The role of information sharing in counter-piracy in the horn of Africa region: a model for transnational criminal enforcement operations.
I. INTRODUCTION II. OUTLINE III. LENS 1: DIRECT ENFORCEMENT AND PROSECUTION 1. THE LEGAL CONTEXT OF DIRECT ENFORCEMENT A. THE LAW AS A FACILITATOR OF INFORMATION SHARING FOR 'AT SEA' ENFORCEMENT 2. THE LAW AS A CHALLENGE TO AT SEA ENFORCEMENT CAPACITY 3. SOME INDICATIVE INFORMATION SHARING AND COORDINATION RESPONSES IV. LENS 2: PLANNING AND COORDINATION 1. CONTACT GROUP ON PIRACY OFF THE COAST OF SOMALIA (CGPCS) 2. SHARED AWARENESS AND DE-CONFLICTION (SHADE) 3. CGPCS/SHADE AND THE PROLIFERATION SECURITY INITIATIVE <PSL BRIEFLY COMPARED V. LENS 3: INFORMATION SHARING IN DEALING WITH PIRACY AS A TRANSNATIONAL ORGANISED CRIMINAL ENTERPRISE 1. FINDING APPLICABLE LAWS TO PROSECUTE FACILITATORS 2. CHALLENGES IN COMBATING PIRACY AS AN ORGANISED CRIMINAL ENTERPRISE 3. THE DEVELOPMENT OF INTELLIGENCE NETWORKS FOR COUNTER-PIRACY. VI. LENS 4: COUNTER-PIRACY AS NATION-BUILDING 1. MOUS AS RULE OF LAW AND INFORMATION NETWORK DEVELOPMENT TOOLS 2. MOUS AS NATION AND CAPACITY-BUILDING TOOLS VII. OTHER APPLICATIONS 1. GULF OF GUINEA PIRACY 2. THE INDIAN OCEAN MARITIME ROUTE FOR AFGHAN OPIATES
"Add to that the improved approach of the navies, they not simply wandering round the ocean looking for pirates [at] random as they were; there is a very much more joined up, intelligence led antipiracy campaign that is more effective in apprehending pirates before they go to sea or tracking them at sea. " (l)
In 2014, rates of Somali piracy were at their lowest in six years, and no new incidents were reported in all of 2015. (2) This is in large part due to a coordinated improvement in the manner by which the international community has approached the problem. The resultant response--a multi-pronged approach involving discrete but fundamental aspects of nation-building in Somalia, capacity-building in other states in the region (particularly Kenya, the Seychelles, and Mauritius), target hardening, regional criminal prosecutions, and naval patrols--has been undertaken by a veritable alphabet soup of states, interest groups, and organisations. While the short-term success of these operations is unquestionable (as evidenced by the drop in piracy attack numbers), the time it took for these measures to generate noticeable impact--and the reports and literature detailing these efforts--suggests that the interaction between the various parties involved in this process has been occasionally dysfunctional. However, this focus on the failures and obstacles tends to obscure an important set of successes. This paper therefore seeks to examine the way in which one of these arguable successes--functional and effective information sharing regimes--has contributed the broader effectiveness of counter-piracy measures. Our analysis will also seek to illustrate how these now effective intelligence sharing regimes might form a model that could be useful in dealing with other maritime-based transnational law enforcement operations.
This paper will focus upon the role of information sharing in combatting the generally transnational criminal offence of piracy. This issue will be examined through several discrete legal and operational lenses, and buttressed by the empirical data gathered by a range of analyses of Somali piracy. (3) The first lens is reactive direct enforcement by naval patrols and regional prosecutors. This analysis will indicate that without effective information sharing mechanisms in place, it would be nigh impossible to engage in this form of enforcement--an activity that is seen as crucial to redressing perceptions of pirate impunity in Somalia. The second lens is the role of effective information sharing in pre-emptive direct enforcement planning and coordination. This analysis will focus on the utility of bespoke, informal, flexible mechanisms--such as the Contact Group on Piracy off the Coast of Somalia (CGPCS), and the Shared Awareness and De-confliction (SHADE) coordination mechanism--as opposed to more inflexible formalised processes. This part of the analysis will also ask why the efficiency and levels of State 'buy-in' in respect of piracy off the coast of Somalia have been so different to a similarly informal, bespoke process (the Proliferation Security Initiative (PSI)).
The third lens to be considered is the role that information sharing has played in combatting piracy as an organised criminal enterprise rather than as a series of isolated maritime offences. The focus will be upon parsing the difficulties that are faced by investigators in tracing ransom money back to the organised crime group leaders in such a way that will allow for prosecutions. One conclusion that will emerge from this consideration is that the sharing of such piracy-related financial and transactional intelligence is at a far less mature stage than the sharing of operational intelligence in relation to pirate incidents themselves. The analysis will pose some possible explanations for this. The final lens will address the way in which information sharing has led to effective nation-building and capacity-building within Somalia and the Horn of Africa region, and the way in which this has contributed to piracy suppression. It is perhaps a little recognised 'spin-off' of transnational arrangements related to piracy prosecutions, such as prison transfer laws and agreements, that information sharing for law enforcement and sentence recognition purposes can indeed pave the way for building broader criminal justice information sharing networks and capacities.
III. LENS 1: DIRECT ENFORCEMENT AND PROSECUTION
As at May 2014, there were approximately 1,200 Somalis having been, or currently being, prosecuted, or awaiting prosecution, in 22 states. (4) This is a significant dent in the pirate workforce, but not a debilitating one--there remains no shortage of young Somali men who are willing to try their luck in order to achieve a small share of a ransom, which would still amount to many times their probable life earnings in Somalia at current rates. (5) Similarly, there remains no shortage of weapons, skiffs, GPS and associated marine navigation equipment, willing investors, and coastal launch points where the Federal or Regional Governments' writs do not run. Somali Pirate Action Groups (PAG) still routinely put to sea. (6) International navies still intercept PAGs and--depending upon an intricate but vital assessment of the likely admissibility and relevance of the situational evidence they can collect in relation to the likely prosecution venue--will either seize the PAG's main pirate paraphernalia (such as boarding ladders and some types of weapons) and then send them back towards Somalia (so called 'catch and release'), (7) or detain the PAG, collect evidence, and then (if they do not seek to prosecute the suspects in their own courts) transfer the suspects to a third State jurisdiction (such as Kenya, Seychelles, or Mauritius). At every stage of this release or prosecute assessment, however, the role of information sharing is a--if not the--key consideration. Information may be the intelligence on PAG movements, which is used to vector a warship into position. Information may be evidence for a prosecution, such as photographs, boarding team statements, charts with positional data. Information may be vital contextual background which Judges will require, at least in their first case, such as a formal explanation of the way GPS works, and the accuracy of GPS positioning data. (Such data is generally the primary piece of information used to prove that the location the alleged offence was in international waters, which is a specific element of the 1982 Law of the Sea Convention definition of the offence, and of many national piracy offences. (8)) Our aim in this first section of the paper is therefore to illustrate how information sharing and coordination projects have actually facilitated both the apprehension and prosecution processes.
1. The legal con text of direct enforcement
a. The law as a facilitator of information sharing for 'at sea' enforcement
The stepping off point for any analysis of information sharing for counter-piracy law enforcement purposes is the core jurisdictional fact of universal jurisdiction, (9) or (perhaps more accurately) concurrent municipal jurisdiction. (10) Article 105 of the Law of the Sea Convention 1982 (LOSC) reflects previous treaty-based definitions of piracy, and generally crystallises long-standing customary international law:
Seizure of a pirate ship or aircraft
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. (11)
The consequence, in essence, is that if a state vessel of any state (warship, marine police, coast guard--a state vessel on non-commercial service) apprehends suspected pirates, it may take those pirates to its own territory for prosecution, repatriate them to their own state of nationality for prosecution, hand them to the state whose flag the pirated vessel flies for prosecution, or transfer them to an unconnected third state for prosecution. That third state may prosecute those suspected pirates regardless of the fact that they have no other nexus to the crime--it did not take place in their territory or on a ship flying their flag; none of the suspected pirates or the victims are of their nationality; and so on. This is the power of universal jurisdiction, and explains why it is limited to only a handful of crimes. In terms of information sharing, this jurisdictional fundamental is, in many ways, even more important that the specific definition of the crime (which, as we shall note below, can differ between states in terms of how it is incorporated into their domestic systems).
The second important--but not essential--component of the capacity of the law to set the stage for, and to facilitate, information sharing for counter Somali piracy law enforcement purposes, is the series of UN Security Council Resolutions (UNSCRs) relating to the threat posed by piracy off the coast of Somalia. (12) To some extent, the UNSCRs merely reinforce existing legal authorities, as the resolutions themselves routinely declare:
9. Affirms that the authorization provided in this resolution applies only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of member states under international law, including any rights or obligations under the Convention, with respect to any other situation, and underscores in particular that it shall not be considered as establishing customary international law, and affirms further that this authorization has been provided only following receipt of the letter from the Permanent Representative of the Somalia Republic to the United Nations to the President of the Security Council dated 27 February 2008 conveying the consent of the TFG [Transitional Federal Government] ... (13)
Perhaps the one area where the UNSCRs did co-create an additional or extended legal effect is the oft-quoted UNSC authority for
[7.] ... States cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary-General, may:
(a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and
(b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery ... (14)
Yet even this grant of authority is of very limited value in terms of prosecution action: no Western state is as yet comfortable enough with the guarantee of a fair trial in any Somali justice system to directly hand over suspects apprehended within 12 nautical miles (ran) of the Somali baselines; (15) few third state courts would be comfortable asserting their own national jurisdiction over a specific incident of piracy that took place within 12nm of the Somali baselines, despite the ambiguous authority granted by the UNSC and the (then) TFG.
In fact, the primary utility and importance of the UNSCRs for information sharing is not in their legal effect; it is in their political effect. The UNSCRs encourage, for example, information sharing mechanisms and activities such as the Contact Group on Piracy off the Coast of Somalia (CGPCS; see below), (16) and provide these informal and bespoke mechanisms with a degree of authority and political weight. This is the major contribution of the UNSCRs on Somali piracy in terms of information sharing.
The third level on which law acts as a facilitator for information sharing with a view to counter-piracy law enforcement is in terms of domestic incorporation of not only piracy offences, but also vital (and often overlooked) associated criminal procedure law reforms. With respect to domestic incorporation of piracy offences, the variety of specific formulations is very wide. Some states still do not have a specific offence of piracy on their statute books. The Somali Federal Parliament, for example, has still not passed a law criminalising piracy, (17) although the parliaments of Puntland and Somaliland have done so. (18) Until quite recently, a number of states involved in at sea counter-piracy law enforcement--Denmark, for example--did not have piracy offences that took account of the full suite of jurisdiction available under international law, but rather limited their reach to situations in which Danish nationals or vessels were in some way involved. (19) Clearly, if there is no offence, or only a limited offence, on the statute books of the apprehending state, the need to share information with potential third state prosecution jurisdictions becomes even more essential, for such third states may indeed offer the only possible prosecution option.
2. The law as a challenge to at sea enforcement capacity
The law, however, also provides a number of challenges to the piracy prosecution project. (20) Some of these challenges, such as the extent to which universal jurisdiction applies over the 'shore-based' aspects of the offence of piracy (such as facilitation), (21) have clear information sharing dimensions. Often these challenges are not unique to piracy as a crime. Given that the way to collect evidence in relation to 'pirate kingpins' and 'facilitators' is to 'follow the money,' it is of course logical and efficient to explore using existing transnational organised crime (including terrorist) funding and financial crime laws and cooperative mechanisms, (22) rather than recreating the wheel for a (hopefully transient) specific reincarnation of a particular form of financial crime. Some of these challenges are reflective of more generally applicable international criminal cooperation options and processes, but require specialised and bespoke implementing arrangements in the context of piracy, often because the location of apprehensions in international waters, combined with the availability of universal jurisdiction appears, in practice, to have the effect of bypassing the need for formal extradition processes. Thus, for example, the European Union (EU) has specialised counter-piracy suspect transfer arrangements with Kenya (and others), which touch upon a suite of cooperation and human rights guarantee issues. (23)
What is hopefully clear from this brief overview is that the suite of applicable law clearly provides a number of important components that directly affect information sharing for counter-piracy prosecution purposes: a powerful jurisdictional context; a relatively settled set of elements of the crime; strong political statements about the need to cooperate in overcoming legal challenges to multi-state prosecution projects; general templates for dealing with the cross-cutting transnational organised crime aspects of piracy as a crime, such as financial flows; and mechanisms to negotiate arrangements to provide assurances as to treatment guarantees and systemic support in the specifically counter-piracy transnational prosecution endeavour. However, an appreciation of how these foundational information sharing 'permissions' work in practice is perhaps best illustrated through a specific example--in this case, evidence collection and sharing. It is to three aspects of this particular example, all taken, for the purposes of consistency, from the Kenyan context, that we now turn.
3. Some indicative information sharing and coordination responses
The first, and arguably the key, issue in information sharing for counter-piracy prosecution purposes is evidence collection and presentation. (24) It is a statement of the obvious--but important nevertheless--that law enforcement agents are generally trained to collect and preserve evidence in accordance with their own criminal procedure requirements. (25) But what is good evidence for a Dutch court may not necessarily be good evidence for a Kenyan court. This is not because the evidence itself is likely to be considered irrelevant or tainted; rather, the issue hinges (most often) around the formal requirements of admissibility. Some of these challenges have required substantive changes in laws or policy. For example, until recent amendments in Kenyan law, and some associated changes in Kenyan prosecution policy, securing the admissibility of photographs that were taken by a person not previously authorised by the Attorney-General could prove extremely problematic. (26) Most of the photographic evidence, for example, was taken by a foreign (for example, Dutch, British, French, or American) sailor at sea. Clearly, overcoming this significant procedural hurdle to the admissibility of often vital evidence (such as photographs of the Somali suspects ditching their scaling ladder--an important evidential distinguisher between a probable PAG and a skiff of fishermen) was essential to facilitate the sharing of information in the form of admissible evidence. Another example has been the need to educate international navies as to the inadmissibility of any confession statements they may have secured: Kenyan law requires that such statements are only admissible if made before a Kenyan Police Officer of the rank of Sub-Inspector or above. (27)
Other challenges have required cooperative initial fact-finding and negotiations, followed by the creation of ad hoc procedures, in order to facilitate efficient evidence collection and transfer. One example is the Aide Memoire developed collectively between Kenyan Prosecutors, the UNODC Counter-Piracy Programme, and major third state apprehending navies (such as the European Union (EU), United Kingdom (UK), and United States (US)) on evidence collection and chain of custody requirements for Kenyan prosecutions. (28) Another example is the process--agreed after it became apparent that Kenyan criminal procedure required that anyone who provided a written statement that was tendered in evidence would be required to confirm their statement in court--was to limit the number of statements in evidence packs to the essential minimum (such as the Commanding Officer (overall situation), the Navigator (positional information), the Boarding Officer (initial interactions with the suspects), and the photographer). This was a departure from the general naval law enforcement practice of securing statements from all of those involved with the situation first hand, such as the observations of all members of the Boarding Team.
Yet other challenges required operational accommodations of essentially non-transgressible procedural requirements. Continuing with the Kenyan example, in Kenyan law, it is significantly more difficult to progress a prosecution if the initial constitutional requirement to bring the detained suspect before a court within 24 hours of arrest is not complied with. Clearly, a detention at sea may be followed by an interlude of several days as the warship steams to Mombasa, thus creating a major prosecution challenge if the arrest was at the point of detention. The operational solution has been that the warship emails an initial evidence packet to Kenyan Prosecutors as soon as is possible (thus giving those Prosecutors time to assess the likely evidence in advance of actually having it in their possession), and that the actual 'arrest' is then not effected until it is carried out by a Kenyan Police Officer on the wharf in Mombasa, at which point the 24 hours is then triggered. (29)
IV. LENS 2: PLANNING AND COORDINATION
Under Lens 1, we examined a number of ways in which information sharing for counter Somali piracy law enforcement purposes was central to prosecution outcomes, focusing particularly upon the issue of information as evidence. Under Lens 2, we seek to outline some indicative, more generally focused, operational information sharing mechanisms--initiatives aimed at enhancing coordination as a precursor to effective law enforcement. (30) We will then comment upon some of the factors that underpin the relative success of these mechanisms, by brief comparison with a similarly informal, bespoke, procedural response to another maritime crime issue, the Proliferation Security Initiative (PSI).
1. Contact Group on Piracy off the Coast of Somalia (CGPCS)
The purpose and role of the CGPCS is perhaps best explained in its own words:
Pursuant to UN Security Council Resolution 1851 (2008), the Contact Group on Piracy off the Coast of Somalia (CGPCS) was established on January 14, 2009 to facilitate the discussion and coordination of actions among States and organizations to suppress piracy off the coast of Somalia. This international forum has brought together more than 60 States and international organizations, all working towards the prevention of piracy off the Somali coast. (31)
Meeting in plenary twice yearly, with a number of issue-based working groups (covering aspects such as operational coordination, legal issues, financial flows, hostage seafarer welfare and advocacy, and industry engagement), the CGPCS has proven itself a successful counter Somali piracy coordination platform. Freed from the sometimes glacial timelines imposed by the need to achieve formal consensus approval of all outcomes (the outcomes reports of Working Group chairs, for example, are expressed to be the views of the Chair, not a formal record of consensus achieved among the participants), and from the strictures of an institutionalised negotiating and procedural paradigm (the CGPCS agenda, for example, is relatively agile and responsive), this mechanism has proven both resilient and flexible. Part of this success is clearly attributable to the fact that the CGPCS acts, first and foremost, as a clearing house for information and ideas, creating a focal point for bespoke coordination opportunities as equally as acting as a coordination mechanism in its own right. The Legal Issues Working Group, for example, dealt with topics as varied as compensation for seizure of vessels which had become pirate motherships by virtue of having been themselves pirated, (32) to legislative drafting assistance for Indian Ocean states, to facilitating pirate detainee transfer and repatriation arrangements. (33) The types of 'outcomes' this group generated were similarly diverse and flexible--from the compilation of a documentary 'toolbox' on Privately Contracted Armed Security Personnel in maritime contexts, (34) to draft guidelines on the detention of juvenile Somali pirates apprehended in PAGs at sea. (35) The success to date of the CGPCS is perhaps best summed up in two UN documents. The first is the UN Secretary General's October 2013 Report on the situation with respect to piracy and armed robbery at sea off the coast of Somalia, where the Secretary-General reported that:
Information-sharing and trust-building between countries and agencies involved in counter-piracy efforts is essential. I commend the efforts of the Contact Group on Piracy off the Coast of Somalia, which embraces informal partnerships between States, international and regional organizations and the private industry to address the scourge of piracy. The Contact Group continues to adapt its working methods, finding creative and practical solutions to the complex cross-cutting problems underlying piracy. (36)
The second is UNSC Resolution 2125--wherein the CGPCS is mentioned eleven times--in which the UNSC variously noted, welcomed, recognised, and commended the work of the CGPCS. The UNSC then further endorsed and empowered the CGPCS in its ongoing focus and role:
[18.] Reiterates its decision to continue its consideration of the establishment of specialized anti-piracy courts in Somalia and other States in the region with substantial international participation and/or support, as set forth in resolution 2015 (2011), and the importance of such courts having jurisdiction over not only suspects captured at sea, but also anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who plan, organize, facilitate, or illicitly finance or profit from such attack, and encourages the CGPCS to continue its discussions in this regard ...
[29.] Requests States and regional organizations cooperating with Somali authorities to inform the Security Council and the Secretary-General in nine months of the progress of actions undertaken in the exercise of the authorizations provided in paragraph 12 above and further requests all States contributing through the CGPCS to the fight against piracy off the coast of Somalia, including Somalia and other States in the region, to report by the same deadline on their efforts to establish jurisdiction and cooperation in the investigation and prosecution of piracy ... (37)
The CGPCS is not a flawless mechanism, but it is a relatively effective one. (38)
2. Shared Awareness and De-confliction (SHADE)
Another--more narrowly focused--information sharing and coordination mechanism which has emerged from the international community's counter Somali piracy endeavours is the Shared Awareness and De-confliction (SHADE) initiative. This mechanism commenced in 2008 as a means to share basic but vital operational information--particularly in relation to patrolling intentions and resultant gaps in Area of Operations coverage--between the myriad at sea enforcement agents operating in the Somali Piracy High Risk Area (HRA). (39) SHADE brings together the three main multinational counter Somali piracy task forces (NATO, the EU, and the Combined Maritime Forces (CMF)) along with, on a variable basis, the so-called 'independent deployers' such as China, India, (40) Japan, and Russia, and other stakeholders (such as regional and force deploying states, the African Union, the Arab League, the IMO, and the UN). The purpose of SHADE is:
... to coordinate the efforts of the myriad of military forces conducting counter-piracy in the region. Tactical and operational commanders meet with their counter-parts to provide awareness of current and planned operations, discuss threat analysis, and provide feedback to the Contact Group for Piracy off the Coast of Somalia (CGPCS). (41)
SHADE has been quite successful. As the NGO Oceans Beyond Piracy has reported:
An important aspect of the SHADE meetings is information sharing and the exchange of views between stakeholders from force-providing nations, regional countries, international organizations and industry groups. The SHADE meetings are also used as a forum to coordinate and de-conflict ongoing military counter-piracy operations in the Gulf of Aden and the western Indian Ocean. SHADE has been used by force-providing nations and coalitions to coordinate and discuss convoys through the Internationally Recognized Transit Corridor (IRTC), options for increased coverage by maritime patrol aircraft, and the threat of piracy in the Bab el Mandeb Strait, among other things. As a result of the SHADE process, China, India and Japan in early 2012 agreed to coordinate their merchant vessel escort convoys through the Internationally Recognized Transit Corridor (IRTC) with one country being 'reference nation' for a period of three months on a rotational basis. In June 2012 it was announced that South Korea would join these three countries to further enhance the naval operations against pirates. (42)
As previously noted, SHADE also coheres quite closely with the broader information sharing clearinghouse centred around the CGPCS, providing context-setting operational briefings at each CGPCS plenary, and taking an active role in those CGPCS Working Groups focused upon operational coordination. (43) Similarly, as with the CGPCS, the operation and role of SHADE has been expressly recognised and endorsed by the UNSC. (44)
3. CGPCS/SHADE and the Proliferation Security Initiative (PSI) briefly compared
As mechanisms, the CGPCS/SHADE and the PSI (45) share a great deal of contextual similarity: maritime (and especially international waters) context; transnational organised crime character; some shared paradigm-setting treaties (particularly the 1982 LOSC); analogous need for multilateral and transnational responses; explicit characterisation as an 'activity' or a 'process' rather than as an organisation; and so on. Yet the relationship between the PSI as a process and its desired outcomes was arguably much more fractious and contested that that between the CGPCS/SHADE and their outcomes. Why?
There are many reasons for these divergent levels of acceptance. We will briefly focus only upon two that tend to illustrate how and why the counter Somali piracy experience in information sharing appears to have been more successful to date. The first is that the PSI was, for many years, dogged by a persistent whiff of over-extension in terms of legitimacy and legal basis. The PSI 'Statement of Interdiction Principles' (46) clearly emphasises that states should '[T]ake specific actions in support of interdiction efforts regarding cargoes of WMD, their delivery systems, or related materials, to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks....' (47) But lingering concern at the perceived legal and operational overreach--felt to underpin some overactive responses by the Bush Administration in the first years after the attacks of 11 September 2001--continued to cast a shadow over what was otherwise a legitimate and legal process. In this context, the initial characterisation of the purpose of the PSI by Undersecretary of State for Arms Control and International Security, John Bolton, as a means to 'clarify an existing ambiguity', and 'fill a gap where no authority exists' in situations 'where authority under current national and international interpretation doesn't exist', and in 'circumstances in which our authorities may be ambiguous or open to question,' (48) was perceived by some to disclose a desire to push beyond current legal limits. Indeed, the slow ratification rate for the effectively PSI-sponsored 2005 Protocol to the Suppression of Unlawful Activities at Sea Convention (49) can certainly be read as evidence of a lingering concern. By marked contrast, however, the piracy context enjoys an unimpeachable jurisdictional basis for information sharing and cooperation (universal jurisdiction), and the nature and elements of the offence at the heart of the challenge are both relatively clear and of impeccable customary legal pedigree. As a consequence, there has been little scope for paradigmatic challenges in terms of the legitimacy of, and legal basis for, the coordinated counter Somali piracy effort.
A second distinguishing factor is that information sharing and coordination in counter Somali piracy operations and prosecutions requires less (but not no) reliance upon heavily 'national security' caveated information and capabilities (including electronic communications intercepts, indicators as to who/what is being targeted, and so on). This is especially significant in terms of sharing information to be employed as evidence in prosecutions. The PSI, however, was primarily an intelligence-led activity, thus bringing issues centred upon protecting intelligence sources, not disclosing national approaches to developing intelligence targeting policies and priorities, and protecting technical intelligence capabilities, to the very forefront as a PSI enabler. This is not to say that the counter Somali piracy information sharing project does not rub up against these information sharing obstacles--clearly, it can and does, particularly as the focus shifts to 'following the money' and building cases against 'kingpins.' (50) But insofar as the prosecution and deterrence program, the focus to date has been upon a clear and relatively unambiguous set of perpetrators (Somali pirates), a shared public venue for apprehension activities (international waters), and minimal security challenges in terms of disclosing the critical pieces of information necessary to found a piracy prosecution (such as GPS-based location data, photographs of scaling ladders and attacks on vessels, and so on). Consequently, there is less concern that information sharing may inadvertently expose unexpected or highly protected technical capabilities in terms of intelligence collection, or point to unanticipated and diplomatically inconvenient aspects of state sanction for, or involvement in, the conduct of the criminal activity--both of which are a potential within most PSI intelligence sharing and interdiction endeavours. One need only recall, for example, the declaration on 27 May 2009 by the Democratic People's Republic of Korea (DPRK, or North Korea) that the Republic of Korea's (South Korea's) announcement that it would join the PSI constituted a breach of the 1953 Armistice, and that, consequently, the DPRK was no longer bound by the Armistice. (51)
V. LENS 3: INFORMATION SHARING IN DEALING WITH PIRACY AS A TRANSNATIONAL ORGANISED CRIMINAL ENTERPRISE
The process of dealing with piracy is a transnational organised criminal enterprise has been significantly more difficult than dealing with the 'at sea' instances of high seas piracy. This is evidenced by the fact that the first (and thus far only) arrest of a high profile Somali piracy group leader has been that of Afweyne Senior by Belgian authorities in October 2013. (52) This section of the paper will therefore examine the mechanisms in place to assist in the investigation and prosecution of piracy and associated offences, such as money laundering and arms trafficking. While some of these challenges to information sharing are legal in nature, the vast majority are grounded in logistical and infrastructure obstacles. This situation has improved since the creation of the Regional Anti-piracy Prosecution and Investigation Co-ordination Centre (RAPPICC) / Regional Fusion and Law Enforcement Centre for Safety and Security at Sea (REFLECS3) in the Seychelles, which officially opened in February 2013 (although it had been operating for some time prior to this). (53) Improvement is also promised by the renewed focus of the CGPCS upon integrated 'kingpin' prosecution cooperation, via the reformed and renamed Working Group 5 ('Piracy Money Flows')--now the more holistic 'Disrupting Pirate Networks Ashore' Working Group, focuses upon 'financial flows tracking and arresting piracy kingpins.' (54) However, as we have dealt with CGPCS under the aegis of Lens 2, in Lens 3 we shall focus, where relevant, upon REFLECS3.
1. Finding applicable laws to prosecute facilitators
One of the key legal issues faced in combating piracy as an organised criminal enterprise has been finding national criminal offences reflective of Article 101 of the 1982 LOSC. This has been addressed by information coordination efforts through ensuring that investigators are aware of what charges can be brought in different jurisdictions to deal with financiers and facilitators of piracy. (55) There is confidence that in the UK and the Seychelles, for example, such offenders could be prosecuted under 'conspiracy to commit' criminal charges. (56) This is not the case in Kenya, where the emphasis is upon engaging in criminal activities offences, (57) or the US, which has rejected the compatibility of 'conspiracy to commit' with Article 101(c) of the 1982 LOSC, but affirmed the applicability of 'aiding and abetting.' (58) Similarly, in Mauritius--with its mixed civil law penal code coupled with common law context and procedure--the availability of inchoate conspiracy and facilitation offences as ancillaries to the piracy offence is both contested, and yet to be tested. However, the mere fact that information sharing has enabled informed decisions on investigative and prosecution challenges and venues is itself evidence that such coordination ensures a more efficient use of resources by investigators and prosecutors within the region, thus buttressing the fight against the impunity of organised crime/piracy group leaders.
With a shared level of baseline knowledge in place regarding the appropriate legal framework to be used in different states to charge piracy financiers and facilitators, the question then becomes how sufficient evidence to bring prosecutions can be gathered. As noted previously, there have been suggestions that, given the monetary motivation of Somali piracy, there is a powerful opportunity to simply 'follow the money' in order to tie organised crime group leaders to acts of piracy. (59) In response to such suggestions, investigators tend to reply with: 'I wish I could.' (60) It is this challenge that shapes information sharing activities concerning the 'on shore' components of piracy offences.
2. Challenges in combating piracy as an organised criminal enterprise
It has been suggested that the largest hurdles to money-laundering investigations into Somali crime group profits from piracy are inherently political. The primary argument is that there is no existing single organisation with both the means and willingness to effectively investigate the money trail back to Somali organised crime group leaders in a way that will allow prosecution. (61) The range of engaged agencies and processes is not insignificant: FATF; UNODC; INTERPOL; CGPCS; EUROPOL; REFLECS3; and NCIS, to name but a few. However, interviews conducted since these suggestions were made tend to highlight that the problems are not so much political, but centre around infrastructure and information sharing networks. (62)
In most states with a financial intelligence unit or financial crimes investigative capacity, an investigation into money laundering is supported by stable, well-regulated financial institutions, and legislation allowing for access to records which can help to establish a traceable money trail. (63) Even when such institutional frameworks are in place, however, the process of following money trails remains difficult due to the responsive nature and evolving techniques of money laundering, especially with the myriad opportunities created by the digital economy. (64) By contrast, Somalia operates an almost exclusively hawala banking system, which is highly informal and relatively unregulated. (65) Aside from the hawala system, the Somali economy is almost completely cash-based. (66) This leads to a reliance by investigators on human intelligence in an attempt to follow money trails. (67)
Human intelligence has allowed investigators to ascertain what happens to the money after a ransom has been paid, (68) and to identify, with a relatively high degree of certainty, the organised crime leaders in charge of the piracy group. (69) What this information pathway is unable to do is draw the links between the initial allocation of cash shares from the ransom, and the organised crime group leader, in such a way as to provide admissible evidence of a direct link between the organised crime group leaders, the money, and a particular act of piracy. (70) This is because 'it doesn't go through an institution where [investigators] can track it; it's almost like putting $50,000 under the bed'. (71) Often investigators are able to show that the suspect has clear links to piracy, and to finances beyond their legitimate means, providing an inference that the money has come from piracy; but the requirement is to prove the substantive links between these things in such a way that would satisfy the burden of proof in a criminal prosecution. (72) While intelligence networks are clearly still lacking, this ability to identify--with a degree of certainty--organised piracy crime group leaders, even though there is not enough evidence to prosecute, is a marked improvement on the situation at piracy's height in 2011.
3. The development of intelligence networks for counter-piracy
The development of these human intelligence networks has come about not through a 'boots on the ground' approach that many have suggested is necessary, (73) but rather through diplomatic cooperation with the various governments in the region. In both Somaliland and Puntland, this has been a by-product of the prisoner transfer memorandums of understanding (MoUs). (74) In other states, such as the Seychelles (a leader in regional counter-piracy activity), these networks have been built through highlighting the long-term, pragmatic, and political benefits of involvement in fighting transnational organised crime. (75) This approach is of particular relevance given the concern that if piracy becomes too difficult to address, while the underlying criminal infrastructure remains in place, it will simply morph into a different form transnational crime--such as arms or human trafficking. (76)
At the beginning of 2013, these counter-piracy networks within Somalia were described as 'fledgling;' (77) however, the fact that these networks have remained in place after some in the Somali Transitional Federal Government (TFG) declared pirates to be national heroes in 2011, (78) is a remarkable feat of diplomatic engagement with the Somali regional administrations. Perhaps the most beneficial part of this fledgling intelligence network is that counter-piracy stakeholders external to Puntland and Somaliland now have a solid contact point within each of these regions regarding counter-piracy activities. (79) This has included the establishment of the Somaliland Counter-Piracy Co-ordination Office by presidential decree in January 2012. (80) The basis of these interactions is that of supportive nation-building and mentoring, learning from the lessons of these processes relearned (again) in Iraq and Afghanistan. (81)
The substantive pillars of these relationships are autonomy and accountability. (82) To this end, the UNODC and REFLECS3 have engaged with the SFG, Somaliland, and Puntland administrations to determine what it is that they require in order to function, and then to assist them in acquiring these capabilities and resources, following through in a tailored (as opposed to generic) manner. (83) They have been involved in mentoring, policy drafting, procedural training, and liaising with potential donors to equip the various police and security forces to combat piracy within Somalia, rather than through externally enforced approaches. (84) However, the ever-present obverse of this assistance in implementing locally-owned autonomous solutions is accountability. As a general rule, capacity-building support being provided to the various administrations is monitored and linked with targeted outcomes. (85) Should the outcomes not be met there is a clear point of contact and accountability from which the relevant bodies can seek answers. (86) This is far from a panacea, however--as the recent Eritrea and Somalia Monitoring Group assessment (and subsequent UNSC resolution) on SFG non-compliance with the conditions around the lifting of the UNSC arms embargo to facilitate their rearming of their security forces, the scope for corruption, misuse, and unaccountability remains wide. (87)
There is, nevertheless, some hope that this increased capacity to deal with piracy as an internal criminal matter, rather than relying on Western naval enforcement and prosecutions in Kenya, the Seychelles, and Mauritius, will facilitate--eventually--an internationally acceptable level of confidence in fair and efficient trial guarantees within the justice systems of Somalia--a concern that has been raised by the UN. (88) These concerns were given substance in light of the MV Iceberg 1 prosecutions. In discussing this incident, one enforcement operative articulated her concerns regarding the pace in which the matter was handled, as the suspects were convicted and incarcerated within three days of their capture for the offence. (89) While there is no readily available evidence to indicate that the accused did not receive adequate representation or a fair trial, the overwhelmingly short timeframe between arrest and incarceration raised concerns in her mind regarding the rule of law, due process, adequate representation, and the right to a fair trial. (90) Thus while the capacity to investigate and police organised crime may be increasing through the facilitation of internal organisational capacity-building, and the cultivation of criminal intelligence networks within Somalia, there is still substantial ground to cover.
VI. LENS 4: COUNTER-PIRACY AS NATION-BUILDING
Thus far, this article has suggested that effective counter Somali piracy operations have to a large extent been driven by information sharing regimes and networks. However, a significant side-effect of this information sharing focus has been capacity and nation-building in Somalia and other states within the region. One of the driving forces behind this capacity and nation-building has arguably been the detainee/prisoner transfer arrangements for the prosecution of pirates captured at sea, prisoner repatriation arrangements between prosecuting nations and Somali administrations, and associated information and military coordination efforts within the region.
While Somali pirate-apprehending nations have generally been unwilling to prosecute large groups of suspected pirates within their own justice systems (primarily for political and logistical reasons) (91), the prisoner transfer arrangements with regional prosecuting states have ensured that pirates are unable to continue their conduct with impunity, thus contributing to the overall promotion of the rule of law within the region. (92) The second order consequences of the various MoUs concerning the transfer of piracy suspects have included significant capacity-building within the prosecuting states. (93) The place of information sharing regimes within this narrative is central.
1. MoUs as rule of law and information network development tools
The primary focus of the MoUs for transfers of Somali pirates to third-party states for prosecution is the preservation of respect for human rights standards in accordance with the CAT and the ICCPR (and for the EU, the ECHR) although these treaties are not mentioned directly. (94) This is not surprising, given (for example) concerns with, and evidence of, overcrowding in Kenyan prisons, (95) which have been considered a driving force behind 'catch and release' enforcement. (96) These arrangements are not necessarily considered binding in the same way as a treaty, and are often considered to be merely political commitments with no legal force (although this differs both within and between the civil law and common law jurisdictions involved), (97) nor do they absolve the capturing nation of their obligations to uphold human rights standards. However, they do provide capturing nations with assurances that minimum human rights standards will be upheld, which in turn gives them some degree of domestic and international political (and legal) shielding should the prosecuting and incarcerating nation fail to uphold these standards. Further, this focus upon guarantees serves to promote the rule of law and basic human rights within the region, with the potential for Somalia to one day be in a position to provide similar assurances forming a foundational pillar of, and metric for, the rebuilding of the Somali justice system.
A second significant function of the MoUs is the provision of material support by apprehending nations to prosecuting nations. In some cases, this is simply the provision of procured evidence, the facilitation of witness statements and delivery of witnesses for trial, and the handing over of all seized property in relation to the transfer of the apprehended suspects. (98) In other instances, the assistance provisions are much more broadly stated and provide a catch-all agreement for the provision of other forms of assistance as may be required during the life of the MoU. (99) These broader catch-all provisions have resulted in, for example, the secondment of two British Crown Prosecutors to the Seychellois Attorney-General's Department for the purpose of prosecuting suspected pirates in the Seychelles. (100) They have also resulted in the creation of an EUNavFor liaison officer role focused upon the Seychelles and Mauritius, physically located within the British High Commission in Victoria, Seychelles. (101) Further, it is arguable that these MoU arrangements have provided, at least in part, the formal impetus for UNODC capacity-building, in conjunction with UNDP and others, within the region. (102)
The MoU provisions relating to the procuring of witness statements and delivery of witnesses to trials have evidenced significant potential to lead to improved information sharing networks throughout the region. One of the most significant issues in provision of witnesses to piracy trials is ensuring that the artisanal fishermen whose dhows have been hijacked and used as motherships are available and present for the trial. (103) The importance of these witnesses to piracy trials resides in the gravity of their testimony, and their ability to identify the suspects with a greater degree of clarity than merchant vessel crews, due to the sustained period, and close proximity to the alleged pirates, in which they were held. (104) This has the potential for building or enhancing regional information networks as the vast majority of these witnesses come from Pakistani, Iran or Yemen; there have been suggestions, for example, that as a condition of receiving piracy suspects for prosecution, local agents should be retained in each of the major fishing ports in order to track down these witnesses as it is nigh impossible for westerners to do so. (105) Should this suggestion be taken on board, it clearly has the potential to build engagement and trust in the region and to improve opportunities to gain reliable information, thus facilitating broader action against piracy and other transnational maritime crime.
2. MoUs as nation and capacity-building tools
In terms of regional capacity-building, a short list of the broader consequences of specifically focused counter-piracy initiatives would clearly include: improved prison capacity and conditions; enhanced judicial capacity and quality; improvements in law enforcement techniques by patrolling navies; and significant up-skilling of regional law enforcement. Individuals from within the Seychelles prison system, for example, have commented that the UNODC (as part of its capacity-building program aimed at enhancing Seychelles capacity to hold Somali pirates both for trial, and after conviction) have expanded the prison to accommodate these pirates, and ensured that the prison meets modern standards. (106) Operations are regularly monitored by the UN so as to ensure that standards are maintained, and that the human and physical corrections capacities developed or expanded with international assistance are being utilised as transparently as possible. (107) Further, UNODC has supported and assisted with facilitating educational programs for the prisoners, both Somali and local. (108) This is beneficial on a wider level--not just for the prosecution of pirates, but also for the incarceration and rehabilitation of local offenders. (109)
A significant hurdle to prosecutions, encountered at the outset of counter Somali piracy operations, was the lack of adequate regional legislative frameworks for the prosecution of piracy. (110) Because of the ever-present need for regional prosecution options for captured piracy suspects, legislative reform of criminal and criminal procedure laws for states within the region has been of fundamental importance. (111) Additionally, even once legal reform--including the creation of piracy offences, or legislative amendments allowing video-link witness testimony for often geographically-displaced merchant vessel mariners--is achieved, the need for further mentoring of judges and prosecutors within the region remains. This is central to the rule of law endeavour, as it facilitates trials and assists them to progress in a timely and efficient manner. (112) The importance of information (and particularly experience) sharing networks to this project cannot be understated. Indeed, given that (in particular) Kenyan and Seychellois judges and prosecutors are now arguably the world's most experienced in terms of piracy trials, the importance of 'South-South' regional learning exchanges and experience sharing is now arguably of ever-increasing relevance and utility than continuing an often uncoordinated smorgasbord of extra-regional training programs.
One major challenge faced at the commencement of counter-piracy operations was effective securing of evidence by patrolling warships. This challenge included issues surrounding chain of custody, and ensuring that evidence was secured in a manner that was tamper-proof in order that it could be uncontentiously admitted by the court. (113) When discussing this matter, one official described the situation aptly: "navy staff are really good at driving ships and police officers are really good at investigating cases; ask a police officer to drive a ship and you're likely headed [for] disaster and vice versa." (114) She then proceeded to point out that cooperation between naval forces, INTERPOL, and NCIS has led to a very different situation where evidence was now being well secured in a manner that protected its admissibility in criminal proceedings. (115) This assessment is consistent with Beekarry's observations regarding 'Handover Guidance' packets created by prosecutors in receiving states to ensure that evidence is admissible. (116) There are, nevertheless, still concerns surrounding the inability of the vast majority of warships to engage in even the most basic forensic evidence gathering upon seized pirate vessels. (117) These concerns are often centred upon the fact that military personnel are required to engage in some of the more technical aspects of law enforcement roles--aspects for which they are not necessarily trained. (118) In terms of regional law enforcement, up-skilling has occurred primarily through direct training and mentoring. (119)
The MoUs which Seychelles has entered into regarding the repatriation of convicted pirates to Somali prisons are similar to the MoUs between capturing nations and prosecuting regional states; however, they are more limited in nature. The primary content of these MoUs is the preservation of human rights during incarceration, (120) and the continued enforcement of court-ordered prison sentences of convicted pirates upon their repatriation. (121) The remainder of the MoU provisions generally focus upon the procedural aspects of transfers (such as medical and identity checks) and dispute settlement which, while important, are not relevant to this paper. Conspicuously absent, when compared to the MoUs between capturing nations and prosecuting nations, are provisions for assistance. The likely explanation for this is that the Somali regional administrations are receiving assistance from apprehending nations, funneled through UNODC and other international and multilateral agencies, rather than from the regional prosecuting states.
Such MoUs provide a convenient and efficient way to engage in international cooperation in the fight against piracy. They do not attract the same level of bureaucracy and oversight as treaties. Given their non-binding nature, they can often be signed by diplomats and officials rather than Ministers of State, and they can be easily terminated when they cease to be appropriate. This is particularly evident when considering Kenya's withdrawal from transfer agreements in 2010, due to Kenyan perceptions that adequate support was not being provided for prosecutions and subsequent incarcerations. (122) (Kenya is now accepting piracy cases on an individual basis where there is a Kenyan nexus.) (123) The other benefit of using MoUs over more formal treaty processes is the ability to engage in agreements with non-state, or perhaps more accurately, federally subordinate, actors--for example, the Seychelles repatriation MoUs with Somaliland (although Somaliland has claimed independence from Somalia since 1991), (124) and Puntland. (125)
The repatriation of prisoners is crucial to continued regional counter-piracy efforts, and thus promotes continued development of information sharing networks linked to this outcome. One purely pragmatic reason is that prosecuting states are often reluctant to accept more pirates for prosecution unless they are able to repatriate an equal number of already convicted pirates, in order to free up prison capacity. (126) Another important reason is that continued engagement tends to foster positive relations, (127) and to encourage exchange of information in associated areas, thus contributing over time to a further reduction in the impunity still enjoyed by some organised piracy crime group leaders. (128) Given the concerns surrounding infrastructure and training in the justice systems within Somaliland and Puntland, and their ability to handle serious criminal offences, including piracy, (129) such agreements will
VII. OTHER APPLICATIONS
In this final section of the paper, we will briefly examine whether, and if so, how, some of the legal lessons learned from the counter Somali piracy information sharing experience are relevant for other maritime crime contexts. To this end, we shall briefly examine two other burgeoning maritime crime situations: piracy in the Gulf of Guinea, and the trafficking of Afghan opiates by sea from the Makran Coast into East Africa. The former theatre has direct subject matter transference potential, but in a different geographic content; although the latter theatre shares a venue (the Indian Ocean) with Somali piracy, it is a fundamentally different maritime crime.
1. Gulf of Guinea piracy
There are (currently) three fundamental distinctions between East African and West African piracy. The first is that whilst East African--specifically Somali--piracy centres around taking vessels and crews as hostages in order to generate ransoms, piracy in West Africa hinges around the theft from tankers and other vessels of oil and petroleum, which is then inserted (or in some cases, re-inserted) into the massive and highly lucrative oil black market. (130) The second is that the focal point for Somali piracy is an extremely weak, and still fundamentally fractured, state (Somalia) which is still at a very early stage of re-establishing institutions and even a basic level of governance and rule of law over its territory and people. In the Gulf of Guinea, the focal point, Nigeria, is a large and well-established state with existing counter-piracy institutions such as a navy, police, laws, and courts (albeit plagued in some sectors by weakness, corruption, and demarcation disputes between agencies and ministries). Third, the very absence or debilitating weakness in Somali state and governance institutions, coupled with the fact that the UNSC is directly engaged in state-building in Somalia, have created a permissive space within which the international community has been able to take the initiative in developing, supporting, and implementing solutions--the CGPCS being one very significant illustration of this endeavour. By contrast, the Gulf of Guinea states have, to date, shown little appetite to surrender to any degree their right and wish to create and implement their own solutions, albeit with international support. Indeed, the UNSCRs on Gulf of Guinea piracy to date focus upon regional action by regional states, relegating the international community to a supporting rather than a driving role. (131)
For all of these contextual differences, however, it is remarkable how relevant information sharing networks, processes, and instruments developed specifically for the counter-piracy situation in Somalia are proving for the West African situation. Some initiatives, such as the use of prisoner transfer MoUs as a criminal justice system reconstruction and capacity-building mechanism, will have little immediate relevance in West Africa, where clear and continuing sovereignties with functioning criminal justice systems already exist. There is, however, scope for detained pirate suspect transfer arrangements along the same lines as in East Africa, given that it is possible that international navies could engage in opportunistic apprehensions. In this situation, the detained suspect transfer arrangements between, for example, the EU and Kenya, could readily form a template for a similar arrangement between, for example, the EU and Ghana or Nigeria. The differences would be in detail, not in paradigm. Thus many of the associated information sharing processes and instruments that are utilised in East Africa, could readily be adapted for West Africa, taking account of course of the higher proportion of civil law as opposed to common law jurisdictions. Evidence collection guidance, use of existing money laundering and tracing networks, information sharing agencies and regimes (such as FATF, INTERPOL, and so on) all would have direct relevance. The same is true of the potential utility of regionally based information clearing houses, such as REFLECS3 in the Somali piracy context. Again, given that such mechanisms are fundamentally consensual, and can generate useful outcomes even with limited inputs (adding value through correlation and analysis) there is no obvious reason they could not be cloned for West Africa. Indeed, although it is more focused upon gathering, collating, and issuing maritime activity reports (an existing weakness in the area), the MTISC (132) initiative is an evident step along this path.
2. The Indian Ocean maritime route for Afghan opiates
As the land trafficking routes for Afghan opiates have come under increased vigilance and higher levels of interdiction activity, substantial components of the trade are now being pushed south onto dhows (and also into containerised cargoes) departing from ports along the Makran Coast and headed for ports in East Africa (Tanzania, for example, has been the site of several major drug seizures) or South and South-East Asia (Sri Lanka has also seized a number of substantial cargoes). (133) However, by far the largest seizures over the last several years have been at sea: a record single cargo of 1032 kg was seized from an unflagged dhow by an Australian warship off the coast of East Africa on 26 April 2014. Again, however, there are important contextual differences with the Somali piracy situation. The primary distinction is that drug trafficking by sea is not a crime of universal jurisdiction, and--vitally--is not one of the five legal bases available under Article 110 of the 1982 LOSC (including piracy) which permit boardings without the need to first gain flag state consent. (134) Indeed, the LOSC places maritime drug trafficking one level below the Article 110 crimes:
Article 108--Illicit traffic in narcotic drugs or psychotropic substances
1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.
2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.
This does not mean that a warship cannot board an unflagged vessel it suspects is carrying an illicit cargo--it certainly can, as the current crop of Indian Ocean seizures indicates. But the jurisdictional basis is the fact that the vessel is unflagged, thus creating a right to check its actual flag. The drugs are seized and ditched as a legal by-product. But in the absence of universal jurisdiction, there is only limited current scope to assert a third state prosecution authority over the crew in relation to the crime of drug trafficking.
The consequence is, naturally enough, that the information sharing mechanisms established in the context of Somali piracy prosecutions support may be of less immediate relevance, given the absence of an operative, formal, and organised set of multilateral jurisdiction-sharing and coordination arrangements. The instruments that could support such regimes exist (the UNTOC, for example)135, but the political will to implement remains a challenge. However, the fact that most drug seizures from unflagged vessels are led by intelligence, as opposed to merely opportunistic, creates space for disruption and enforcement at sea, as opposed to prosecution-focused, information sharing regimes--a fact recognised by, for example, REFLECS3, which is consciously expanding its focus to include this challenge. Indeed, as is clear in this particular case, networks and processes established to facilitate counter Somali piracy information sharing are equally employable in information sharing for maritime counter-trafficking: the information inputs may differ, but the accompanying mechanisms for information collation, integration, and dissemination are of much broader utility.
This paper has sought to provide a succinct overview and examination of a number of information sharing regimes that have proven crucial to effective counter-piracy operations in the Horn of Africa region. These information sharing regimes have ranged from practical operational intelligence and information sharing in order to facilitate reactive enforcement, through to regional military and legal coordination through the CGPCS and SHADE frameworks, the development of on-the-ground networks within Somalia to assist with onshore operations designed to combat (at source) the transnational crime aspect of piracy, and the nation-building potential that can emerge from criminal justice system information exchange and sharing networks.
While these networks take time and resources to develop, and while they may have initially operated in a relatively unconnected and dysfunctional manner, they have over the last five years become an important and quite successful tool in the broader project of curbing Somali piracy. This paper suggests that the core features of these arrangements--the features that have made them relatively successful--include:
1. the flexible nature of the arrangements themselves; the decision to opt for regional solutions rather than more uniform global solutions;
2. an approach focusing upon engagement with and support of regional stakeholders (instead of a 'boots on the ground' operational approach);
3. and a focus on dealing with the source problem of information sharing, rather than simply the symptom (which is, in such cases, the incoherence that arises from a lack of co-ordination).
The flexible nature of these information sharing arrangements is evident at multiple levels. In relation to direct at sea enforcement, for example, it is evident in both the jurisdictional arrangements that underpin Article 100 of the 1982 LOSC 1982, (136) and the UNSCRs. (137) Both of these legal frameworks allows states to operate in an 'opt-in' manner in relation to the situation in Somalia, whilst giving consideration to their other domestic and international obligations in terms of ensuring that such operations do not become burdensome, or create a continuous drain upon vital--but rationed--political will. The same is true of the larger scale preventative information sharing regimes (CGPCS and SHADE, for example), which clearly operate on a bespoke, 'opt-in' framework with a clearly defined, flexible, and simply articulated legal mandate. This flexibility allows participating states to regularly reassess their participation, involvement, and to trade off activity against other pressures and obligations, thus allowing these mechanisms to continue operating in a constructive and positive manner, even as the specific participants, and their levels of political commitment, ebb and flow.
The MoUs used to facilitate prisoner and piracy suspect transfers, and the various nation-building and regional capacity-building initiatives which they either facilitate or advance, also highlight, and to a significant extent endorse, the very conscious decision to engage in counter-piracy operations through a flexible legal and institutional framework rather than a more rigid, formalised, and binding one. The reduced level of bureaucratic interference that accompanies this choice allows agreements--such as these MoUs--to be negotiated, implemented, used, and then withdrawn, with a greater degree of political, procedural, and legal ease. Their status also allows these instruments to be responsively adjusted so as to maintain their relevance and application. This flexibility is demonstrated by the fact that Kenya, when dissatisfied with the arrangements, was able to withdraw from them with relative ease, freeing them to ure of a piraadjust their ongoing involvement with regional counter-piracy rates to one that was more manageable within their evolving needs and capabilities.
Another key aspect of the success of these information sharing regimes within counter-piracy operations is that they have focused upon regional solutions to a regional problem. The bulk of Somali piracy prosecutions are brought to trial within East Africa and the Western Indian Ocean, with prisoners being repatriated (after conviction, and only if they consent and voluntarily decide not to appeal) to their homeland to serve their sentence. The main coordination centres, such as REFLECS3, are based within the region, and those Western states involved in capacity-building and operational information sharing are generally liaising with, facilitating, and supporting these local stakeholder networks and processes in generating solutions. Such regionally-based and--owned solutions are crucial as they have underpinned another key aspect of successful counter-piracy operations: engagement and support, rather than an overpowering 'boots on the ground' approach. This is evident across many components of counter Somali piracy operations: from cooperation amongst regional States on prosecution and prisoner repatriation; through to liaising with and supporting authorities within Somalia as they deal with some on shore aspects of Somali piracy.
The final, and perhaps key, aspect of the information sharing regimes that have underpinned successful counter Somali piracy operations is a longer-term focus on some of the root facilitators of piracy (including governance, impunity, and financial flows), rather than simply the primary symptom, the transnational criminal offence itself. This approach is only possible because of the initial decision to pursue flexible mechanisms, responsive agendas, regional solutions, and engagement with and support of local stakeholders, rather than focusing only upon the direct intervention by developed nations, which underpins the apprehension at sea regime. (It must be noted, however, that by some estimates, fully 99 per cent of the funds spent in direct response to Somali piracy have been on short-term solutions such as increased fuel consumption for higher transit speeds and patrolling warships; less than 1 per cent have been employed in more medium-term capacity-building responses.) (138) By casting the net more widely than just the immediate response at sea, the opportunity to use counter-piracy capacity-building as a vehicle for broader rule of law capacity-building within Somalia has been enhanced. Leveraging counter-piracy programming, 'ink spots' of capacity--human rights-aware custodial officers; basic investigation training for maritime police officers--have been created, and are now available for use as stepping stones in broader rule of law and reform projects. Additionally, there has been substantial capacity-building throughout the East Africa and western Indian Ocean region, aimed at better equipping a number of willing states to deal with maritime-focused transnational organised crime and leveraging counter-piracy initiatives to expand the employment of ostensibly counter-piracy funded, but more generally applicable, capacity improvements. While ongoing assessment will be required in order to determine whether or not these measures and approaches have led to sustainable improvements, reports and other evidence currently at hand suggest that--at least in the short term--they have been quite successful. There is little argument that it is, ultimately, information sharing that has underpinned this success.
The authors would like to thank Juliet Sorensen and the anonymous reviewers for their thoughtful comments.
(1) Participant Russet, Confidential Interview 8 (2013).
(2) ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships: Report for the Period 1 January-30 June 2014, (London: International Maritime Bureau, 2015), online: <http://www. allaboutshipping.co.uk/wp-content/uploads/2014/07/2014-Q2-IMB-Piracy-Report-ABRIDGED. pdf>; ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships: Report for the Period 1 January--31 December 2015, (London: International Maritime Bureau, 2016), online: <http://www.hellenicshippingnews.com/wp-content/uploads/2016/02/2015-Annual-IMB-PiracyReport-ABRIDGED.pdf> at 17.
(3) Note: A number of the interviews and observations contained within this paper formed a part of the fieldwork conducted by one of the authors in January and February 2013. This fieldwork was subject to full ethics review by the Australian National University's human ethics committee. All interviews and observations were confidential in nature, in accordance with this ethics approval. All observation notes and interview transcripts have been retained in accordance with the Australian National University's ethics procedures and can be made available when necessary to confirm information contained within this article. The empirical data was gathered through observations of piracy trial (regarding the attack on the MV Super Lady), time spent with counter-piracy personnel in the Seychelles, and confidential interviews with four participants from within investigatory, prison and prosecution services regarding the way in which the law laid out in the various roles in piracy enforcement. For the sake of preserving confidentiality, in the course of this paper all participants will be referred to by female pronouns in the singular and gender neutral pronouns in the collective, regardless of actual gender.
(4) Contact Group on Piracy off the Coast of Somalia, Communique, 15th Plen Sess, 11 and 14 November 2013, online: <http://www.thecgpcs.org/plenary.do?action=plenarySub&seq=25>. Assessments of the overall effectiveness of these prosecutions as a disruption and deterrence factor are now starting to be proffered: see e.g. K Scott, "Prosecuting Pirates: Lessons Learned and Continuing Challenges" Oceans Beyond Piracy (2014) online: <http://oceansbeyondpiracy.org/ sites/default/files/attachments/ProsecutingPiratesReportDigital_2.pdf>.
(5) A study commissioned by the World Bank, for example, reiterates the UNODC and World Bank estimate of US$ 339-$ 413 million paid in ransoms to Somali pirates between April 2005 to December 2012. The report then assesses that during this period, the individual 'foot soldier' pirate could generally expect their cut of a ransom to be between US$ 30,000--US$75,000. See World Bank, Pirate Traits: Tracking the Illicit Financial Flows from Pirate Activities off the Horn of Africa (Washington, DC: International Bank for Reconstruction and Development/World Bank, 2013), online: <http://siteresources.worldbank.org/EXTFINANCIALSECTOR/Resources/ Pirate_Trails_World_Bank_UNODC_Interpol_report.pdf> at 28. The--admittedly very difficult to capture accurately--comparison point is average per capita income in Somalia: The World Bank database estimate is US$ 150 per capita share of Gross National Income (GNI) for 1990. The UN Country Profile on Somalia estimates 2010 GNI per capita at US$107: see UN Data, "Country Profile: Somalia" online: <http://data.un.org/CountryProfile.aspx?crName=Somalia>. The US Central Intelligence Agency (CIA) World Facebook estimate (based on 2010 data) records an average income of US$ 600 per annum--see: CIA, "The World Facebook: Somalia" (2016; data for 2010) online: <https://www.cia.gov/library/publications/the-world-factbook/geos/so.html>.
(6) At least one PAG has been apprehended in 2014 and transferred for prosecution--a group of five apprehended by French warship Siroco and transferred to Seychelles on 29 January 2014: see "Suspect pirates apprehended by EU naval force flagship transferred to the Seychelles" EU NavFor (30 January 2014), online: <http://eunavfor.eu/ suspect-pirates-apprehend ed-by-eu-naval-force-flagship-transferred-to-the-seychelles/>.
(7) See e.g. UK House of Commons, "Foreign Affairs Committee--Tenth Report on Piracy off the Coast of Somalia" HC 1318 (2011) online: <http://www.publications.parliament.uk/pa/cm201012/ cmselect/cmfaff/1318/1318.pdf> at para 74:
Around nine out of 10 piracy suspects detained by forces engaged in multinational operations are released without trial. The fact that most pirates are simply returned to their boats or to Somali land has engendered strong criticism from the shipping industry. According to the Chamber of Shipping, "the repeated images of pirates being released without trial by naval forces, including by the Royal Navy, causes understandable derision.
However, Henry Bellingham warned that these release statistics can be misleading, and that most of those released were not actually captured during an attack:
It is also worth bearing in mind that most of the so-called catch and releases have been the result of disruption activities with naval vessels going in quite a lot closer to the shore and intercepting skiffs. Of the cases of actual attacks on vessels and attempted acts of piracy that resulted in capture by the Navy, very few have resulted in catch and release, because if an attack has been made on a vessel, you have the evidence.
See also Kees D Thompson, Ending the 'Catch and Release' Game: Enhancing International Efforts to Prosecute Somali Pirates under Universal Jurisdiction (Senior Thesis) (Princeton, NJ: Woodrow Wilson School of Public and International Affairs, Princeton University, 2013), online: <http:// nationalstrategicnarrative.org/wp-content/uploads/2013/07/Kees-Thompson-Senior-Thesis.pdf>.
(8.) United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833 [Law of the Sea] at art 101:
[Definition of Piracy]
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).
(9.) For an as yet unparalleled general history of piracy as a legal concept, see Alfred P Rubin, The Law of Piracy (Ardsley, NY: Transnational Publishers, 1988). On different aspects of universal jurisdiction with respect to piracy, see generally: Anne Zwanenberg, "Interference with Ships on the High Seas" (1961) 10 ICLQ 785; Eugene Kontorovich & Steven Art, "An Empirical Examination of Universal Jurisdiction for Piracy" (2010) 104 AJIL 436; Robin Geiss & Anna Petrig, Piracy and Armed Robbery at Sea: the legal framework for counter-piracy operations in Somalia and the Gulf of Adam (Oxford: Oxford University Press, 2011), Part 4 Ch I. There are also many other very worthy treatments of this subject.
(10.) This alternative characterisation does not in any way mitigate or attenuate the raw authority that resides in appropriately authorised state vessels (such as warships) to take initial action against suspect pirates and pirate vessels: See Tamsin Paige, The Role of the Law in the Rise and Fall of Piracy (Master of Philosophy Thesis), (Canberra: Australian National University, 2013); Tamsin Paige, "Piracy and Universal Jurisdiction" (2013) Macquarie LJ 131, 148-151.
(11.) Law of the Sea, supra note 8 at art 105.
(12.) UNSC resolutions directly on the issue of piracy include: (2008) SC Res 1816, SC Res 1838, SC Res 1846, SC Res 1851; (2009) SC Res 1897; (2010) SC Res 1918, Res 1950; (2011) SC Res 1976, SC Res 2015, SC Res 2020; (2012) SC Res 2077; (2013) SC Res 2125. For a detailed analysis of the centrally important SC Res 1816 (2008), see Douglas Guilfoyle, "Piracy off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter Piracy Efforts" (2008) 57 ICLQ 690.
(13.) Security Council Resolution 1816 [on acts of piracy and armed robbery against vessels in territorial waters and the high seas off the coast of Somalia], SC Res 1816, UNSCOR, 2008, 5902nd meeting, UN Doc S/RES/1816 (2 June 2008) [UNSC Resolution 1816] at para 9.
(14.) Ibid. at para 7.
(15.) See discussion infra regarding the MV Iceberg 1 incident for an example of the reasons behind these concerns.
(16.) Security Council Resolution 1851 [on fighting against piracy and armed robbery at sea off the coast of Somalia], SC Res 1851, UNSCOR, 2008, 6045th meeting, UN Doc S/RES/1851 (16 December 2008) at para 4:
Encourages all States and regional organizations fighting piracy and armed robbery at sea off the coast of Somalia to establish an international cooperation mechanism to act as a common point of contact between and among states, regional and international organizations on all aspects of combating piracy and armed robbery at sea off Somalia's coast ...
(17.) The 2011 attempt to pass the law was voted down by the Somali Transitional Federal Parliament, with a number of parliamentarians declaring the Somali pirates to be national heroes; see e.g. Daniel Makosky, "Somalia parliament rejects anti-piracy legislation," Jurist (19 January 2011), online: <http://jurist.org/paperchase/2011/01/somalia-parliament-rejects-antipiracy- legislation.php>;
Mary Harper et al., Getting Somalia Wrong? Faith, War and Hope in a Shattered State (London: Zed Books, 2012) at 150. It has not been seriously attempted again since.
(18.) Republic of Somaliland Law on Combatting Piracy [Piracy Law], Law No. 52/2012, online: <http://www.somalilandlaw.com/Somaliland_Piracy_Law_2012_Eng180311A.pdf> (Unofficial Translation); Puntland Piracy Law No. 18 (2012), 19 November 2012, online at: <https://www.unodc.org/unodc/en/piracy/piracy-prisoner-transfer-programme.html>.
(19.) See e.g. Sebastien Gottlieeb, "Pirates tried under never used Dutch law" Radio Netherlands Worldwide (16 January 2009), online: <http://vorige.nrc.nl/article2122573.ece>; Oliver Hawkins, "What to do with a captured pirate" BBC Radio 4 (10 March 2009), online: <http://news.bbc. co.uk/2/hi/7932205.stm>; Tulio Treves, "Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia" (2009) 20:2 EJIL 399.
(20.) For recent analyses of some of these operational and legal challenges, see: MD Fink and RJ Galvin, "Combatting Pirates off the Coast of Somalia: Current Legal Challenges" (2009) 56:3 Nethl Int'l L Rev 367; Douglas Guilfoyle, "Prosecuting Somali Pirates: A Critical Evaluation of the Options" (2012) 10 J of Int'l Crim Just 767; Maggie Gardner, "Piracy Prosecutions in National Courts" (2012) 10 J of Int'l Crim Just 797.
(21.) United States of America v Mohammad Saaili Shibin (12 July 2013) USCA 4th Cir, Case No. 12-4652, online: <http://www.ca4.uscourts.gov/opinions/Published/124652.p.pdf>; see also Tamsin Paige, "Piracy and Universal Jurisdiction" (2013) 12 Macquarie LJ 131.
(22.) See in general, for example, supra note 5; see also Security Council Resolution 2125 [on acts of piracy and armed robbery at sea off the coast of Somalia], SC Res 2125 (2013), UNSCOR, 2013, 68th Sess, 7061st mtg, UN Doc S/RES/2125 (18 November 2013), Preamble:
Recognizing the work of the CGPCS to facilitate the prosecution of suspected pirates and, in accordance with international law, to establish an on-going network and mechanism for sharing information and evidence between investigators and prosecutors, ... and welcoming the work by Working Group 5 of the CGPCS to disrupt illicit financial flows linked to piracy ...' and 'encouraging the Indian Ocean Rim Association to pursue efforts that are complementary to and coordinated with the on-going work of the CGPCS ...
See in general, Financial Action Task Force (FATF), Organised Maritime Piracy and Related Kidnapping for Ransom (July 2011), online: <http://www.fatf-gafi.org/media/fatf/documents/ reports/organised%20maritime%20piracy%20and%20related%20kidnapping%20for%20ransom. pdf>. The FATF "is an independent inter-governmental body that develops and promotes policies to protect the global financial system against money laundering and terrorist financing. Recommendations issued by the FATF define criminal justice and regulatory measures that should be implemented to counter this problem" (ibid.).
(23.) See "Exchange of letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led Naval Force (EUNavFor), and seized property in the possession of EUNavFor, from EUNavFor to Kenya and for their treatment after such transfer" EC (6 March 2009) OJ L 79, online: <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri =CELEX%3A22009A0325(01)>.
(24.) For an account of the practical challenges of collecting and preserving evidence from piracy crime scenes on board merchant vessels, see Henri Fouche & Jacques Meyer, "Investigating sea piracy: crime scene challenges" (2012) 11 WMU J of Marit Affairs 33.
(25.) For a general analysis of these issues, see Douglas Guilfoyle, ed., Modern Piracy: Legal Challenges and Responses (Cheltenham, UK: Edward Elgar, 2013), particularly Ch 7, "Capture and Disruption Operations: The Use of Force in Counter-Piracy off Somalia" (Andrew Murdoch & Douglas Guilfoyle), and Ch 8, "Initiating Criminal Proceedings with Military Force: Some Legal Aspects of Policing Somali Pirates by Navies" (Hakan Friman & Jens Lindborg).
(26.) See the amended Kenyan Evidence Act, Parliament of Kenya, 10th Parl, rev ed 2012 , online: <http://www.kenyalaw.org:8181/exist/rest//db/kenyalex/Kenya/Legislation/English/ Acts%20and%20Regulations/E/Evidence%20Act%20Cap.%2080%20-%20No.%2046%20 of%201963/docs/EvidenceAct46of1963.pdf> at art 78:
Photographic evidence--admissibility of certificate
(1) In criminal proceedings a certificate in the form in the First Schedule to this Act, given under the hand of an officer appointed by order of the Director of Public Prosecutions for the purpose, who shall have prepared a photographic print or a photographic enlargement from exposed film submitted to him, shall be admissible, together with any photographic prints, photographic enlargements and any other annex referred to therein, and shall be evidence of all facts stated therein.
(2) The court may presume that the signature to any such certificate is genuine.
(3) When a certificate is received in evidence under this section the court may, if it thinks fit, summon and examine the person who gave it.
(27.) Ibid. at art 29:
Confessions to police officers
No confession made to a police officer shall be proved against a person accused of any offence unless such police officer is--
(a) of or above the rank of, or a rank equivalent to, sub-inspector; or
(b) an administrative officer holding first or second class magisterial powers and acting in the capacity of a police officer.
(28.) See e.g. references to such initiatives in Establishment of a Legislative Framework to Allow for Effective and Efficient Piracy Prosecutions, IMO Circular letter no. 3180 (17 May 2011), Annex LEG 98/8/2 (18 February 2011), UNODC, online: <http://www.un.org/depts/los/piracy/circular_ letter_3180.pdf > at para 9:
Regional States that accept the transfer of suspected pirates for prosecution such as Kenya and the Seychelles have also produced a handover guidance to naval authorities on their evidentiary requirements in order to ensure that the naval authorities collect evidence and prepare the case in a way that will ensure admissibility at trial.
See also UK House of Commons, Tenth Report from the Foreign Affairs Committee of Session 2010-12 Piracy off the coast of Somalia-Response of the Secretary of State for Foreign and Commonwealth Affairs, HC Cm 8324 (March 2012), online: <https://www.gov.uk/government/uploads/system/ uploads/attachment_data/file/32943/2012-mar-piracy-somalia.pdf> at 9-10.
(29.) See Constitution of Kenya, rev ed 2010, (National Council for Law Reporting), online: <https://www.kenyaembassy.com/pdfs/the%20constitution%20of%20kenya.pdf> at s 49(1):
An arrested person has the right--...
(f) to be brought before a court as soon as reasonably possible, but not later than--
(i) twenty-four hours after being arrested; or
(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day ...'
(30.) On the 'kaleidoscope' of initiatives in this area, see e.g. Bibi van Ginkel & Lennart Landman,
"In Search of a Sustainable and Coherent Strategy: Assessing the Kaleidoscope of Counter-piracy Activities in Somalia" (2012) 10 J of Int'l Crim Just 727.
(31.) See Piracy Legal Forum, "Background" (2014), online: <http://www.piracylegalforum.org/ about/background-2/>.
(32.) This issue was discussed, inter alia, at the Working Group 2 (WG2) meeting in Copenhagen, in April 2013 (author's personal involvement).
(33.) The then-Chair of WG2, Danish Ambassador Thomas Winkler, was tireless in facilitating MOUs and similar arrangements to allow repatriation of convicted Somali pirate prisoners back to Puntland and Somaliland, where they could serve their sentences in closer proximity to their families, and within their cultural milieu (author's personal involvement).
(34.) Government of Denmark, WG2 COMPILATION: RELEVANT INFORMATION ON LAW AND RULES WITH REGARD TO PRIVATELY CONTRACTED ARMED SECURITY PERSONNEL (Copenhagen: Foreign Ministry of Denmark, 10-11 April 2013), online: <https://imo.amsa.gov.au/ secure/papers/2013/leg100/wp6.pdf>.
(35.) See e.g. Milena Sterio, "Report from the Piracy Contact Group, Working Group 2, Meeting in Copenhagen" Communis Hostis Omnium (13 April 2013), online: <http://piracy-law. com/2013/04/13/report-from-the-piracy-contact-group-working-group-2-meeting-incopenhagen/>. This issue was one directly mandated for continued WG2 consideration in the Report of the Secretary-General Pursuant to Security Council Resolution 2020 , UN Doc S/2012/783 (22 October 2012) at para 80:
The Contact Group on Piracy off the Coast of Somalia and its Working Group 2 are encouraged to maintain their strong focus on ensuring that international human rights issues related to piracy are comprehensively addressed. In particular, Member States are encouraged to continue working with the United Nations and the Contact Group on Piracy off the Coast of Somalia in ensuring that emerging issues in the area of criminal justice processes for juvenile piracy suspects are addressed.
See also Seychellois Attorney General Department, Draft Guidelines on Age Determination in Piracy Cases (2012) (copy held by author).
(36.) Report of the Secretary-General on the Situation with Respect to Piracy and Armed Robbery at Sea off the Coast of Somalia, UNSCOR, UN Doc S/2013/623 (21 October 2013) at para 78.
(37.) SC Res 2125, supra note 22 at paras 18 and 29.
(38.) On CGPCS WG2 in particular, see: Douglas Guilfoyle, "Prosecuting Pirates: The Contact Group on Piracy off the Coast of Somalia, Governance and International Law" (2013) 4:1 Global Policy 73.
(39.) See generally: UK House of Commons, House of Commons Foreign Affairs Committee-Global Security: UK-US Relations, Sixth Report of Session 2009-10, HC 114 Incorporating HC 1100-i, Sess 2008-09 (28 March 2010), "Further written evidence from the Foreign and Commonwealth Office: UK-US co-operation on piracy off the coast of Somalia," online: <http://www.publications. parliament.uk/pa/cm200910/cmselect/cmfaff/114/114.pdf> at 151-152; The Growing Threat of Piracy to Regional and Global Security, NATO Parliamentary Assembly (Lord Jopling (UK)--General Rapporteur) (2009) 169 CDS 09 E Rev 1, online: <http://www.nato-pa.int/default. asp?SHORTCUT=1770> at para 73.
(40.) See e.g. "Indian, Chinese navies unite to tackle piracy" The Times of India (2 February 2012), online: <http://timesofindia.indiatimes.com/india/Indian-Chinese-navies-unite-to-tackle-piracy/ articleshow/11720769.cms>:
According to Navy sources, the three countries [India, China, and Japan] are carrying out coordinated patrolling with the assistance of Shared Awareness and De-confliction (SHADE), a coordination mechanism for all counter-piracy operations which meets every three months. SHADE operates out of Bahrain. This is the first time that India and China are coordinating in a military operation, other than their agreements for peace along the Line of Actual Control and bilateral exercises. According to Navy sources, China and Japan have two ships each deployed for patrolling while India has one. SHADE has already worked out the full quarter's deployment for the three countries and their five ships. This will help in plugging huge gaps that exist in anti-piracy patrolling, sources said. The three countries agreed to the arrangement after realizing that there were big gaps in patrolling of the area, and many merchant vessels were moving about unescorted. The gaps were also responsible for continuing piracy, sources said.
(41.) See e.g. "CMF hosts 21st SHADE Meeting" Combined Maritime Forces (27 September 2011), online: <http://combinedmaritimeforces.com/2011/09/27/cmf-hosts-21st-shade-meeting/>.
(42.) Oceans Beyond Piracy, Shaded Awareness and De-confliction (SHADE) (2016) online: <http://oceansbeyondpiracy.org/matrix/shared-awareness-and-deconfliction-shade>.
(43.) See e.g. Communique, supra note 4:
Participants received a comprehensive briefing from the European Union (EU) Naval Force 'Operation Atalanta' chief of staff and the NATO 'Operation Ocean Shield' representative on behalf of the SHADE co-chairs (EU, NATO, and CMF), who reported that while pirate activity continues to trend at the lowest levels since 2008, there has been an unexpected upsurge in pirate activity in recent weeks as pirate action groups put to sea to replenish their stocks of hostage vessels.
(44.) SC Res 2125, supra note 22: "... welcoming the Shared Awareness and De-Confliction Initiative (SHADE) and the efforts of individual countries, including China, India, Indonesia, Japan, Republic of Korea, Malaysia, Pakistan and the Russian Federation, which have deployed naval counter-piracy missions in the region ..."
(45.) There is a great deal of literature on the PSI. One brief, but sound, general introduction to the PSI is: Jacek Durkalec, "The Proliferation Security Initiative: Evolution and Future Prospects" EU Non-Proliferation Consortium, Non-Proliferation Papers no.16 (June 2012) online: <http:// www.sipri.org/research/disarmament/eu-consortium/publications/nonproliferation-paper-16>.
(46.) Proliferation Security Initiative, Statement of Interdiction Principles (2015), online: <http://www. psi-online.info/Vertretung/psi/en/07-statement/Interdiction-Principes.html>.
(47.) Ibid., Principle IV.
(48.) See e.g. Wade Boese & Miles Pomper, "Interview with John Bolton, Undersecretary of State for arms control and international security" (4 November 2003), online: <http://www.armscontrol. org/aca/midmonth/2003/November/Bolton>.
(49.) See International Maritime Organization (IMO), Summary of Status of Conventions, online: <http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx>:
As of 31 August 2014: SUA 1988-164 ratifications/94.52 per cent of world tonnage; SUA 2005 Protocol-31 ratifications/35.76 per cent of world tonnage.
(50.) See generally: Mark Nance & Anja Jakobi, "Laundering Pirates? The Potential Role of Anti-Money Laundering in Countering Maritime Piracy" (2012) 10 J of Int'l Crim Just 857.
(51.) Blaine Harden, "North Korea Disavows 1953 Armistice, Warns South Korea" (27 May 2009), online: < http://www.washingtonpost.com/wp-dyn/content/article/2009/05/26/ AR2009052600555.html >.
(52.) Charlotte McDonald-Gibson, "The pirate who fell into a movie trap: Kingpin Mohamed. 'Big Mouth' Abdi Hassan arrested in Belgium after being tricked into thinking he was going to appear in a documentary" The Independent (15 October 2013) online: <http://www.independent. co.uk/news/world/africa/the-pirate-who-fell-into-a-movie-trap-kingpin-mohamed-big-mouth-abdi-hassan -arrested-in-belgium-after-being-tricked-into-thinking-he-was-going-to-appear-in-adocumentary-8880645.html>.
(53.) "REFLECS3's mandate is to act as a central hub for investigation and information sharing in relation to piracy as an organised crime enterprise and maritime-based transnational organised crime. As an organisation, it describes its legal foundations as residing in Art 19 of the United Nations Convention against Transnational Organised Crime (UNTOC)." Participant Magenta, Confidential Interview 3-4 (2013); United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, 15 November 2000, 2225 UNTS 209 (2000) at art 19. See also Regional Fusion & Law Enforcement Centre
For Safety & Security at Sea, "Reflecs3 Constitution and lawful basis to operate" (n.d.) online: <http://www.rappicc.sc/page11.html>. Within its mandate as an information sharing and coordination centre, REFLECS3 relies on art 27 of UNTOC to provide it with a stable authority through which to engage in multinational information sharing for counter-piracy operations.
(54.) Contact Group on Piracy off the Coast of Somalia, CGPCS 14 May 2014 Communique (May 2014), online: <http://www.eeas.europa.eu/statements/docs/2014/140516_02_en.pdf>.
(55.) Participant Magenta, supra note 53 at 4.
(56.) Ibid. at 2 and 4.
(57.) Prevention of Organised Crimes Act, Kenya (2010) at 4.
(58.) United States of America v Ali Mohamed Ali, also known as Ahmed Ali Adan, also known as Ismail Ali (11 June 2013), USCA Case No. 12-3056 DC Cir, at 21-23; United States of America v Ali Mohamed Ali Memorandum Opinion (31 October 2013), USC Case No. 12-3056 DDC, 5-6; United States of America v Mohammad Saaili Shibin (12 July 2013) USCA Case No.15-7940 4th Cir, online: <http://www.ca4.uscourts.gov/opinions/Published/124652.p.pdf 20-22>.
(59.) Nance & Jakobi, supra note 50 at 858.
(60.) Participant Magenta, supra note 53 at 8.
(61.) Nance & Jakobi, supra note 50 at 877-878.
(62.) Participant Magenta, supra note 53 at 6-9: "... the biggest issue for me is the complete and utter absence of any form of institutional banking, accounting or finance and sitting above that a governance structure and above that an auditing and regulatory structure."
(63.) Ibid. at 6-7.
(64.) Nance & Jakobi, supra note 50 at 860.
(65.) Ibid. at 868. The 'hawala' system, as utilised in the movement of piracy ransoms, is concisely described in Pirate Trails, supra note 5, Ch 6.
(66.) Participant Magenta, supra note 53 at 7.
(67.) Ibid. at 7.
(68.) Ibid. at 7: "... it's divvied up and it's used for settling debts, because the pirates operate on credit, they acquire assets, they go on a bender and the divvy the money up amongst their family."
(69.) Ibid. at 7.
(70.) Ibid. at 7.
(71.) Ibid. at 8.
(72.) Ibid. at 7.
(73.) Nance & Jakobi, supra note 50 at 870.
(74.) Memorandum of Understanding between the Republic of Somaliland and the Government of the Republic of Seychelles on the transfer of sentenced pirates (2011); Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region, 2012, UNSCOR, 67th Sess, UN Doc S/2012/50 (20 January 2012) at 24, 35; Report of the Secretary-General pursuant to Security Council Res 1950 (2010), UNSCOR, 66th Sess, UN Doc S/2011/662 (25 October 2011) at 67.
(75.) Participant Magenta, supra note 55 at 13.
(76.) Ibid. at 21-22. See also: Bruno Schiemsky, "Guns, drugs and terror: Somali pirates morph into polycriminals" The East African (10 January 2010), online: <http://www.theeastafrican. co.ke/news/-/2558/839124/-/pwwr7qz/-/index.html>; see also Charles Reid, "Securitization of Piracy off the Horn of Africa: Are there Implications for Maritime Terrorism?" (2011) Corbett Paper no. 5, at 5.
(77.) Ibid. at 18.
(78.) Mary Harper et al., supra note 17 at 150.
(79.) Participant Magenta, supra note 53 at 17.
(80.) Republic of Somaliland, Establishment of the Counter Piracy Co-ordination Office, Presidential Decree No. 0194/012012 (2012), online: <http://www.somalilandlaw.com/Establishment_ of_CPCO_Decree.pdf>; a rough translation of the text of this decree and an overview of the role of the centre can be found online at <http://www.somalilandlaw.com/somaliland_ piracy_law.html>.
(81.) Participant Magenta, supra note 53 at 18.
(82.) Ibid. at 18.
(83.) Ibid. at 18.
(84.) Ibid. at 18.
(85.) Ibid. at 18.
(86.) Ibid. at 18.
(87.) Security Council Resolution 2142 (2014) [on the situation in Somalia], SC Res 2142 (2014), UNSCOR, 69th Sess, 7127 mtg, UN Doc S/RES/2142 (5 March 2014), Preamble:
Taking note of the Somalia and Eritrea Monitoring Group's (SEMG) 6 February 2014 report on compliance by the Federal Government of Somalia with its requirements under the terms of the partial suspension of the arms embargo on the Federal Government of Somalia; Noting with concern the SEMG's reports of diversions of arms and ammunition, including to Al-Shabaab, which has been cited as a potential recipient of diverted arms and ammunition, and further noting that, pursuant to paragraph 7 of resolution 1844 (2008), all Member States are required to take the necessary measures to prevent the direct or indirect supply, sale or transfer of weapons and military equipment to designated individuals and entities, which includes Al-Shabaab; and Stressing that any decision to continue or end the partial suspension of the arms embargo on the Federal Government of Somalia will be taken in the light of the thoroughness of the Federal Government of Somalia's implementation of its requirements as set out in this and other relevant Security Council resolutions ... The Resolution then imposes (i.e. in operative paras 6, 7, and 9) specific reporting and compliance obligations upon the Somali Federal Government.
(88.) Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region, supra note 74 at 7 and 10.
(89.) Participant Magenta, supra note 53 at 15.
(90.) Ibid. at 15.
(91.) Robin Geiss & Anna Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (Oxford: Oxford University Press, 2011) 136-137; Eugene Kontorovich, "A Guantanamo on the Sea: The Difficulty of Prosecuting Pirates and Terrorists" (2010) 98:1 California L Rev 243 at 245.
(92.) Security Council Resolution 2020 [on acts of piracy and armed robbery against vessels in the waters off the coast of Somalia], SC Res 2020 (2011), UNSCOR, 67th Sess, 6663d mtg, UN Doc S/RES/2020 (2011), preamble, 3; Security Council Resolution 2077 [on the situation in Somalia], SC Res 2077 (2012), UNSCOR, 68th Sess, 6867th mtg, UN Doc S/RES/2077 (2012), preamble.
(93.) Counter Piracy Programme: Support to the Trial and Related Treatment of Piracy Suspects, United Nations Office on Drugs and Crime (March 2013) 3; UNODC: Promoting health, security and justice, United Nations Office on Drugs and Crime, 2010 Annual Report (2010) 18-19.
(94.) "Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer" (2009) Official Journal of the European Union L079 25/03/2009, online: <http://eur-lex.europa.eu/Notice.do?val=491702:cs&lang=en&list=492033:cs,491702: cs,&pos=2&page=1&nbl=2&pgs=10&hwords=&checktexte= checkbox&visu=#texte> 47-59 [EU-Kenya MoU]; "Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for their Treatment after such Transfer." Official Journal of the European Union, L 315 (02 December 2009), online: <http:// eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:315:0037:0043:EN:PDF> 37-43 [EU-Seychelles MoU]; Memorandum of Understanding between the United Kingdom of Great Britain and Northern Ireland and the Republic of the Seychelles on the Conditions of Transfer of Suspected Pirates and Armed Robbers and Seized Property to the Republic of Seychelles, (2009), 4-5 [UK-Seychelles MoU].
(95.) Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region, supra note 74 at 69.
(96.) Geiss & Petrig, supra note 91 at 19; Jill Harrelson, "Blackbeard meets Blackwater: An analysis of International Conventions that address Piracy and the use of Private Security Companies to protect the shipping industry" (2010) 25:2 Am U Int'l L Rev 283 at 290; Kontorovich, supra note 91 at 268-270; Milena Sterio, "Fighting Piracy in Somalia (and Elsewhere): Why more is needed" (2009) 33 Fordham Int'l LJ 372 at 397-398.
(97.) Duncan B Hollis, ed., The Oxford Guide to Treaties, 1st ed (Oxford: Oxford University Press, 2012) at 50-54.
(98.) EU-Kenya MoU, supra note 92.
(99.) EU-Seychelles MoU, supra note 92 at 37 and 40; UK-Seychelles MoU, supra note 94 at 7.
(100.) Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region, supra note 74 at 44.
(101.) Tamsin Paige, Fieldwork Observation Notes (8 January 2013).
(102.) Counter Piracy Programme, supra note 93 at 3; UNODC 2010 Annual Report, supra note 93 at 18-19.
(103.) Participant Russet, supra note 1 at 3; Participant Umber, Confidential Interview 5 (2013).
(104.) Participant Umber, supra note 103 at 5.
(105.) Ibid. at 5.
(106.) Participant Cobalt, Confidential Interview 1 (2013); Participant Magenta, supra note 53 at 12; Participant Umber, supra note 103 at 8.
(107.) Participant Cobalt, ibid. at 1-2.
(108.) Ibid. at 2.
(109.) Ibid. at 3.
(110.) Report of the Secretary-General pursuant to Security Council resolution 1950 (2010), supra note 74 at 65.
(111.) Participant Russet, supra note 1 at 7; Participant Umber, supra note 103 at 6; Sulakshna Beekarry, "Assessing Current Trends and Efforts to Combat Piracy" (2013) 46 Case West J Int'l L 161 at 171-173.
(112.) Participant Magenta, supra note 53 at 9-11.
(113.) Ibid. at 5.
(114.) Ibid. at 5.
(115.) Ibid. at 5-6.
(116.) Sulakshna Beekarry, "Assessing current trends and efforts," supra note 111 at 173-174.
(117.) Participant Russet, supra note 3 at 5; Participant Umber, supra note 103 at 3.
(118.) Participant Russet, supra note 3 at 5.
(119.) Report of the Secretary-General pursuant to Security Council resolution 1950 (2010), supra note 74 at 62; Participant Magenta, supra note 53 at 17-18; Participant Umber, supra note 103 at 2-3.
(120.) Memorandum of Understanding between the Republic of Somaliland and the Government of the Republic of Seychelles, supra note 74 at arts 8-9.
(121.) Ibid. at arts 5-7.
(122.) UK House of Commons, Tenth Report from the Foreign Affairs Committee of Session 2010-2012: Piracy off the Coast of Somalia--Response to the Secretary of State for Foreign and Commonwealth Affairs, HC Sess 2010-2012 (2012), online: <https://www.gov.uk/government/uploads/system/ uploads/attachment_data/file/32943/2012-mar-piracy-somalia.pdf> at 50.
(123.) Ibid. at 50-51.
(124.) Memorandum of Understanding between the Republic of Somaliland and the Government of the Republic of Seychelles, supra note 74.
(125.) Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region, supra note 74 at 9-10.
(126.) Participant Cobalt, supra note 106 at 3; Participant Magenta, supra note 53 at 12; Participant Russet, supra note 1 at 1; Participant Umber, supra note 103 at 7.
(127.) Handbook on the International Transfer of Sentenced Persons, United Nations Office on Drugs and Crime, Criminal Justice Handbook Series (2012), 14.
(128.) Participant Magenta, supra note 55 at 17-18.
(129.) Report of the Secretary-General on specialized anti-piracy courts in Somalia and other States in the region, supra note 74 at 49. continue to play a significant role in facilitating information sharing within regional counter-piracy efforts for some time to come.
(130.) See UNODC, Transnational Organised Crime Threat Assessment: West Africa, (Vienna: UNODC, 2013) at 45-52, online: <http://www.unodc.org/documents/data-and-analysis/tocta/West_Africa_ TOCTA_2013_EN.pdf>. Some estimates assess that Nigerian oil losses into the black market have risen to around US$1 billion per month, see: William Wallis, "Nigeria losing $1bn a month to oil theft" Financial Times (26 June 2012) online: <http://www.ft.com/intl/cms/s/ 61fb070ebf90-11e1-a476-00144feabdc0,Authorised=false.html?_i_location=http%3A%2F%2Fwww. ft.com%2Fcms%2Fs%2F0%2F61fb070e-bf90-11e1-a476->. Recent estimates have placed the losses due to theft and recycling into the black market even higher, see e.g. "Oil theft: Nigeria's $20bn per annum cesspit" Nigerian Tribune (12 August 2014), online: <http://www.nigeriannewspapers. today/2014/08/11/oil-theft-nigerias-20bn-per-annum-cesspit/>.
(131.) For example: Security Council Resolution 2018 (2011) [on acts of piracy and armed robbery at sea off the coast of the States of the Gulf of Guinea], SC Res 2018 (2011) UNSCOR, 67th Sess, 6645th mtg, UN Doc S/RES/2018 (2011) (31 October 2011), preamble at op para 6; Security Council resolution 2039 (2012) [on acts of piracy and armed robbery at sea off the coast of the States of the Gulf of Guinea], SC Res 2039 (2012), UNSCOR, 67th Sess, 6727th mtg, UN Doc S/RES/2039(2012) (24 May 2012), preamble at op para 3, 8.
(132.) International Maritime Organization (IMO), "Maritime Trade Information Sharing Centre (Gulf of Guinea)" (2016) online: http://www.imo.org/OurWork/Security/WestAfrica/Documents/ Gulf-of-Guinea-ISC.pdf.
(133.) The Global Initiative Against Transnational Organized Crime, "Permission to Board? Challenges to seizing drugs at sea in the Indian Ocean" (29 April 2014), online: <http://www. globalinitiative.net/indianoceanheroin/>.
(134.) Law of the Sea, supra note 10, at art 110(1).
The five legal bases for boardings by warships in international waters, without the requirement to first secure flag state consent, are where there are reasonable grounds for suspecting that:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;
(d) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
(135.) United Nations Convention Against Transnational Organized Crime, UNGAOR, GA Res 55/25, 55th Sess, UN Doc A/55/383 (15 November 2000).
(136.) Law of the Sea, supra note 8 at art 100, requires states to cooperate with counter-piracy operations without imposing a positive duty in the way the Genocide Convention (for example) provides a positive duty on States to prevent genocide; see also Convention on the Prevention and Punishment of the Crime of Genocide, UNGAOR, GA Res 260 A (III), 78 UNTS 277 (9 December 1948), at art 1.
(137.) UNSC Res 1816, supra note 15, op para 9.
(138.) See e.g. the most recent report from Oceans Beyond Piracy (OBP): Oceans Beyond Piracy, The Economic Cost of Somali Piracy (2012), (April 2013), online: <http://oceansbeyondpiracy. org/publications/economic-cost-somali-piracy-2012-summary>. The report assesses that less than 1 per cent of the estimated US$ 6 billion in direct response costs for 2012 was allocated for prosecutions and imprisonment outcomes, and less than 1 per cent on counter-piracy organisations.
ROB MCLAUGHLIN, PhD (Cantab); Associate Professor of Law, Australian National University. Rob has been working in the counter-piracy and maritime crime area with the United Nations Office on Drugs and Crime (UNODC), and the International Maritime Organisation (IMO), since 2009. He spent 2 years (2012-2014) working in UNODC HQ as the Head of the Global Maritime Crime Program, and the Senior Expert Advisor--Counter-piracy, before returning to academia.
TAMSIN PHILLIPA PAIGE, LLB (UTS), MPhil (Law) (ANU). Tamsin is currently a PhD Scholar at Adelaide Law School (The University of Adelaide), a Research Associate with the Adelaide Law School Research Unit on Military Law and Ethics, and a Visiting Scholar at Columbia Law School. Her contribution to this paper was undertaken at both the Australian National University and at the University of Adelaide.
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|Author:||McLaughlin, Rob; Paige, Tamsin Phillipa|
|Publication:||Journal of International Law & International Relations|
|Date:||Mar 22, 2016|
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