Captured pirates: Kenyan solution for Canada?/Update: Lawyers and guns

We're trying to out-source prosecution:

Her Majesty's Canadian Ship (HMCS) Winnipeg crosses the Indian Ocean to join Standing NATO Maritime Group 1 (SNMG1) vessels to conduct counter-piracy operations of the coast of Somalia. HMCS Winnipeg is a Halifax-class patrol frigate commanded by Commander Craig Baines with a crew of approximately 240, including a CH-124 Sea King helicopter detachment. Canada's participation in Standing NATO Maritime Group 1 (SNMG1), conducted under Operation SEXTANT, represents a continuing commitment to international peace and security. HMCS Winnipeg is the 5th Canadian Ship to deploy since 2006 to join the Standing NATO Maritime Group 1 (SNMG1), which represents a multi-national maritime force capable of conducting missions across a broad spectrum of operations anywhere around the world. Photo: Warrant Officer Carole Morissette, Canadian Forces Combat Camera (WO CAROLE MORISSETTE)

ON BOARD HMCS WINNIPEG in the GULF OF ADEN — Canada is actively seeking an agreement with Kenya to prosecute suspected Somali pirates arrested by Canadian warships, Defense Minister Peter MacKay said Thursday [May 21].

Following a tour of HMCS Winnipeg, Canada’s contribution to a NATO anti-piracy task force in the Gulf of Aden, MacKay said negotiations are underway between a number of interested nations and Kenya to accept pirates arrested in the act of attacking commercial vessels.

"We’re working through diplomatic channels with countries here in the region, most notably Kenya, as other countries have been able to do to establish a means or a process to prosecutor those who are involved in piracy here," MacKay told reporters.

"There are precedents in place that allow for countries like Canada to strike an agreement, an accord or memorandum that would allow for the arrest and then turning over of suspected pirates and evidence necessary to prosecute." [I await Prof. Michael Byer's reaction.]

The Canadian frigate has stopped numerous attacks on commercial vessels off the coast of Somalia [lots more here]. However, the federal government has been criticized for its decision to release pirate suspects rather than bringing them back to Canada for prosecution.

The Criminal Code of Canada does allow Canada to prosecute anyone suspected of piracy [emphasis added] but Ottawa has declined to follow in the steps of the United States and The Netherlands, nations that are currently trying suspected Somali pirates.

MacKay noted that working with Kenya, a country that has a long history of trying pirates makes sense from a practical perspective. Its close proximity to the Gulf of Aden allows for a speedy transport of suspects and ensures better continuity of evidence, he added.

The international community will have to provide some support to Kenya to handle an influx of pirate suspects, MacKay said. He would not detail what kind of support is needed.

Despite the fact Ottawa is pursuing an agreement with Kenya to prosecute pirate, it is unclear what role Canada will play in this region. The Winnipeg finishes its mission in early June and MacKay said NATO has not formally requested Canadian participation in the anti-piracy task force in the immediate future.

Canada is prepared, however, to continue patrolling the region if asked [emphasis added], he added.

MacKay was treated to a full demonstration of HMCS Winnipeg’s anti-pirate capabilities. The simulation involved the pursuit of a pirate skiff which was in fact a launch from the Winnipeg. The small craft was surrounded by the Sea King helicopter launched from the aft flight deck of the Winnipeg and ordered to stop.

While this mock drama was unfolding on the port side of the ship, MacKay and his entourage got an up-close-and-personal look at the operation of a 50-calibre machine gun, one of the Winnipeg’s array of weaponry. About two dozen thundering rounds were fired into the blue waters of the gulf.

A boarding party then demonstrated its techniques for searching a suspected pirate vessel, using the bridge of the Winnipeg as its target.

A boarding party member grilled MacKay, who ably stepped in to play the captain of the suspected pirate vessel. Faced with a superior force, both in terms of training and weaponry, MacKay agreed to fully cooperate with the boarding party.

Update: CBC story, with video:

HMCS Winnipeg helps thwart 2 pirate attacks

Photos:

A Sea King helicopter is seen hovering aft of HMCS Winnipeg. (CBC)


HMCS Winnipeg has disrupted numerous pirate attacks on vessels off the coast of Somalia and in the Gulf of Aden. (CBC)

Upperdate: Another action, plus the law:

Canadian warship helps vessel evade pirates

It's lawyers, guns and piracy in the Gulf of Aden
...
The fact that Canada's Criminal Code allows for prosecution of pirates in Canadian courts caused further confusion.

However, a more careful examination of the legal context, and the challenges of mustering evidence in such difficult circumstances, suggests that trying pirates in Canada may not be a good idea.

Only two nations are attempting to try alleged Somali pirates - the Netherlands and the United States - and in both instances the trials have unearthed a welter of complex issues.

Many worry some of the pirates are too willing to be captured and taken for trial to developed country. Media interviews with the pirates in the Netherlands have suggested that some use prosecution as an opportunity to claim refugee status. This has unleashed a torrent of skepticism about the practical value of prosecution.

In Canada's case, a number of legal questions remain unanswered. Would evidence from a search, seizure and arrest of alleged pirates carried out under the terms of a United Nations resolution be considered admissible in a Canadian court governed by the Charter of Rights and Freedoms?

A good defence lawyer could find fertile grounds to challenge the legality of the broad and wide-ranging powers granted to warships in the Gulf of Aden - powers that easily exceed those granted to law-enforcement agencies in Canada...

As for lawyers and guns: