Creating Rule of Law in Somalia By Empowering Civil Society

November 1, 2011 by 1 Comment

We spend a lot of time on this blog talking about prosecution, but most would agree that the only sustainable solution to piracy requires competent governance in Somalia. It is almost a cliche, acknowledged but with no real understanding as to what it takes to create rule of law in Somalia. With this in mind, the recent trip to Somali of our friends at Haki Legal Empowerment is informative. Haki first lays forth the background:

In Somalia, customary justice systems predominate and are an essential starting point. Three parallel legal systems – xeer (customary), sharia, and statutory – operate across the country often in conflict on important issues such as gender-based violence. Traditional leaders – sheiks and clan elders – resolve over 80% of all disputes, including negotiating between fighting clans on complicated arrangements for access to scarce natural resources. However, countless abuses and human rights violations are either condoned or directly perpetrated by the elders, particularly against women.

It further observes:

Formal institutions such as the judiciary and prosecutors provide little oversight, monitoring or review and in most cases only serve to strengthen the status quo. In many parts of Somalia they have been entirely co-opted by militias and powerful interests. The President of Puntland recently sacked 28 judges – perhaps a necessary move to counter corruption, but one that does not instill faith in the independence of the judiciary and the separation of powers.

Nonetheless, Haki suggests that assistance to certain civil society institutions can lay the groundwork for rule of law in Somalia. Haki concludes:

The international community needs to support a long-term vision to securing and rebuilding Somalia that empowers Somalis to use and improve their indigenous dispute resolution systems and fledgling institutions as a means to strengthen local security and combat piracy, increase rights protection for the vulnerable, and address the root causes of famine and poverty.

Military and prosecutorial efforts outside of Somalia do not provide a long-term solution to piracy. As the international community looks to create a comprehensive strategy, it must consider what can be done in Somalia to address this problem at its source.

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A Decentralized Approach to Augmenting Somali Governance

October 7, 2011 by Leave a comment

The problem of poor governance lies at the heart of Somalia’s famine and its problems with criminality including piracy. In this regard, this week’s Foreign Affairs contains two articles concerning governance failures in Somalia. Each article critiques the Transition Federal Government (TFG) in Mogadishu and suggests the solution to governance is a more decentralized approach. First, Kenya’s President Kibaki writes:

A new round of talks should recognize that ethnic and tribal differences in Somalia are not easily bridgeable. Thus, efforts to support and reform the TFG must be accompanied by a determined effort to decentralize power to Somalia’s different ethnicities and geographies.

While recognizing the need to engage with the TFG, Kibaki presages a federal structure whereby each political subdivision retains considerable autonomy. The second article provides a more extreme view, suggesting the U.S. and UN give up on the TFG altogether. In this article, two members of the Atlantic Council, Bronwyn Bruton and J. Peter Pham, provide a devastating assessment of the TFG’s prospects for success:

This year, the TFG and UN mediators agreed to create a road map for accomplishing these tasks and decided to prioritize local elections. This was a clever move, since doing so will delay presidential and parliamentary elections, leaving the current president, prime minister, and speaker of parliament safely in their seats. Given the inability of the president, Sheikh Sharif Sheikh Ahmed, to collaborate with any faction outside of his presidential compound, it is unlikely that even municipal elections will take place. The road map has probably done little more than postpone the inevitable reckoning by one more year.

As a result, governance in Somalia remains highly fractured and lends itself to continued fighting:

The weakness of both al Shabab and the TFG has produced a confusing security vacuum in Mogadishu that appears to be spreading outside of the capital. As both the TFG and al Shabab falter, Somalia’s watchful clans have stepped into the fray. Various militias, including some led by the warlords who infamously stole food relief and tortured Somalia’s population during the 1991 famine, are vying for control.

Bruton and Pham therefore propose a pragmatic policy they call  “earned engagement”:
[G]overnmental entities, regional authorities, clans, and civil society organizations — would be accorded equal access to international resources, but only to the extent that they prove themselves capable of meeting defined benchmarks and of absorbing the assistance that would be provided them for relief and development. Al Shabab leaders who renounced al Qaeda, promised regional cooperation, and focused on providing for their clan constituencies would be prime targets for engagements, while militant jihadists would be excluded.
To date, the U.S. has actively supported the TFG while engaging with break-away regions, such as Puntland and Somaliland, without acknowledging the independence of the latter. Bruton and Pham suggest engaging instead the clans that form the basis of Somali society, with an immediate goal of disempowering al Qaida. But they also suggest that the provision of humanitarian aid would be more effective and more likely to actually reach the intended recipients through clan leaders.
Considering the TFG has another year to produce some tangible progress, the international community should start engaging with the clans and other break-away regions now. If the TFG fails to produce, the case for continuing to support it becomes ever weaker.

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Creating a Regional Framework to Address Piracy in the Gulf of Guinea

October 4, 2011 by Leave a comment

Another Post by Matteo Crippa:

Last week, West African leaders addressed the General Assembly, echoing the recent concerns expressed by the UN over the increase of piracy as well as drug, arms and other illicit trafficking in the region.

Gas flaring from oil extraction in the Niger River Delta

During the 66th General Assembly debate, representatives of Togo, Benin, Gambia and Nigeria, among others, remarked on the closely linked nature of these crimes, and their financial and social impact. They called for a framework for cooperation with the support of the international community. More particularly, they supported the proposal for greater UN engagement with regional leaders and organizations in stamping out these menaces.

Since January 2011, there have been over two dozen piracy attacks in the Gulf of Guinea. Lloyd’s Market Association, a leading group of insurers, ranked the coastal waters off Benin and part of Nigeria in the same high-risk category as Somalia and the Gulf of Aden. Since the UN Security Council expressed this August its concerns over reports of increased piracy, armed robbery and hostage taking in the Gulf of Guinea, a handful of new attacks took place. Notably, also these attacks occurred predominantly within territorial waters. The Economic Community of West African States has also recently called for action against piracy to be widened to include all states along the coast while U.S. and French navy vessels have been deployed in the region to boost surveillance over the coastal areas.

Later this month the Security Council is expected to hold a debate on piracy in the Gulf of Guinea. The Council appears to be unanimous on the issue. Nigeria, which is presiding over the Council in October, is the spearhead for the debate and will likely push for urgent action. The US, a key consumer of oil from the Gulf of Guinea, appears to have shown interest, as have France, Britain and China and elected member Gabon. More particularly, the Council is expected to formally ask the Secretary-General to deploy an assessment mission to examine the phenomenon and suggest possible ways to address it.

Governmental, sea industry and regional partnership is increasingly re-emerging as the primary strategy to counter modern day piracy, in light of its deep social roots, broad-based economic impact and its ties with organized crime. Marking World Maritime Day 2011 under the theme “Piracy: orchestrating the response”, the International Maritime Organization was the latest specialized agency stressing the need for an “orchestral manner” in which governments, shipping companies and operators, military forces and UN agencies should act if they are to combat piracy successfully.

Without further delving into the set of practical and technical measures, most recently developed to effectively target piracy off the coast of Somalia, there are questions as to the legal regime upon which such measures should operate. UN General Assembly Resolution 57/141 urged all states and relevant bodies to cooperate in combating and preventing piracy and armed robbery at sea. Article 100 of the 1982 Law of the Sea Convention created an obligation for all states to cooperate in repressing piracy. Article 108, in addition to several other international agreements on this matter, provided a framework for regional and global cooperation for the suppression of drug trafficking. The very nature of most of the attacks, however, taking place within territorial waters, their private ends being a mixture of criminal activity and social discontent, once again appears to limit the applicability of the general provisions attaching to the customary and treaty-law definition of piracy. The additional framework introduced with the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, and its protocols (SUA Convention), provides for a more precise set of obligations for its signatory States. More particularly, the SUA Convention emphasizes several areas of State-to-State cooperation. On the other hand, it bears the risk of swiftly connecting most acts of piracy with anti-terrorism measures which appears unfounded (to date) in the case of piracy in the Gulf of Guinea.

There is a need to consolidate the applicable regime governing piracy insofar as current treaty provisions are too scarce, vague and scattered (in various international agreements) to be effective. In addition, a review and an implementation of counter-piracy legislation at the national level would ensure the enforcement of existing measures and would permit their expansion onto a regional scale. There are helpful precedents of regional agreements from the Asian and Horn of Africa contexts. These agreements should be taken into consideration as a means of achieving comprehensive regional coordination as well as a necessary legal framework. A UN resolution could also precede the regional agreement and form the basis for a cooperative framework. Any such instrument should take into account a variety of activities, including interdiction, the seizure of ships and properties, access to territorial seas, jurisdiction over investigation and prosecution, the rescue of ships, property and personnel, the sharing of information and conduct of shared operations and training.

The experience of the Horn of Africa and its escalation shows how preventive action against modern day piracy and broad-based cooperation beyond traditional state borders is paramount.

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From the Gulf of Aden Back to the Gulf of Guinea: Piracy Reports in West Africa on the Rise

September 19, 2011 by Leave a comment

Dear Readers, Let me introduce you to today’s guest blogger, Matteo Crippa. Mr. Crippa has substantial experience in West Africa and in international criminal law, having served as a legal officer at the Special Court for Sierra Leone from its inception. He brings a fresh perspective and insight to today’s topic. I would like to express my appreciation for his contribution and hope that it is the first of many to come.

The UN Security Council recently expressed concerns over reports of increased piracy, armed robbery and hostage taking in the Gulf of Guinea and their adverse impact on security and economic activities in West Africa. It is calling for the UN Offices for West and Central Africa to work with the UN Office on Drugs and Crime and the International Maritime Organization, all concerned countries and regional organizations. The UN Secretary General further indicated its intention to deploy an assessment mission to explore possible options for UN support.

While today’s counter-piracy attention shifted to the Gulf of Aden, with more than half the global piracy attacks being ascribed to Somali pirates, the Gulf of Guinea has long been a high risk area. With the increase of maritime commercial traffic, discovery of oil off the coasts of countries other than Nigeria, installation of additional offshore extracting infrastructure and on-going instability in various coastal areas, acts of piracy are on the rise. In 2009, the number of attacks fell short of those in the South-East Asia region. But, there are an increasing number of attacks in Togo, Nigeria and Benin.

Albeit sharing similar criminal goals and root causes, the nature of the attacks appears to differ with those off the Somali coast, encompassing an equal amount of armed robberies or hijackings and hostage takings. In addition to the immediate financial effect on oil and natural resource exploration and exploitation, the increased piracy activity appears to have a substantial impact on a set of traditional economic activities, such as commercial trade, regional travel and fishing.

Notwithstanding this difference, one unique feature of West Africa piracy is its limited territorial and regional purview (at least for now). Particularly in the Gulf of Guinea, piracy is mainly a by-product of the Niger Delta crisis. Acts of piracy and related criminal activities are still largely, if not exclusively, confined to territorial waters, and pirates do not yet possess the logistics and organizational capabilities of those operating in Somalia. Piracy per se can only be committed beyond the territorial sea, with all the equivalent acts occurring within territorial and internal waters being a matter for a coastal state’s criminal jurisdiction under the label of armed robbery at sea. All other conditions being met, doubts arise whether the present situation conforms to the customary legal definition of piracy and warrants the import of international-level mechanisms of deterrence and repression.

In the light of these considerations, the UN intervention in the matter at this stage appears to derive principally from the absence of any locally coordinated resources and the need to engage regional cooperation. West African countries, much like East African countries, lack adequate legislative frameworks and enforcement capabilities, as well as logistics and know-how, to address piracy. In addition, they face the increasing threat of becoming a major route for narcotics and drug smuggling. It should be noted that local efforts are underway to counter piracy, including the creation of a piracy task force in Nigeria, coastline patrols in Nigeria and Benin and plans to convene an ad hoc summit to discuss a regional response

The UN counter-piracy strategy in West Africa is thus still at an embryonic stage. An initial point of concern is the immediate risk of resource fragmentation, with already a plethora of UN and regional agencies and organizations involved as possible stakeholders. Building upon the most recent Somali experience and the joint international efforts to tackle piracy, the UN seeks to preemptively mobilize leadership and coordinate resources to avoid the situation in the Gulf of Guinea spiraling further. This perhaps signals a shift from a traditional counter-piracy strategy to a more piracy-prevention oriented approach. Its success will very much depend upon its capacity to include and assess the broader social, political and economic causes feeding piracy.

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