rights Charter of Fundamental Rights of the European Union Common Foreign and Security Policy

Council Joint Action

Communication

Convention on the Rights of the Child

Combined Task Force

Cambridge University Press

Denmark

Document

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights)

European Commission of Human Rights

European Court of Human Rights

edition / editor

edition

editors

for example / for instance

Konvention zum Schutze der Menschenrechte

und Grundfreiheiten (Europäische Menschenrechtskonvention)

European Treaty Series

XX

Abbreviations

EU EUNAVFOR FDP

fn

GASP

GG

HR Council HRC ICCPR

ICJ

ICRC

ICTY ie IHT ILC IMAC IMO IPBPR

LG

M/S

n NATO NL

no / nos NWV OCRTIS OEF OHQ OJ OPCON OUP para / paras PCIJ PSI

Rep

Res RSCAS SICO SOP StPO

SUA Convention

European Union

European Union Naval Force

Freie Demokratische Partei

footnote

Gemeinsame Außen- und Sicherheitspolitik Grundgesetz für die Bundesrepublik Deutschland Human Rights Council

Human Rights Committee

International Covenant on Civil and Political Rights International Court of Justice

International Committee of the Red Cross International Criminal Tribunal for the Former Yugoslavia

id est

Iraqi High Tribunal

International Law Commission

International Mutual Assistance in Criminal Matters International Maritime Organization Internationaler Pakt über bürgerliche und politische Rechte

Landgericht

Motor Ship

note

North Atlantic Treaty Organization

The Netherlands

number / numbers

Neuer Wissenschaftlicher Verlag

Central Office for the Repression of Drug Trafficking Operation Enduring Freedom

Operational Headquarters

Official Journal of the European Union operational control

Oxford University Press

paragraph / paragraphs

Permanent Court of International Justice Proliferation Security Initiative

Reporter

Resolution

Robert Schuman Centre for Advanced Studies Special International Crimes Office

Standard Operating Procedure Strafprozessordnung

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation

Abbreviations tactical control

troop-contributing nation

Universal Declaration of Human Rights

United Kingdom

United Nations

United Nations Convention on the Law of the Sea United Nations Development Programme

United Nations General Assembly

United Nations High Commissioner for Refugees United Nations International Children’s Emergency Fund United Nations Interregional Crime and Justice Research Institute

United Nations Office on Drugs and Crime United Nations Security Council

United Nations Security Council Resolution United Nations Treaty Series

Universal Periodic Review

United States

United States of America

versus

Vienna Convention on Consular Relations volume xxi l. Hypothesis: Piracy Suspects Are Holders of International Individual Rights

“[P]irates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they can find no protection in that law.” This phrase coined by Alberico Gentili, a 16th century scholar, relates to an entirely different type of piracy than what is known today as Somali-based piracy. And yet, Gentili’s perception of piracy suspects as outlaws is reflected to a large extent by the current counterpiracy operations off the coast of Somalia and the region: piracy suspects subject to arrest, detention and transfer are, when seen through the lens of procedural rights and safeguards,” mere objects of decisions and procedures rather than parties with fundamental interests in the issues at stake equipped with procedural means to defend such interests.

As regards the approach to arrest and detention of alleged Somali-based pirates,’ patrolling naval States can, broadly speaking, be divided into two cat-

1 Alberico Gentili, De iure belli libri tres: The translation of the edition of 1612 (John Rolfe tr, Clarendon Press 1933) 423, para 697.

2 This statement only relates to their status in procedural terms and not to their substantive treatment, ie it does not relate to the manner in which liberty is deprived and detainee treatment (eg mistreatment during this process) or the manner in which a transfer decision is implemented.

3 The notion of “Somali-based pirates” is used in this study as a short and concise way to refer to persons seized by patrolling naval forces off the coast of Somalia and the region on suspicion of piracy or armed robbery at sea. Despite the use of the word “pirate” - without emphasizing each time that they are merely suspected of having committed an offence amounting to piracy or armed robbery at sea — it is not yet clear at the time of seizure whether arrested piracy suspects will ultimately be found guilty in terms of criminal law. Put differently, the presumption of innocence obviously applies to them. Furthermore, as a general rule, the notion of “piracy” is used in this study to refer to the criminal phenomenon of Somali-based piracy, rather than the specific offence of piracy. Violence against ships and crews referred to as

© ANNA PETRIG, 2014 | DOI:10.1163/9789004269972_002 This is an open access chapter distributed under the terms of the cc BY-NC 4.0 license.

egories. A minority of States pursues a “criminal law approach” to deprivation of liberty of piracy suspects. These States apply the ordinarily applicable rules governing arrest and detention on suspicion of criminal activity, including procedural safeguards, to the piracy suspects that they seize. Other States, however, perceive alleged pirates as “extraordinary suspects”. These States take the stance that piracy suspects only enter the door of domestic criminal law - and thus have the relevant rules on arrest and detention on suspicion of criminal activity, including procedural safeguards, applied to them - once the seizing State decides to prosecute them in its own courts. However, as long as the decision whether the seizing State will exercise its criminal jurisdiction over the respective suspect is pending, domestic rules governing deprivation of liberty on suspicion of criminal activity are not applied to him.+ If the seizing State ultimately decides not to exercise its criminal jurisdiction over the suspects it intercepted, they will never enter the door of domestic criminal law and are thus unable to follow the judicial avenues leading from that entrance gate. What is more, if the piracy suspects remain detained with a view to their potential transfer after such a negative jurisdictional decision, no specific domestic rules governing this kind of detention generally exist, and the rules on deprivation of liberty with a view to extradition are not applied due to the differing nature of extradition and transfer.

As a consequence, any review of their detention pending transfer rarely occurs. Overall, as a general rule, the “extraordinary suspect” approach to deprivation of liberty on suspicion of criminal activity, taken together with the normative gap regarding detention with a view to transfer, inevitably results in piracy suspects being stripped of all procedural safeguards for the entire time they are deprived of their liberty by the seizing State - most importantly, there is no judicial review or control of their arrest and detention possible. In sum, under the “extraordinary suspect” approach to arrest and detention, piracy suspects — similar to the pirates Gentili referred to many centuries ago - do not fall within the protection of law. Seizing States are only exceptionally willing and able to prosecute piracy suspects they took captive in their own criminal courts. The preferred course of action is to transfer the suspects for prosecution to a third State located in the region prone to piracy. A transfer decision is generally reached through negotiation and cooperation between two States or between a State and EUNAVFOR. Hence, it is not the product of a formalized procedure described in a legal act issued by an administrative and/or judicial body. As a consequence, the potential transferee is not a party to the process that may ultimately result in his transfer. This, in turn, implies that he cannot avail himself of any procedural safeguards

“piracy” potentially fulfils a variety of offence as defined in domestic criminal law, which does not necessarily contain a specific offence of piracy.

4 Inthe study at hand, only the masculine form is referred to given that thus far no women have been part of pirate attack groups; hence, no female persons have been arrested and detained on suspicion of piracy or armed robbery at sea and ultimately transferred to a third State for prosecution.

- most notably, he is not offered an opportunity to submit reasons against his transfer, that is, to formulate and substantiate a non-refoulement claim. Also, piracy suspects are not granted any possibility to have their transfer decisions reviewed. At best, piracy suspects subject to transfer are informed of the fact that attempts are being made to identify a prosecution venue and/or that transfer is imminent. Another feature of the transfer of piracy suspects is that no individual non-refoulement assessment takes place, which is necessary to determine whether there is a risk that certain human rights of the specific piracy suspect will be violated upon transfer. Rather, actors responsible for transfers take the stance that the principle of non-refoulement is sufficiently protected by concluding transfer agreements with States of the region ready to accept piracy suspects for prosecution, which contain clauses prohibiting ill-treatment and the imposition of the death penalty against transferred piracy suspects and granting various fair trial rights to them. It is argued that such agreements are only concluded if the transferring entity deems the prison conditions and the manner in which criminal cases are investigated and prosecuted by the receiving State to be in line with international human rights law generally and the guarantees protected by the prohibitions of refoulement specifically. Hence, the prevailing view is that this global non-refoulement assessment carried out prior to concluding a transfer agreement renders individual assessments obsolete. When taken as a whole, the characteristics of transfer proceedings are such that piracy suspects are mere objects rather than parties with fundamental interests in the outcome of such procedures armed with procedural tools to effectively formulate and substantiate a non-refoulement claim.

It is submitted here that the “extraordinary suspect” approach to arrest and detention of piracy suspects, and the practice of treating them as mere objects of proceedings involving their transfer, stands in contradiction and defiance of the idea that piracy suspects too are holders of international individual rights, most notably stemming from international human rights law’ Hence, this study

5 This study is based on the assumption that international law as it stands now acknowledges the idea of “international individual rights” (see Anne Peters, ‘Membership in the Global Constitutional Community’ in Jan Klabbers, Anne Peters and Geir Ulfstein (eds), The Constitutionalization of International Law (OUP 2009) 171); for a theoretical conceptualization of this idea, see Anne Peters, ‘Das subjektive internationale Recht’ in Peter Haberle (ed), Jahrbuch des öffentlichen Rechts der Gegenwart (Mohr Siebeck 2011); on the position of the individual in the international legal system, see Kate Parlett, The Individual in the International Legal System: Continuity and Change in International Law (CUP 2011). As regards human rights law specifically, this study rests on the premise that human rights treaties ascribe legal rights to individual human beings themselves and that they are not mere third party beneficiaries - a view notably reflected in HRC, ‘General Comment No. 26: Continuity of Obligations’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies: Vol I (2008) UN Doc HRI/GEN/1/Rev.9 (Vol. I) para 4, where to Committee stated that “rights argues that the failure to perceive piracy suspects as subjects of the disposition procedure - most notably in matters involving deprivation of liberty and their potential transfer for prosecution - amounts to a violation of various international individual rights with a procedural component.

For instance, the “extraordinary suspect” approach to arrest and detention is hardly in line with the right to liberty and security, and it arguably violates the right to consular assistance. Moreover, when piracy suspects are not associated in any way to the proceedings concerning their potential transfer and are not granted individual non-refoulement assessments, such practices appear to be incompatible with the procedural dimension of the non-refoulement principle, procedural minimum safeguards relating to expulsion, and some aspects of what is commonly referred to as fair trial rights. Furthermore, to consider alleged pirates as “extraordinary suspects” without any procedural protection in terms of arrest and detention and to treat them as mere objects of the transfer decision procedure also conflicts with the idea that every person has “a right to have rights”* - not only under domestic law but also under international law directly’ - as required by Article 6 UDHR and Article 16 ICCPR. The use of the word “everywhere” in both provisions points to an extremely broad territorial scope of application.* In light of this, it is suggested that it even applies to persons not subject to a State’s jurisdiction,’ while others maintain that its scope of application cannot go beyond the one of the Covenant as a whole, which is predicated on the notion of “jurisdiction”. Even if the latenshrined in the Covenant belong to the people living in the territory of the State party”; see Dinah Shelton, “The Status of the Individual in International Law’ (2006) 100 American Society of International Law Proceedings 249, 259-60. In doctrine, different terms are used to denote to the concept of international individual rights, notably “rights of individuals in international law” (ibid 259) and “individual rights under international law” (ibid 260).

6 This expression stems from Hannah Arendt, who is quoted by Judge Pinto de Albuquerque in his concurring opinion in Hirsi Jamaa and Others v Italy App no 27765/09 (Grand Chamber, ECtHR, 23 February 2012), which is a decision of great relevance in the context of removal of persons intercepted at sea; on the expression coined by Arendt, see also Peters, ‘Membership in the Global Constitutional Community’ (n 5) 158-59. ibid.

OHCHR, ‘Legal Capacity: Background conference document prepared by the Office of the United Nations High Commissioner for Human Rights’ (Sixth Session of the Ad Hoc Committee) <www.un.org/esa/socdev/enable/rights/ahc6documents.htm> accessed 13 January 2013, 5: attempts to strike it from the Covenant failed during the drafting process of Article 16 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

9 ibid.

10 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (and edn, N.P. Engel Verlag 2005) 371, argues that the territorial scope of application of Article 16 ICCPR does not differ from Article 2(1) ICCPR.

ter point of view is adopted, Article 16 ICCPR without a doubt applies to seizing States deciding on the arrest, detention and transfer of piracy suspects.”

In relation to Article 16 ICCPR, the Human Rights Committee has found that “intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal to recognize that person before the law” if that person is in the hands of State authorities and efforts of relatives “to obtain access to potentially effective remedies, including judicial remedies ... have been systematically impeded”.” In these cases, which involved forced disappearance, the Committee found that in such situations “persons are in practice deprived of their capacity to exercise entitlements under law, including all their other rights under the Covenant, and of access to any possible remedy as a direct consequence of the actions of the State, which must be interpreted as a refusal to recognize such victims as persons before the law”. This finding suggests that considering piracy suspects as “extraordinary suspects”, with the consequence that they are not granted any of the protections ordinarily available to criminal suspects, is incompatible with the idea behind Article 16 ICCPR -“the right to have rights”. This core idea behind Article 16 ICCPR also appears to exclude the treatment of human beings as mere objects rather than subjects with rights and entitlements. This idea, which the Human Rights Committee confirmed in relation to the marital status of women," must also hold true for piracy suspects who are currently mere objects of transfer proceedings.

Bearing in mind the premise that piracy suspects are holders of international individual rights and that they have a “right to have rights” under Article 16 ICCPR and Article 6 UDHR, we now delve into an in-depth analysis of the arrest, detention and transfer of piracy suspects in light international individual rights with a procedural dimension. Before doing so, however, we will delimit the scope of this analysis - the subject matter analysed and the legal yardsticks applied - and describe the methodology employed in establishing the current practice of arrest, detention and transfer of piracy suspects.

u— On the extraterritorial application of the ICCPR (specifically in the maritime context), see below Part 3/III.A.2.

12 Kimouche v Algeria Comm no 1328/2004 (HRC, 10 July 2007) para 7.8, and Grioua v Algeria Comm no 1327/2004 (HRC, 10 July 2007) para 7.8; very similar wording is used in Aouabdia v Algeria Comm no 1780/2008 (HRC, 19 May 2011) para 7.9.

13 Kimouche v Algeria (n 12) para 7.8; Grioua v Algeria (n 12) para 7.8.

14 HRC, ‘General Comment No. 28: Article 3 (The Equality of Rights between Men and Women)’ in ‘Note by the Secretariat, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies: Vol I’(2008) UN Doc HRI/GEN/1/Rev.9 (Vol. I) para 19, where the Committee states that Article 16 ICCPR implies “that women may not be treated as mere objects to be given together with the property of the deceased husband to his family”.

Il. Scope of the Study: Disposition in Light of International Individual Rights

A. The Subject Matter Analysed

The subject matter of the present study is the disposition of piracy cases, or more concretely, the “disposition procedure” and “detention during disposition”. The term “disposition procedure” refers to the process following the seizure of piracy suspects, where it is decided whether to release the seized persons or submit the case for investigation and prosecution to either the competent authorities of the seizing State or a third State. Thereby, the focus of the study is the surrender of seized piracy suspects to third States for prosecution. The term “detention during disposition” refers to any form of de facto or de jure deprivation of liberty of piracy suspects before their release or surrender to the mainland authorities of the seizing State or a third State for criminal prosecution. Thus, a distinction is drawn between the initial arrest of piracy suspects, detention on suspicion of criminal activity, and detention pending transfer. In line with the traditional understanding of the right to liberty,’ the focus lies on the actual deprivation of liberty and whether the minimum procedural safeguards for depriving a person of his liberty, which flow from human rights law, are respected. Neither the manner in which liberty is deprived nor the subsequent treatment of detainees is scrutinized in the study at hand.