Somalia: Piracy

Expected Council Action
In August the Council will consider the Secretary-General’s recommendations on piracy off the coast of Somalia, which it had requested in resolution 1918. There are quite wide differences among Council members regarding the prosecution and incarceration of pirates captured off the coast of Somalia, and at press time it was unclear how this issue would evolve.

Key Recent Developments
On 27 April the Council debated the piracy issue and resolution 1918 emerged as a Russian initiative. The goal was to ensure better processes for ensuring prosecution and imprisonment of persons responsible for piracy off the coast of Somalia. Various options identified were:

• creating special domestic chambers, possibly with international components;
• establishing a regional tribunal or an international tribunal and corresponding imprisonment arrangements;
• following the existing practice in establishing international and mixed tribunals, taking into account the work of the Contact Group on Piracy off the Coast of Somalia (CGPCS); and
• providing the resources necessary to achieve and sustain substantive results.

Resolution 1918 called on all states, including those in the region, to criminalise piracy under their domestic laws and favourably consider the prosecution of suspected pirates apprehended off the coast of Somalia and their imprisonment if convicted.

Following a gun battle on 6 May in the Gulf of Aden, Russian forces killed one and detained ten alleged pirates who had seized a Russian owned tanker, the MV Moscow University. The tanker’s 23 member crew were freed. Russian officials indicated that their forces subsequently set the captured pirates adrift in international waters.

On 14 May Reuters reported that Somalia’s transitional government had requested Russia to explain why it set the captured men adrift instead of bringing them to justice.

The CGPCS held its sixth meeting on 10 June under the chairmanship of Greece. (The CGPCS was established in response to the 16 December 2008 resolution 1851 which called for increased international cooperation in dealing with Somali piracy issues). The meeting expressed concern that piracy off the coast of Somalia continued to pose serious threats to international navigation and welcomed the Council’s 27 April resolution requesting the Secretary-General to produce a report on mechanisms to better address the issue of prosecution of pirates. The CGPCS was also updated on the activities of its four working groups on:

• military and operational coordination, information sharing, and capacity building (chaired by the UK);
• judicial issues (chaired by Denmark);
• strengthening shipping self-awareness and other capabilities (chaired by the US); and
• public information (chaired by Egypt).

The next (seventh) plenary meeting of the CGPCS is scheduled to be held in mid-autumn under the chairmanship of South Korea. Turkey and Singapore will chair the eighth and ninth plenary sessions respectively. (For further background information on the CGPCS please see our 20 April Update Report on Somalia Piracy.)

On 17 June a court in the Netherlands convicted five Somalis of piracy and sentenced them to five years imprisonment, in the first case regarding modern day piracy in Europe. The pirates had on 2 January 2009 made a failed attempt to commandeer a Netherlands Antilles-flagged freight ship sailing through the Gulf of Aden.

On 24 June a special court to try suspected pirates operating in the Gulf of Aden opened in Mombasa, Kenya. The new court, situated in the Shimo la Tewa prison in Mombasa was established with funding from international donors. Convicted pirates would serve their sentences at the prison. However, lawyers for alleged pirates have argued that Kenya does not have the jurisdiction to try their clients.

On 15 July, the International Maritime Bureau (IMB) reported that pirate attacks had declined globally by nearly a fifth in the first half of 2010 from the same period in 2009 due to the strong international naval presence in the Gulf of Aden. Attacks in the Gulf of Aden decreased by 61 percent in the first half of the year to 33 incidents compared to 86 in 2009; however, they increased in the Somali basin and the wider Indian Ocean, from 44 attacks in 2009 to 51 this year. The IMB stated that Somali pirates had hijacked 27 ships and taken 544 crew members hostage so far this year and were continuing to demonstrate an ability to attack at further range.

On 23 July the Secretary-General presented his recommendations as recognised by resolution 1918. He suggested seven options for ensuring prosecution and imprisonment of persons responsible for piracy off the coast of Somalia:

• enhancement of UN assistance to build capacity of regional states to prosecute and imprison pirates;
• the establishment of a Somali court sitting in the territory of a third state in the region, either with or without participation by the UN;
• the establishment of a special chamber within the national jurisdiction of a state or states in the region, without UN participation;
• the establishment of a special chamber within the national jurisdiction of a state or states in the region, with UN participation
• the establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with UN participation;
• the establishment of an international tribunal on the basis of an agreement between a State in the region and the UN; and
• the establishment of an international tribunal by Council resolution under Chapter VII of the Charter of the UN.

On 26 July the Supreme Court in Seychelles sentenced eleven Somali pirates to ten years in prison for attempting to seize a coastguard boat last December. The ruling was the first of its kind in that country. The Seychelles together with Kenya are the only coastal countries that have signed agreements with the EU relating to the prosecution of piracy suspects.

Human Rights-Related Developments

Key Issues
The key issue for the Council in August is that all these options are technically complex and most of them will require extensive consultations with regional countries. In addition all of them are likely to involve significant additional costs to the UN budget. A related issue therefore is how its follow-up should be conducted.

A closely related issue is ensuring that whatever the Council does adds value and does not overlap on the practical issues that the contact group on piracy is already addressing. (It is noteworthy, however, that the CGPCS expressed support for resolution 1918 initiative.)

Underlying Issues
A major underlying issue is the fact that captured pirates have been set free on some occasions because the countries concerned had weakness in their legal systems which made prosecution difficult. This is not an issue in international law which authorises universal jurisdiction over pirates. However, it is a practical matter and has therefore led the discussion towards some form of international or regional jurisdiction.

A related issue is the undue burden which regional developing countries are carrying both in terms of cost and security risks when industrialised country naval forces deposit captured pirates in regional ports.

Another underlying issue is the continued inability to address the situation on land in Somalia and piracy’s root causes.

Options
Options include:

• a mid-August debate in the Council to flag the initial positions of Council members;
• involving expert level consultations—perhaps an ad hoc working group similar to the group set up for the ICTY and ICTR. Such a group might be mandated by the Council to hold informal interactive dialogue sessions with regional countries and contact group members;
• selecting an option or options from the Secretary-General’s report and proceeding to negotiate a draft resolution; or
• not taking any action beyond the debate on piracy at this stage in order to allow for further discussions in the CGPCS and for its working group on judicial issues to take up the matter.

Council Dynamics
Russia was the architect of the resolution requesting the Secretary-General’s report on addressing piracy off the coast of Somalia. The report now coincides with Russia’s presidency of the Council.

Most Council members remain uncertain about the options. All are concerned about the prosecution and imprisonment of persons responsible for piracy off the coast of Somalia and in particular that in some cases captured pirates have been freed because of weakness in domestic jurisdiction. However, there is no clarity as yet as to whether this weakness is best addressed by a Council decision.

Russia and like-minded countries in the Council (e.g. Turkey), seem to prefer the setting up of an international judicial tribunal or a national court in the region with an international component.

Other members, such as the UK and France, worry about duplicating the work of the contact group, which is in the forefront of tackling the operational aspects of the issue of piracy. Financial issues may be a factor in the positions. They seem to rather favour having a regional or national mechanism for prosecuting pirates.

The US supported the Russian-led request in April for the report from the Secretary-General in recognition of the fact that it was a high-level Russian initiative which therefore needed to be carefully examined. It remains unclear how far the US is interested in taking the details. Ultimately wider issues of US-Russian engagement may play a role in the overall dynamics (For further background details please see our 20 April Update Report on Somalia Piracy.)

Other Relevant Facts

Full forecast