Secretary General Issues Report of Piracy Court Possibilities

July 17, 2011 by Leave a comment

After several months of consultations with the relevant parties in Somalia and regional states that could assist with piracy prosecutions, the Secretary General has issued a report . My very brief synopsis: Somaliland, Puntland and the TFG in Mogadishu want any and all piracy courts to be based in Somalia, but disagree as to precisely where. Regional and national legislation will need to be enacted that is in accordance with the Somali Constitution. The UN may still provide international assistance in the form of judges, prosecutors and defence, and there is a preference to send members of the Somali diaspora to fill these posts. Although the report was requested in order to bring these courts into existence, the SG could not estimate with any precision the potential cost of these courts or the length of time it might take to lay the legal and logistical groundwork. In order to create a special Somali court, there will need to be agreement between the various factions and regions in Somalia as to legal basis and potentially the seat of the court. On the one hand, there is not a sterling track record for reaching consensus between these parties. On the other hand, the financial and security incentives that could arise from creating these courts may be a golden opportunity to initiate successful negotiations. See the full report here.

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UN Delays Action While National Prosecutions Continue

April 16, 2011 by Leave a comment

The UN Security Council adopted a Security Council Resolution relevant to Jack Lang’s report.  As to efforts to prosecute pirates it included the following language:

[The UNSC] Decides to urgently consider the establishment of specialized Somali courts to try suspected pirates both in Somalia and in the region, including an extraterritorial Somali specialized anti-piracy court, as referred to in the recommendations contained in the report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia Mr. Jack Lang (Annex to document S/2011/30), consistent with applicable human rights law, and requests the Secretary-General to report within two months on the modalities of such prosecution mechanisms, including on the participation of international personnel and on other international support and assistance, taking into account the work of the CGPCS and in consultation with concerned regional States and expresses its intention to take further decisions on this matter (emphasis added)

Billed as adopting the recommendations set out in Jack Lang’s report, the resolution calls for another report within two months on the modalities on setting up an anti-piracy court outside of Somalia. The resolution also attempts to address some of the underlying causes of piracy by “[requesting] the Secretary-General to report within six months on the protection of Somali natural resources and waters, and on alleged illegal fishing and illegal dumping, including of toxic substances, off the coast of Somalia” since “allegations of illegal fishing and dumping of toxic waste in Somali waters have been used by pirates in an attempt to justify their criminal activities.” So…the wait for a comprehensive solution continues.

In the meantime, national prosecutions fill the void.  In what appears to be the first case of its kind, the U.S. has arrested a Somali on Somali soil, alleging he was involved in negotiating a ransom of hostages. This is an attempt to prosecute not only pirates who execute attacks, but also those who finance, plan, organize, or unlawfully profit from pirate attacks. This prosecution will provide some interesting legal precedent as to the definition of piracy. Did this man finance, plan or organize the attacks? or was he just another middleman conversant in technology and English? In any event, it will be interesting to see if the FBI attempts to leverage this prosecution into higher levels of the criminal organization.

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Contact Group on Piracy Recommends Prosecution of Pirate Leaders

March 22, 2011 by Leave a comment

The Contact Group on Piracy off the Coast of Somalia met in New York on 21 March 2011 in the first of its thrice-yearly meetings.  The Contact Group was created pursuant to U.N. Security Council Resolution 1851 and is composed of about 60 countries and several international organizations , including the African Union, the League of Arab States, European Union, the International Maritime Organization, the North Atlantic Treaty Organization and various departments and agencies of the United Nations.

To date, I am unaware of any prosecution of pirate ring leaders or financiers. Those who have been prosecuted in various countries for piracy are the footsoldiers who execute the attacks.  You can remove dozens of footsoldiers from the equation, but if the financing for pirate ventures is uninterrupted, pirate attacks will continue.  In this regard, the Chairperson of the Contact Group, Ertuğrul Apakan of Turkey, stated:

In the effort to end impunity, such an approach would include a multifaceted, aggressive effort to prosecute and incarcerate pirates, including their leaders and financiers, through information sharing, other innovative mechanisms and support for national prosecution.

A key policy decision regarding the prosecution of pirates is whether or not to pursue those individuals responsible for financing piracy. Such individuals never step foot on a pirate boat which makes proving their link to attacks more challenging. Such efforts might require leveraging lower level criminals to testify against their superiors, and tracing financing and ransom payments. This implies lengthy investigations, requiring significant resources. As the ICTR/ICTY models have shown, these efforts can drag on. It is unclear whether the international community would want to tackle such a task when the cost or duration of such prosecutions could not be reasonably estimated.  Prosecuting footsoldiers is a much simpler business.

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UN Security Council to Consider Piracy Thursday

March 8, 2011 by Leave a comment

According to Businessweek:

China, as president of the Security Council this month, plans to lead a meeting on March 10 to call for a more comprehensive international strategy for dealing with political instability, piracy and the threat posed by the Islamic al- Shabaab militia. Secretary-General Ban Ki-moon is scheduled to brief the council on the latest developments.

This is a follow-up to Jack Lang’s report of 25 January 2011 which was the subject of a previous post. At that time, Lang was hoping for a Security Council Resolution by the end of February. With all of the events in Egypt, Tunisia, Libya, etc., the SC has had its hands full. Notwithstanding other pressing issues, apparently China saw fit to add piracy to the schedule.

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Four Americans Dead – What Went Wrong?

March 7, 2011 by Leave a comment

Jean and Scott Adams - Owner's of the Quest hi-jacked by pirates

The killing of four Americans at the hands of Somali pirates has certainly brought the issue of piracy into full view of the American public. Until now, there has been a marginal increase in the price of goods due to insurance pay-offs in the form of ransoms. But it is hard to overestimate the effect of the confluence of events leading up to the death of four Americans and a significant shift in American policy. If the Adams had accepted the offer of yachting friends to ship their yacht through the Red Sea to avoid the threatened seas; if they somehow sailed through the Indian Ocean unscathed, or if the hostage negotiation had been successful, the U.S. would not now be considering increased military intervention and potentially attacks on pirate bases in Somalia.

This last factor, the failed hostage negotiation, not only serves as a cautionary tale, but highlights the significant gaps in our understanding of Somali piracy. Although generally outside the purview of this law blog, I spoke with a friend of mine, Dr. Laurie Charlés, who has published a book on hostage negotiation and she has some interesting insight into the dynamics of hostage negotiations.

In the case of the four Americans killed by pirates, a New York Times report raised questions as to the decision to detain the Somali pirate negotiators apparently because the Americans thought the Somalis were not serious. Dr. Charlés first notes that the nature of negotiation is incredibly complex. The nuanced communication practices are impossible to capture in any substantive form by a reporter or journalist writing.  Therefore, it is a bit of arm-chair quarterbacking to criticize this decision.

That said a lack of a cohesive policy on the part of American negotiators may have contributed the failed negotiation. Dr. Charlés notes that the involvement of more than one agency & jurisdiction can lead to problems. In this situation there was undoubtedly more than one negotiator. These negotiators likely agreed on the theory of negotiation but the application of this theory is not always obvious or successful. A lot of these lessons were learned in the 70s and 80s in negotiating with airline hijackers in addition to the negotiations in the Achille Lauro incident. Dr. Charlés notes that in the beginning of the field of hostage negotiation, many hostages died because of in-fighting in real time between different jurisdictional groups with competing ideas on when or if the use of force was appropriate. The biggest and best example is the negotiations with the Branch Davidians in Waco, Texas which resulted in 76 deaths, including more than 20 children.

What is certain is that additional hostages will be taken by Somali pirates, added to the 700-800 who are estimated to be held by them. The inherently multi-jurisdictional nature of piracy will lead to different negotiators and militaries with different ideas on how and when the use of force is appropriate. In order to avoid future bad outcomes, these competing philosophies will have to be resolved.

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