Chatham House Report on Piracy

Dear Readers, we have a new contributor to CHO, Shannon Torrens. Ms. Torrens has served as legal adviser for the Marshall Islands Permanent Mission to the UN  and negotiated the LOS and Fisheries resolutions for the country. She has also been involved with the International Tribunal for the Law of the Sea. We’re very excited to benefit from her expertise and look forward to her contributions to the site.

Traditional notions of piracy as an essentially negative enterprise are being increasingly challenged. Whilst Somali piracy off the East coast of Africa has undoubtedly resulted in the loss of lives, the infiltration of violence and fear to coastal communities and ocean dwellers, in addition to the squandering of billions of dollars in ransoms and depleted tourism, it remains relevant that some sectors of the community do benefit from piracy. This raises questions as to what strategies can be put in place to alleviate the root causes of piracy so that the economic incentive is not longer as valuable.

Source: EUNAVFOR

An alternative argument to the belief that piracy ransom money is invested in foreign goods or channelled into neighbouring countries such as Kenya appears in a report released by development economist Dr. Anja Shortland from Brunel University on behalf of the London-based think-tank Chatham House. Perhaps controversially, the report notes that piracy has provided stability to Somalia and structure for the troubled country’s governance. As part of the research for “Treasure Mapped: using Satellite Imagery to Track the Developmental Effects of Somali Piracy“, the report aimed to investigate and analyse the on-land impacts of piracy and specifically where the proceeds from piracy are invested. In doing so, the report looked at both day and night aerial photos and high resolution satellite images of Somalia and at economic data, to establish where the beneficiaries were located.

Conventional economic data on Somalia is lacking, therefore, the report utilised data collected by internationally funded NGOs who monitor commodity prices, which when combined with the aerial shots, provided evidence that a significant percentage of pirate ransoms, are converted into local Somali Shillings, benefitting casual labourers and pastoralists in the Puntland region. Furthermore, the aerial images showed that inland communities such as Garowe and Bosasso in Puntland, from where pirates are said to generally originate, had increased in wealth in line with the rise of piracy activities. Those communities showed more lights on at night (i.e. electricity) and increased construction projects taking place, all of which occurred during the same period as the explosion of pirate ransoms.

Interestingly, coastal communities or “Pirate capitals” such as Eyl and Hobyo which actually host the pirates throughout their off-shore operations did not show similar evidence of having benefitted through additional investments into the community. While the report does not suggest piracy as a method for developing underprivileged regions, it does suggest that piracy clearly benefits some sectors of the Somali community and that if piracy were to stop, there would be sections of the underprivileged in Somalia who would be deeply impacted, which would in turn undermine local security and development. Furthermore, due to the alleged benefits piracy funding has had on the local economy in these inland communities and in provincial Somali capitals, the report suggests that political elites would be unlikely to act decisively against piracy.

The alleged ransom distribution in Puntland is part of what the report points to as a “deep- rooted culture of sharing” whereby wealthy Somalis combine their resources within their social-clan and in doing so aspire to increase their financial standing cooperatively. This is part of a cultural obligation to assist others in one’s community through traditional economic survival patterns, which in this instance involves considerable financial redistribution and investment in inland areas. This reality combined with large local groups who have a vested-interest in the continuation of piracy for development purposes is said by the report to render the off-shore momentum of piracy difficult to stop and is also why the report suggests an on-shore, rather than off shore solution to piracy.

The “Treasure Mapped” report has been subject to a degree of negative commentary from some quarters, for its allegedly weak data, gaps and errors of information that some commentators believe affect the implementation and accuracy of suggestions. Further criticisms have been based on allegations that the report unfairly targets the reputation of the people in Puntland specifically, Somalia more generally and the counter-piracy initiatives of the Somali Government. In doing so, they argue that the report links Puntland and the government to piracy activities, when these areas and institutions have actually taken extensive steps to combat piracy, rather than participating in or facilitating it.

As part of its conclusions, the report suggests finding alternative economic stimulus to the Somali economy, as without such alternative job prospects, Somalis will continue to search out extra legal means of employment, which includes piracy. While controversially for counter-piracy initiatives, the report suggests that a “military crack-down… would deprive one of the world’s poorest nations of an important source of income and aggravate poverty,” the report concludes that despite the fact that a large number of people benefit from the proceeds of piracy, this should not stop the international community from acting to find land-based solutions which would ideally focus on attempts to replace piracy as a source of income in these communities.

Iran’s Piracy Problem

If you haven’t heard by now, the American Navy has rescued a group of Iranian fishermen whose boat had been hijacked by Somali pirates. The pirates used the fishing dhow al Molai as a mother ship to stage attacks on other higher-value targets. Iran’s Foreign Ministry was initially silent, but has since commended the American rescue as a humanitarian gesture.

U.S. Navy Sailor greets crew member of the Iranian-flagged fishing dhow Al Molai

For the moment, the rescue is a public relations coup for the United States as tensions escalate over strengthened economic sanctions against Iran and competing shows of naval force through the Strait of Hormuz, the only waterway connecting Persian Gulf oil resources with Asia and the West. This incident is an embarrassment to Iran and highlights the indiscriminating nature of Somali piracy.

Just like other sea-faring nations, Iran has struggled to combat piracy off the coast of Somalia. There are currently about 14 ships and 254 hostages in the hands of Somali Pirates. Although EUNAVFOR estimates 7 ships and 194 hostages, not including dhows and smaller vessels. Most non-officer seafarers come from developing countries and particularly, the Philippines, India, and increasingly China.  Therefore, these countries have the highest proportion of hostages being held. However, Iran has also suffered with 10 Iranians taken hostage aboard the Sinan in 2011 and another 45 taken hostage in 2008 and 2009.

Likewise, some of its ships have been targeted, with al Molai the most obvious example, but also including the Delight and the Iran Deyanat, not to mention other vessels with Iran as a destination.

In response to these attacks, Iran has sent naval vessels to the Gulf of Aden to protect Iranian ships from pirates.  It appears to be maintaining two destroyers on mission in the Gulf of Aden, although increasing tensions in the Strait of Hormuz may require Iran’s navy to reallocate resources.  See also here. It is unclear to what extent Iranian war ships have interacted or cooperated with other navies while on mission in the Gulf of Aden and Indian Ocean. However, Iran participates in the 19-member grouping of the Indian Ocean RIM – Association for Regional Cooperation (IOR-ARC) which also includes India, Yemen, Australia, Bangladesh, Indonesia, Kenya, Madagascar, Malaysia, Mauritius, Mozambique, Oman, Singapore, South Africa, Sri Lanka, Tanzania, Thailand, the UAE and Seychelles. The IOR-ARC issued the Bangalore Declaration last November, agreeing to share information, experiences and best practices in the fight against maritime piracy.

Although a momentary boost to the United States, this incident will be quickly overshadowed by the tension in the Strait of Hormuz. As tensions between the United States and other countries (to the extent that they are also imposing economic sanctions on Iran) continue to increase, any naval interaction with Iran will be potentially risky.  Iran’s presence in the Gulf of Aden is no exception. However, with EUNAVFOR, NATO, and the United States-led international naval coalition of 25 nations all operating in the area, Iran is vastly outnumbered in that area and will be reticent to engage offensively there.

It is also worth noting that Iranian’s most valuable asset, its oil tankers, are not seriously at risk to Somali pirates. Transit through the Gulf of Aden, when tankers are most susceptible to attack by Somali pirates, is only necessary to transport oil to Western countries. Although 18 percent of Iran’s crude oil exports went to the EU in the first 6 months of 2011, that percentage will likely drop considerably as a result of new economic sanctions. The remainder of Iran’s exports go to Asia, notably Japan, India, China and South Korea which do not transit the areas most susceptible to pirate attacks. Al Molai fishing dhow was attacked much closer to Iran, but attacks in that region are exceptional.

But what of these particular Somalis?  Will they be prosecuted and where? After the incident, the pirates were in American custody. The New York Times reports that the rescue occurred 210 miles off the coast of Iran, presumably in international waters.  If that is the case, the United States as the seizing nation, has jurisdiction to prosecute, decide on penalties, and determine the action to be taken with regard to ships or property “subject to the rights of third parties acting in good faith.” (Article 105, UNCLOS). Iran, as a third party whose nationals were victims of the attacks, also has an interest in prosecuting the pirates. In this case, it is likely that Iran will defer to the U.S. to prosecute the pirates.

There are also some problems of proof, as the pirates apparently threw their arms overboard and claimed to be joy-riding on the seas. Therefore, prosecution will be based upon video and testimony obtained by the navy helicopters and ships that performed surveillance on the ship and the testimony of the victims.

The problem of prosecuting in United States courts is that testimony must be in person due to the confrontation clause (and the U.S. Supreme Court decision in Crawford). This is where U.S. prosecution presents significant hurdles as U.S. servicemen may not be available to testify in court and it is unclear whether video-link testimony would be constitutionally permissible. In the case of the Iranian victims, there are even more serious practical concerns, as they would have to be given permission by the Iranian government to travel to the US to testify. For these Iranians there may be a temptation to seek asylum while in the U.S. just as witnesses at the ICC have done after reaching the Hague from Africa, notably from the DRC and the CAR.

Hypothetically, the pirates could be prosecuted in Iran. Iran is a signatory to UNCLOS without any reservations as to the definition of piracy contained therein. However, Iran has not ratified the Convention and it is unclear whether Iran has particular legislation that criminalizes piracy directly. Insofar as Islamic law applies in Iran, Islam considers piracy to be forbidden and may be punishable by death.  In a related context, the Iranian Foreign Ministry has called Israel’s attack of an humanitarian aid flotilla to the Gaza strip to recall, “acts of sea piracy in the past centuries, which are clear example of maritime terrorism.”  In 2009, Iran also acceded to the UN Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) which defines maritime terrorism (the U.S. is also a state party). If Iran and Somalia were to request extradition of the pirates to Iran, the SUA convention requires the U.S. to pay due regard to Iran’s rights as the flag state of the victim ship(s). (Article 11(5) of SUA). Nonetheless, the U.S. would likely consider it difficult for the pirates to receive a fair trial in Iran and could deny extradition to Iran on that basis. (Article 11(6) of SUA Convention).

A more practical solution would be to identify the home community of the pirates in Somalia, be it Puntland, Galmadug, or Somaliland, etc. for prosecution in their home jurisdiction. The UN Office for Drugs and Crime has established programs to strengthen the prosecutorial capacity of some of these regions. However, there continue to be concerns of corruption and judge-intimidation that undermine confidence of a just outcome in these judicial systems. Likewise, the penalties imposed for piracy may be significantly less than in the U.S. where life-imprisonment has been the norm for recent prosecutions of Somali pirates.

Some difficult decisions will have to be made by the American authorities in this regard. Although policy will likely have been made with regard to which pirates to transfer to other authorities and which to prosecute state-side, the enhanced exposure of this particular case might require a re-examination of this calculus.

At the end of the day, piracy is perhaps the only area where the U.S. and Iran share common interests. For both countries, prosecution of pirates remains a problem without any easy solutions.

UPDATE: I just found a summary Iran submitted to the UN of Iranian law applicable to maritime piracy.  The summary asserts that piracy is punishable by a sentence of 3 to 15 years imprisonment. It also states, “It should be mentioned that “moharebeh” in accordance with “Sharia Law” is resorting to arms in order to frighten people; and “mohareb” [which includes pirates] is a person convicted of “moharebeh”.  The punishmen (sic) of “moharebeh” is “exile” or “death penalty”.” The summary does not state to what extent Shariah law is applied in Iran.

Kenyan Intervention in Somalia Will Have Minimal Effect on Piracy

Kenya has entered into Somali-territory and is making slow progress northward. As yet, it is not entirely clear what military objective Kenya seeks to obtain. At its outset, the Kenyan government justified the incursion based upon recent kidnappings of foreign tourists and aid-workers, asserting that they were all the work of al-Shabaab. However, It appears that only the latter attack on Spanish aid workers for the charity MSF can be attributed to al-Shabaab. While the other two attacks on tourists near Lamu were likely the work of pirates/armed bandits. More recently, sources in the Kenyan military have asserted:

Kenya’s military says it plans to remain in Somalia until the Shabab’s capacity is “reduced” and Somalia’s weak, American-backed transitional government is able to function.

The more immediate goal appears to be to take the port town of Kismayu, one of Somalia’s biggest towns and a major money-earner for the Shabab. The United States and France have joined in this fight, emboldened by the success of using air power to assist foreign ground troops in Libya. The Kenyan incursion into Somalia falls within the U.S.’s fight against the Shabaab which until now was limited to targeted drone strikes in the Shabaab controlled areas.

Although principally a military intervention against the Shabaab, this is also an opportunity for Kenya to root-out pirates based in the south of Somalia and to discourage any further attacks on tourist-areas on its coast. While the Shabaab was initially hostile to pirates, asserting piracy was contrary to Islam, it appears Shabaab has become more tolerant of pirate gangs in view of the revenue they can produce. They are not working together, but appear to have reached a détente.

It is possible that Kenya’s intervention will prevent further pirate attacks in its coastal tourist areas. However, the vast majority of pirate attacks at sea originate in the breakaway region of Puntland, far to the north of the Shabaab controlled areas. Therefore, Kenya’s incursion into Somalia, while perhaps limiting attacks on tourists in Lamu, will not have any meaningful impact on attacks in international waters which have so affected commercial shipping.

Secretary General Issues Report of Piracy Court Possibilities

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.

Lockerbie in Arusha – Significant Challenges Remain

UPDATE: Lang actually recommended the creation of three courts: one in Puntland, one in Somaliland, and one in Arusha (to be moved to Mogadishu when conditions warrant). The Security Council members are generally in support of his recommendations, but you can discern some variations in their preferences by parsing the language of their statements. A number of questions come immediately to mind: (1) how will an arresting force determine to which of the three courts to send an arrested person? (2) Have Puntland and Somaliland delimited territorial waters where they would have exclusive jurisdiction? (3) Insofar as any nation may prosecute piracy on the High Seas, will the process of determining the proper venue be ad hoc or based upon formalized negotiations and agreements?

Jack Lang, UN Special Adviser on Piracy, has issued his report to the Secretary General.  News agencies are saying that he has recommended the creation of a Somali court sitting in another regional state (akin to the Lockerbie court).  There is some indication that Arusha, Tanzania is being considered as a seat for the Somali court due to the infrastructure already in place at the ICTR.  A number of serious challenges would need to be overcome to create such a court.

First, Somalia continues to be described as a monolithic entity, thereby necessitating a bilateral treaty between the regional State in which the court would be situated and Somali.  However, the United States policy has recently changed with regard to the heretofore unrecognized regions of Somaliland and Puntland. Assistant Secretary of State Johnnie Carson said at a briefing in September 2010:

We hope to be able to have more American diplomats and aid workers going into those countries [Somaliland and Puntland] on an ad hoc basis to meet with government officials to see how we can help them improve their capacity to provide services to their people, seeing whether there are development assistance projects that we can work with them on […] We think that both of these parts of Somalia have been zones of relative political and civil stability, and we think they will, in fact, be a bulwark against extremism and radicalism that might emerge from the South.

Carson said the United States will follow the African Union position and recognize only a single Somali state. However, with Somaliland and Puntland apparently offering to house convicted pirates within their territories, and other States increasingly recognizing their practical autonomy, it begs the question of whether or not an agreement to create a Somali court would require the assent of the Somaliland and Puntland governments. It would seem that a prerequisite to these regions signing an international treaty would be recognition of their Statehood.

The 26 July 2010 Report to the Security Council set forth several additional challenges with regard to the option put forward by Lang.  These include:(1) the considerable assistance that the UN will need to extend to the court; (2) the amount of time necessary for the court to commence functioning could be significant; and (3) the inadequacy of Somalia’s piracy laws and the capacity of Somalia’s judicial system.  In particular, the report noted:

Although there is some judicial capacity in Somalia and among the Somali diaspora, the challenge of establishing a Somali court meeting international standards in a third State would be considerable at present. Further, any advantages that such a court may enjoy would be outweighed if it were to draw limited judicial resources from Somalia’s courts.

One final point that should not be lost amidst the excitement is the mundane, but essential task of determining where Somalis who are eventually convicted of piracy, in the yet to be created court, will serve their sentences. Apparently, Lang has recommended the construction of one prison each in Somaliland and Puntland.  To which, Bronwyn Bruton, an author of reports on Somalia for the New York-based Council on Foreign Relations, reportedly said:

The idea that they’re [pirates] going to be scared off by prisons that meet UN human rights standards is wholly unrealistic. In these jails, they will have food, protection from violence and probably some basic literacy training. For these guys, it’s going to sound like a holiday camp.

Indeed the prospect of serving time in these prisons may not create a serious deterrent to piracy.  However, during the 8 or 20 years in which a pirate might serve a sentence, he will not be capable of committing further acts of piracy.  Furthermore, rehabilitation is a real possibility if stability can be maintained, jobs created, and inmates trained.  Any sustainable solution should take into account the possibilities for a newly released pirate.  If it does not, there is nothing to stop a jobless, ex-convict from continuing to seek bounty on the high seas.