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By John Helmer in Moscow

Russia’s Chief Prosecutor’s office has acknowleded that putting Somali pirates ashore for trial in Kenya is no longer an option, unless the Kenyan courts are replaced by a fully funded international tribunal.

Responding to questions from Fairplay, Alexander Zvyagintsev, the deputy prosecutor-general, has issued the longest official statement on the piracy issue since the Russian Navy despatched a destroyer squadron to patrol the waters off Somalia last year. According to Zvyagintsev, the 29 pirates captured by the Admiral Panteleyev on April 29, following an armed attack on a Russian oil tanker, included 12 Pakistanis, 11 Somalis, and 6 Iranian nationals; he claimed their excuse of being fishermen is not credible.

But Zvyagintsev did not disclose what has been done with the men. Russia is unlikely to put them on trial in Moscow, he hinted. Sending them to the Kenyan courts is also unlikely, because he said Kenya will have “serious problems” in trying up to 100 men already charged there with pirate offences off Somalia.

Rejecting “extreme unilateralism” as a policy, Zvyagintsev said the pros and cons of an international piracy tribunal have yet to be resolved by negotiation with the African coast states, and the Group of Eight states. Zvyagintsev said that he will be meeting with prosecutors from the other G8 states in Rome over the weekend to consider what is to be done next. Among the legal problems the G8 lawyers are discussing is the problem of sufficient evidence to secure convictions against the Somali pirates. Noting that “the legislation of many states does not provide the possibility of prosecuting the criminal liability of foreign citizens and persons without citizenship for crimes of piracy committed out of the [territorial or juridictional] limits of these states, [and so] there is the issue of how implement criminal prosecution using the mechanisms of international law.”

Zvyagintsev noted that Article 227 of the Ruyssian Criminal Code provides for prosecution of piracy, whether committed by Russian nationals, or nationals of another state,. However, he acknowledged the “practical application” of Art. 227 is difficult, especially in cases where the Russian flotilla has arrested foreigners who have attacked non-Russian vessels, and seized non-Russian cargoes, or non-Russian hostages for ransom.

Spain, Canada, and Denmark, he noted, remain undecided or unclear on what is to be done with pirates if their vessels capture them. “Recently, the captain of a French frigate, participating in European Union’s anti-piracy force, was given the order to release three suspects. They had been detained on April 30 on board a vessel, which appeared to be a mother ship for pirates. However, there was nothing could be found on board that would prove participation in a criminal activity.”
Article 105 of the UN Maritime Convention of 1982, and subsequent conventions, as well as UN Security Council resolution no. 1851, adopted last December 16, empower the military forces of member states to do what they can to defend against piracy, not only on the high seas, beyond national jurisdiction, but also in the territorial waters, land, and also the airspace of Somalia. . But repelling attacks, and dealing with the attackers are two very different problems, Zvyagintsev admitted.
Military measures are not having a deterrent effect, he said. In 2008, Russian statistics indicate 111 incident reports off Somalia; 42 pirate boardings of vessels; 17 vessels and about 300 seamen are currently being held for ransom. An estimated $120 to $150 million was earned this way by the Somali pirates last year, the Russian official claims. He also estimates that about 160 groups are active, and are generating enough revenue to equip vessels and arm pirate crews that can now operate far off Somalia’s territorial waters, up to a thousand miles from shore.

Despite an international flotilla of 35 warships from 20 countries, Zvyagintsev said that there were as many pirate attacks in the first quarter of this year as were counted in the entire last six months of 2008. The heavier armament being used by the pirates and the defenders has also meant a rising risk of fatalities among civilian crews.

The Russian prosecutor acknowledged that the US capture of a single Somali pirate will mean a trial and a possible sentence of life imprisonment “to demonstrate to all the ‘Jolly Rogers’ what fate awaits them if they are arrested and tried by the Americans.” But he is skeptical that this is a fate that will deter the young, poor Somalis now employed in pirate operations.

The Kenyan Ambassador to Moscow, Sospiter Magita Machage, refuses to say if the Kenyan government has been discussing a Russian proposal for a tribunal in Nairobi, and if so, what payment terms have been tabled.

The Russian Defence Ministry and Navy also decline to confirm that, for the time being, the rules of engagement have been changed to emphasize firing to deter, disperse, or kill attackers, not to secure their surrender.

“The problem of what to do with the pirates who have been arrested, remains undecided for the majority of countries,” Zvyagintsev admits. “That adds to the confidence of the pirates that they can go on acting with impunity.”

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