Forthcoming article on private security

May 14, 2013 by Leave a comment

Yvonne Dutton, an Associate Professor of Law at Indiana University Robert H. McKinney School of Law (not to mention a friend and colleague), has a law review article forthcoming in the Duke Journal of Comparative & International Law on regulating the private maritime security industry. Here’s the abstract:

Since only mid-2011, states have increasingly authorized their shippers to hire private armed guards to protect them as they travel through pirate-infested waters. Estimates indicate that in 2011, the percentage of ships employing armed guards rose from approximately 10% to upwards of 50%. Primarily, the guards are hired out by the 200 to 300 private maritime security companies (PMSCs) that have been created overnight to capitalize on this new opportunity. This article recognizes the importance of protecting innocent seafarers from violent pirate attacks. It also recognizes that the worlds’ navies may not be able to protect each and every ship and crew from being attacked. Nevertheless, it argues that states should not be permitted to include private citizens in the fight against piracy without first ensuring that those guards will abide by governing laws and norms and be held accountable should they fail to do so. Yet, as the article shows through a comparison and analysis of the laws and guidance of five states, only some states appear to be providing any guidance regarding the necessary training and qualifications that armed guards must possess or how and when they may lawfully use and transport weapons. This article argues that states need to do more. At the very least, it urges states to agree on vetting and monitoring procedures to make certain that any guards who are hired by shippers are well trained and prepared to safely transport, store, and use weapons. States are responsible for the fight against piracy, and if they want to include private contractors in that fight, then they should act responsibly and regulate and monitor the guards’ conduct. Otherwise, in a world where each state is creating its own rules or even no rules at all, the likely outcome is chaotic and violent seas — and perhaps the next “Blackwater” moment.

The full article can be accessed here.

Filed under Book Reviews, Somalia Tagged with ,

When the Use of Force is Lawfull: The 100 Series Rules are Released

May 5, 2013 by 1 Comment

After a lengthy incubation process, the 100 Series Rules have finally been released. Courtesy of the author, David Hammond, we have obtained a copy here.

The Logo of the 100 Series Rules

The Logo of the 100 Series Rules for the Use of Force

The 100 Series Rules are an international model standard and example benchmark of best practice for the use of force in the maritime security and anti-piracy fields for application by privately contracted armed security personnel (PCASP) and private maritime security companies (PMSCs) on board ships.

The Rules are set out for the benefit of the Master, Ship owner, charterer, insurer, underwriters, PMSCs, PCASP and interested third parties, providing guidance on lawful graduated response measures and lawful use of force, including lethal force, in accordance with the right of self-defence in the context of maritime piracy, armed robbery or hijacking. The Rules aim to provide for transparency of rules, clarity in use and accountability of actions in those situations, and hope to fill gaps in these areas often lamented by the stakeholders of maritime industry and maritime security.

The 100 Series Rules have been developed for the benefit of the entire maritime industry and under-pinned by a thorough public international and criminal law legal review of what is “reasonable and necessary” when force is used, as a lawful last resort, in self-defence.

Further details about the 100 Series Rules can be found at www.100seriesrules.com.

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New UN Assistance Mission in Somalia

May 4, 2013 by Leave a comment

The United Nations confirmed their commitment for the future of Somalia by establishing a new fully integrated assistance mission, UNSOM. The mission will start deploying in June 2013, for an initial period of one year. For a background on the debate which preceeded the Security Council decision, see our previous post here as well as additional reporting on What’s in Blue.

A view of Mogadishu's Old Town - Courtesy of Clar Ni Changhaile - The Guardian

A view of Mogadishu’s Old Town – Courtesy of Clar Ni Changhaile – The Guardian

UNSOM’s mandate focuses on governance, security sector reform, disengagement of combatants, development of a federal system, preparations for elections in 2016, and coordination of international donor support. Notably, it also contains a strong component of rule of law and human rights elements. UMSOM, to be headquartered in Mogadishu, would help build the Federal Government’s capacity to promote respect for human rights and women’s empowerment, promote child protection, prevent conflict-related sexual and gender-based violence, and strengthen justice institutions. Further, it would monitor, help investigate and report on any abuses or violations of human rights or of international humanitarian law committed in Somalia, or any abuses committed against children or women. In addition, UNSOM will also work  towards the implementation of the Somali Maritime Security Strategy and work with Somali authorities on maritime challenges, including capacity-building and development.

While the UN mantained a presence in Somalia for the past 15 years, the approval of the new assistance mission is another sign of the UN growing engagement in Somalia. Following the downfall of Siad Barre in 1991, the UN unsuccefully deployed a peacekeeping presence in the country from 1992 to 1995, with the UNOSOM I and II missions. Earlier this year, the UN approved the extension of the AU-backed AMISOM peacekeeping mission for another year  and partially lifted the 20-year arms embargo imposed on the country. AMISON will play a fundamental role in the operation of UNSOM, particularly by ensuring the necessary levels of safety and security in the country. Last week, the UN also approved a package of projects in support of anti-piracy efforts in Somalia and other affected States in the region, including Djibouti, Ethiopia, Kenya, Maldives and the Seychelles.

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USAID Budget to Somalia Proposed to Double

April 25, 2013 by Leave a comment

As we noted here, some within the US Congress are pushing for the US Agency for International Development budget allocation to Somalia to be increased. A February visit to the region by USAID’s top official, highlights this new emphasis. Although, it is likely that USAID will experience some significant budget cuts in the coming year due to austerity measures and a general distaste for foreign assistance in difficult economic times in the U.S.,  the pain will not be felt equally by all USAID projects. Under President Obama’s proposed 2014 fiscal year budget, Iraq will experience the largest reduction in USAID funding down 91 percent to $22.5 million. The flip side of that coin are countries like Myanmar, with a 62 percent increase to $75 million.

Importantly, USAID’s Somalia projects will double in size to close to $50 million.  This is a significant sum of money to allocate to a country with limited structural and institutional capacity. As noted in a summary of the administration’s proposed foreign affairs budget:

Somalia ($49.4 million): The end of the political transition in 2012 and the formal recognition of the Government of Somalia in January 2013 represent the beginning of a new political phase. The FY 2014 request will assist Somalis in reestablishing viable governance institutions, which are essential to alleviating humanitarian suffering in the broader Horn of Africa. Increased resources will focus on stabilization and reconciliation efforts; nascent political party development; civil society efforts to promote peace, good governance, and consensus-building; and programs in education, livelihoods, and economic growth.

In addition to this sum, is the administration’s proposed contribution to the UN Peacekeeping operation in Somalia:

The FY 2014 request also includes $136.6 million for Support Office for the African Union Mission in Somalia (UNSOA). UNSOA will continue to provide a logistical support package for the Africa Union Mission in Somalia (AMISOM) for up to a maximum of 17,731 uniformed personnel including the reimbursement of contingent-owned equipment including force enablers and multipliers. The logistics package provides equipment and support services similar to that provided for a United Nations 48 peacekeeping operation. UNSOA is working very closely with the UN Political Office for Somalia (UNPOS) and AMISOM to help create the necessary political and security conditions in Somalia, working in concert with the international community and other UN bodies.

It is not entirely clear, but there may be an additional line of expenditures for contributions to AMISOM:

Somalia ($70 million): FY 2014 funds will be used to continue voluntary support to AMISOM, including training and advisory services, equipment, and transportation of forces from current and new troop-contributing countries. Given the newly recognized government of Somalia and the security gains and expansion made by AMISOM, increased support to the national Somali military forces is critically important. Accordingly, PKO funds will be used to professionalize and provide operational support to Somali security forces, to ensure their capability in contributing to national peace and security in support of the international peace process efforts, and as part of a multi-sector approach to post-conflict security sector reform. Funds to pay the United States’ portion of the UN assessment for support of the UN Support Office for the AMISOM (UNSOA) are being requested in the Contributions to International Peacekeeping Activities account.

Evidently, the U.S. government sees promise in the recent governmental reforms in Somalia and hopes to support reform efforts with significant contributions. Peacekeeping funds are intended to foreclose any gains by the terrorist group al Shabaab. However, the USAID designated funds are to be focused more on job-creation and improving the economy. These are the efforts most important to preventing the spread of piracy at its roots, before young, unemployed Somalis can be tempted to seek their fortunes at sea. Although the proposed budget must be approved by Congress, and there will likely be significant modifications in the coming months, I would venture that the proposed expenditures in Somalia will remain largely intact.

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Kiobel Postscript

April 25, 2013 by 1 Comment

Further to my earlier analysis here, there was one other remarkable detail in the U.S. Supreme Court’s recent decision in Kiobel. Although, the opinion in Kiobel was devoted to the application of the Alien Tort Statute, it injected some confusion into a strictly piracy matter. Citing to Blackstone’s definition of piracy the court majority noted, “the offence of piracy by common law, consists of committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to a felony there.” This is an outdated definition of piracy inconsistent with the law of nations. The 4th Circuit Court of Appeals has held in two recent opinions that piracy does not require an intent to rob (animus furandi) because the piracy statute 18 USC 1651 incorporates modern developments in “the law of nations” including the customary definition of piracy in Article 101 on the UN Convention on the Law of the Sea. Only a few months ago, the Supreme Court declined to hear these two cases, thereby taking no view on whether the definition of piracy has been updated by modern developments. By now citing to Blackstone’s definition in the Kiobel opinion, however, the court has muddied the waters.

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Calculating the Cost of Piracy

April 24, 2013 by Leave a comment

total-pie_graphOn April 9, Oceans Beyond Piracy released its third annual Economic Cost of Somali Piracy (ECoP) Report at the Danish National Museum in Copenhagen. The launch included a panel discussion including representatives from the Danish Shipowners Association, EUNAVFOR, Oceans Beyond Piracy, and BIMCO. Ambassador Thomas Winkler of the Danish Foreign Ministry and Mohamed Osman, Director of Somaliland’s counter-piracy force, also spoke at the launch.

As the lead author of the report, ECoP kept me away from CHO for a while, so while I’m glad to present some of its findings here, I’m looking forward to returning to some more regular (and more legal) posts in the future. Rather than going into each of the nine cost sections in detail – which can be done easily by reading this two-page summary and slightly less easily by reading the entire report – I will instead focus on the report’s central economic and thematic findings.

The biggest takeaway from the 2012 report is that the overall cost of piracy fell from around $7 billion in 2011 to around $6 billion in 2012. Unsurprisingly, this bottom line figure is the one that has been carried the furthest by the mainstream media.

The key drivers of the decreased costs was a sharp reduction in the cost of evasive measures such as increased speeds and re-routing, which fell by 43.3% and 50.2%, respectively. These decreases were due to a combination of methodological changes and a decreased proportion of ships acceding to the voluntary guidelines laid out in the industry best management practices, version 4. The cost of ransoms and insurance also fell, reflecting the decreased number of attacks and hijackings seen in 2012.

Although many cost factors dropped from 2011 to 2012, one that certainly did not was the cost of private armed security, which rose a staggering 80% when controlling for the number of transits through the Indian Ocean. However, OBP utilized automatic identification system (AIS) data to revise its estimate of the number of annual commercial transits through the Indian Ocean to 66,612 from the 42,450 estimated in 2011. All told, the cost of armed guards rose to $1.34 billion from the $530 million reported in 2011. This change was driven by a doubling in the rate of armed guard use, which was in turn the result of clearer flag state laws regarding the use of armed guards and the continued effectiveness of armed security teams.

Lamentably, there was no change in the proportion of dollars spent on short-term mitigation versus long-term prevention, with 99.5% of funds spent on the former and 0.5% spent on the latter.

The short-term/long-term dichotomy is even more striking in light of the drastic reduction in reported incidents of piracy, which resulted in a fairly dramatic increase in the “per incident” cost. In 2011, $28.60 million was spent per pirate attack. In 2012, $78.66 million was spent per attack, a 175% increase. Put another way, $42 dollars was spent fighting piracy for every dollar spent on a 2011 ransom payment. In 2012, that proportion was up to $186 in prevention for every $1 in ransom. These ratios suggest that the international community would do well to increase the economic efficiency of piracy suppression and devote a portion of those savings to a long-term solution on the shores of Somalia.

In closing, it should be noted that the World Bank released a report two days after the launch of ECoP entitled The Pirates of Somalia: Ending the Threat, Rebuilding a Nation. The report concluded that between 2005 and 2012, piracy has cost the world economy around $18 billion per year (+/- $6 billion). Much has been made (paywalled) about the divergence between our findings and those of the World Bank. However, in my opinion at least, the results are not at all incompatible. Our report only focuses on the costs spent by those directly involved in combatting piracy, while the World Bank’s methodology seeks to capture the full spectrum of costs, most of which are picked up by the general consumer in the form of barely-noticeable price increases. It is therefore unsurprising that the World Bank’s figure was significantly higher than that from ECoP.

I would highly recommend the World Bank Report, as well as ECoP, to anyone interested in developing a fuller picture of the global fight against maritime piracy.

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Piracy – Not just Kiobel’s Analogy

April 23, 2013 by Leave a comment

Justice Kennedy – the deciding vote in Kiobel

Cross-posted at opiniojuris.org

The majority opinion in Kiobel precludes Alien Tort Statute claims for foreign conduct against foreign victims, leaving a small door for potential future claims that involve extraterritorial conduct so long as they touch and concern US territorial interests. But, when does a claim “touch and concern” the territory of the United States? Roger Alford notes that piracy may present an incident of “cross-border” conduct that could clarify this issue. Indeed, two piracy cases will imminently arrive at SCOTUS’ courthouse steps.

The piracy statute 18 USC 1651 shares much in common with the Alien Tort Statute: both were passed in the same time frame and both have reference to “the law of nations.” The presumption against extraterritoriality applies to 18 USC 1651. However, the plain language of the piracy statute and its historical context clearly rebut the presumption for all conduct that occurs on the high seas. Further, neither the victim nor the defendant need be American (U.S. v. Klintock). That said, there remains an important subset of piracy cases that involve conduct both on the high seas and within the territory of another sovereign: acts of aiding and abetting piracy through financing or negotiating ransoms for acts of piracy; or recruiting of child pirates.

In US v. Shibin (4th Circuit) and US v. Ali (DC Circuit), currently on appeal, the underlying criminal conduct of hijacking vessels occurred on the high seas. But, the negotiators in these cases only boarded the vessels upon entry into Somali territorial waters. Hence the mixed loci delecti on the high seas and within the territory of another state. Does this type of mixed conduct touch and concern the territory of the United States?

First, the plain language of the piracy statute would not rebut the presumption against extraterritoriality for conduct occurring within the territory of another state (the statute merely applies to conduct on the “high seas”). However, the historical context of the piracy statute indicates that it was intended to prevent impunity for acts of piracy wherever committed. That is why the modern definition of piracy applies to conduct outside the jurisdiction of any state, as well as to the high seas.

Here is where a case-by-case analysis, suggested in Part IV of the Kiobel majority, could be determinative. In Shibin, the defendant is accused of negotiating the ransom of two vessels. The first vessel has a strong nexus to US interests; the victims were American nationals and the targeted vessel was flagged in the US. Although a vessel’s flag does not designate its surface as territory of the sovereign, it is treated in much the same fashion (Lauritzen v. Larsen) which is to say that there are strong domestic interests in exercising jurisdiction over acts of piracy on one’s flagged vessels. But the second course of conduct charged in Shibin involves a vessel with no links to the US apart from a general interest in suppressing acts of piracy. The same is true in Ali. As the district court described the case: “Defendant Ali Mohamed Ali, a Somali citizen, is accused of helping Somali pirates hijack a Bahamian ship, hold its Russian, Georgian, and Estonian crew hostage, and compel the ship’s Danish owners to pay a ransom for its release.” These latter facts would not prevent the exercise of jurisdiction if the alleged criminal conduct occurred on the high seas. The question is whether aiding and abetting conduct occurring within the territory of another state must touch and concern US interests. If answered in the affirmative, it would curtail the US’s ability to suppress and prosecute acts of piracy, which is contrary to the historical purpose and intent of 18 USC 1651. It would also be inefficient as those who initiate an act of piracy on the high seas and continue acts of piracy in foreign territorial waters could only be prosecuted for the former conduct.

One significant factor Kiobel instructs to consider is the imperative to avoid enmeshing US courts in foreign affairs. In this regard, the specific facts of the Somali cases militate in favour of exercising jurisdiction. For the then Transitional Federal Government (TFG) of Somalia did not have effective control over the territorial waters where these acts of piracy occurred. The UN Security Council authorized States and regional organizations “to undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea,” including in its territorial sea. The UNSC took great pains to note the TFG retained full sovereignty, that these exceptional measures did not create customary international law, and that they were authorized because the TFG had requested this assistance. It has been argued that the UNSC Resolutions authorized enforcement and stopped short of authorizing the prosecution of acts of piracy or armed robbery in Somalia’s territorial waters. Notwithstanding these provisos, the interest in preventing “unintended clashes between our laws and those of other nations which could result in international discord” (Morrison) that lies at the heart of the presumption against extraterritoriality, is greatly diminished in these piracy cases.

Justice Kennedy notes in his concurrence in Kiobel that in disputes not involving solely extraterritorial conduct, “the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Although the majority appears to exceptionalize piracy (“pirates may well be a category unto themselves”), such a reading is inconsistent with Sosa v. Alvarez-Machain which explicitly asked “who are today’s pirates?” The terms “pirate” or “piracy” appear in the various opinions in Kiobel 50 times. Perhaps it is time to address piracy directly, and not merely by analogy. Such could elucidate the “touch and concern” requirement applicable in ATS cases.

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