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

Weekly Piracy Review: Land-Based Counter Measures

Three vessels from Russia’s Pacific fleet are en route to replace Russia’s current deployment in the Arabian sea and take over their counter-piracy patrols in the area. This flotilla is the eighth sent from Russia since they joined the international anti-piracy operations three years ago. During this time the Russian Navy has escorted more than 130 commercial and aid ships through the Red Sea and other pirate-infested shipping lanes off Africa.

NATO’s counter-piracy ships in the Indian Ocean are focusing this week on patrolling waters along the shore of Somalia. Teams have employed smaller rigid-hull inflatable boats to approach the skiffs and fishing boats run by Somalis to exchange information with them regarding the continued presence of patrolling warships in the area. This campaign is undertaken with the intent of discouraging would-be pirates from beginning the enterprise at all, before they launch their boats. Though the increased presence of patrol ships and better communication between merchant vessels has made it increasingly difficult for pirate boats to remain unseen at sea for extended periods of time, the hope is that making the naval presence more well-known close to shore will discourage pirates from setting out to sea at all.

Speakers at the Maritime and Coastal Security Africa 2012 conference held in Cape Town last week discussed the variety of factors that have caused a recent drop in the number of pirate attacks carried out this year [from increased presence of warships and patrols to enhanced communication regarding pirate sightings and the placement of armed guards onboard merchant vessels]. Jason Marriott-Watson of the maritime security company ISPS Group asserted that the recent seizure of the Somali port city of Kismayo from al-Shabab militants was a major cause of this decline. Kismayo had been a stronghold for Somali pirates until control was taken from the group, which is linked to al Qaeda. Many of the al-Shabab militants were arrested by the African Union forces who wrested back control, which were led by Kenyan troops.

Worldwide, pirates have killed at least six crew and taken 448 seafarers hostage this year. The IMB reports that 125 vessels were boarded, 24 hijacked and 26 fired upon while there were 58 attempted attacks. These numbers are the lowest reported since 2009, when maritime piracy was at its height. They show the success of the effort undertaken by the international community to put pressure on those committing acts of piracy, but many organizations say the need for vigilance has not decreased and warn against complacency.

After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Honorable Mr. Justice David K. Maraga (photo: Kenya Law Reports)

The Court of Appeal decision overturns a ruling from the High Court of Mombasa that concluded, as noted by Roger on this blog, that “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” Rather than summarizing the lower court’s opinion, I will simply direct readers to Roger’s excellent analysis of that case.

On appeal, Justice David Maraga stated that the High Court erred by, 1) “subordinating Section 69 of the Penal Code to Section 5”; 2) misinterpreting Sections 369 and 371 of the Merchant Shipping Act of 2009, and; 3) “fail[ing] to appreciate the applicability of the doctrine of universal jurisdiction.”

With regards to the first ground of error, the Court Appeals took issue with the High Court’s interpretation of Section 5 of the Penal Code and its relationship to Section 69. Section 5 states that “The jurisdiction of the courts of Kenya…extends to every place within Kenya, including territorial waters.” The High Court characterized Section 5 as the “defining” Kenyan jurisdictional provision and concluded that Section 69, criminalizing piracy on the high seas, was “void, ab inicio.

Justice Maraga differed with the High Court’s position and held that “there is no conflict or gradation between [Sections 5 and 69].” He noted that Section 5 is part of Chapter 3 of the penal code, entitled “Territorial Application of the Code,” while Section 69 is contained in Chapter 8, “Offences affecting Relations with Foreign States and External Tranquility.” In short, Section 5 concerns itself with the territorial jurisdiction of Kenyan Courts and Section 69 deals with extraterritorial offenses. If anything, concluded Justice Maraga:

“on the established principle of statutory interpretation that in event of inconsistency in statutory provisions the “later in time” prevails, it is Section 69 [passed in 1967] which should supersede Section 5 [passed in 1930] but there is no warrant for that as there is no conflict between the two sections.”

MV Courier, the pirated ship at issue in Hashi (photo: ShipSpotting.com)

The second basis for overturning the High Court’s ruling arises out of the 2009 repeal of Section 69 of the Penal Code and its replacement with Section 369 of the Merchant Shipping Act. Below, the High Court suggested that repealing Section 69 took the crime of piracy jure gentium off the books. However, Section 369 Merchant Shipping Act, the article replacing Section 69, closely tracks UNCLOS article 101’s definition of piracy under international law. Accordingly, although the Merchant Shipping Act does not include the Latin phrase “jure gentium,” the crime of piracy under international law, according to the Court of Appeal, survived the statutory change.

In the alternative, Justice Maraga pointed to Section 23(3) of the Interpretation and General Provisions Act, which states that in the case of a law being repealed mid-proceeding, that proceeding shall move forward “as if the repealing written law had not been made.” Because the act in question was allegedly committed on March 3, 2009 and Section 69 was not repealed until September 1, 2009, the above-mentioned interpretive provision would apply in this case.

The final issue under consideration was the broader question of whether Kenya was authorized under international law to try piracy cases where the act in question was committed outside Kenya’s territorial jurisdiction by perpetrators and against victims who are not Kenyan nationals.

Justice Maraga responded by noting that piracy was a crime of universal jurisdiction and recounting Kenya’s participation in and adoption of UNSCR 1918 in April, 2012. This resolution “Calls on all States, including States in the region, to criminalize piracy under their domestic law and favourably consider the prosecution of suspected…pirates apprehended off the coast of Somalia…” Ultimately, Justice Maraga concluded that:

the offence of piracy on the coast of Somalia, which we are dealing with in this appeal, is of great concern to the international community as it has affected the economic activities and thus the economic well being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.

This decision should be welcomed by the international community, especially those involved in the prosecution and detention of suspected pirates. Most immediately, Hashi allows for five separate piracy cases brought under Section 69 of the Kenyan Penal Code to move forward, clearing up a two-year backlog. More importantly, however, the Court of Appeal’s unequivocal acceptance of the principle of universal jurisdiction, its applicability to piracy jure gentium, and its incorporation in Kenyan municipal law ensures that Kenya can continue to play a central role in the regional prosecutions of piracy suspects.

POST #100 – Developing Consensus on Specialized Piracy Chambers

It is perhaps appropriate that our 100th Post at Communis Hostis Omnium should discuss the issue of a prosecution mechanism and the Jack Lang Report as this was the same topic of our first post in January 2011. From its humble beginnings, this blog has grown in readership and gathered many contributors along the way. We will continue to provide objective analysis of the legal issues surrounding maritime piracy and hope to add some new features. In this regard, today we are introducing a feature called the Weekly Piracy Review which will provide a brief summary of the most important news events of the week and link to relevant analysis where appropriate. Our thanks and welcome to Christine Hentze for taking up this feature. Please continue reading and commenting!

Specialized Piracy Chambers

There appears to be a developing international consensus that something more than national prosecutions of pirates must be pursued in order to address the growing backlog of piracy prosecutions and to reduce the problem of catch and release. That solution appears to be a specialized piracy chamber. A specialized piracy chamber would be a court created within one or more regional states (i.e. Seychelles, Kenya, or possibly Tanzania) and would deal with every piracy prosecution referred thereto. The court would apply that state’s municipal law consistent with the applicable constitutional and statutory framework. Furthermore, the state’s criminal rules of procedure would apply, although specific rules of evidence might need to be adopted in view of its unique mandate. Two sources in particular indicate this is the solution that is gaining support.

The 2011 Digest of United States Practice in International Law (released in July 2012) sets forth the U.S. State Department’ s view as follows:

It is true that suspected pirates have been successfully prosecuted in ordinary courts throughout history. Because of this, the Administration has previously been reluctant to support the idea of creating an extraordinary international prosecution mechanism for this common crime. Instead, the Administration has focused on encouraging regional states to prosecute pirates domestically in their national courts. However, in light of the problems I’ve described to you today, the United States is now willing to consider pursuing some creative and innovative ways to go beyond ordinary national prosecutions and enhance our ability to prosecute and incarcerate pirates in a timely and cost-effective manner. We are working actively with our partners in the international community to help set the conditions for expanded options in the region. In fact, we recently put forward a joint proposal with the United Kingdom suggesting concrete steps to address some of the key challenges we continue to face.

[…]

In addition, we have suggested consideration of a specialized piracy court or chamber to be established in one or more regional states. The international community is currently considering this idea, along with similar models that would combine international and domestic elements. These ideas are under discussion both in the UN Security Council and in the Contact Group.” (emphasis added).

To provide some background, in July 2010, Jack Lang proposed 7 potential mechanisms for such prosecutions. As we noted here, a subsequent Secretary General Report of January 2012 discusses the modalities for several of these options, focusing on 4 of the 7 options. Initially, there was support from some members of the Security Council for the idea that an international tribunal should be created for the prosecution of pirates. However there was resistance from the U.S. and the U.K. based on the continued viability of national prosecutions based on universal jurisdiction. But strictly national prosecutions do have their limits as is noted by the 2011 Digest:

[M]any of the countries affected by piracy—flag states, states from where many crew members hail, and many of our European partners—have proven to lack either the capacity or the political will to prosecute cases in their national courts. Furthermore, states in the region that have accepted suspects for prosecution to date have been reluctant to take more, citing limits to their judicial and prison capacities and insufficient financial support from the international community. As a result, too many suspected pirates we encounter at sea are simply released without any meaningful punishment or prosecution, and often simply keep doing what they were doing. This is the unacceptable ‘catch and release’ situation that has been widely criticized, and for which we must find a solution.”

It further notes that:

 [W]e need to acknowledge the reality that many states, to varying degrees, have not demonstrated sustained political will to criminalize piracy under their domestic law and use such laws to prosecute those who attack their interests and incarcerate the convicted. The world’s largest flag registries—so-called “flags of convenience”—have proven either incapable or unwilling to take responsibility. And given the limited venues for prosecution, states have been reluctant to pursue prosecutions of apparent or incomplete acts of piracy, limiting our ability to prosecute suspects not caught in the middle of an attack.

Hence the need for specialized piracy chambers. A new article by Douglas Guilfoyle supports this view of a developing consensus in the Security Council and his view that specialized chambers are the only practical solution. First Guilfoyle dismisses the other options set forth in the Jack Lang report. He notes that “the earlier calls from some politicians and diplomats for an international piracy tribunal have seemingly fallen away, [. . .] The idea can therefore finally be treated as dead and buried.”

He also considers a dedicated territorial court in Somalia (Puntland or Somaliland) or an extraterritorial court applying Somali law (along the model of Lockerbie) to be unrealistic because “Puntland has a piracy law but no meaningful judicial capacity or immediate ability to attain international standards. An extra-territorial court would require an adequate Somali piracy law and constitutional framework (which does not exist) and a pool of Somali judges (which is not available)”

He therefore concludes that “[P]rosecutions before national jurisdictions are the only feasible option, whether in the general court system or dedicated chambers. […] The question is now largely one of modalities.” These modalities will include the following: (1) identifying which states will create specialized chambers; (2) determining whether UN support is required; (3) and if so, establishing agreements for the provision of such assistance. In this regard, Guilfoyle raises an interesting problem:

[S]ome prosecuting jurisdictions, in a climate in which foreign aid budgets are dwindling, may be in a rare position to provoke a bidding war for international assistance between the various counter-piracy missions in the Gulf of Aden in return for prosecutions. A rational allocation of counter-piracy resources may thus require a more centralized approach in negotiating future agreements.

The most likely candidate for this centralized role would be UNODC and/or UNDP as they have taken the lead in establishing the modalities for these specialized chambers. At the same time, donor states will have to be consulted. Considering all of the stakeholders and the fragmented nature of responses to piracy, strong leadership will be required to create a holistic solution.

Efforts to Support Somalia-based Prosecutions Continue

Following a recent trial in the UAE resulting in the conviction of 10 pirates, the UAE has announced that it will host a training of Somali judges to buttress local, Somalia-based prosecutions. The UN report from January recommended regional prosecutions, in lieu of an international court, to tackle the expanding docket of Indian Ocean piracy cases without an obvious home. Such prosecutions were recommended and have continued in regional states, including Kenya, Tanzania, Mauritius, and Seychelles. Moreover, the UN report suggested that the break-away regions of Somaliland and Puntland, as well as the Transitional Federal Government in Mogadishu, would be appropriate locations for prosecutions. Since then, violence against the judiciary and fair trial concerns have arisen in Puntland in particular. Nonetheless, the UAE judicial training, apparently supported by the French ministry of foreign and European affairs, will identify and train judges from Puntland, Somaliland and the TFG. The move is consistent with efforts to funnel the piracy issue back to Somalia as regional states grow tired of bearing the brunt of the prosecutorial burden. The UAE report notes:

The Kenyan ambassador to the UAE Mohamed Gello said prosecuting pirates in neighbouring countries such as his was also a strain on resources.”Any move that will help the Somali judicial system effectively deal with pirates is welcome,” Mr Gello said. “This sends the right signals that law and order is slowly being restored, along with the administration of justice. “It is crucial to build confidence in the judicial system and for the pirates to be dealt with in their own country.”

Funneling Pirates Back to Somalia