New UN Assistance Mission in Somalia

The United Nations confirmed their commitment for the future of Somalia by establishing a new fully integrated assistance mission, UNSOM. The mission will start deploying in June 2013, for an initial period of one year. For a background on the debate which preceeded the Security Council decision, see our previous post here as well as additional reporting on What’s in Blue.

A view of Mogadishu's Old Town - Courtesy of Clar Ni Changhaile - The Guardian

A view of Mogadishu’s Old Town – Courtesy of Clar Ni Changhaile – The Guardian

UNSOM’s mandate focuses on governance, security sector reform, disengagement of combatants, development of a federal system, preparations for elections in 2016, and coordination of international donor support. Notably, it also contains a strong component of rule of law and human rights elements. UMSOM, to be headquartered in Mogadishu, would help build the Federal Government’s capacity to promote respect for human rights and women’s empowerment, promote child protection, prevent conflict-related sexual and gender-based violence, and strengthen justice institutions. Further, it would monitor, help investigate and report on any abuses or violations of human rights or of international humanitarian law committed in Somalia, or any abuses committed against children or women. In addition, UNSOM will also work  towards the implementation of the Somali Maritime Security Strategy and work with Somali authorities on maritime challenges, including capacity-building and development.

While the UN mantained a presence in Somalia for the past 15 years, the approval of the new assistance mission is another sign of the UN growing engagement in Somalia. Following the downfall of Siad Barre in 1991, the UN unsuccefully deployed a peacekeeping presence in the country from 1992 to 1995, with the UNOSOM I and II missions. Earlier this year, the UN approved the extension of the AU-backed AMISOM peacekeeping mission for another year  and partially lifted the 20-year arms embargo imposed on the country. AMISON will play a fundamental role in the operation of UNSOM, particularly by ensuring the necessary levels of safety and security in the country. Last week, the UN also approved a package of projects in support of anti-piracy efforts in Somalia and other affected States in the region, including Djibouti, Ethiopia, Kenya, Maldives and the Seychelles.

USAID Budget to Somalia Proposed to Double

As we noted here, some within the US Congress are pushing for the US Agency for International Development budget allocation to Somalia to be increased. A February visit to the region by USAID’s top official, highlights this new emphasis. Although, it is likely that USAID will experience some significant budget cuts in the coming year due to austerity measures and a general distaste for foreign assistance in difficult economic times in the U.S.,  the pain will not be felt equally by all USAID projects. Under President Obama’s proposed 2014 fiscal year budget, Iraq will experience the largest reduction in USAID funding down 91 percent to $22.5 million. The flip side of that coin are countries like Myanmar, with a 62 percent increase to $75 million.

Importantly, USAID’s Somalia projects will double in size to close to $50 million.  This is a significant sum of money to allocate to a country with limited structural and institutional capacity. As noted in a summary of the administration’s proposed foreign affairs budget:

Somalia ($49.4 million): The end of the political transition in 2012 and the formal recognition of the Government of Somalia in January 2013 represent the beginning of a new political phase. The FY 2014 request will assist Somalis in reestablishing viable governance institutions, which are essential to alleviating humanitarian suffering in the broader Horn of Africa. Increased resources will focus on stabilization and reconciliation efforts; nascent political party development; civil society efforts to promote peace, good governance, and consensus-building; and programs in education, livelihoods, and economic growth.

In addition to this sum, is the administration’s proposed contribution to the UN Peacekeeping operation in Somalia:

The FY 2014 request also includes $136.6 million for Support Office for the African Union Mission in Somalia (UNSOA). UNSOA will continue to provide a logistical support package for the Africa Union Mission in Somalia (AMISOM) for up to a maximum of 17,731 uniformed personnel including the reimbursement of contingent-owned equipment including force enablers and multipliers. The logistics package provides equipment and support services similar to that provided for a United Nations 48 peacekeeping operation. UNSOA is working very closely with the UN Political Office for Somalia (UNPOS) and AMISOM to help create the necessary political and security conditions in Somalia, working in concert with the international community and other UN bodies.

It is not entirely clear, but there may be an additional line of expenditures for contributions to AMISOM:

Somalia ($70 million): FY 2014 funds will be used to continue voluntary support to AMISOM, including training and advisory services, equipment, and transportation of forces from current and new troop-contributing countries. Given the newly recognized government of Somalia and the security gains and expansion made by AMISOM, increased support to the national Somali military forces is critically important. Accordingly, PKO funds will be used to professionalize and provide operational support to Somali security forces, to ensure their capability in contributing to national peace and security in support of the international peace process efforts, and as part of a multi-sector approach to post-conflict security sector reform. Funds to pay the United States’ portion of the UN assessment for support of the UN Support Office for the AMISOM (UNSOA) are being requested in the Contributions to International Peacekeeping Activities account.

Evidently, the U.S. government sees promise in the recent governmental reforms in Somalia and hopes to support reform efforts with significant contributions. Peacekeeping funds are intended to foreclose any gains by the terrorist group al Shabaab. However, the USAID designated funds are to be focused more on job-creation and improving the economy. These are the efforts most important to preventing the spread of piracy at its roots, before young, unemployed Somalis can be tempted to seek their fortunes at sea. Although the proposed budget must be approved by Congress, and there will likely be significant modifications in the coming months, I would venture that the proposed expenditures in Somalia will remain largely intact.

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.

Broadcast of Mekong Pirate’s Execution May Have Violated Chinese Law

You likely have heard about the execution of Naw Kham, the Mekong Pirate found guilty of killing 13 Chinese in the Golden Triangle. See our prior coverage here. The moments leading up to the execution were televised live in China, although the execution itself was not. Siweiluozi’s Blog points out this violates the spirit if not the letter of Chinese law meant to curb such public executions.

This prohibition was subsequently written into China’s Criminal Procedure Law, and the relevant Supreme People’s Court interpretation on implementation of the death penalty also prohibits “other acts that degrade the personality of criminals” (其他有辱罪犯人格的行为).

Siweiluozi’s Blog also points to a commentary in the Changjiang Daily, the official “organ” of the party in Wuhan, providing the following critique:

Perhaps it is not illegal in China to broadcast live as the condemned are transferred to the execution ground, but I still oppose broadcasting live. Before, China used to have so-called public sentencing rallies and parade bound criminals in the streets for public viewing. Now, live broadcast of the transfer is no different in any real sense and is even more repulsive. Why?
It is because the live broadcast voluntarily and consciously revived these kinds of backward, barbaric scenes lacking in any modern notion of rights or rule of law. The live broadcast even delivered these scenes right in front of your eyes, so that you didn’t even need to go out of doors or be in the streets: you could see the barbarity and backwardness from your own home. You could say, in other words, that this live broadcast was itself barbaric and backwards, displaying no progress at all.

One Step Closer to a Pirate Amnesty

The Special Court for Sierra Leone held that the amnesty granted to rebel leader Morris Kallon (left) did not deprive the court of jurisdiction to prosecute the Accused.

It is being reported that Somalia’s federal government is offering an amnesty to junior pirates in an attempt to end the hijackings of merchant vessels. The Somali President notes that the amnesty is intended for low-level pirates and not pirate kingpins. “We are not giving them amnesty, the amnesty is for the boys,” he said. Depending on how the amnesty is framed, however, it could run afoul of an international obligation to prosecute universal jurisdiction crimes. As we noted last August when President Sheikh Sharif Sheikh Ahmed first discussed the possibility of a pirate amnesty, the duty to prosecute arises not only from the treaty obligations taken on by states but also the egregiousness of the proscribed conduct. Based on this international norm, there may be a duty to prosecute pirates who have engaged in the practice of torturing hostages or for any other act constituting piracy if sufficiently egregious.

Moreover, a national amnesty granted by Somalia might not be respected by other states who have prosecuted hundreds of Somali pirates over the last several years. The Special Court for Sierra Leone declared an amnesty was “ineffective in removing the universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also ineffective in depriving an international court such as the Special Court of jurisdiction.” We previously noted the similar situation in Nigeria, where pirates had accepted an offer of amnesty, but subsequently returned to arms due to the Nigerian government’s failure to provide alternative means of livelihood as it had promised. For Somalia, the lesson is that an amnesty must be accompanied by job training and job creation to be effective. Such a program is potentially very expensive. However, certain international organizations and NGOs may be willing to assist in this regard.