A Decentralized Approach to Augmenting Somali Governance

October 7, 2011 by Leave a comment

The problem of poor governance lies at the heart of Somalia’s famine and its problems with criminality including piracy. In this regard, this week’s Foreign Affairs contains two articles concerning governance failures in Somalia. Each article critiques the Transition Federal Government (TFG) in Mogadishu and suggests the solution to governance is a more decentralized approach. First, Kenya’s President Kibaki writes:

A new round of talks should recognize that ethnic and tribal differences in Somalia are not easily bridgeable. Thus, efforts to support and reform the TFG must be accompanied by a determined effort to decentralize power to Somalia’s different ethnicities and geographies.

While recognizing the need to engage with the TFG, Kibaki presages a federal structure whereby each political subdivision retains considerable autonomy. The second article provides a more extreme view, suggesting the U.S. and UN give up on the TFG altogether. In this article, two members of the Atlantic Council, Bronwyn Bruton and J. Peter Pham, provide a devastating assessment of the TFG’s prospects for success:

This year, the TFG and UN mediators agreed to create a road map for accomplishing these tasks and decided to prioritize local elections. This was a clever move, since doing so will delay presidential and parliamentary elections, leaving the current president, prime minister, and speaker of parliament safely in their seats. Given the inability of the president, Sheikh Sharif Sheikh Ahmed, to collaborate with any faction outside of his presidential compound, it is unlikely that even municipal elections will take place. The road map has probably done little more than postpone the inevitable reckoning by one more year.

As a result, governance in Somalia remains highly fractured and lends itself to continued fighting:

The weakness of both al Shabab and the TFG has produced a confusing security vacuum in Mogadishu that appears to be spreading outside of the capital. As both the TFG and al Shabab falter, Somalia’s watchful clans have stepped into the fray. Various militias, including some led by the warlords who infamously stole food relief and tortured Somalia’s population during the 1991 famine, are vying for control.

Bruton and Pham therefore propose a pragmatic policy they call  “earned engagement”:
[G]overnmental entities, regional authorities, clans, and civil society organizations — would be accorded equal access to international resources, but only to the extent that they prove themselves capable of meeting defined benchmarks and of absorbing the assistance that would be provided them for relief and development. Al Shabab leaders who renounced al Qaeda, promised regional cooperation, and focused on providing for their clan constituencies would be prime targets for engagements, while militant jihadists would be excluded.
To date, the U.S. has actively supported the TFG while engaging with break-away regions, such as Puntland and Somaliland, without acknowledging the independence of the latter. Bruton and Pham suggest engaging instead the clans that form the basis of Somali society, with an immediate goal of disempowering al Qaida. But they also suggest that the provision of humanitarian aid would be more effective and more likely to actually reach the intended recipients through clan leaders.
Considering the TFG has another year to produce some tangible progress, the international community should start engaging with the clans and other break-away regions now. If the TFG fails to produce, the case for continuing to support it becomes ever weaker.

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Kenyan Ready to Start Hearing Piracy Cases Again?

October 6, 2011 by Leave a comment

In November 2010, the Kenyan High Court in Mombasa ruled that Kenyan courts did not have jurisdiction to try the crime of piracy. As I have previously noted, the case followed on the the Kenyan Foreign Minister’s assertion that, “We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.” The Kenyan Director of Public Prosecutions, is now appealing the High Court decision. Special Prosecutor Patrick Kiage asserts that Kenyan courts derive their jurisdiction from international law, which declares piracy an international crime and that “Under international law, suspected pirates can be charged in any country where they are captured.”

The timing of this appeal is striking as it follows two separate attacks on tourists near Kenya’s border with Somalia, potentially devastating Kenya’s tourist industry. The two recent attacks near Lamu, Kenya (see map) were committed on Kenyan territory. Therefore, even if the High Court’s ruling were to stand, the acts could be prosecuted as murder, kidnapping, armed robbery, assault, or other such crimes under Kenyan national law. Nonetheless, as attacks affect more than just commercial shipping interests (which are in any case insured) and start to affect economic interests closer to home, Kenya will have more of an incentive to advertise its diligence in prosecuting pirates, whether for attacks in its own territory or in international waters.

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Creating a Regional Framework to Address Piracy in the Gulf of Guinea

October 4, 2011 by Leave a comment

Another Post by Matteo Crippa:

Last week, West African leaders addressed the General Assembly, echoing the recent concerns expressed by the UN over the increase of piracy as well as drug, arms and other illicit trafficking in the region.

Gas flaring from oil extraction in the Niger River Delta

During the 66th General Assembly debate, representatives of Togo, Benin, Gambia and Nigeria, among others, remarked on the closely linked nature of these crimes, and their financial and social impact. They called for a framework for cooperation with the support of the international community. More particularly, they supported the proposal for greater UN engagement with regional leaders and organizations in stamping out these menaces.

Since January 2011, there have been over two dozen piracy attacks in the Gulf of Guinea. Lloyd’s Market Association, a leading group of insurers, ranked the coastal waters off Benin and part of Nigeria in the same high-risk category as Somalia and the Gulf of Aden. Since the UN Security Council expressed this August its concerns over reports of increased piracy, armed robbery and hostage taking in the Gulf of Guinea, a handful of new attacks took place. Notably, also these attacks occurred predominantly within territorial waters. The Economic Community of West African States has also recently called for action against piracy to be widened to include all states along the coast while U.S. and French navy vessels have been deployed in the region to boost surveillance over the coastal areas.

Later this month the Security Council is expected to hold a debate on piracy in the Gulf of Guinea. The Council appears to be unanimous on the issue. Nigeria, which is presiding over the Council in October, is the spearhead for the debate and will likely push for urgent action. The US, a key consumer of oil from the Gulf of Guinea, appears to have shown interest, as have France, Britain and China and elected member Gabon. More particularly, the Council is expected to formally ask the Secretary-General to deploy an assessment mission to examine the phenomenon and suggest possible ways to address it.

Governmental, sea industry and regional partnership is increasingly re-emerging as the primary strategy to counter modern day piracy, in light of its deep social roots, broad-based economic impact and its ties with organized crime. Marking World Maritime Day 2011 under the theme “Piracy: orchestrating the response”, the International Maritime Organization was the latest specialized agency stressing the need for an “orchestral manner” in which governments, shipping companies and operators, military forces and UN agencies should act if they are to combat piracy successfully.

Without further delving into the set of practical and technical measures, most recently developed to effectively target piracy off the coast of Somalia, there are questions as to the legal regime upon which such measures should operate. UN General Assembly Resolution 57/141 urged all states and relevant bodies to cooperate in combating and preventing piracy and armed robbery at sea. Article 100 of the 1982 Law of the Sea Convention created an obligation for all states to cooperate in repressing piracy. Article 108, in addition to several other international agreements on this matter, provided a framework for regional and global cooperation for the suppression of drug trafficking. The very nature of most of the attacks, however, taking place within territorial waters, their private ends being a mixture of criminal activity and social discontent, once again appears to limit the applicability of the general provisions attaching to the customary and treaty-law definition of piracy. The additional framework introduced with the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, and its protocols (SUA Convention), provides for a more precise set of obligations for its signatory States. More particularly, the SUA Convention emphasizes several areas of State-to-State cooperation. On the other hand, it bears the risk of swiftly connecting most acts of piracy with anti-terrorism measures which appears unfounded (to date) in the case of piracy in the Gulf of Guinea.

There is a need to consolidate the applicable regime governing piracy insofar as current treaty provisions are too scarce, vague and scattered (in various international agreements) to be effective. In addition, a review and an implementation of counter-piracy legislation at the national level would ensure the enforcement of existing measures and would permit their expansion onto a regional scale. There are helpful precedents of regional agreements from the Asian and Horn of Africa contexts. These agreements should be taken into consideration as a means of achieving comprehensive regional coordination as well as a necessary legal framework. A UN resolution could also precede the regional agreement and form the basis for a cooperative framework. Any such instrument should take into account a variety of activities, including interdiction, the seizure of ships and properties, access to territorial seas, jurisdiction over investigation and prosecution, the rescue of ships, property and personnel, the sharing of information and conduct of shared operations and training.

The experience of the Horn of Africa and its escalation shows how preventive action against modern day piracy and broad-based cooperation beyond traditional state borders is paramount.

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