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

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

Mauritius Officially On Board to Prosecute as Other Options Dwindle

Beau Bassin Prison in Mauritius where pirate suspects may be detained

Reuters is reporting that Mauritius has inked a deal with the TFG, Somaliland and Puntland to start to transfer convicted pirates to Somali prisons, paving the way for prosecutions in Mauritius. This comes as the locations proposed for prosecution by the UN Secretary General have dwindled. In January, the UN Secretary General issued a report noting Somaliland and Puntland as suitable locations for the prosecution of pirates. It is becoming increasingly clear that these autonomous regions may have difficulty in laying the foundations necessary for fair trials in the foreseeable future. For example, last week a Somaliland military court abruptly sentenced 17 civilians to death the day after violent clashes in the northern city of Hargeisa, leading a UN special envoy to urge a retrial in which the fair trial rights of the Accused would be respected. Therefore, the focus will have to shift to the remaining states recommended by Secretary General (i.e. Kenya, Tanzania, Seychelles, and Mauritius). As one of only four states in the region deemed suitable for prosecutions, the Mauritius announcement is undoubtedly appreciated by the states patrolling high risk areas who are searching for states willing to prosecute pirates.

As to the trio of other states identified in the UNSG report, Kenya is moving forward with prosecutions in the High Court in Mombasa, despite a 2010 decision by Judge Ibrahim (now of the Kenyan Supreme Court) holding that Kenyan courts lack jurisdiction to try the crime of piracy. Judge Ibrahim’s decision is pending an appellate decision by the Kenyan Court of Appeal.  But in the interim, his decision is not binding authority on other judges of the High Court (although they are still free to follow Judge Ibrahim’s decision if they so choose). Seychelles continues to prosecute pirates but may periodically refuse suspects due to a lack of space in its prisons. Finally, last month it was reported that Tanzania had yet to sign a pirate-suspect transfer agreement with the EU, indicating that prosecutions in Tanzania will be limited to those captured by Tanzanian naval authorities for the time-being.

After the London Conference on Somalia: A First Appraisal of Counter-Piracy Measures

The much awaited London Conference on Somalia was finally held at Lancaster House, London on 23 February 2012. Fifty-five delegations attended the Conference, including the UK Prime Minister, David Cameron, the UN Secretary General, Ban-ki Moon and the US Secretary of State, Hillary Clinton as well as the leaders of various countries in the Gulf of Aden and East Africa region, such as Djibouti, Seychelles, Mauritius, Kenya and Tanzania. Leaders of Somalia’s Transitional Federal Government as well as of the breakaway regions of Puntland, Galmudug and Aluh Sunnah wal Jamaah (ASWJ) also participated. As anticipated, the self declared autonomous region of Somaliland attended the Conference, marking a major policy shift for the former British protectorate which deliberately stayed away from several previous peace conferences on Somalia. While the participation of all regions of Somalia was certainly a legitimating factor for the Conference, it is worth noting that the direct interests of Somalia were represented by 5 different delegations.

The Conference was meant to be a key moment in Somalia’s troubled history and called for a change in the international approach from the fruitless policies of the past 20 years. The Conference was preceded by much debate and a degree of controversy, particularly on the future of Somalia’s transitional federal institutions, whose mandate will end in August 2012. The Somali diaspora showed hope for more inclusiveness in building the political and economic landscape of the country. On the eve of the conference, in a bid to increase leverage of the decisions to be taken in London, the UN Security Council boosted the current African Union peacekeeping mission, raising its troop contingent up to 17000 soldiers.

The Conference registered a series of important political commitments from the stakeholders of the Somali cause, relevant to political, humanitarian, security and governance issues. Notably, leaders attending the Conference recognized the importance of empowering the Somali population and creating accountability for its political leadership, with the international community acting as a facilitator of the process. We will soon assess whether these commitments could turn into effective and practical action and what will be their contribution in shaping the future of this country. Not surprisingly, the fight against piracy occupied a prominent place in the discussion. Perhaps the most important aspect of the Conference in this regard was the acknowledgment that piracy in Somalia requires a comprehensive approach on land as well as at sea to tackle the root causes of piracy. This is a very important step. A military-focused approach of targeting pirates at sea coupled with limited judicial accountability measures could only provide a short term deterrent if not coupled with social development, economic growth and good governance. The underlying causes of piracy, but also its direct effects, are inextricably intertwined with all other problems affecting Somalia.

“We agreed that piracy cannot be solved by military means alone, and reiterated the importance of supporting communities to tackle the underlying causes of piracy, and improving the effective use of Somali coastal waters through regional maritime capacity-building measures.”

Some of the most encouraging developments of the Conference pertain to the immediate fight against piracy. These include the signing of important agreements enhancing the current plans by the international community to create a “cycle of justice”, or, as we called it, a “Globalized System of Criminal Justice”, where pirates are caught at sea, transferred to regional states for prosecution and, finally, imprisoned in Somalia. Hosting the Conference created momentum upon the UK’s own contribution to tackle piracy. The UK and Tanzania signed a memorandum of understanding allowing the UK Royal Navy to transfer suspected pirates apprehended at sea to Tanzania for prosecution. The UK also signed a statement of intent with Mauritius for the same purposes. These agreements are particularly relevant in light of Kenya’s current suspension of the transfer of suspected pirates for prosecution before its national courts. Plans for the imprisonment of pirates also registered some significant development. Puntland committed to the transfer of convicted pirates in the region to its prisons from August 2012. In an effort to enhance its anti-piracy strategy, Somaliland will also focus on improving its capacity to jail suspected and convicted offenders. Somaliland signed a ground breaking agreement with Seychelles for the transfer of convicted pirates to its prisons. In addition, Somaliland has recently passed a law declaring piracy illegal and making it an offense punishable by a maximum of twenty-five years. Somaliland previously limited prosecutions to charging alleged pirates with armed robbery.

“There will be no impunity for piracy. We called for greater development of judicial capacity to prosecute and detain those behind piracy both in Somalia and in the wider region and recognised the need to strengthen capacity in regional states. We welcomed new arrangements, which enable some states and naval operations to transfer suspected pirates captured at sea for trial by partners across the Indian Ocean region, and if convicted, to transfer them to prisons in Puntland and Somaliland which meet international standards. We noted the intention to consider further the possibility of creating courts in Somalia specialised in dealing with piracy.”

The first chance to evaluate the outcome of the London Conference will be, yet again, at another conference. Turkey, an increasingly growing ally of the Somali cause, will organize in cooperation with the UN the Second International Conference on Somalia. The conference will be held on 1 June 2012 in Istanbul. In addition, the UAE, the current chair of the Contact Group on Piracy off the Coast of Somalia. will host a second International Maritime Counter-Piracy Conference on 27-28 June 2012 in Dubai, further to an initial event hosted in April 2011. But the real work will be on the ground as attempts are made to execute the promises made at the conference, including exercising the rights and obligations set out in the newly minted transfer agreements.

A Globalized System of Criminal Justice

Piracy and armed robbery incidents reported to the IMB Piracy Reporting Centre during 2011. Map courtesy of International Chamber of Commerce.

Criminal Justice for pirates has become a truly global affair, utilizing diverse state resources to funnel pirates through a limited number of regional states in East Africa back to their homeland of Somalia. More specifically, the UN’s preferred option for prosecuting Somali pirates will be national prosecutions in several East African states (Seychelles, Mauritius, Kenya, Tanzania) as well as in several semi-autonomous regions of Somalia (Somaliland, Puntland).  Prosecution in European states and the US would remain a backup plan. But this is only one piece of the criminal justice apparatus. Police functions in the Indian Ocean will continue to be performed by a combination of naval coalitions such as NATO and EUNAVFOR and by individual naval states with interests in commercial shipping through the high-risk piracy corridor (including the motley crew of the U.S., India, China, Iran, and others).  At the other end of the criminal justice chain is the prison system where there is currently a bottleneck.  In this regard, the United Nations Office of Drugs and Crime is in the process of refurbishing and building new prisons in Somaliland and Puntland to house convicted pirates.

This solution has several benefits as compared with the other solutions outlined by Jack Lang in January 2011. Prosecuting pirates in multiple regional states creates redundancies, so that if one or more courts prove incapable of continuing prosecutions, other options remain available. For example, Kenya recently stopped all of its piracy prosecutions due to a High Court decision ruling Kenyan courts did not have jurisdiction over piracy offences. Likewise, the Seychelles recently refused to accept pirates from a Danish ship because there was no guarantee that the pirates, if convicted, could be sent back to Somalia (for lack of prison space) and because the Seychelles’ limited judicial capacity. In situations such as these, other states might serve as back-up solutions so that prosecutions could be directed elsewhere.

Funneling Pirates Back to Somalia

Another advantage of this proposed solution is that it has the benefit of building local capacity. Instead of directing resources into a foreign institution, providing support to local courts and local prosecutors promises to increase the capacity of regional state institutions to address criminal justice issues beyond piracy.

The report also raises hopes that the financiers and organizers of piracy can be adequately addressed by East African states. In relation to Mauritius and Seychelles in particular, the report highlights the capacity of these states to prosecute inchoate crimes such as conspiracy, incitement and attempts to commit piracy. The UK and the Netherlands are funding a Regional Anti-Piracy Prosecutions Intelligence Co-ordination Centre (RAPPICC) in Seychelles, in part, for this purpose. This capability will be crucial in order to bring to justice those individuals who organize pirate enterprises, but never step foot on board a pirate vessel.

There will be heavy reliance on prisons in Puntland and Somaliland

However, the report and the plan are lacking in several respects.  First, the cost savings of this plan have likely been exaggerated. There is no final accounting provided in the UNSG report. But a cursory survey of the various costs associated with refurbishing courtrooms, providing expert assistance, hiring additional judges and prosecutors, conducting trainings and, especially building prisons, shows a quickly rising price tag. Combine this with additional unspecified costs that would likely accompany this proposal such as rule of law, general training, and governance projects and the costs may actually be about the same as a hybrid tribunal such as the Special Court for Sierra Leone or the Extraordinary Chambers in the Courts of Cambodia (about $40 million each annually). In any event, the proposed solution’s budget is modest compared with the sums that are currently being dumped into unsustainable solutions that fail to address the root of the problem.

In addition, the UNSG report apparently hazards some guesses as to the potential of its proposed course of action. Despite the different conditions in each country or region, the report indicates that Somaliland, Puntland, Kenya, and Mauritius will be capable of performing piracy investigations in 20 months and within two years would be able to prosecute 24 cases of 10 defendants each. These are good benchmarks to evaluate the success of these projects.  But it is hard to believe that they are realistic assessments of local conditions. The report evaluates the local capacities of each state/region indicating the number of prosecutors and judges in each. But it fails to compare these numbers of professionals to the actual populations that they must serve. Three hundred and five (305) Prosecutors in Tanzania seems to be a significant number compared to the 36 prosecutors for the whole of Somaliland. However, Tanzania’s population is 43.5 million and the population in Somaliland appears to be around 3.5 million. Therefore, the number of prosecutors per capita in Somaliland (1/10,000) is higher than in Tanzania (1/140,000). In addition, only 10 Tanzanian prosecutors would be in charge of piracy prosecutions. Likewise, the report fails to take into consideration the caseload of the respective prosecutorial groups that would be responsible for piracy prosecutions (i.e. the number of cases each attorney is responsible for, thereby dictating how much time they would have to devote to piracy cases). This suggests the projected capacities are not based upon a realistic assessment of current capacity.

More importantly, the report acknowledges that it was unable to predict with any accuracy the number of piracy cases that would likely proceed to trial. That is, how much prosecutorial and penal resources will likely be required in the next few years.  Due to the volatility of Somalia, the changing tactics of pirates and of commercial vessels responding with various self-defence measures, an accurate assessment in this regard is quite difficult. However, the report suggests that anticipating the numbers of piracy suspects likely to be apprehended at sea and transferred to regional states for prosecution was not possible because no information was available as to the reasons for the release of piracy suspects from the numerous states conducting naval anti-piracy missions in the Indian Ocean.  It is unclear why the UNSG was unable to obtain this information from various member states of the United Nations. But it has certainly left a conspicuous gap in the report’s findings.

Finally, the report ends without any recommendations as to how to prevent recidivism, including programs to retrain Somali prisoners and integrate them back into the community. In this regard, the proposed solution is short-sighted, enabling the relocation of pirates back to Somalia, but providing no real long-term preventative measures. The only permanent solution to piracy is a stable and economically prosperous Somalia. Hopefully, the London Conference can initiate positive reforms in this regard as it is widely accepted that the solution or piracy resides on land, and not at sea.

UK House of Commons Issues Piracy Report, Eyes Private Security Guards on Board, Local Prosecutions in East Africa (Part II)

This is the second part of an earlier post discussing the UK Foreign Affairs Committee Report on piracy off the coast of Somalia.

Regional and Local Prosecutions of Pirates (paras 74-110)

The trial and prosecution of pirates is also an extremely relevant, and pressing, topic. As noted in the Report, the peculiar features of modern day piracy, particularly in the Gulf of Aden and the lack of cohesive governance in Somalia, create several practical difficulties, including the apprehension, detention on board and transfer of suspected pirates. One of the primary purposes of policing activities through naval operations is, indeed, its deterrent effect on pirate attacks rather than the arrest and prosecution of the perpetrators.

The collection of sufficient evidence to secure successful prosecutions is particularly problematic, as we noted in a recent post. It should be remarked how any evidentiary assessment on whether to bring alleged perpetrators to justice should, ordinarily, be best placed in the hands of judicial authorities as neutral fact-finders rather than subject to the prelimary evaluation by the naval authorities upon the capture of suspected pirates. Moreover, the Report correctly points out how such assessment could benefit from modern technological means already available to the naval authorities, namely video, radar and satellite recording. In addition, remote testimony via video or audio link is recommended, particularly when victims are located in third countries or, more likely, have already set sail.

Modern international law asserts the possibility to exercise universal jurisdiction over piracy prosecutions. However, as one expert who gave evidence before the Committee put it, the obstacle to prosecution is not identifying the appropriate jurisdiction, but rather the inability, and unwillingness, to prosecute. In addition, the surge of modern piracy and armed robbery at sea has exposed the current inadequacy of national laws, including in the UK, against piracy. For those operating within the field of international criminal prosecutions, the phenomenon is not new. Several states suddenly found themselves incapable to put Genocide suspects on trial before municipal courts due to the inadequacy of their national laws in enacting the provisions of the Genocide Convention.

We have also discussed whether the response to modern piracy should contemplate a revision of the existing international counter-piracy legislation and mechanisms, in particular because it appears that current treaties have difficulty in addressing the difference between political and purely-financial motivations of pirates attacks, or whether attempted attacks are also punishable. Interestingly, as noted in the Report, the IMO has taken the view that “the development of a new multilateral instrument might be premature, or unnecessary, in light of the existing international legal framework on piracy, which was generally considered to be adequate”. Some concerns remain, however, particularly on the practical implementation and effectiveness of these mechanisms.

The main recommendation contained in the Report with regard to options for the investigation and prosecution of pirates is therefore the rejection of the establishment of a specialized Somali tribunal, initially recommended by the UN Special Adviser to the Secretary General Jack Lang as one possible alternative. This option would have established a court outside of Somalia in a neighboring state (most likely Tanzania) with funding and administration from the international community, but would employ Somali judges applying Somali law. There appear to be a number of compelling legal complications against such court, including its legality vis a vis the Somali Constitution. The UK Report rejected this proposal stating:

 “the Government was right to oppose the establishment of an extra-territorial Somali court as proposed in the Jack Lang report to try Somali pirates in a third country. We recommend that the Government set out in its response to this report its views on the more recent proposals for specialised anti-piracy courts established within regional states under ordinary national law.”(para. 92)

Among the main arguments in support of this conclusion are also the possible high costs of an extra-territorial institution, with a tentative figure of $100 million a year. This is not convincing, particularly considering the lack of clarity at the basis of this figure as well as the present estimates of the global costs of piracy, which already identified high costs from the current prosecutions as well as a cost of ransoms alone capping over $130 million per year. In addition, this figure would remain a fraction of the overall economic costs of piracy. It must be acknowledged, however, that an extra-territorial court, financially supported by international organizations, might not be able to promptly contribute as an anti-piracy deterrent and develop effective outreach capabilities within the turned-pirate population in and around the Gulf of Aden.

The rejection of the UN-funded option reflects a gaining trend to favor specialized piracy prosecutions within the area where the alleged attacks took place, counting on a much stronger deterred effect than trials taking place thousands of miles away. Local prosecution projects have already taken shape in Kenya, Mauritius and Seychelles, among other countries in the region. In addition, a small number of historic trials were also held in the US, Germany and the Netherlands, mainly because the alleged pirates were captured by the naval forces of these countries, or due to a nexus between the piracy acts and these latter.

However, while piracy prosecutions in the UK are still contemplated, albeit in limited circumstances, in the Report, the support expressed therein for local or regional anti-piracy courts also present several difficulties which should be carefully weighed. Requesting the help of regional states to prosecute pirates in their courts does not obviate the need to provide support to the various local authorities in the form of financing, training, monitoring and oversight extending not only to the mere prosecutions and trials of suspected pirates, but also to transfer, investigation, security, procurement and infrastructures as well as pre-trial and post sentence detention. Indeed, the fate of a recently arrested group of alleged Somali pirates by the UK Royal Navy after both Kenya and the Seychelles have refused to detain them because “their court systems are swamped”  is a rather timely reminder of some of these difficulties. As the Kenyan government stated last year when it refused to continue piracy prosecutions, ““We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.”

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