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.

Save the Date: London Conference on Somalia on 23 February 2012

As indicated in a recent post, the UK will host the London Conference on Somalia on 23 February 2012. Around 40 governments are expected to attend, along with the United Nations, African Union, European Union, World Bank, the Inter-Governmental Authority for Development, the Organisation of Islamic Conference, and the League of Arab States. Representatives of Somalia’s Transitional Federal Institutions, as well as the Presidents of the breakaway and autonomous regions of Somaliland, Puntland and Galmudug are also expected to attend. Ahead of the Conference, the UK Foreign Secretary today visited Mogadishu for the first time in nearly twenty years.

Somalia has been without an effective central government since President Siad Barre was overthrown in 1991. More than twenty years of civil war have had a dramatic effect on Somalia and its population. Announcing the Conference, UK Prime Minister David Cameron described Somalia as “a failed State”. Notably, the mandate of the Transitional Federal Institutions currently in charge of governing Somalia is due to end in August 2012.

The conference will discuss how the international community and Somali political leaders can step-up their efforts to tackle both the root causes and effects of the problems in the country. Central to the discussion are, obviously, anti-piracy efforts and perspectives. We will be trying to closely follow any relevant development in this regard, both on this blog as well as on our facebook page. In the meantime, those who are interested in this topic can follow the debate on the blog of the newly appointed UK Ambassador to Somalia.

The Legality of the SEAL Team 6 Rescue in Somalia

US Navy SEALs have rescued two foreign aid workers (one American and one Dane) deep within the territory of Somalia, killing 8-9 Somalis and perhaps capturing 3-5. This is not the first time the US has authorized deadly force against Somali criminals. In 2009, pirates took hostage the captain of the Maersk Alabama, Richard Phillips. A team of snipers from the Navy SEALs shot the captors from the deck of an aircraft carrier, killing the pirates and freeing Captain Phillips. There are significant differences, however, between the attack on the Maersk Alabama and the most recent attack mainly because the latter occurred within the territory of Somalia on land. The location of the capture and rescue, Galkayo, is divided between the break-away regions of Puntland and Galmudug and, according to the New York Times is at the edge of pirate-controlled territory. Most news organizations are referring to the Somali captors as “pirates” and it may be that the criminal organization that kidnapped and held for ransom these two aid workers has also perpetrated acts of piracy in the seas off the coast of Somalia. But the act of kidnapping in central Somalia is not an act of piracy. This has several implications.

First, what is the legal basis for the incursion into Somali territory? States have a right to capture and prosecute criminals for acts of piracy on the high seas and for armed robbery within a state’s territorial sea. Piracy, however, does not extend to acts without any connection to sea-based criminality. In contrast, for land-based incursions violating the territorial sovereignty of another state, prior assent is required. The U.S. raid of Osama Bin Laden’s compound in Pakistan was ostensibly justified by national self-defence in order to prevent future attacks against Americans which were in the process of being developed. But the criminals in Galkayo did not appear to be threatening the national security of the United States. They seek ransom money, and not some political objective. Therefore national self-defence would not provide a justification for the raid. Nonetheless, the areas of Somalia we are talking about are lawless and without effective governments. In these circumstances, it is doubtful the U.S. considered permission was required prior to invading the territory.

Second, what is the legal basis for the killing and capturing of these criminals? As a legal matter, the former is actually simpler to explain. The doctrine of personal self-defence sometimes extends to the protection of others. If it was determined that the hostages’ lives were in danger, it could justify the use of deadly force. However, news reports indicate the operation was intended to capture, not kill, the criminals in question. Therefore, what is the legal basis for the capture of these Somali criminals? This is actually the more difficult legal question. International treaty and customary law give states the right to arrest and prosecute suspected pirates for criminality on the high seas. Likewise, commercial ships have the right to defend themselves against violent attack. In contrast, yesterday’s rescue occurred on land and the law of piracy is inapplicable. In addition, no Somali law is readily apparent. However, the United Nations Convention against Transnational Organized Crime requires states parties to pass legislation prohibiting the commission of serious crimes involving an organized criminal group where the crime has transnational effects. (the U.S. is a state party, obviously Somalia is not). Likewise, there appears to be a developing consensus that kidnapping is a crime under customary international law with certain well-defined attributes. Therefore, the United States has a jurisdictional basis to prosecute these criminals as the victim was American and there is, arguably, substantive international law applicable in the territory of Somalia which prohibits and would permit a prosecution for kidnapping. Normally, a prosecution would require the U.S. to seek extradition from the suspect’s resident state. Here, where no sovereign exists, the U.S. could argue that it had no such duty. These are some of the arguments that might justify the arrest and detention of the Somali captors pending trial.

Apart from these legal questions is a more practical one: does this signal a new U.S. policy of using its armed forces to rescue American kidnapping victims throughout the world? Following the raid, President Obama issued a statement asserting, “The United States will not tolerate the abduction of our people, and will spare no effort to secure the safety of our citizens and to bring their captors to justice.” This statement must be narrowly construed. Although the U.S. State Department does not publicize the number of Americans kidnapped and held for ransom, it is clearly a widespread problem. The expense and risks of sending in a SEAL team anytime an American is kidnapped would be extraordinary. The Somali context is exceptional in this case because there is no sovereign with whom to negotiate. In addition, this may be a shot across the bow to organized criminal gangs in Somalia. The hope will likely be that this incredible rescue will have a deterrent effect that would diminish the need for similar missions in the future. It could also serve as leverage in ransom negotiations, discouraging captors from becoming too greedy in their demands. On the other hand, there is a concern that the apprehension and killing of these transmaritime criminals will lead to a further escalation in violence.

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.

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.