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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India: A Case Study

September 24, 2011 by Leave a comment

Indian authorities escort Somalis captured aboard a suspected mother ship

Dear Readers, I have asked M.R. Shamshad, an advocat on record with the Supreme Court of India to provide his insight on the challenges faced by India in combating piracy. Mr. Shamshad is a qualified lawyer based in New Delhi and practicing on a diverse array of issues. Many thanks for his contribution!

Before I hand over to Mr. Shamshad, let me provide some background. India is one of the states most affected by the crime of piracy. As a traditionally sea-faring nation, Indians crew many of the ships in international transit and have suffered as a consequence. Between 2007 and 2011, 495 Indian seafarers were held hostage by Somali pirates. In addition, international efforts to protect the Gulf of Aden have pushed Somali pirates to seek out new targets across the Indian Ocean. In the last year, there were a dozen attacks around the Lakshadweep area in India. The Indian Navy has intensified efforts to combat piracy by participating in EUNAVFOR and patrolling off of its own shores. As a result, the Indian Navy and Coastguard captured 120 pirates in the Arabian Sea and held them in custody in Mumbai. For a tactical assessment, see this interview with Commodore RS Vasan of the Center for Asia Studies. However, the legal framework is not yet in place to fully prosecute these pirates under Indian law and the TFG’s Ambassador to India has asked that these pirates be returned to Puntland and other regions of Somalia. Mr. Shamshad takes it from here:

Legislations against Piracy in India:

Currently, ship safety and security are handled by the International Maritime Organization (IMO) under the International Ship and Port Facility Security Code, which itself is an amendment to the International Convention for the Safety of Life at Sea (SOLAS) of 1974/78 and came into force in 2004. At the international level, Sections 101 to 107 of the United Nations Convention on the Law of the Sea (UNCLOS) relate to sea piracy. But India has still been unable to adopt and form any express municipal legislation to tackle this issue.

Hence to fill this present lacuna the Indian Government has very recently decided on formulating a new express municipal law to tackle piracy. The new law would deal with acts of piracy and other complicated issues on the high seas. Impetus has also been provided by the Supreme Court asking the Centre to come out with a comprehensive law and compensation measure.

Presently there is a need to adopt a domestic law on the subject. In India, piracy issues are tackled by the provisions of Indian Penal Code and the Admiralty law. A draft law is ready and it has gone to the law ministry for final vetting before it goes to parliament. It is likely to be taken up for passing in the next session of Parliament. The draft legislation also prescribes punishment for different acts that constitute piracy under the law. The draft law clearly defines what actions constitute piracy and who would be called a pirate, apart from listing out the legal framework for apprehending them, be it in Indian or international waters, and for prosecuting them in Indian courts. But details of the punishment are not yet final, as it is now under scrutiny for inconsistencies or other things with the law ministry. On nearly a dozen occasions since October 2008 when India joined the anti-piracy operations in the Gulf of Aden, its navy has had to empty the fuel on pirate’s speed boats and let them to drift in the high seas, as nabbing them would raise questions as to where they would be prosecuted and which foreign port would take them into custody.

The ministry of shipping on 30.08.2011 issued guidelines allowing ships with Indian crew to deploy armed guards in a bid to combat piracy in the Gulf of Aden. The move comes on the back of recommendations from the inter-ministerial group (IMG) of officers constituted to handle the hostage situation on hijacked ships and also suggest preventive measures.

In the absence of anti-piracy laws, India charges these pirates under Indian Penal Code with trespassing (Sections 441 & 447), waging war against the country (Section 121), attempt to murder (Section 307) and armed robbery (Sections 397 & 398) against pirates, many of whom are believed to be minors that have been apprehended so far. In India individuals below 18 years of age are considered to be minors and are tried under the Juvenile Justice Act. At present, piracy is dealt with under the provisions of the Indian Penal Code and century-old Admiralty law but the government is planning to have a separate statute with provisions to effectively tackle the problems that take place far away from Indian shores. This apart, though India has ratified the UN Convention on Laws of the Seas, it needs to enact a law to bring it into force.

For further reading, see the excellent resources available at the Indian branch of Oceans Beyond Piracy.

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Tanzania Invites UN help with Piracy

September 23, 2011 by Leave a comment

In his speech yesterday to the UN General Assembly, Tanzanian President Kikwete invited the assistance of the international community in combating piracy:

The problems of piracy still lingers on and is expanding. We are now witnessing more and more attacks taking place as far South from Somalia to as far as Tanzania, Mozambique and Madagascar. Since last year, when piracy activity moved south into our territorial waters 13 ships have been attacked 5 of them were hijacked. These attacks have caused an increase in the cost of shipping. If we don’t succeed in stopping these attacks they may disrupt shipping services and impact negatively or our economy. We need the support of the international community to help build capacity to fight piracy. We welcome your readiness to assist us improve our courts and prisons to try and punish the pirates. If simply a gesture was extended to build capacity to prevent attacks there would be less pirates to bother us.

This follows the report of the UN Secretary General in June 2011 in which the Tanzanian government signaled its willingness to host a Somali extra-territorial court for piracy if certain conditions were met. Those conditions included the provision or lease of a new naval vessel to Tanzania to fight piracy off its coast and assistance to four or five detention facilities to house pirate suspects in various parts of the country (to reduce security concerns).

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