Incitement to Hunt al-Shabaab

Ahmed Abdi aw-Mohamed, founder of al-Shabaab

Last month, the U.S. State Department announced that it was offering rewards of $3-7 million for information that would lead to the senior leaders of al-Shabaab. See also, here. As Somali pirates continue to meet considerable resistance at sea, and successful pirate attacks see a precipitous drop, they are seeking new sources of income. This raises the possibility that they will seek to provide information about the whereabouts of al-Shabaab leaders pursuant to the State Department Rewards for Justice program. But there are potential legal obstacles to paying for information from pirates.

As some background, there continues to be debate as to whether members of al-Shabaab and Somali pirates are colluding with one-another. For example, in a recent trial in Italy, the prosecutors asserted that pirates had connections to al-Shabaab and planned on using the ransom proceeds to finance terrorist activities. Likewise, Kenya justified its initial incursions into Somalia based upon the assertion that recent kidnappings of tourists and aid workers in Kenya were the work of al-Shabaab (though some of these attacks were likely perpetrated by pirates with no political objective). There have also been assertions that the port of Kismayo, al-Shabaab’s most important source of income, was being shared by pirates. Kenyan Prime Minister Raila Odinga has requested assistance from the EU naval mission to help to take Kismayo, but the EU has been reluctant because it considers the port to be an al-Shabaab stronghold and not a stronghold of pirates.

Readers of this blog will recall that in 2010, President Obama issued executive order 13536 imposing economic sanctions on suspected financiers of Somali piracy. Although this same executive order imposed sanctions on the organization of al-Shabaab, the preface specifically declared a national emergency to deal with “the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia.” Terrorism and al-Qaida were not mentioned, suggesting the economic sanctions were being targeted at pirates.

This brings us to the Rewards for Justice program and the list of seven senior leaders of al-Shabaab. Of this list, it appears that three individuals also appeared in the President’s executive order 13536 annex. Perhaps the economic sanctions had always contained a list of both pirates and al-Shabaab. Another possibility is that former pirates have joined the forces of al-Shabaab. Whatever the case, the State Department is prohibited by executive order 13536 from paying for information from the individuals named in the order. Considering the past confusion as to potential links between al-Shabaab and pirates, it will prove a challenging task to verify that a particular individual providing information is not affiliated with one of the individuals named in the executive order or with al-Shabaab. Even if information does not come from individuals specifically named in the executive order, the State Department will have to consider the possibility that reward money will go to finance pirate operations. In the end, it may be a case of the enemy of my enemy is my friend (at least for today). Regardless, the possibility that pirates could provide information as to the whereabouts of al-Shabaab’s senior leaders might be enough to prevent any future alliance between the two organizations.

Privately Contracted Armed Security Personnel and Counter-Piracy: Is France at a turning point?

A guest post by Valerie Gabard. Valerie is a French national with notable experience in both French and International Law. Previously, she was a legal officer at the Extraordinary Chambers in the Courts of Cambodia. She is currently a legal officer at the International Criminal Tribunal for the Former Yugoslavia. Valerie is also a regular contributor to the Bulletin of the French Society for International Law.

The number of recent blog posts on the issue of Privately Contracted Armed Security Personnel (PCASP) undeniably shows the growing role of PCASP as a piracy deterrent. As mentioned in an earlier post, the United States strongly supports the use of PCASP as an efficient means of containing piracy. In Europe, there is no harmonized position either at the European Union level, or among the individual States. As opposed to Great Britain, France has repeatedly expressed reluctance to rely on PCASP to protect French vessels against pirates’ attacks. So far, the French response has been limited to the on board deployment of Vessel Protection Detachments (VPDs) composed of professional soldiers. Until very recently the organization of French ship-owners (les armateurs de France) showed the same lack of enthusiasm with respect to the use of PCASP. Nevertheless, the deployment of VPDs appears insufficient to ensure the security of all French vessels traveling through the Gulf of Aden. As a result, French ship-owners recently changed their standpoint and began supporting the use of PCASP. This development may lead the French government to review its current position on the matter.

In late February 2012 a statement from the organization of French ship-owners noted the limits of the VPDs in protecting crew members and the urgent need for alternative solutions. They expressed strong support for a report filed by two members of the French National Assembly. The report underlines the need to reform French Law in order to allow the use of private security companies and to create a proper legal framework for their activities. According to its authors, the report aims to end a French taboo that traditionally associates private security with mercenary activities. The report underlines that the use of private security actors is a phenomenon that cannot be ignored at the international level, especially in the field of piracy, and that private security services have a potential worldwide market value of up to 200 billion USD a year. It further suggests that France should legislate to create a proper legal framework that would ensure transparency and address the responsibility of private security firms in contrast with the current legal limbo. Noting that there is a real and immediate need for private security on board French vessels, the report proposes that counter-piracy could be an area in which the use of PCASP can be tested with a view to possible broader application in the future. It also points to the increasing role of PCASP in the fight against piracy and the fact that French ship-owners may turn to British firms for protection if France does not react adequately. The report notes that although the number of French private security firms is still very low (around 10 to 15), there are important business opportunities in this field. The report is not naïve as it underlines the economic implications behind authorizing private security actors to counter piracy. It implies that France’s position against PCASP is untenable at the international level. With or without France, the number and scope of PCASP will increase in the fight against piracy. It is now up to France to decide whether to create a proper legal framework and be part of it or be left behind. The economic pressure represented by French ship-owners may force the French authorities to review their present position on the matter. While there is still no official position it is clear that France is now at a turning point and that there is an urgent need to take decisions on the matter. With the presidential elections looming, it is nevertheless not expected that an official position will be taken before the summer, at very least.

The debate around PCASP in France does not impact or call into question the current French military involvement inthe fight against piracy. This remains the main tool of the French counter-piracy policy and France recently reaffirmed the importance it attaches to a military deterrrent in the Gulf of Aden. Indeed, since April 2012 France assumed command of European Union Naval Force (EU NAVFOR) Atlanta counter-piracy mission off the coast of Somalia. This is the second time that France has held command of the EU NAVFOR Task Force. It is also worth noting that the Council of the European Union has extended the mandate of the EU NAVFOR until December 2014 and has increased the area of operations to include Somali coastal territory and its internal waters.

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.

Seychelles positions itself as anti-piracy command

Crew from HMS RICHMOND provide technical assistance to Seychelles Coastguard - Source: EUNAVFOR

Seychelles has been one of the international community’s preferred partners in the fight against piracy. There is productive, on-going cooperation between the country and, amongst others, INTERPOL, EUNAVFOR, UNODC. Likewise, in March 2010, Seychelles National Assembly amended its penal code to re-define piracy in line with the definition in the 1982 LOS Convention which Seychelles ratified in 1991.

In a recent interview, President James Michel highlighted some new initiatives of his government. He noted that, “Seychelles [is] becoming the anti-piracy hub for our international allies, who are committed to the fight against piracy.” In addition, President James Michel emphasized the need to focus police and prosecutorial resources on the financiers of piracy, “Piracy has developed into a lucrative business model and therefore more emphasis needs to be made to target the financiers of piracy, to eliminate the criminal networks and bring to justice the main profiteers of this business.” Therefore, he stated:

We are in the process of setting up a Regional Anti-Piracy Prosecution and Intelligence Centre, with the support of the International Maritime Organisation (IMO) and the UK and its Serious Organised Crime Agency, that will coordinate the tracking of financial transactions and enforcement operations. This will, in turn, assist law enforcement agencies to build cases needed to issue international arrest warrants and prosecute the financiers of piracy.

However, he noted certain constraints on Seychelles’ ability to continue such projects.

We are committed to coordinating international efforts and seek greater participation by all countries in terms of assets, resources and to highlight the adverse effects for small island states such as Seychelles. We have also been at the forefront of prosecuting pirates by framing new anti-piracy laws and formulating partnerships with Somali authorities for the transfer of convicted pirates. We have taken these initiatives despite the tremendous strain on our limited resources.

Main Prison at Bosaso, Puntland - Source: SomaliaReport.com

For example, he explains that 12 % of the prison population in Seychelles is made up of Somali Pirates (although it is noted elsewhere that this consists of 76 prisoners). In addition, his government signed a prisoner transfer agreement with Puntland in early 2011. However, the transfer agreement will likely only take effect upon the completion of new UN-funded prisons in Puntland. This must explain in part the recent decision to refuse the transfer of 24 suspected Somali pirates from the Danish Navy. With Kenya still reticent to recommence prosecutions, and other regional states only taking on a handful of Somali pirates, there will be significant pressure for the Seychelles to pick up the slack and take on significantly more cases. Although Seychelles continues to be one of very few willing regional partners in East Africa and the Indian Ocean, its assistance is necessarily contingent upon continuing financial and other assistance from international powers.