Somalia, The Gulf Of Aden, And Piracy
Mr John Knott
Mondaq Business Briefing
January 20, 2009
Some of the eight suspected Somali pirates at the Mombasa Law courts, Mombasa, Kenya, Wednesday, Jan 14, 2009, when the hearing of their piracy case started. The pirates were arrested early last month by naval officers from a British Naval Ship MV Knight Wave which has been on patrol along the Indian Ocean waters against pirates.
This article looks at the recent history of conflict within Somalia; the conditions in which its people are currently living; humanitarian concerns and the efforts of aid agencies; the role of the United Nations; international naval action being taken against piracy; and a method of overcoming legal and policy difficulties in prosecuting captured pirates.
Attention focuses on piracy
Two things are well known about Somalia from recent newspaper reports, magazine articles, Internet pages, and radio and television broadcasts. First, it is a virtually lawless country which has been without proper government since 1991. Secondly, a small number of its people have so disrupted merchant shipping off its coasts that warships from twenty or more nations have been mobilised at vast expense to try to prevent vessels in the Gulf of Aden and the Indian Ocean from being hijacked. Attacks by heavily-armed Somali pirates create headlines, with sensational incidents such as the capture of the Ukrainian ro-ro Faina (carrying 33 ex-Soviet battle tanks and other weapons), and the recently released VLCC Sirius Star, providing news for weeks on end.
But in reports of the intrigue surrounding the sale and the intended destination of Faina`s cargo of heavy weapons, and speculation as to the value of the 2 million barrels of crude oil on Sirius Star, what has often been under-stated is the cost in human terms of the sufferings of the crews and the effect of their capture upon their families. And even further away from those headlines are the appalling conditions in which most of the Somali people themselves have been living year after year.
Conflict and instability in Somalia
In 1992, the year after the fall of the military dictatorship of General Siad Barre, who had ruled the country since assuming power in 1969, the United Nations Security Council by Resolution 751 (1992) established an operation in Somalia (“UNOSOM”), and appointed a dedicated Security Council Committee. The operation was to monitor the ceasefire then achieved between warring factions in Mogadishu, while the Committee was to monitor the embargo placed earlier in the year on the import of weapons and military equipment. Later, from December 1992, coalition forces led by the United States—a United Task Force known as “UNITAF”—intervened under UNOSOM, in a mission intended to create a secure environment for the delivery of humanitarian aid to relieve starvation in Somalia.
Then, from May 1993 until March 1995 UNITAF was succeeded by UNOSOM II, charged with restoring peace, stability, and law and order. UNOSOM II was supported by troops of a United States` Joint Task Force. Overall, however, the missions were failures, although there were some humanitarian achievements. There have followed years of fighting throughout much of Somalia, with the country now effectively divided into three main regions: since 1991 Somaliland, a self-declared republic (but not recognised internationally) occupying part of the northern coast adjoining Djibouti; since 1998 Puntland, a self-declared autonomous state that has not sought independence, occupying the remaining part of Somalia`s northern coast and the northern part of the eastern coast; with the remaining part of the country notionally under the control of the Transitional Federal Government (“TFG”), established in 2004.
Islamist insurgents stand guard as al-Shabaab spokesman Sheik Muqtar Robow Abu Mansuur speaks to the media in the capital Mogadishu January 19, 2009.
In reality, however, the TFG is ineffective and power is largely in the hands of local secular warlords and militant Islamic groups (as is clear from, for example, the Report of the United Nations Security Council`s Monitoring Group on Somalia, dated 10 December 2008). Until recently, large parts of the south of the country were controlled by the Islamic Courts Union (“ICU”) and the US-proscribed terrorist organisation Al-Shabaab.
In 2006, armed forces of Ethiopia—Somalia`s main western neighbour—entered the country to support the TFG. There followed clashes with the ICU, which was routed in early 2007. Subsequently, new Islamic militant groups have formed, and have been in armed conflict with the TFG. The latest development is that the Ethiopian force departed in January 2009; it has not been replaced; and the few remaining African Union troops are insufficient to ensure stability.
Life in Somalia
Meanwhile, the ordinary population of Somalia, comprising 8-9 million persons, continues to suffer. Less than 40 per cent of the adults are literate; with the country`s economy based largely on agriculture, including livestock, the estimated gross domestic product is under £300 a head (the UK equivalent is about £20,000); and it is estimated that nearly half of the population is starving.
In a report published in 2007, the Minority Rights Group International—a non-governmental organisation working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples worldwide—identified Somalia as the most dangerous country in the world for minorities, and attributed the root cause of conflict within the country to inter-clan rivalries. Subsequently, Foreign Policy magazine, in their 2008 report, ranked Somalia as the most unstable country in the world (worse even than Afghanistan, Iraq, Zimbabwe and Sudan). And the 2008 Ibrahim Index of African Government—published by the Mo Ibrahim Foundation—ranked Somalia as the clearly worst performer in Africa judged in the categories of Safety and Security; Rule of Law, Transparency and Corruption; Participation and Human Rights; and Human Development.
The December 2008 Displaced Population Report, published by the United Nations Office for the Coordination of Humanitarian Affairs (“UNOCHA”), put the number of persons within Somalia who had been displaced as a result of instability in the country at 1.3 million. Of these, an estimated 1.1 million are within south and central Somalia and around Mogadishu, where the humanitarian situation continues to deteriorate, and where there have been massive civilian casualties. The UNOCHA reported that Ali Sheikh Yassin, acting chairman of the Mogadishu-based Elman Human Rights Organisation, claimed that TFG security forces had terrorised the population, and that his group had verified 16,000 civilian deaths and 30,000 injuries during 2007 and 2008, with many more people unaccounted for. In addition, there are weekly reports of aid workers being targeted and killed by gunmen.
The food supply in Somalia has been adversely affected by decreased rainfall in south-central areas where, as reported in December 2008 by the Famine Early Warning Systems Network—an organisation funded by the United States Agency for International Development—both commercial and humanitarian food imports have been disrupted by civil insecurity and the activities of pirates, leading to shortages and increased food prices.
The World Health Organisation has highlighted health problems associated with inadequate supplies of drinking water and food, and has reported that 13 per cent of children under the age of five suffer from acute malnutrition, while 42 per cent are chronically malnourished. The International Federation of Red Cross and Red Crescent Societies, in their December 2008 Report on the Horn of Africa Food Crisis, noted hyperinflation in Somalia (the price of cereals having increased by 365 per cent in a year), and identified the situation in the Horn of Africa, in terms of the number of people affected, as “the largest humanitarian crisis worldwide.” The International Federation concluded their report by saying of the affected peoples in the Horn of Africa: “Their suffering can no longer remain silent. We can`t just stand by and accept the unacceptable. Hunger is not an option.”
Members of an Islamist group are seen during a training on a back street in Mogadishu June 27, 2008. Conflict in Somalia has killed 2, 136 civilians so far this year, bringing the death toll since an Islamist-led insurgency began in early 2007 to 8,636, the Mogadishu-based Elman Peace and Human Rights Organisation said. It added that it had also recorded 11,790 civilian injuries since the start of last year, when rebels began attacking the Somali government and its Ethiopian military allies.
On 10 December 2008, the 60th anniversary of the Universal Declaration of Human Rights, Dr Shamsul Bari, the Independent Expert appointed by the United Nations Secretary-General on the situation of human rights in Somalia, spoke of “the hapless victims of human rights violations in Somalia, in particular the civilian population, women and children, refugees and [displaced persons, and] minorities who lack protection.” Dr Bari appealed to the international community to “rethink and renew its commitment to human rights protection and to vow to do all it can to safeguard the human rights and fundamental freedom for an appropriate and effective human rights protection of all the Somali population.” And for anyone doubting the severity of the human rights situation in Somalia there is a sobering 104-page report published in December 2008 by Human Rights Watch (“HRW”) detailing numerous atrocities, and other human rights failures and abuses, committed upon the civilian population—including indiscriminate violence, and shootings, rape, robbery and looting—by all forces participating in the conflict.
HRW highlights the lack of political will to resolve problems that past international involvement helped to create, and concludes that “Many key foreign governments have played deeply destructive roles in Somalia and bear responsibility for exacerbating the conflict.” In particular, HRW categorises United States` policy towards Somalia as revolving largely around fears of international terrorist networks using the country as a base, and points to that government`s failure to “meaningfully confront, or even publicly acknowledge, the extent of Ethiopian military and TFG abuses in the country” as being counter-productive, and “breeding the very extremism that it is supposed to defeat.”
And in November 2008, Refugees International, which described Somalia as “the world`s worst humanitarian disaster”, severely criticised the United States for the narrow objectives of its counter-terrorism policy, which led to actions that undermined that country`s humanitarian and political objectives, and which caused specific difficulties for aid organisations. HRW also criticises the European Union and key European governments for failing “to address the human rights dimensions of the crisis, with many officials hoping that somehow unfettered support to abusive TFG forces will improve stability.” What is being done? The difficulties within Somalia stem largely from inter-clan rivalries, the ambitions of militant Islamists, and the lack of effective government, all compounded by corruption within the remaining official bodies and the defection of many of the security forces. So it would be easy to take the view that the Somali people are themselves largely the cause of their troubles, and to conclude that they should be left to resolve matters themselves. That appears to be the attitude taken by many people.
Indeed, the international community`s response to the troubles within Somalia has manifested itself in expressions of good intent not matched by adequate actions, and by a lack of political commitment to provide sufficient funds and services. The United Nations World Food Programme (“WFP”) is the main supplier to Somalia of humanitarian aid in the form of food, ninety per cent of which is delivered by sea. But the activities of Somali pirates during 2007 and 2008 put this supply at risk by their attacks on merchant shipping in the Gulf of Aden and the Indian Ocean; and without the naval escorts supplied by France, Denmark, Canada and The Netherlands, and latterly by NATO and the European Union, aid deliveries would have almost stopped.
A picture released by the NATO shows the Italian destroyer ITS Durand de la Penne escorting the merchant vessel Victoria, chartered by the World Food Programme to deliver humanitarian assistance to Somalia on October 31, 2008
With the resumption of supplies, the WFP was aiming to increase distribution of relief food to 2.4 million Somalis by the end of 2008—a 77 per cent increase during the year. Among the WFP`s latest initiatives is the supply of a nutritious, peanut-based food supplement with curative and preventative properties, known by its brand name of Supplementary Plumpy, for malnourished children. Trials indicated that by a two-month course of treatment, malnourished children could recover and remain out of risk for a further four months. As for actions designed to bring stability and peace in the country, and latterly to deal with the piracy menace, from 2006 onwards the United Nations Security Council, in a series of resolutions passed under Chapter VII of the United Nations Charter, and referring to “the lawless trauma and widespread instability in Somalia”: has again addressed the subject of an arms embargo for Somalia (UNSCR 1676 (2006))—first imposed in 1992 (UNSCR 733 (1992)) but having very little effect; has, in response to piracy during 2008, and with the agreement of the TFG, set up a procedure allowing foreign warships limited rights within Somali territorial waters (UNSCR 1816 (2008), extended until December 2009 by UNSCR 1846 (2008)); has urged all nations to use “the necessary means, in conformity with international law”, for the repression of acts of piracy (UNSCR 1838 (2008)); has authorised the imposition of travel restrictions and the freezing of bank accounts of persons seeking to disrupt peace in Somalia (UNSCR 1844 (2008)); and has authorised countries acting with the permission of the TFG to undertake all necessary measures “appropriate in Somalia”, to interdict those using Somali territory to plan, facilitate or undertake acts of piracy and armed robbery at sea (UNSCR 1851 (2008)).
These measures are substantially directed against a product of the instability in the country (piracy), rather than against the root cause of the instability (inter-clan rivalry, lack of internal security, and the absence of an effective government), and largely result not from an aim to help the Somali people but, rather, to reduce the difficulties that have been caused to the international community by attacks on merchant shipping.
The cause of piracy
The present motivation of the estimated 1,000 or more people in Somalia who are directly engaged in acts of piracy is the acquisition of funds. Receiving a share of a ransom payment—which may total US$2-3 million—is a means, and for Somalis perhaps the only means, of obtaining sufficient capital, and prestige, to set themselves up in business locally or to seek a new life abroad. The pirates themselves often seek to justify hijackings—which they recognise are illegal—by explaining that in the past many foreign trawlers illegally fished off Somalia in its in-shore waters which are, or were, particularly rich in stocks of sharks and lobsters, and pelagic fish with high unit values such as tuna and mackerel. Another reason that is often advanced to give some form of justification for hijackings is the illegal dumping of toxic waste—a well-documented practice which is having severely adverse consequences for the environment.
Latest developments on land The departure of 3,000 Ethiopian troops during the first two weeks of January 2009 has enabled Islamist forces to make further gains in the area of Mogadishu and to consolidate their control of most of southern Somalia. At present, only 3,200 Ugandan and Burundian troops remain in the African Union Mission to Somalia (“AMISOM”) out of the 8,000 envisaged when the operation began in January 2007. On 16 January 2009, to give further support to the TFG, the United Nations Security Council passed a resolution (UNSCR 1863 (2009)) sponsored by the United States, calling for the establishment of a trust fund to help support AMISOM, and to provide training and equipment to enable the force to be absorbed, eventually, into a UN force—the creation of which, however, has not yet been approved.
Last November, UN Secretary-General Ban Ki-moon reported that a multinational force of about 10,000 troops would be needed to bring stability to Somalia, after which a UN peacekeeping force of 22,500 troops would be needed. But in another illustration of international apathy, no country has so far volunteered to lead a stabilising force, and only a few are prepared to provide troops for it. The task of the proposed UN mission would be to “assist in the delivery of humanitarian aid; protect political actors and Government buildings and staff, and United Nations staff; monitor implementation of the Djibouti Peace Agreement [reached in June 2008 between the TFG and the Alliance for the Re-liberation of Somalia] and any subsequent ceasefires and joint security arrangements; and build up Somali security forces.” But pending the strengthening of AMISOM, and the deployment of a UN stabilising force—if one is established—there is little doubt that fighting will continue, with dramatic consequences for the ordinary civilian population. Already, the Dadaab refugee camp complex in Kenya, to which many Somalis have fled, houses about 230,000 people. This is the largest concentration of refugees in the world.
Viewed against the background of the situation in Somalia itself, the headline-grabbing activities of the Somalis engaged in piracy can be recognised as merely part of the consequences of a much deeper problem. The situation in Somalia has been largely neglected by the international community for almost twenty years, during which time many thousands have died, many more have been injured, and very many more have lost their jobs, their homes and their means of livelihood. The hijacking of merchant vessels needs to be stopped, but even more pressing is the need to stabilise the situation within Somalia itself. However, the hijackings are having a more immediate effect on the international community, so piracy is currently receiving most attention.
Naval action against pirates
During the early months of 2008, security in the Gulf of Aden was almost solely provided by the Combined Maritime Forces (“CMF”) Combined Task Force 150 (“CTF-150”). At various times CTF-150 has comprised vessels of the United States, the United Kingdom, Canada, France, Germany, Australia, Italy, The Netherlands, New Zealand, Spain, Portugal, Denmark, Pakistan and other nations. But piracy has not been its main target—which is general maritime security as part of the War on Terror—and CTF-150 is thinly spread over not just the Gulf of Aden but also the Gulf of Oman, the Arabian Sea, the Red Sea and a large part of the Indian Ocean; a total of 2½ million square miles.
To cover this vast area CTF-150 usually has about 14 ships, including supply vessels. In August 2008, as a result of pressure from the International Maritime Organisation and other bodies, CTF-150 established a Maritime Security Patrol Area in the Gulf of Aden, with the intention of channelling merchant vessels through a corridor that would in theory afford greater safety, because defensive measures would be more effective when concentrated in a smaller area. In October the French Navy started a limited form of close escorts for vessels transiting the region; and for a short period, naval vessels of a NATO Response Force—Standing NATO Maritime Group One—were operating close to Somalia. Subsequently, naval vessels from other nations, including Malaysia, India, Russia and China, have been deployed into waters off Somalia on anti-piracy duties. But all these measures, although ensuring the safe passage of some merchant ships, and preventing some boardings, could not avert a further large number of hijackings and an even greater number of unsuccessful attacks.
French forces from the French navy vessel "Jean de Vienne", capture 19 Somali pirates in the Gulf of Aden in this January 4, 2009 photo released by the French Navy. The French navy vessel was on patrol off the Somali coast as part of a European Union anti-piracy force when it came to the rescue of a Croatian cargo vessel and a Panamanian ship crossing the Gulf of Aden.
European Union naval force
A recent development is the establishment of a European Union naval task force, its first ever, charged with protecting vessels of the World Food Programme delivering food aid to Somalia, and “the protection of vulnerable vessels cruising off the Somali coast, and the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast.” The task force, under the command of Royal Navy Rear Admiral P.A. Jones, and created within the framework of the European Security and Defence Policy and United Nations Security Council resolutions, has been named EU NAVFOR Somalia (Operation Atalanta).
It will operate initially for 12 months from December 2008. Guidance Notes to mariners explain that merchant ship protection will be achieved “through close co-ordination of surface units, maritime patrol aircraft and helicopters, in the UKMTO [UK Maritime Trade Operations] Transit Corridor, which transits through the Maritime Security Patrol Area, other areas of the Gulf of Aden and the Somali Basin which suffer from a high risk of piracy.” Shipowners seeking to avail themselves of this facility should register with the Maritime Security Centre—Horn of Africa, and provide details of their proposed voyages. Rear Admiral Jones has pointed out that greater safety can be achieved by grouping vessels together, but that virtually complete safety for regular convoys is not feasible as this would entail the use of at least 50 warships. Highlighting some of the difficulties in combating piracy, Rear Admiral Jones called upon escorted vessels to “avoid entering Yemeni Territorial Waters (“TTW”) while on transit. This is for reasons of international law, as it is more difficult for EU NAVFOR ATALANTA and associated forces to be able to protect vessels that are attacked inside Yemeni TTW.”
Operation Atalanta`s mandate, which allows the taking of “necessary measures, including the use of force” in relation to piracy and armed robbery, also allows its own armed units to be placed on vessels chartered by the World Food Programme. CTF-151 The latest development is the creation in January 2009 of the CMF`s Combined Task Force 151 (“CTF-151”), commanded by US Navy Rear Admiral Terence McKnight, with a specific mandate to counter piracy operations in and around the Gulf of Aden, the Arabian Sea, the Indian Ocean and the Red Sea, thereby releasing CTF-150 to carry out its original task of anti-drug, anti-smuggling, and other general maritime security operations.
The benefit of naval escorts Records maintained by the International Maritime Bureau show that during the year 2008 there were 42 successful hijackings of vessels in the waters off Somalia, and well over a hundred unsuccessful attacks. Most of these hijackings occurred in the Gulf of Aden, but a significant number, including the capture of the Faina, took place off Somalia`s east coast in the Indian Ocean, and some—such as the hijacking of the Sirius Star—occurred well away from Somalia, in fact about 450 nautical miles off the coast of Kenya. The number of Somali hijackings peaked during the period August to December 2008, and it now seems that the significant naval forces, mainly in the Gulf of Aden, are having the desired effect of reducing the number of successful attacks. However, they are doing so not because their presence has discouraged the pirates, but because shipping has been channelled through a narrow corridor in the Gulf of Aden, and the warships have often been able to respond rapidly to calls for help.
This happens partly because merchant vessels are encouraged to travel in convoys with an escort—a practice started by the French navy—and partly because many of the warships are equipped with helicopters which can quickly reach the scene of an attack. Without the fast response time of helicopters, many more of the attacks would have been successful. A further factor reducing the number of hijacking attempts is the weather during January, with easterly winds in the Gulf of Aden running at up to 25 knots. Nevertheless, the determination of the pirates, coupled with their tactical resourcefulness, suggests that there will continue to be hijackings, because it is impossible for every merchant vessel to be adequately protected—especially outside the Maritime Security Patrol Area in the Gulf of Aden.
Prosecution of captured pirates
A major difficulty has arisen over the treatment of captured pirates. A number of pirates who have been captured by a warship have been released without trial, owing to real or imagined legal difficulties associated with prosecutions. This has happened on several occasions, most notably when the Danish warship HDMS Absalon in September 2008 captured ten pirates but released them six days later on a Somali beach. On that occasion Commander Dan B. Termansen said that it would be an illusion to think that the pirates would have been brought to trial if they had been handed over to the authorities in Somalia, and added that there was nothing else that could be done. There have subsequently been further similar incidents involving Danish and other warships, illustrating the (real or imagined) ineffectiveness of international and certain domestic law to deal with piracy, and the reluctance of many governments to gets to grips with the issues.
Recently, however, and to avoid a similar situation with pirates captured by a Royal Navy vessel, agreement has been reached between the UK and Kenya that Kenya will accept and prosecute such pirates. Previously, there was an ad hoc arrangement in relation to eight pirates who were captured in September 2008 by a boarding party from HMS Cumberland, and those pirates were tried in Mombasa in January. The United States is currently seeking to establish a similar, permanent arrangement.
Possible solution to prosecution difficulties
The absence of an internationally agreed procedure for prosecuting captured pirates has discouraged many nations from taking more vigorous action against piracy. That there should be difficulties in prosecuting captured pirates is highly unsatisfactory. In some quarters the question has been raised whether an international tribunal should be established for this purpose, similar to the International Criminal Court (“ICC”) at The Hague. Such tribunals are established to prosecute in circumstances where national courts are unable or unwilling to do so. There are some superficial attractions in such a plan, but a careful examination reveals the idea to be impractical. Such tribunals take a long time to set up, are very expensive to run, and their trials often last for years. The ICC itself (dealing with genocide, crimes against humanity, war crimes, and the crime of aggression), is based on the Rome Statute of 1998 and took four years to become effective, when 60 states ratified it in 2002. That was in addition to the many years taken to draft and negotiate the Statute.
What is needed to deal with Somali pirates is a solution that can be implemented much sooner. A viable scheme would be for warships within Operation Atalanta, or in CTF-151, or operating independently, to have on board a law enforcement detachment (“LEDET”) from one of the two countries best placed to hold trials, namely Kenya and Yemen, which are both close to the areas where Somali pirates operate. LEDETs would be able to arrest pirates at source, retain custody of them, and bring them to trial, all within one legal framework. LEDETs would need training to a sufficient standard of competency, and there would need to be a sufficient number of ships deployed from countries which reach agreement with the prosecuting states which supply the LEDETs. Military and civilian witnesses would need to attend the trials to give evidence. The cost of training and maintaining the LEDETs, and the cost of trials, including the attendance of witnesses, would need to be funded by the countries supporting the scheme. Funding would also need to be available for the long-term costs of holding prisoners in jail after conviction and for repatriating them after a sentence has been served. These cost would be relatively small in comparison to the existing cost of maintaining warships on station. There is an excellent precedent for embarking LEDETs in RN ships. Such a practice has been in place in the Caribbean (US LEDETs in RN ships) for many years. It could certainly be replicated in the waters off Somalia. Also, in principle, it could be repeated elsewhere in the world if the need arises—as Somalia is not the only place where piracy occurs. However, Somalia is in many ways a special case, as it is a failed state which is unable to secure its territorial waters, and its legal system is inadequate to deal with the impartial prosecution and the detention of its own citizens who undertake piracy.
© Copyright Holman Fenwick Willan 2009 John Knott is a consultant with Holman Fenwick Willan This article is not exhaustive and is not intended to form a legal opinion. Specific advice should be sought on any matter falling within the scope of the article. Mr John Knott Holman Fenwick Willan Marlow House Lloyd`s Avenue London EC3N 3AL UNITED KINGDOM Tel: (0)2074882300 Fax: (0)2074810316 E-mail: firstname.lastname@example.org URL: http://www.hfw.com/
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