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.

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

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.

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

Drones in Seychelles on Hold

Setbacks to US Drone Program in Seychelles

Setbacks to US Drone Program in Seychelles

Last year, it was reported that the United States was sending drones to the Seychelles for use against militants and pirates.  It appears the drone program in the Seychelles has suffered serious setbacks including crash landings attributed to pilot error.  As a result, drones have been grounded in the Seychelles since April 2012. Apparently, drones have not been gathering information about pirates for much of 2012 – at least not those drones originating from the Seychelles.  Check out the video from the Washington Post by clicking the photo.

Weekly Piracy Review: Costs & Sentencing

As reported here, in October pirates off the coast of Somalia fired at a small boat deployed from the HNLMS Rotterdam as part of its routine patrolling operations. After the ensuing fire-fight and rescue operation, the fishing boat’s captain revealed that he and his crew, along with their ship, had been hijacked off the coast of Oman several weeks earlier. The captain identified six of the people rescued from the water after the fishing boat caught fire as the pirates who took them hostage. Four of those men are now set to be prosecuted for their acts of piracy in Dutch court, as the marines they fired at from the Rotterdam were from the Netherlands. The two remaining suspected pirates were released, as they are minors. Two pirates and six of the original crew-members from the hijacked boat were wounded in this altercation, and one crew-member was killed. Two of the crew from the fishing boat are reportedly missing at this time.

Fifteen pirates were sentenced in the Republic of Seychelles on November 5 after being convicted for acts of piracy in attacking a merchant ship and abducting thirteen Iranian fishermen. The US praised Seychelles for their leadership in prosecuting those suspected of piracy, and reported that there have now been 631 convictions against pirates worldwide, with 98 of those coming from Seychelles. Additionally, 440 suspected pirates are currently facing justice in 21 countries.

After being held by Somali pirates since they were captured last November, two Seychelles fishermen were released early this week. The office of the President in Seychelles confirmed that after extensive effort and negotiations the two hostages had been released. A Somali pirate allegedly reported that a $3 million ransom was paid for their release, but this has not been confirmed. Since February 2009, pirates have hijacked five Seychelles boats, and eleven hostages have been kidnapped and subsequently released.

The Australian Navy sent its newly constructed warship on a 12,000 mile detour around Africa in order to avoid the possibility of being attacked by pirates while travelling through the dangerous waters in the Gulf of Aden. Though it likely would have taken about two weeks and $2 million less for the ship to make its journey from Spain to Australia through the Suez canal, the danger of encountering pirates on that route outweighed concerns regarding the time and expense of moving the ship to Australia. Other options were considered to thwart the possibility of pirate attacks, including sending a Navy frigate alongside the other ship and placing armed mercenaries onboard, but it was decided that the most effective method would simply be to take a safer route. That these measures were considered necessary is a clear indication that the cost of piracy is quite high.

Thursday marked the opening of a two-day Maritime and Coastal Security Africa conference in Cape Town, South Africa. A primary goal of this conference is to discuss better approaches to enhancing cooperation among different nations in the counter-piracy efforts being carried out. This concern arises due to the fact that nearly all African countries are major exporters of oil, and as such there are a large number of merchant vessels carrying valuable cargo all around Africa. These ships are attractive targets for pirates seeking to commandeer the cargo or hijack these ships and their crew for ransom, so the need to police these waters is ever-present.

According to the International Maritime Bureau, as of October 27, there have been 252 attacks and 26 hijackings so far in 2012. There have been 71 incidents, 31 successful hijackings, and 212 hostages taken by Somali pirates. Currently, Somali pirates are reportedly holding nine vessels and 154 hostages.