Piracy – Not just Kiobel’s Analogy

Justice Kennedy – the deciding vote in Kiobel

Cross-posted at opiniojuris.org

The majority opinion in Kiobel precludes Alien Tort Statute claims for foreign conduct against foreign victims, leaving a small door for potential future claims that involve extraterritorial conduct so long as they touch and concern US territorial interests. But, when does a claim “touch and concern” the territory of the United States? Roger Alford notes that piracy may present an incident of “cross-border” conduct that could clarify this issue. Indeed, two piracy cases will imminently arrive at SCOTUS’ courthouse steps.

The piracy statute 18 USC 1651 shares much in common with the Alien Tort Statute: both were passed in the same time frame and both have reference to “the law of nations.” The presumption against extraterritoriality applies to 18 USC 1651. However, the plain language of the piracy statute and its historical context clearly rebut the presumption for all conduct that occurs on the high seas. Further, neither the victim nor the defendant need be American (U.S. v. Klintock). That said, there remains an important subset of piracy cases that involve conduct both on the high seas and within the territory of another sovereign: acts of aiding and abetting piracy through financing or negotiating ransoms for acts of piracy; or recruiting of child pirates.

In US v. Shibin (4th Circuit) and US v. Ali (DC Circuit), currently on appeal, the underlying criminal conduct of hijacking vessels occurred on the high seas. But, the negotiators in these cases only boarded the vessels upon entry into Somali territorial waters. Hence the mixed loci delecti on the high seas and within the territory of another state. Does this type of mixed conduct touch and concern the territory of the United States?

First, the plain language of the piracy statute would not rebut the presumption against extraterritoriality for conduct occurring within the territory of another state (the statute merely applies to conduct on the “high seas”). However, the historical context of the piracy statute indicates that it was intended to prevent impunity for acts of piracy wherever committed. That is why the modern definition of piracy applies to conduct outside the jurisdiction of any state, as well as to the high seas.

Here is where a case-by-case analysis, suggested in Part IV of the Kiobel majority, could be determinative. In Shibin, the defendant is accused of negotiating the ransom of two vessels. The first vessel has a strong nexus to US interests; the victims were American nationals and the targeted vessel was flagged in the US. Although a vessel’s flag does not designate its surface as territory of the sovereign, it is treated in much the same fashion (Lauritzen v. Larsen) which is to say that there are strong domestic interests in exercising jurisdiction over acts of piracy on one’s flagged vessels. But the second course of conduct charged in Shibin involves a vessel with no links to the US apart from a general interest in suppressing acts of piracy. The same is true in Ali. As the district court described the case: “Defendant Ali Mohamed Ali, a Somali citizen, is accused of helping Somali pirates hijack a Bahamian ship, hold its Russian, Georgian, and Estonian crew hostage, and compel the ship’s Danish owners to pay a ransom for its release.” These latter facts would not prevent the exercise of jurisdiction if the alleged criminal conduct occurred on the high seas. The question is whether aiding and abetting conduct occurring within the territory of another state must touch and concern US interests. If answered in the affirmative, it would curtail the US’s ability to suppress and prosecute acts of piracy, which is contrary to the historical purpose and intent of 18 USC 1651. It would also be inefficient as those who initiate an act of piracy on the high seas and continue acts of piracy in foreign territorial waters could only be prosecuted for the former conduct.

One significant factor Kiobel instructs to consider is the imperative to avoid enmeshing US courts in foreign affairs. In this regard, the specific facts of the Somali cases militate in favour of exercising jurisdiction. For the then Transitional Federal Government (TFG) of Somalia did not have effective control over the territorial waters where these acts of piracy occurred. The UN Security Council authorized States and regional organizations “to undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea,” including in its territorial sea. The UNSC took great pains to note the TFG retained full sovereignty, that these exceptional measures did not create customary international law, and that they were authorized because the TFG had requested this assistance. It has been argued that the UNSC Resolutions authorized enforcement and stopped short of authorizing the prosecution of acts of piracy or armed robbery in Somalia’s territorial waters. Notwithstanding these provisos, the interest in preventing “unintended clashes between our laws and those of other nations which could result in international discord” (Morrison) that lies at the heart of the presumption against extraterritoriality, is greatly diminished in these piracy cases.

Justice Kennedy notes in his concurrence in Kiobel that in disputes not involving solely extraterritorial conduct, “the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Although the majority appears to exceptionalize piracy (“pirates may well be a category unto themselves”), such a reading is inconsistent with Sosa v. Alvarez-Machain which explicitly asked “who are today’s pirates?” The terms “pirate” or “piracy” appear in the various opinions in Kiobel 50 times. Perhaps it is time to address piracy directly, and not merely by analogy. Such could elucidate the “touch and concern” requirement applicable in ATS cases.

From New Delhi to Rome (and Back) via Hamburg or The Hague: the Enrica Lexie Incident and the UNCLOS Dispute Settlement Mechanism

The Italian Marines upon their initial return in Italy in December 2012. Will they remain for good?

The Italian Marines upon their initial return in Italy in December 2012. Will they remain for good?

The recent decision of the Italian Government not to return two Italian marines to India for trial in connection with the killing of Indian fishermen is heightening tensions between Italy and India and is spawning an international diplomatic fallout. Since its inception, the case attracted much debate and conjecture, both by the media but also by specialized political and legal commentators. We have provided our point of view, for instance here and here. In essence, Italy and India disagree on who has jurisdiction to try the Italian marines. Each of their respective arguments is premised on international law, notably the United Nations Convention on the Law of the Sea, as well as municipal law. India contends that it has jurisdiction to try the marines because (1) the victims were Indian nationals, (2) the victims were killed on an Indian ship and (3)  the incident occurred within India’s Contiguous Zone, which extends beyond its territorial waters. For its part, Italy claims it has jurisdiction to try the pair because (1) they are Italian citizens; (2) they were deployed as a Vessel Protection Detachment on the Italian ship Enrica Lexie and (3) the incident occurred within international waters. Worthy of note is that both countries, separately but concurrently, have indeed initiated criminal proceedings against the marines before their internal judicial systems.

Recently, the Italian government formally clarified that since the issuing of the Indian Supreme Court decision in January 2013 in this matter, indicating that the marines shall be tried by a special chamber set up within the Indian judicial system, it has pursued the cooperation of the Indian government under Articles 100 and 283 of UNCLOS for a settlement of this matter under international law. From a formal point of view, therefore, the actions of the Italian government are an attempt to bring the question of which State has jurisdiction to try the marines within the legal framework of UNCLOS provisions related to the settlement of disputes.

UNCLOS builds on the commitment by all United Nations Members States to settle their international disputes by peaceful means in such a manner that international peace and security are not endangered. In particular, one of the main characteristic of UNCLOS and its dispute settlement system is the possibility for a State Party to unilaterally trigger the compulsory and binding jurisdiction of certain judicial institutions for the resolutions of such disputes. Given UNCLOS comprehensive reach, the range of controversies subject to resolution varies, and includes issues relevant to seabed and maritime delimitation, navigation, fisheries and the environment, etc.

Part XV of UNCLOS requires States Parties to first attempt to settle any dispute between them by peaceful means and seek a solution in compliance with the United Nations Charter (Articles 279-280). Importantly, States Parties can agree to seek the settlement of the dispute by peaceful means of their own choice (Article 281), including recourse to general, regional or bilateral agreements (Article 282). Parties also have an obligation to exchange views on the possible settlement (Article 283) and can decide to submit the dispute to a non-binding conciliation (Article 284). Where, however, no settlement has been reached, UNCLOS stipulates that the dispute must be submitted at the request of either party to the dispute to a court or tribunal having jurisdiction in this regard (Article 286). The relevant rules contained in Part XV of UNCLOS are quite complex and foresee the possibility of seeking relief before different fora, depending on the subject matter of the controversy, also setting forth a series of exceptions and opt-outs. With regard to controversies akin to that concerning the Enrica Lexie incident, Article 287 of UNCLOS defines available courts or tribunals as the International Tribunal for the Law of the Sea, in Hamburg (ITLOS), or the International Court of Justice, in the Hague (ICJ). In ratifying the UNCLOS, Italy already declared its acceptance of the jurisdiction of either of these institutions as binding, while India reserved its rights to any such declaration. Alternatively, the parties might choose to refer the unsettled dispute to an ad hoc arbitral tribunal. A Party to a dispute not covered by a declaration in force shall be deemed to have accepted arbitration.  If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, this may be submitted to arbitration unless the Parties otherwise agree. Finally, any decision rendered by a court or tribunal having jurisdiction over the dispute shall be final and shall be complied with by all the parties to the dispute (Article 296).

Arguably, the positions of the two States on this matter have not been more discordant. Italy’s sudden decision not to return its marines to India is premised on a change in circumstances following the perceived lack of cooperation by the Indian authorities in resolving the dispute in accordance with international law. This in itself is considered by the Italian government as a dispute on the scope of application of UNCLOS. The Indian government, on the other hand, has reacted strongly and called the Italian decision “unacceptable”. The Indian Supreme Court is currently precluding the Italian Ambassador, who acted as a guarantor for the return of the marines to India, from leaving the country. While it is unclear whether the Italian Ambassador has any immediate intention to leave India, the Indian Supreme Court should be cognizant of the Vienna Convention on Diplomatic Relations (1961) which provides in Article 29 that the person of a diplomatic agent shall be inviolable. The Indian Supreme Court appears to misconstrue the Italian ambassador as a personal guarantor for the return of the marines, rather than a diplomatic agent of the Italian government. The two states maintain irreconcilable positions. India needs Italy to return the marines back on its soil to eventually commence a meaningful trial before its courts, while Italy needs India to comply with its international rogatory requests to complete its investigations into the matter, thus relaxing the jurisdictional dispute by bringing the marines to trial before its own courts.

ITLOS sits in Hamburg - Is the Enrica Lexie Case on its way there? Courtesy ITLOS

ITLOS sits in Hamburg – Is the Enrica Lexie Case on its way there? Courtesy ITLOS

The recent adjudication by the International Court of Justice in the Hissène Habré case provides useful guidance on the expected complexities of instances where the Parties cannot agree to settle their differences. The judgment of the Court in this case, particularly the findings concerning its admissibility, reveals several years of diplomatic exchanges between Belgium, which petitioned the Court, and Senegal, which was accused of neither prosecuting nor extraditing Mr. Habré, the former President of Chad, based on violations of the Convention Against Torture. The ICJ decision in Habre includes, in the first place, lengthy discussions on whether a disagreement occurred among the Parties, whether this could not be settled by them and whether the jurisdiction of the Court had been triggered.

Paradoxically, the divergences between Italy and India might facilitate recourse to compulsory jurisdiction with ITLOS or the ICJ. The route between New Delhi and Rome in the resolution of the Enrica Lexie incident therefore might  pass through Hamburg or The Hague. The voyage is far from clear and it will continue to be a perilous one.

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

Piracy: Declining in the Gulf of Aden, Rising in the Gulf of Guinea

We are pleased to welcome Milena Sterio as a contributing author to Communis Hostis Omnium. She is an Associate Professor at the Cleveland-Marshall College of Law, where she teaches international law and international criminal law.  She has published numerous articles on the topic of maritime piracy, and she frequently lectures on this topic.  She is a member of the Piracy Working Group, an expert think tank founded by members of the prominent non-governmental organization, the Public International Law and Policy Group.  In her capacity as Piracy Working Group member, she traveled to the Seychelles and to Mauritius, where she consulted with local prosecutors and judges on best strategies toward successful national piracy prosecutions.

A crew member prepares to board a tanker that was hijacked by pirates in Benin on 24 July 2011. Photo: IRIN/Daniel Hayduk

Maritime piracy in the Gulf of Aden and elsewhere in the Indian Ocean appears to be on the decline.  In 2012, only 35 piracy attacks took place, compared to 163 attacks in 2009.  As of January 2013, Somali pirates were holding 4 large ships with an estimated 108 hostages.  In the past, the pirates had held dozens of ships and several hundred hostages at one time.  Some news reports indicate that many Somali pirates seem ready to abandon this once lucrative criminal endeavor.  Last year, Mohamed Abdi Hassan, a high-profile Somali pirate, was quoted as saying “I have given up piracy and succeeded in encouraging more youths to give up piracy.”

This decline in piratical activity off the east cost of the African continent is most likely due to several factors.  First, the Gulf of Aden and other waters of the Indian Ocean have been more heavily patrolled by joint maritime forces of several nations, including European Union and NATO-led fleets.  The presence of naval forces in these waters has deterred some pirates from attempting attacks on merchant ships.  Second, many merchant and passenger cruise ships sailing off the east coast of Africa have been staffed with armed security guards.  Statistics show that no successful pirate attack has ever occurred against a ship protected by armed guards.  Third, Somali pirates seemed to engage in the crime of piracy because it represented a lucrative business opportunity, which posed minimal risk and promised tens of thousands of dollars in financial gains.  Today, piracy is a more risky endeavor, because of the presence of naval fleets in the Indian Ocean as well as armed guards aboard ships.  Thus, Somali pirates may seem willing to abandon this criminal enterprise in order to possibly explore other kinds of opportunities.

Yet, although piracy seems to be declining off the east coast of Africa, the opposite is true for the west coast of the African continent.  Piracy in the Gulf of Guinea, home to major oil-producing states such as Nigeria, Angola, Equatorial Guinea, Gabon and Ghana, has been on the rise.  34 piracy incidents were recorded between January and September 2012, up from thirty in 2011. Togo reported more attacks in 2012 than in the previous five years combined, with three vessels hijacked, two boarded and six attempted attacks.  Piracy has also been on the rise in Benin.  In addition, Nigeria reported over twenty attacks in 2012.  And on February 3, 2013, a French oil tanker was reported missing off the Ivory Coast; according to the International Maritime Bureau, the ship was probably pirated off the shores of Nigeria.

The piracy model in the Gulf of Guinea resembles its counterpart in the Gulf of Aden in terms of the pirates’ modus operandi: in West Africa, pirates sail out to the sea on larger vessels but then launch attacks using smaller skiffs.  In addition, pirates in West Africa seem to be resorting to this crime because of factors similar to those that have existed in Somalia for several decades: insecurity, poverty, as well as a lack of education and employment opportunities.  However, while Somali pirates seemed mostly after collecting ransoms from shipping companies in exchange for the crew and cargo, pirates in West Africa seem more interested in keeping the cargo (mostly oil) of any successful hijacking operations, which they then sell on the black market.  Reports also indicate that pirates in the Gulf of Guinea are more prone to violence, and that they act in more brutal ways toward the captured crewmembers.  And because the Gulf of Guinea is a rich oil-producing region, its strategic importance, and thus the necessity of curbing the rising piracy threat, may be even greater than the piracy menace in the Gulf of Aden had ever been.

Unsurprisingly, like in the case of Somali piracy, the United Nations Security Council has become involved in finding solutions for this developing regional crisis.  On February 29, 2012, the Security Council adopted resolution 2039 calling on the Secretary-General to “support efforts towards mobilising resources following the creation of the regional strategy to assist in building national and regional capacities in close consultation with states and regional and extraregional organizations.”  Furthermore, on October 31, 2012, the United Nations Security Council, in resolution 2018, condemned all acts of maritime piracy and armed robbery at sea in West Africa’s Gulf of Guinea and encouraged states in the region to work together toward a comprehensive response to the menace of piracy.  The Security Council, in this unanimously adopted resolution, encouraged several regional organizations (the Council encouraged the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission (GGC)) to jointly develop a strategy against maritime piracy.  Such joint strategy could entail the drafting of more comprehensive domestic laws which would criminalize piracy and armed robbery at sea, as well as the development of an information-sharing regional center.  Moreover, the regional anti-piracy efforts could include the development of domestic laws which would implement international agreements existing in the field of international maritime law.  In addition, ECOWAS, ECCAS and GGC could engage in bilateral or regional maritime patrols in the Gulf of Guinea, in order to ensure the safety of maritime navigation and thwart potential piratical attacks.  Finally, the Security Council urged member states of ECOWAS, ECCAS, and GGC to cooperate with other states, such as states where ships are registered, and states where victims or perpetrators come from, in the prosecution of pirates as well as of piracy facilitators and financiers, in accordance with applicable international law.   The Security Council thus encouraged all states in the international community to assist countries in the region in strengthening anti-piracy efforts in the Gulf of Guinea.

Like the Security Council, the Secretary-General, Ban Ki-moon, has also expressed his intention to focus on the piracy problem in the Gulf of Guinea, by deploying a United Nations assessment mission to the region in order to explore options on how to best address the problem.  According to the Secretary-General, piracy in the Gulf of Guinea could hinder economic development and undermine security in the region.

Within the next few months, the Security Council expects a briefing from Said Djinnit, the Secretary-General’s Special Representative and head of the UN Office for West Africa (UNOWA), on the Secretary-General’s semi-annual report, including an update on the Gulf of Guinea piracy problem.  The international community will have hopefully learned from the Gulf of Aden piracy epidemic, which seems to have been successfully curbed through coordinated international maritime efforts, that anti-piracy efforts in the Gulf of Guinea will similarly require international and regional strategy and a comprehensive anti-piracy plan.

UN Optimistic for Progress in Somalia – Looks to Increase Its Engagement

Later next week, the UN Security Council will resume its discussion on Somalia. Among the main issues will be the future of AMISON as well as the embargo on arms and Somali charcoal. Before the Security Council is also the Secretary General Report S/2013/69 pursuant to Resolution 2067 (2012) containing the Secretary General’s options and recommendations on the UN presence in Somalia. The Report considers several possible structural configurations for a future UN presence in Somalia further to the end of the political transition period and the development of the democratization process, including the setting up of a peacekeeping, peace-support or a peacebuilding institution, either in coordination or jointly with the existing Africa Union presence. While the possible establishment of a peacekeeping operation in the near future remains under review, the Secretary General currently favors an assistance mission located directly in Somalia that would integrate the functions of the UN Political Office for Somalia and the UN Support Office for AMISOM (UNSOA) but keep the UN humanitarian country team separate:

United Nations assistance mission. Under this option, a new United Nations mission would deliver political and peacebuilding support with a presence across Somalia. In terms of logistics support to AMISOM, a dedicated Deputy Special Representative of the Secretary-General for Mission Support would report directly to the Department of Field Support in New York on delivery of the AMISOM support package, in order to ensure efficient delivery to AMISOM. At the same time, she or he would report to the Special Representative of the Secretary-General on United Nations mission support issues and policy and political questions arising from the functions of UNSOA relevant to the mandate of the United Nations assistance mission. The United Nations country team would remain structurally separate, but would participate in enhanced mechanisms for strategic integration and operational collaboration, supported by an expanded office of the Resident Coordinator/Humanitarian Coordinator. The scope for full structural integration would be reviewed annually, on the basis of progress in the political, security and humanitarian situation. Criteria for this review would be developed by the Somalia Integrated Task Force. This option enhances the strategic integration of United Nations functions while preserving distinct reporting lines for different United Nations mandates at the current sensitive stage of operations. This option is recommended; (para. 75(c))

There are reasons to believe that the Security Council will endorse the Secretary General’s recommendations and the deployment of the new mission will commence soon. The fight against piracy remains one of the main area of focus. Resolution 2077 (2012) renewed the current anti-piracy operations for another 12 months. Worthy of note is also the Secretary General support for the creation of a maritime component for AMISOM to consolidate control over southern and central Somalia and contribute to the training and mentoring of the Somali coast guard and maritime police (para. 82). Undoubtedly, the current drop in piracy attacks in the region is among the major successes of the international community involvement in Somalia so far. In this regard, it is essential that the current piracy deterrence and prosecution efforts are further developed as a starting point to enhance Somalia’s overall security and justice sectors:

The improved security situation in Somalia should help in the fight against piracy by denying the perpetrators safe havens both on land and along the coast. I encourage the new Government to develop a comprehensive national maritime economic and security strategy and a supporting legal framework, including declaring Somalia’s exclusive economic zone, working closely with all stakeholders. The resources that the maritime environment brings would contribute to financing the changes that are necessary for Somalia to recover from the last two decades of conflict. In this regard and as part of the wider security sector support, assistance should also be mobilized and delivered to the justice and corrections services. I have emphasized that the international community must address the root causes of piracy — instability, lawlessness and a lack of effective governance in Somalia — and therefore continue to intensify its engagement to link the counter-piracy approach with development and State-building goals (see S/2012/783). (Para. 88)