Specialized Chambers to Prosecute Kingpins – Long promised

The Regional Anti-Piracy Prosecution and Intelligence Coordination Centre whose objective is to  create sustainable regional capability and capability to undermine the piracy business model by bringing pirate leaders, financiers and enablers to justice

The Regional Anti-Piracy Prosecution and Intelligence Coordination Centre (RAPPICC) in Seychelles, the objective of which is to undermine the piracy business model by bringing pirate leaders, financiers and enablers to justice

As we have reported here, here, and here, the UN Security Council has long expressed its interest in the creation of specialized chambers to prosecute pirates in the East African region. On 18 November 2013, the UN Security Council again raised the prospect of creating such chambers (Resolution 2125), following the UN Secretary General’s report on piracy off the coast of Somalia of 21 October 2013 (UNSG Report), which Matteo analysed here. This comes on the heels of a donor conference at which substantial funds were pledged to assist Somalia. It also comes as the failure to prosecute pirate kingpins has become increasingly conspicuous.

Background

In October 2011, the UN Security Council decided in Resolution 2015: “to continue its consideration, as a matter of urgency, without prejudice to any further steps to ensure that pirates are held accountable, of the establishment of specialized anti-piracy courts in Somalia and other States in the region with substantial international participation and/or support,” and requested the UN Secretary General to report on the modalities for the creation of such specialized chambers. The UNSG provided his report in January 2012 indicating the costs and estimated capacity of creating specialized chambers in several regional states and regions of Somalia, including Kenya, Tanzania, Seychelles, Mauritius, Puntland and Somaliland. Since that time, prosecutions have indeed continued in each of these countries, with some (mainly Kenya and Seychelles) bearing the burden. However, no specialized chambers have been created to date.

Backlog of Cases

The UNSG Report notes that 53 suspects are currently on remand for trial as pirates in Mauritius, Kenya and Seychelles. This is despite the significant contribution of the international community into prosecution and incarceration of pirates in the regular court systems of states such as Kenya, Mauritius and Seychelles, the most prominent being UNODC’s counter-piracy programme valued at $60 million. Resolution 2125 laments that “the continuing limited capacity and domestic legislation to facilitate the custody and prosecution of suspected pirates after their capture has hindered more robust international action against the pirates.” This translates to a backlog of cases in the judiciaries relied upon by the international community to prosecute such cases. As compared with regular criminal courts in these countries which suffer from significant backlogs, it is hoped that specialized piracy chambers with particularized knowledge of piracy cases would permit more efficient prosecutions.

Reduction but threat of resurgence

Apart from the persistent backlog of cases for past pirate attacks, the UNSG and UNSC indicate that the conditions are ripe for attacks to surge once again. While acknowledging the significant reduction of pirate attacks off the coast of Somalia, Resolution 2125 warns that this situation is reversible. More specifically, the UNSG concludes that “the situation with regard to the rule of law, security, development and governance in Somalia that has allowed piracy to arise has not changed sufficiently so as to deter criminals from attacking ships and holding seafarers hostage for ransom. Pirate attacks may increase if the international naval presence is reduced or if commercial vessels relax their self-protection measures.” He further estimates that due to the proceeds already collected from prior ransoms, pirates retain the capacity to attack vessels.  Finally, he indicates that “several pirate financiers are engaging in other criminal activities as well and that they have built significant paramilitary capacities on land, and thus have the potential to destabilize the region.” In short, the UNSG appears to call for continued action on piracy until pirate criminal enterprises have been dismantled. This would keep the international community busy for the foreseeable future.

Kingpins the focus

Resolution 2125 and the UNSG report discuss all pirate perpetrators, but the clear focus of both is on pirate kingpins, the failure to prosecute such high-level perpetrators, and the dangers this creates for the broader goal of stabilizing Somalia. The UNSG notes that “neither the Government of Somalia nor the Puntland administration nor any other local authority had seriously investigated and prosecuted any senior pirate leaders, financiers, negotiators or facilitators, and that the leadership of the principal piracy networks and their associates continued to enjoy impunity and had not been hindered in their ability to travel or transfer funds.” Resolution 2125 emphasizes that if specialized piracy courts are created, they must have jurisdiction over “anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who plan, organize, facilitate, or illicitly finance or profit from such attack.” The focus is clear.

As we noted here, the identities of pirate kingpins are well-known. The difficulty has been tracing proceeds, obtaining evidence, and bringing that evidence to court (and likely gaining custody of the Accused). There have been efforts to foster international cooperation to prosecute pirates. Notably, the Regional Anti-Piracy Prosecution & Intelligence Coordination Centre (RAPPICC) in Seychelles promises to “bring together experts from around the world to share intelligence and information which will help to tackle the king-pins and financiers of piracy.” Yet, despite the significant international resources brought to bear on anti-piracy operations, including the deployment of navies and international assistance for local prosecutions, pirate kingpins have not been brought to justice.

Indeed the creation of such chambers could have little purpose, but for the prosecution of pirate kingpins considering (1) there are few new arrests of pirates as reported attacks are insubstantial and (2) it is completely unfeasible to prosecute low level offenders who have been caught and released since the evidence against them is destroyed as a matter of course (see Matteo’s post here). Perhaps the rationale behind supporting the specialized piracy chambers is that a complex prosecution of a pirate financier and pirate leader will be more feasible in a court with particularized knowledge and resources devoted to such trials.

Conclusion

To date, there appears to be a split in the UNSC on the issue of specialized piracy chambers, with some enthusiastically supporting the idea and others permitting its exploration but little else. In Resolution 2125, the UNSC notes with appreciation the substantial pledges of support at a recent donor conference for Somalia and reiterates its decision to continue to consider the establishment of “specialized anti-piracy courts in Somalia and other States in the region with substantial international participation and/or support.” Perhaps because donors have been forthcoming, the UNSC has chosen to re-launch the 2011 idea of specialized chambers. The UNSC also requests states including Somalia and other states in the region to report back on on their efforts to establish jurisdiction and cooperation in the investigation and prosecution of piracy.” Since specialized piracy chambers have been discussed for over two years with only a feasibility study to show for it, whether such chambers will come to fruition is uncertain. Particularly as pirate attacks are at a low ebb, donors may be reluctant to shell out cash for such a focused activity especially outside of Somalia (such as in Kenya and Seychelles) when Somalia is in dire need of funds in all sectors of its government.

International Anti-Piracy Efforts in Somalia Must Continue: UNSG

The latest UN Secretary General situation report on piracy in Somalia is now before the UN Security Council. The report provides an overview and an update on the most relevant anti-piracy initiatives in Somalia and the Gulf of Aden.

During 2013, piracy has continued to be a major issue on the agenda of the UN and EU, NATO, several regional and other interested states as well as a number of specialized agencies, such as the UNODC, DPA, IMO, INTERPOL and FAO among others. Specific and ad hoc mechanisms and organizations, such as the Kampala Process, the Contact Group, the Djibouti Code of Conduct, the Trust Fund, the Hostage Support Program and a number of international conferences have proven instrumental in the fight against piracy.

It has been widely reported how incidents of piracy in the region are now at a seven years low. It is also no mystery how these positive developments are due to a multitude of factors, including the effectiveness of the international maritime patrol missions, the best management practices and the use of private armed guards in deterring piracy attacks, as well as the implementation of the “prosecution chain”, by which suspected pirates are apprehended, tried in courts of regional states and eventually transferred in Somaliland and Puntland to serve any imposed sentence.

“A number of measures have led to a decline in attacks: improved international and regional cooperation on counter-piracy efforts, including better intelligence- and information-sharing; targeted actions by the international naval presence to discourage and disrupt Somali pirates; increased application of IMO guidance and of the Best Management Practices for Protection against Somalia-based Piracy, developed by the shipping industry; and prosecution of suspected pirates and imprisonment of those convicted. The adoption of self-protection and situational awareness measures by commercial ships, including the deployment of privately contracted armed security personnel on board vessels and vessel protection detachments, are also believed to have contributed to the decrease in piracy attacks.”

The Security Council is expected to agree with the Secretary General’s recommendation that the international anti-piracy efforts underway in Somalia continue for at least another year. The obvious question is how long the international community will be willing and capable to continue financing its costly patrol missions, particularly given the waning threat (or risk of attacks). The question also arises on the cost-efficiency of private armed guards on board ships travelling in the region. The repression of piracy in the Gulf of Aden does not, however, solely depend upon these initiatives. The fight against piracy which started as an armed response, has progressively expanded into an integrated system that encompasses respect and promotion of human rights and the rule of law, governance, economic development, capacity building, treatment of juvenile pirates, alternative employment opportunities and legislative reform. In addition, environmental protection and exploitation of natural resources in the region are also being monitored. Even if the piracy drought continued in 2014, these initiatives are likely to be further stepped up and take center stage towards long-term solutions for Somalia’s future. Although we have been careful not to conflate terrorism with piracy, the impetus to continue these programmes also arises from the continued threat of terrorism originating in and/or targeting Somalia.

Upcoming Event: At Third Dubai Counter-Piracy Conference, Focus is on Rebuilding Somalia

The United Arab Emirates will host its third International Counter-Piracy Conference on 11-12 September 2013. The UAE has since long engaged in counter-piracy initiatives in the Gulf of Aden and the larger area of the Indian Ocean. The event, which will be held in Dubai, UAE is entitled “Countering Maritime Piracy: Continued Efforts for Regional Capacity Building” and follows prior conferences convened in April 2011 and June 2012. We have covered last year’s event here and here.

While the previous Conferences brought together stakeholders from both the public and private sectors to devise a framework strategy to combat piracy, at that time at its peak in the Gulf of Aden, this year’s conference will build upon the current successes against piracy and focus on developing the capacities of Somali institutions to strengthen security and long-term economic growth.

The key themes of the Conference will be:

  • Continuing to build awareness about the humanitarian and economic cost of piracy, including extending support to seafarers who are suffering from maritime piracy on the frontline;
  • Injecting a new momentum in the common search for an effective and enduring solution to piracy through collaboration across political, military, financial and legal arenas;
  • Encouraging a comprehensive, inclusive approach that can deliver a long term, sustainable solution to counter piracy, including land-based solutions;
  • Highlighting the significance of enhancing industry-government cooperation in addressing the issue through joint strategies emphasising sustainable long term solutions.

The official website of the Conference can be found here. A draft agenda as well as some of the main presentations and position papers are already available, giving a preview of the forthcoming debate.

The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force – An Update

A guest post by David Hammond. For a background, see also our previous post on the publication of the 100 Series Rules. 

David Hammond is the Head of Maritime Practice at 9 Bedford Row International Chambers London, author of the 100 Series Rules, a former frontline Royal Marines’ Officer and former head maritime lawyer to the United Kingdom’s Chief of Joint Operations for counter-piracy matters. He is an Associate Research Fellow of the Greenwich Maritime Institute and international speaker on maritime Rules for the Use of Force. The comments within this post comprise the personal opinion of the author and do not constitute any measure of formal legal advice whatsoever and howsoever read. Formal legal advice may be obtained on instruction.

Also posted at All About Shipping and the Bridge.

Background

Over the past two years, the 100 Series Rules (“the Rules”) have been conceived, researched, drafted and finally published in soft-copy form as of May 3, 2013 as a first edition. They are a first for the commercial maritime industry and go one step further than simple guidance for the drafting Rules for the Use of Force (RUF) and guidance as to where responsibility lies for producing RUF as an inclusive part of a commercial contract. At the time of writing, the 100 Series Rules have been short-listed in support of one of the five finalists for the Lloyds List Global Awards 2013 Maritime Lawyer of the Year.

At the very least, the Rules provide a lawful core set of principles and RUF for use by emerging companies. At best, they provide a point of reference that can be relied upon as a robust legal interpretation for the lawful use of force by international organisations and State entities, enabling auditing, standardisation and accountability in any chain of events where force is lawfully used at sea in self-defence.

The Rules have been developed for the benefit and use of the entire maritime industry, intended to be referred to without the imposition of State or geographical boundaries, overly restrictive interpretations, interference from commercial entities seeking commercial advantage or State authorities seeking State advantage.  In short, the previous lacuna in provision to the international community of an actual model set of rules has been filled and is now being further developed alongside the registered “Supporting Entities”, as highlighted on the website.

The Law

The law that underpins the Rules is that of individual self-defence; itself a universal concept that can be found to outdate modern legislative interpretations going back to the Bible, Koran and other main religious texts by way of example. It is the individual right of all persons in every region, in every country and that includes indigenous seafarers, merchant sailors, as well as Privately Contracted Armed Security Personnel (PCASP), to be able to lawfully defend themselves against criminal acts of violence.

The Rules themselves are concise in terms of their core principles. They are concise in their outline of graduated defensive response measures that individuals may be required to undertake to protect themselves and those immediately around them. This, of course, includes the use of lethal/deadly force as a last resort, in self-defence.

The drafters of the Rules have researched significant numbers of individual State’s legislation covering the issue of self-defence (presentations containing this research may be found open-source on the website). They have subsequently identified the international objective law test of what is “reasonable and necessary” within the Rules, while accounting for proportionality in the use of any force as against an identified treat. The objective test stands as a higher standard as against which actions may be measured than that necessarily found in some State’s legislation at the individual national subjective level. In some cases, individual State’s legislation may well exceed that laid down in the Rules.

The 100 Series Rules will not, however, provide any form of indemnity or immunity whatsoever against civil or criminal liability when force has been used unlawfully.

International Supporting Entities

The Rules are currently supported in their conception and use by over 40 international entities. These currently include a main flag State, ISO, Lloyds Register, BIMCO, UNICRI, SAMI as well as international maritime associations representing the world’s shipowners and ship managers, international PMSCs, insurance and maritime intelligence providers and leading international law firms specialising in piracy matters. In short, this is an international effort driven by leading commercial entities based upon practical and pragmatic real-time experiences, combined with the general call for clarity of rules, transparency in their use and accountability for the lawful use of force at sea.

IMO and ISO

In support of ISO PAS 28007-2012, the Rules were first submitted to ISO in October 2012. They were accepted a work item and are undergoing a final review at the time of writing.

 In June 2013, the Rules passed through the IMO at Maritime Safety Committee 92 as an INF paper sponsored by the Republic of the Marshall Islands, ISO, BIMCO and the International Chamber of Shipping. They were subsequently noted by the IMO and unchallenged for the detail of their contents following the session.

American Standards

There appears to be a dual-track approach to this issue of standardisation as between the US-based ASIS organisation and the European International Organisation for Standardisation (ISO). This article will not debate the pros and cons of the two initiatives, noting only that up to the point of the release of the 100 Series Rules, there was no other reference to an international model standard freely made available to the maritime industry.  Further, without competition, in what is an otherwise commercially focused arena, lone imposed standards may fall foul of anti-competition rules and legislations.

The maritime environment is of course is an entirely different environment to that of both established and emerging land-based operations, often undertaken with the backing of a UN mandate following a period of war-fighting as part of an international, non-international or internal armed conflict, often involving NATO forces and where the Law of Armed Conflict may have been invoked.  In stark comparison and as most readers will know, piracy, armed robbery and hijacking are criminal acts that require a constabulary response and hence the restriction in the maritime environment, (outside of armed conflict) for the need for recognised RUF, as opposed to offensive Rules of Engagement (ROE).

In tandem with the text of the American National Standard PSC 1-2012 ‘Management System for Quality of Private Security Company Operations – Requirements with Guidance’ and reassuringly so, the 100 Series Rules includes the same consideration and understanding for the need of the requirement for human rights at a State, commercial and individual level. The essence and intent of the American and European Human Rights Conventions, as well as the UN Universal Declaration of Human Rights and supporting texts have been rightly integrated as part of the comprehensive approach to the issue of maritime RUF.

Furthermore, 9 Bedford Row International (9BRi) Chambers’ Maritime Practice, will shortly be releasing the first international model guideline document “Model Guiding Principles and Best Practice for Human Rights Considerations in the Maritime Industry” ©Copyright 2013 9BRi. It will be available through http://www.100seriesrules.com/Human_Rights. This will be for the reference and use by the maritime (including the maritime security) industry and interested third parties. It will be based upon current international conventions and decided international case law, backed by a comprehensive legal advice.

Summary

Currently, there stands a lawful international model for maritime RUF that works, is internationally supported, widely socialised and rapidly growing so.  As a model set of actual rules, the 100 Series addresses the commercial requirements of the international maritime industry in greater depth than any other currently available RUF guidance and there are no cogent reasons why the established 100 Series cannot complement emerging land standards.

As seen with the development of Best Management Practice (BMP), the 100 Series Rules will remain at the disposal and for the use of the international maritime industry. It will be an iterative document that will develop over time, but most importantly, it should not be undermined by entities seeking commercial advantage at the expense of supporting and protecting seafarers in undertaking often difficult and dangerous roles at sea.

New UN Assistance Mission in Somalia

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.

USAID Budget to Somalia Proposed to Double

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.

EUCAP NESTOR: Bolstering the Rule of Law to Counter Piracy in the Horn of Africa – Interview with David HAMMOND

David HAMMONDFollowing retirement for the UK Royal Marines as a former frontline operator and then latterly as a naval barrister (Counsel), David Hammond was instructed by the UK Foreign and Commonwealth Office to be the UK representative and lead lawyer for the planning, establishment and delivery of the €40m European Union’s “NESTOR” Common Security and Defence policy (CSDP) Counter-Piracy Legal Advisory Programme for East Africa. As part of the advance planning team, David gained unique and valuable experience throughout East Africa, including in Somalia and where he led the legal liaison with the Somaliland and Puntland authorities at Ministerial and Attorney-General level. David successfully delivered the NESTOR Legal Advisory Programme, involving the establishment of significant rule of law programmes and which he headed up until June 2012.

As the Horn of Africa slowly progresses from a strategy of immediate counter-piracy to a strategy of post-piracy development, David kindly accepted our invitation to respond to a few questions on NESTOR’s mandate and operation. The following answers are provided on the basis that they are correct to the best of his current knowledge.

• What is EUCAP NESTOR main role in tackling piracy in the Horn of Africa and the Indian Ocean and, in particular, what are its main thematic areas of operation?

As per the EU Council Decision 2012/389/CFSP of 16 July 2012, the objective of EUCAP NESTOR is to assist the development in the Horn of Africa and the Western Indian Ocean States of a self-sustainable capacity for continued enhancement of their maritime security including counter-piracy, and maritime governance. EUCAP NESTOR will have initial geographic focus on Djibouti, Kenya, the Seychelles and Somalia. EUCAP NESTOR will also be deployed in Tanzania, following receipt by the Union of an invitation from the Tanzanian authorities.

In order to achieve the objective, the tasks of EUCAP NESTOR were identified as being:

(a) assist authorities in the region in achieving the efficient organisation of the maritime security agencies carrying out the coast guard function;

(b) deliver training courses and training expertise to strengthen the maritime capacities of the States in the region, initially Djibouti, Kenya and the Seychelles, with a view to achieving self-sustainability in training;

(c) assist Somalia in developing its own land-based coastal police capability supported by a comprehensive legal and regulatory framework;

(d) identify priority equipment capability gaps and provide assistance in addressing them, as appropriate, to meet the objective of EUCAP NESTOR;

(e) provide assistance in strengthening national legislation and the rule of law through a regional legal advisory programme, and legal expertise to support the drafting of maritime security and related national legislation;

(f) promote regional cooperation between national authorities responsible for maritime security;

(g) strengthen regional coordination in the field of maritime capacity building;

(h) provide strategic advice through the assignment of experts to key administrations;

(i) implement mission projects and coordinate donations;

(j) develop and conduct a regional information and communication strategy.

• Why the creation of a mission with such peculiar mandate in the Horn of Africa setting?

At that time, and as far as I was aware, it was determined that in concert with various other on-going counter-piracy initiatives, including military action by EUNAVFOR, established work by EU delegations alongside the IMO, UNODC piracy programme and the likes of the Djibouti Code of Conduct, that a land-based regional programme which imparted expert knowledge and training to judicial, constabulary and other engaged entities throughout the Horn of Africa was the most efficient and effect method of assisting with the suppression of the piracy threat. Bolstering the effectiveness of the rule of law throughout affected areas was also seen as being of key importance in assisting with regional political stability.

Hargeysa Secure Hotel and Compound - Courtesy of David Hammond

Hargeysa Secure Hotel and Compound – Courtesy of David Hammond


• What are, therefore, the main differences in the mandates of EUCAP Nestor and EUNAVFOR and how these coordinate their respective activities?

NESTOR, as described, focuses on the imparting of expert constabulary, judicial, coastguard and logistical knowledge by Member State subject matter experts through training courses. This is separate to, but compliments the military presence provided for by EUNAVFOR alongside the on-going initiatives led by the EU Special Representative for the Horn of Africa.

• What is the current status of EUCAP Nestor deployment and what will be its overall structure and geographic area of operation?

I understand that at the moment staff are currently deployed to three countries: Djibouti (Mission Headquarters), the Republic of the Seychelles and Kenya. They will operate in those countries, plus Somalia and which will be the main focus. Tanzania has been asked to participate but so far has not invited the mission to carry out work there. The mission is mandated to run for 2 years commencing from 16 Jul 2012 and is headed up by Jacques Launay.

• What were the most challenging aspects in EUCAP Nestor set up and preliminary deployment process, given its geographic and thematic breadth?

The lasting memory I have in relation to the initial stages of the pre-deployment planning for the Technical Assessment Mission (TAM) and subsequent drafting of the Concept of Operations which led to the Operational plan (OPLAN), was the positive drive and collegiate Member State political will in Brussels to make the operation work. This meant significant and sustained drafting, revision and constant presentational updates to the Political and Security Committee (PSC) from what was a small team, as set against the enormity of the task which then faced us. This was undertaken in a structured, collegiate and team-focused manner with many long days and nights spent brain-storming the successive issues that arose. This was undertaken with significant levels of professionalism from selected Member State individuals who had previously never before worked together and this often required a ready sense of humour from all of us.

For my part, once deployed in the Horn of Africa, the issue of establishing a new rule of law and legal advisory programme sat with me due to the limited size of the team. The TAM ran for over one month in total and involved multiple visits to five States by all team members. There was continuous ‘hot’ planning, setting up of meetings on the sour of the moment and exploiting every opportunity to meet key in-country stakeholders. It was what I would call “quick and dirty planning and mission development” and which proved most successful.

The biggest challenge was, in my mind, to achieve local buy-in for our mission and its purpose. This meant that I needed to identify and seek out the key decision makers at every stage and convince them of the benefits of the EU mission and especially of the merits of the Legal Advisory Programme.

Meeting with Puntland Attorney General - Courtesy of David Hammond

Meeting with Puntland Attorney General – Courtesy of David Hammond

 

The most striking mission development work for the Legal Advisory Programme that I undertook, was in Somaliland and Puntland alongside the judicial and ministerial authorities. This included being present at piracy trials in the Garowe court and spending time in discussion with the Attorney General, before going on to meet with the Chief Justice and Minister of Justice and Religious Affairs for Puntland. The issue of extending the rule of law into the coastal areas, as well as support within the IDP camps for education in terms of women’s rights and humanitarian law was of particular note and interest for me. Subsequently, I was able to draft the individual programmes that would assist in some of those areas of articulated need and which was most gratifying. In Somaliland, the essence of the interactions were the same in terms of seeking out areas in which we could assist the authorities with the development of the rule of law through imparting knowledge via training and advisory roles.

• Current available data shows that piracy attacks in Somalia are diminishing. Is this the result of the international community efforts to combat piracy and what impact will this have on the continuation of such efforts, particularly the full implementation of EUCAP Nestor mandate? 

I am informed that the decrease in attacks is due to a variety of factors, including: EUNAVFOR’s ATALANTA operation and other naval operations, greater use of PSCs, greater use of best practices to avoid risks as well as improved information sharing. However, I am informed that this reduction is probably fragile and could be reversed without careful oversight. As such, the environment in which EUCAP NESTOR was envisaged to act has changed, but arguably there is now an even greater need for the mission as the success of reducing piracy at sea has opened the possibility of doing even more to create security and stability on land, which will provide the conditions for a lasting reduction in piracy.

David Hammond can be contacted at:

david.hammond@9bedfordrow.co.uk

http://www.9bedfordrow.co.uk/members/David_Hammond

http://uk.linkedin.com/in/davideuanhammond