CODE OF PRACTICE FOR THE
INVESTIGATION OF THE CRIMES OF PIRACY AND ARMED ROBBERY AGAINST SHIPS
(adopted on 29 November 2001)
THE
ASSEMBLY,
RECALLING
Article 15(j) of the Convention on the International Maritime Organization
concerning the functions of the Assembly in relation to regulations and
guidelines concerning maritime safety,
RECALLING
ALSO the 1988 Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation (SUA Convention) and the 1988 Protocol for the
Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on
the Continental Shelf,
NOTING
resolution A/RES/55/7 on «Oceans and the law of the sea», by which the United
Nations General Assembly, at its fifty-fifth session, urged all States, in
particular coastal States, in affected regions to take all necessary and
appropriate measures to prevent and combat incidents of piracy and armed
robbery at sea, including through regional co-operation, and to investigate or
co-operate in the investigation of such incidents wherever they occur and bring
the alleged perpetrators to justice in accordance with international law,
NOTING
ALSO the approval by the Maritime Safety Committee of MSC/Circ.622/Rev.l and
MSC/Circ.623/Rev.l containing recommendations to Governments and guidance to
shipowners and ship operators, shipmasters and crews on preventing and
suppressing acts of piracy and armed robbery against ships,
BEARING
IN MIND the rights and obligations of States under the international law of the
sea, including the provisions of the 1982 United Nations Convention on the Law
of the Sea (UNCLOS),
RECOGNIZING
WITH DEEP CONCERN the grave danger to the safety of life at sea and the marine
environment arising from acts of piracy and armed robbery against ships,
RECOGNIZING
ALSO that the number of acts of piracy and armed robbery against ships
continues to increase world-wide,
BEING
AWARE that the fight against piracy and armed robbery against ships is often
impeded by the absence of effective legislation in some countries for the
investigation of reported cases of piracy and armed robbery against ships,
BEING
ALSO AWARE that, when arrests are made, some Governments are lacking the
legislative framework and adequate guidelines for investigation necessary to
enable conviction and punishment of those involved in acts of piracy and armed
robbery against ships,
TAKING
INTO ACCOUNT the recommendations made at regional seminars and workshops
organized by IMO within the context of the 1988 anti-piracy project, that the
development of a Code of practice for the investigation and prosecution of acts
of piracy and armed robbery against ships should be pursued on a priority basis
to ensure an appropriate punishment for the crime of piracy and armed robbery
against ships,
BEING
CONVINCED of the apparent need for a Code of practice to be adopted and
promulgated as soon as possible,
BEING
ALSO CONVINCED of the need for Governments to co-operate and to take, as a
matter of the highest priority, all necessary action to prevent and suppress
any acts of piracy and armed robbery against ships,
1.
ADOPTS the Code of Practice for the Investigation of the Crimes of Piracy and
Armed Robbery Against Ships, set out in the Annex to the present resolution;
2.
INVITES Governments to co-operate in the interests of the safety of life at sea
and environmental protection by increasing their efforts to suppress and
prevent acts of piracy and armed robbery against ships;
3.
ALSO INVITES Governments to develop, as appropriate, agreements and procedures
to facilitate co-operation in applying efficient and effective measures to
prevent acts of piracy and armed robbery against ships;
4.
ENCOURAGES Governments to apply the provisions of international instruments
aiming at improving the safety of life at sea and the prevention and
suppression of acts of piracy and armed robbery against ships;
5.
REQUESTS the Secretary-General to bring this resolution and the attached Code
of Practice for the Investigation of the Crimes of Piracy and Armed Robbery
Against Ships to the attention of member Governments, the United Nations and
other international organizations concerned for information and appropriate
action;
6.
FURTHER REQUESTS the Maritime Safety Committee and Legal Committee to keep the
Code under review and take action as it may deem appropriate;
7.
URGES Governments to take actions as set out in the Annex to the Code of
Practice to investigate all acts under their jurisdiction of piracy and armed
robbery against ships, and to report to the Organization pertinent information
on all investigations and prosecutions concerning these acts;
8.
FURTHER URGES all Governments responsible for ports, anchorages and sea areas
to inform the Organization of specific advice available to ships on the subject
of piracy and armed robbery against ships for promulgation by the industry to
such vessels.
Annex.
CODE OF PRACTICE FOR THE INVESTIGATION OF THE CRIMES OF PIRACY AND ARMED
ROBBERY AGAINST SHIPS
The
purpose of this document is to provide IMO Member States with an aide memoire
to facilitate the investigation of the crimes of piracy and armed robbery
against ships.
For
the purpose of this Code:
2.1
Piracy means unlawful acts as defined in Article 101* of the 1982 United
Nations Convention on the Law of the Sea (UNCLOS).
2.2
Armed robbery against ships means any other unlawful act of violence or
detention, or any act of depredation, or threat thereof, against a ship or
against persons or property on board, within a State's jurisdiction over such
offences.
______________
* The following
definition of piracy is contained in article 101 of the 1982 United Nations
Convention on the Law of the Sea (UNCLOS): «Piracy consists of any of the
following acts:
(a) any illegal
acts of violence or detention, or any act of depredation, committed for private
ends by the crew or the passengers of a private ship or a private aircraft, and
directed:
(i) on the high
seas, against another ship or aircraft, or against persons or property on board
such ship or aircraft;
(ii) against a
ship, aircraft, persons or property in a place outside the jurisdiction of any
State;
(b) any act of
voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft;
(c) any act
inciting or of intentionally facilitating an act described in sub-paragraph (a)
or (b).»
2.3
Investigators means those people appointed by the relevant State(s) to
intervene in an act of piracy or armed robbery against a ship, during and/or
after the event.
3.1
States are recommended to take such measures as may be necessary to establish
their jurisdiction over the offences of piracy and armed robbery against ships,
including adjustment of their legislation, if necessary, to enable those States
to apprehend and prosecute persons committing such offences.
3.2
States are encouraged to ratify, adopt and implement the practical applications
of the 1982 United Nations Convention on the Law of the Sea, the 1988
Convention for the Suppression of Unlawful Acts Against the Safety of
Navigation and the 1988 Protocol for the Suppression of Unlawful Acts Against
the Safety of Fixed Platforms Located on the Continental Shelf.
3.3
To encourage masters to report all incidents of piracy and armed robbery
against ships, coastal/port states should make every endeavour to ensure that
these masters and their ships will not be unduly delayed and that the ship will
not be burdened with additional costs related to such reporting.
3.4
Coastal states are encouraged, where appropriate, to enter into bilateral or
multilateral agreements to facilitate the investigation of piracy and armed
robbery against ships.
4.1
Training of investigators should cover the primary purposes of an
intervention/investigation:
. 1 In any cases
where persons on board have been abducted or have been held hostage, the
primary objective of any operation or investigation must be their safe release.
Their rescue must take precedence over all other considerations.
.2 Arrest of
offenders.
.3 Securing of
evidence, especially if an examination by experts is needed.
.4 Dissemination
of information which may help prevent other offences.
.5 Recovery of
property stolen.
.6 Co-operation
with the authority responsible for dealing with any particular incident.
4.2
Investigators must be trained and experienced in conventional investigative techniques,
and should be as familiar as possible with a ship environment. Maritime
knowledge will of course be an advantage, and access to persons with knowledge
on maritime procedures useful, but it is investigative skills which are vital.
4.3
Trainers may wish to emphasise that offenders could still be at the scene of
crime when investigators arrive on scene.
5.1
It is essential that those employed by security force agencies to investigate
piracy or armed robbery against ships have demonstrated investigation skills
and competencies, as well as any maritime knowledge/experience. Offenders are
ultimately land-based, and it is likely that it is on land they will be most
vulnerable to detection. Associates may be prepared to give information against
them, for example, and it is there that they will be spending the proceeds of
their crime. It is also probable that offenders will be involved in other
offences such as carrying of illegal immigrants, and useful intelligence may be
lost if investigators are too compartmentalised in their approach.
5.2
Conventional detective methods offer the best chance to identify and apprehend
pirates.
5.3
It may be appropriate to link anti-piracy measures to anti-smuggling patrols or
efforts to prevent drug movements, so minimising duplication of effort and
leading to saving of resources. Wherever possible, inter-agency approach to
investigation should be adopted.
Overall management/other
liaison/cooperation
5.4
It is important to identify the person and/or organisation in charge of an
investigation. Confusion or delay in the early stages will, at best, result in
delayed investigative opportunities and loss of evidence. At worst, it may
increase the danger to any crewmen held captive by the offenders, possibly
resulting in avoidable loss of life or injury.
5.5
Recognition should be given to the different national interests that may be
involved in each case including: the flag state of the ship; country in whose
territorial waters the attack took place; country of suspected origin of the
perpetrators; country of nationality of persons on board; country of ownership
of cargo; and country where the crime is committed. In cases of piracy and
armed robbery against ship outside territorial waters, the flag State of the
ship should take lead responsibility and in other cases of armed robbery the
lead should he taken by the State in whose territorial waters the attack took
place. In both all cases it should be recognised that other States will have
legitimate interests and therefore liaison and co-operation between them is
vital to a successful investigation.
5.6
It is important to involve relevant organizations (e.g. Interpol,
ICC/International Maritime Bureau) at an early stage, where appropriate, to
take account of the possibility that transnational organised crime may be
involved.
5.7
If in the course of the investigation there is an unavoidable need to change
the investigator in charge a full debriefing should take place.
6. DEALING WITH AN INITIAL REPORT
When
information is received that a ship is under attack, or a recently committed
major offence is reported and the ship is accessible, investigators should
attend without delay. The responsibilities of those who first attend crime
scenes will be the following:
.1 They must
secure medical treatment for all persons injured.
Prevention of the escape of
offenders
.2 They must be
alert to the possibility that, in some circumstances, offenders may still be in
the vicinity.
.3 Whenever
practicable warnings should be issued to other vessels ships in the vicinity
which may be vulnerable to attack.
.4 Recovery of
forensic material from a crime scene has the potential to provide evidence to
identify offenders. Equally, interpretation of what happened at the scene will
help investigators and determine the outcome of the investigation. It is
therefore vital that crime scenes be protected until the attendance of
appropriately qualified personnel to examine them. This point must be fully
understood by the master crew and shipowner of any ship involved.
.5 The initial
phases of the law enforcement and emergency services' response present the
greatest risk of scene contamination. Personnel co-ordinating the
law-enforcement response should be aware of the risk of contamination and
advise persons attending scenes, including other law enforcement officials and
naval personnel, accordingly.
.6 They must
ensure that the authorities in the country with lead responsibility for
investigating any crime are informed of the details of the incident and given
the opportunity to conduct an investigation into it. Any evidence, details of
action taken, etc should be passed to the State with the lead responsibility.
.7 Focused
questioning at the crime scene may lead to information which, by being rapidly
passed to all appropriate authorities, could lead to the identification or
arrest of offenders e.g. description of offenders, description of ship and
direction last seen heading in.
Law enforcement
officials first attending a scene must appreciate the importance of their role
in gathering and passing on as quickly as possible, relevant evidence even if
the offenders have escaped. Mistakes or omissions at the outset may have
serious implications for the subsequent investigation.
.9 Investigators
should bear in mind that recovery of property during the investigation is
important as it may become evidence in the event of any prosecution.
The
course of an investigation will to a large extent depend on the circumstances
of the offence. In this regard the investigating agency will wish to take
account of the «seriousness» of the incident. This will range from stolen
property to the loss of life. Consequently, action to be pursued should be
proportionate to the crime committed and consistent with the laws that were
violated. The following will, however, be common to all piracy and armed
robbery investigations:
Establishing and recording
of all relevant facts
.1 All relevant
facts must be recorded in a systematic way. Most law enforcement agencies use
multi-purpose crime reporting forms, but officers dealing with offences at sea
must be sure to include the additional information which may subsequently prove
essential in legal proceedings in these cases e.g. weather, sea state,
position, direction of travel and speed of the ship, a detailed description of
the ship and so forth.
.2 Photographs
and videotapes taken of and on a ship will help investigators and witnesses
subsequently explain what happened.
.3 Investigators
must bear in mind that laws governing offences committed at sea allow, in some
circumstances, for legal proceedings in countries other than those where
initial investigators may be based. Investigations must therefore be
sufficiently comprehensive and detailed to explain what happened to courts
other than the investigators' own, possibly several years after the offences
have been committed. The modus operandi of investigators has to be described in
the