Report From the Piracy Contact Group, Working Group 2, Meeting in Copenhagen

April 13, 2013 by 1 Comment

Private Security Guards

Cross-posted at international law girls.

In my capacity as an independent academic, as well as a representative of the prominent non-governmental organization, the Public International Law and Policy Group, I had the honor of attending the 12th meeting of the United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2, meeting in Copenhagen, on April 10-11.  I will take this opportunity to briefly summarize some of the key legal issues that were discussed in Copenhagen.

First, many nations seem to be moving in favor of authorizing the use of private security guards on board their merchant vessels.  The use of such private security guards is controversial, and many in the international community feel a general sense of discomfort any times states delegate their traditional duties to private entities.  Others have expressed the view that the use of private security guards on board merchant vessels should be allowed only under strictly delineated guidelines and rules on the use of force.  Contrary to popular belief, such guidelines and rules exist already.  Several International Maritime Organization Circulars provide guidance on matters related to the employment of private security personnel on board merchant vessels.  The Baltic and International Maritime Council (BIMCO) has drafted and made publicly available a standard employment contract between a shipping company and private security providers.  BIMCO has also issued specific Guidance on the Rule of the Use of Force, which suggest under which circumstances private security personnel may use force, including lethal force, against suspected pirates.  The International Organization for Standardization (ISO) issued additional Guidance for private security personnel on board ships, as well as a pro forma contract.  Finally, the Montreux Document provides international law rules applicable to the conduct of private security providers during armed conflict.  Although this Document most likely does not apply to the Somali piracy context because of the absence of armed conflict, it nonetheless sheds light on the international community’s consensus regarding the international law responsibilities of private security providers, operating in a domain otherwise reserved to state powers.

In addition to the above-mentioned guidance, international treaty law provides rules regarding the master of a ship’s duties on the high seas, in a situation where a merchant vessel may be under attack by suspected pirates, regardless of the presence of private security contractors on board.  It is clear under the United Nations Convention on the Law of the Sea as well as under the SUA Convention that the master of a ship retains authority on board his or her vessel, that the master may order any private security personnel to cease using force against suspected pirates at any time, and that the delegation of power from the master to the private security personnel during a piracy incident is temporary.   The general sentiment in Copenhagen was that numerous existing guidelines, principles, and treaty law obligations apply to any use of private security personnel on board merchant vessels, and that states have plenty to work with when determining whether and how to authorize the use of private security on board their own vessels.

Second, states remain concerned with legal issues related to the treatment of juvenile pirates (I had previously reported on this issue from the last Working Group 2 meeting in September 2012).   In order to ensure that juvenile pirates are treated according to relevant human rights standards and practices, states have begun developing guidelines on the treatment of juvenile pirates.  Such guidelines include the necessity to segregate juvenile suspects from the general prison population, to provide educational and vocational opportunities for juveniles, and to generally rehabilitate them so that they re-enter society upon their release and engage in legal, as opposed to criminal, activities.  These proposed guidelines will remain the subject of future Working Group 2 meetings.

Third, states remain committed to the post-conviction transfer model: the idea that pirates, if they are successfully prosecuted and convicted in Kenya, the Seychelles, or Mauritius, will be transferred back to Somaliland or Puntland where they will serve their penal sentences.  This model is important for two reasons.  First, it relieves small capacity nations such as the Seychelles and Mauritius from having to detain convicted pirates for long period of time in their own prisons; prosecutorial nations can, under this model, accept more suspected pirates because they will not run out of detention space.  Second and more importantly, the post-conviction transfer model allows pirates to return home – although they will not be immediately freed upon re-entering their native land, they will presumably be reunited with their families through prison visits and return to their own communities after the end of their sentences.  Any post-conviction transfer requires the successful fulfillment of the following criteria: the applicant must be at least 18; he or she must waive any existing appeals (the sentence must be final); he or she must consent to the transfer; all relevant states, including the apprehending state, the transferring state, and the receiving state, must agree to the transfer.  As discussed in Copenhagen, the post-conviction transfer model has been used successfully thus far, and 59 pirates have been transferred to Somaliland and Puntland as of today.

Finally, states have expressed an important concern regarding hostages.  In many instances, pirate hostages spend months in captivity under very difficult conditions.  Once hostages are released, they may be confused, mentally or physically injured, and may have no meaningful way of returning to their home states.  Several states in Copenhagen expressed the view that it is important to create a hostage release program that would maintain contact with released hostages in order to enable them to successfully return to a normal life after captivity.

The work of Working Group 2 thus far has been outstanding.  It demonstrates that states can, through joint legal efforts and cooperation, contribute significantly to the global fight against Somali piracy.

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

March 7, 2013 by 1 Comment

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

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Weekly Piracy Review

October 19, 2012 by Leave a comment

Somalis on Trial for Piracy in Rotterdam

Kenya’s Court of Appeals overturned a 2010 ruling (as we have noted here and here), which had mandated that Kenyan courts only try cases in which the offense occurred within its territorial waters. This impaired Kenya’s ability to assist in the international effort to punish those carrying out acts of piracy on the high seas. Judge David Maraga read the opinion of the court concluding that “piracy has negative effects on the country’s economy and any state, even if not directly affected by piracy must try and punish the offenders.” Though it appears some piracy prosecutions were continuing in Kenya despite the 2010 ruling, the international community will be relieved to know that the law in Kenya is now settled and that no obstacles remain to such prosecutions.

A Dutch court convicted nine Somali pirates to four-and-a-half years imprisonment. These individuals were arrested on-board an Iranian fishing boat they had taken in April. Though they were convicted of piracy, the men were acquitted on charges of attempted murder, as it could not be determined which of the men actually fired at the Dutch marines who arrested them.

Last Friday the Greek-owned carrier ship, the MV Free Goddess, was finally released by the Somali pirates who held it since Feb. 7, 2012. All 21 members of the crew who were on board at the time the ship was attacked over eight months ago were also released and appear to be well. The pirates responsible initially sought a $9 million ransom, yet they finally settled for $2.3 million last week-though the figure has also been reported as $5.7 million. This figure was stated by a Somali pirate and has not been confirmed by the company owning the ship, Free Bulkers SA. The ransom was air-dropped onto the Free Goddess, which then headed toward Oman to refuel, get fresh water and change out the crew members. During the time the ship was held hostage it was apparently being held at Gara’ad, a haven in Puntland, Somalia often used by pirates in the area.

Suspected Nigerian pirates boarded a Panamax tanker in the Gulf of Guinea off the Ivory Coast during the night on Saturday, October 6. Fourteen pirates, armed with knives and AK-47s hijacked the ship and re-directed it to Nigerian waters. They held the ship for three days while siphoning off oil, and then released the ship as well as all crew members on October 9. This attack was particularly alarming as it is the first of its’ kind to be reported in these waters, and shows that the Nigerian pirates are becoming both more sophisticated and bold. The attack occurred further west and away from Nigerian waters than any other reported attack, in an area which until now was believed to be safe for anchoring and performing fairly time-consuming operations. These Nigerian pirates took advantage of the fact that this particular ship was only midway through a ship-to-ship operation at the time of the attack. Tanker operators may now have to reassess their practice of carrying out these operations in the waters of the Ivory Coast.

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In Brief: UNDP Human Development Report for Somalia – Youth Empowerment Is Key

October 13, 2012 by 1 Comment

Aerial view of a typical homestead on the outskirts of the southern Somali port city of Kismayo – Credit: UN Photo/Stuart Price

The United Nation Development Programme released its Somalia Human Development Report 2012. The Report, the first since 2001, discusses the factors behind Somalia’s conflict and state collapse in the past 20 years, and focuses on the enormous potential that lies in empowering Somali youth to become an engine of peace-building and development.

Key data

  • Somali development and humanitarian indicators are among the lowest in the world;

  • Over 70 percent of Somalia’s population is under the age of thirty;

  • The youth population in Somalia may continue to swell due to high fertility rates, estimated at 6.2 births per women between 2010 and 2015;

  • Overall unemployment among people aged 15 to 64 is estimated at 54 percent in Somalia, up from 47 percent in 2002;

  • The unemployment rate for youth aged 14 to 29 is 67 percent—one of the highest rates in the world; women lose out more, with unemployment rates at 74%, compared to men at 61%;

  • Life expectancy in Somalia is 50 years, up from 47 in 2001;

  • Over 60% of youth have intentions to leave the country for better livelihood opportunities;

  • Somalia ranks as one of the worst countries worldwide for women. Gender-based violence and discrimination against Somali women is widespread.

In particular, the Report estimates that, since 1991, the international community, including the Somali diaspora, has collectively spent just over $55 billion in responding to Somalia’s conflict, of which Piracy accounts for about 40%, followed by humanitarian and development aid; remittances; peacekeeping and military responses, counter-terror initiatives; and costs associated with international crime and illicit financial flows.

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Private or Pirate Navy?

October 10, 2012 by 6 Comments

Puntland Marine Police Forces source:Somaliareport.com

The autonomous region of Puntland in Somalia has gotten a bad rap for being a hotbed for pirates. Though unrecognized as a state, there has been some international expectation that Puntland should take steps to prevent and punish acts of piracy, particularly those originating from within Puntland. In this regard, there have been efforts to create a Puntland coastguard or Navy (the “Puntland Maritime Police Force”), bankrolled by the United Arab Emirates and with training from private security firms. This is where the story of Sterling Corporate Services takes off. The New York Times reports:

Concerned about the impact of piracy on commercial shipping in the Middle East, the United Arab Emirates has sought to take the lead in battling Somali pirates, both overtly and in secret by bankrolling operations like Sterling’s.

[…]

A United Nations investigative group described the effort by a company based in Dubai called Sterling Corporate Services to create the force as a “brazen, large-scale and protracted violation” of the arms embargo in place on Somalia

[…]

Sterling has portrayed its operation as a bold private-sector attempt to battle the scourge of piracy where governments were failing.

Somalia Report notes that the UN effectively shut down the estimated $50 million per year program by threatening sanctions against UAE for violations of the Somalia arms embargo. In addition to the illegal shipments of arms, the program may have been a criminal pirate enterprise.

A Private Navy?

There is an argument that private navies are legally permissible under the law of the sea, particularly the legal regime governing anti-piracy operations on the high seas. Such navies are permissible if the navy is “on government service and authorized to that effect” pursuant to Article 107 of UNCLOS. The idea here is that a government may hire private companies to engage in police functions so long as it is made explicitly clear by markings and identification that the ship is controlled by the government and under a presumably military chain of command. It has been argued that ships on government service could not only provide self-defence to an escorted ship but could also engage in pirate hunting. Alternatively, if a private navy is not on government service but limits its actions to those justified by individual (as opposed to sovereign) self-defence, it may also be legally permissible. Here, aggressive acts would be strictly limited to those necessary to repel an attack, as is consistent with general principles of the law of self-defence. It would not include acts intended to prevent future attacks.

This is where the status of Puntland as an autonomous region becomes important. Though the international community has chosen to engage the Puntland government, it has chosen not to recognize Puntland’s sovereignty instead deferring to the project of solidifying the new Somali Federal Government in Mogadishu. Therefore, naval vessels patrolling the territorial waters of Somalia off of the coast of the autonomous region of Puntland are not “on government service” for purposes of Article 107 of UNCLOS.

Alternatively, there is some evidence that other states may have supported the Puntland Navy:

American officials have said publicly that they never endorsed the creation of the private army, but it is unclear if Sterling had tacit support from parts of the United States government. For instance, the investigative group reported in July that the counterpiracy force shared some of the same facilities as the Puntland Intelligence Service, a spy organization answering to Puntland’s president, Abdirahman Farole, that has been trained by C.I.A. officers and contractors for more than a decade.

Even if this is the case, the Puntland naval vessels are not “clearly marked and identifiable as being on government service” by a recognized sovereign such as the United States or the UAE. Therefore, seizing pirates on the high seas would not be justified pursuant to Article 107 of UNCLOS.

A Pirate Navy?

This raises the question of whether an act of violence by the Puntland Navy against another ship on the high seas constitutes piracy. Although there is some continuing debate as to the “private ends” requirements in Article 101 of UNCLOS, the better view is that it excludes from the definition of piracy, acts of violence by a sovereign. As Puntland is not a sovereign power, this exclusion from the definition of piracy does not apply. Therefore, acts of violence, detention or depredation committed by a Puntland Navy on the high seas (even if purportedly for the purpose of protecting the territory and people of Puntland) would constitute acts of piracy.

As noted above, the other possible justification for the seizure of pirate vessels on the high seas by the Puntland Navy is the doctrine of personal self-defence. This would justify acts strictly necessary to repel an ongoing attack. It would not justify acts of violence against suspected pirate vessels prior to an attack. Nor would it justify acts within the typical mandate of a sovereign navy or coast guard, including patrolling waters and interdicting ships.

The International community was displeased that Sterling was training these individuals because it was an apparent violation of the arms embargo imposed on Somalia. But, technically, Puntland’s Navy may have also been engaged in acts of piracy.

Territorial Waters

The Puntland Navy was also likely conducting operations within Somalia’s territorial waters which are part of the sovereign territory of the Somali Federal Government. The latter has the exclusive right to protect its territorial waters and to restrict traffic through this zone (See e.g. Article 25 UNCLOS “Rights of protection of the coastal State”), although a number of Security Council Resolutions have given foreign sovereigns some powers of interdiction in these waters as an exceptional measure. It is theoretically possible that the Somali Federal Government would attempt to delegate this coast guard function to an autonomous region’s forces such as the Puntland Navy. But it is unclear if this would be permissible pursuant to international law or whether Puntland would be willing to act on behalf of the Somali Federal Government, as opposed to under its own asserted authority as a sovereign.

Free Agents

The more practical question, now that the funding for Puntland’s Navy has disappeared, is what will happen to the individuals who were trained by Sterling. The New York Times reports:

With the South African trainers gone, the African Union has turned to a different security contractor, Bancroft Global Development, based in Washington, to assess whether the pirate hunters in Puntland can be assimilated into the stew of other security forces in Somalia sanctioned both by the United States and the African Union. Among those groups are a 10,000-man Somali national army and troops of Somalia’s National Security Agency, based in Mogadishu, which is closely allied with the C.I.A.

[…]

But with the antipiracy army now abandoned by its sponsors, the hundreds of half-trained and well-armed members of the Puntland Maritime Police Force have been left to fend for themselves at a desert camp carved out of the sand, perhaps to join up with the pirates or Qaeda-linked militants or to sell themselves to the highest bidder in Somalia’s clan wars — yet another dangerous element in the Somali mix.

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