Suppressing Somali Piracy – Next Steps
This Insight reports further efforts to suppress piracy off the coast of Somalia since Agora: Piracy ProsecutionsâCountering Piracy off Somalia: International Law and International Institutions was prepared for the July 2010 issue of the American Journal of International Law.
On November 23, 2010, the UN Security Council unanimously adopted its latest resolution addressing the suppression of piracy off the coast of Somalia. This new resolution, effective until November 23, 2011, replaces the December 2009 UN Security Councilâs authorization for counter-piracy operations off the coast of Somalia that would have expired on November 29, 2010. The UN Secretary-General had earlier submitted three reports to the Security Council pertaining to Somali piracy. In July, he submitted a report on options for prosecutions; in September, he submitted his latest comprehensive report on the situation in Somalia; and in October, he submitted his report covering the current situation off the coast of Somalia and the efforts undertaken by all relevant actors, pursuant to Resolution 1897. The Council has considered each of these reports.
In August, the Secretary-General appointed Jack Lang (France) as his Special Adviser on Legal Issues Related to Piracy off the Coast of Somalia to assist him in making further recommendations on options for piracy prosecutions set out in his July report. Mr. Lang has conducted extensive consultations in the region during September and October. Mr. Langâs report is expected by the end of 2010.
The new resolution should go beyond simply renewing existing authorities and exhortations. This Insight explores what additional provisions the resolution could have usefully contained, and briefly considers pending counter-piracy actions at the International Maritime Organization (âIMOâ).
- Pressing Problems
One pressing problem is posed by Kenyaâs recent insistence that the arrangements with the United States and other countries for the turn-over of suspects for prosecution terminated on September 30, 2010. Kenyaâs Foreign Minister complains that the international community has not lived up to its commitment to provide financial assistance to Kenya, an allegation which is not consistent with the facts. A further complication arises due to a recent Kenyan High Court decision that the change in Kenyan law in September 2009 removed the basis for prosecution of alleged acts of piracy that occurred prior to the repeal of the previous piracy statute.
There are several persistent problems. The eighteen-year-old Security Council embargo on arms transfers to Somalia continues not to be enforced. Little apparent effort is being brought to bear to curtail the millions of dollars that continue to be paid in ransom to free captured ships and their crews. There appears to be no concerted effort in dealing with allegations of illegal fishing and dumping in Somali waters, thereby providing rationale for continuing (illegal) acts of piracy.
Another problem continues to be the inadequacy of domestic piracy legislation, including in the United States. Only domestic courts are competent to try pirates: there is no international court with jurisdiction. As an example of the problem, on August 17, 2010, a U.S. federal district court judge dismissed a piracy charge on the grounds that firing a weapon at a ship (the USS Ashland (LSD-48)) to force it to stop and be boarded did not amount to an act of piracy. In its analysis of the piracy statute, 18 U.S.C. Section 1651, the district court applied the U.S. Supreme Courtâs definition of piracy as ârobberyâ â and there was no allegation of robbery. The district court did not take into account that Article 15(3) of the 1958 Geneva Convention on the High Seas (to which the United States is a party and which is therefore part of the âsupreme Law of the Landâ) defines piracy to include âany act of inciting or of intentionally facilitating an act describedâ as piracy. Two months later, a different judge in the same district court came to the opposite conclusion, and the trial of those suspects is underway in Norfolk, Virginia.
These ongoing difficulties highlight the need for the Security Council to pay special attention to suppressing piracy off the coast of Somalia while continuing to seek to establish stability on the ground in Somalia.
- Additional Operative Provisions for the Next Security Council Resolution
There are a number of issues that the Security Council could have considered adding to the operative paragraphs of its new resolution on Somali piracy. These include:
â¢ authorizing the cooperating armed forces to enforce the prohibitions on illegal fishing and dumping of toxic wastes within 200 nautical miles of the Somalia coastline;
â¢ authorizing the cooperating forces to enforce the arms embargo imposed by Resolution 733 (1992);
â¢ authorizing the steps necessary to prevent the import of powerful outboard engines used on piratesâ skiffs to enable them to operate far from shore and outside traditional fishing grounds;
â¢ providing additional specificity as to those items of piracy paraphernalia subject to confiscation, including boarding ladders and hooks, and expressing the view that possession of paraphernalia is evidence of intent to commit piracy; and
â¢ specifically authorizing aerial surveillance of piratesâ camps on the Somali coastline and preventing piratesâ skiffs and motherships from departing Somalia when equipped for piracy.
In addition, the Security Council could have:
â¢ renewed its encouragement of States to update or enact modern anti-piracy and criminal legislation, and legislation under the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (âSUA Conventionâ);
â¢ called for tracing of ransom payments; and
â¢ encouraged continued cooperation in case preparation, investigation, and prosecution of piracy suspects, including using biometric identification of suspects.
The Security Council could also have considered whether to clarify a possible ambiguity: whether previously-granted Transitional Federal Government of Somalia (âTFGâ) authorizations for cooperating naval forces need to be given again for operations within the Somali territorial sea during the renewal period of Resolution 1897. In addition, the Security Council will need to consider the effect of the pending expiration of the Somali governmentâs transitional period in August 2011.
- What Did the Security Council Do This Time?
The Council took some, but not all, of these steps.
With regard to illegal fishing and illegal dumping, Resolution 1950 strengthened the preambular and operative paragraphs on Somaliaâs offshore natural resources. New text was added in the preamble, âstressing the importance of preventing, in accordance with international law, illegal fishing and illegal dumping, including toxic substances,â and in operative paragraph 6, which ârecalls the importance of preventing, in accordance with international law, illegal fishing and illegal dumping, including toxic substances.â However, the action portion of operative paragraph 6 once again merely âcalls upon States and interested organizations, including the IMO, to provide technical assistance to Somalia, including regional authorities, and nearby coastal States,â as it did in operative paragraph 5 of Resolution 1897. The Council should have done more in this regard.
With regard to enforcement of the arms embargo, the Council took only a small step by including a reference in operative paragraph 3 on cooperation with the Monitoring Group, âincluding on information sharing regarding possible arms embargo violations.â No specific authority was extended to the cooperating naval forces to enforce the arms embargo.
Similarly, the Council provided no new authorities to the cooperating naval forces regarding the multiple powerful outboard engines used on the skiffs that would have provided more specificity to the phrase âother related equipmentâ in operative paragraph 4 of Resolution 1950, which remains unchanged from the corresponding operative paragraph 3 of Resolution 1897. Likewise, there is no mention in Resolution 1950 of aerial surveillance of the piratesâ base camps.
Operative paragraph 19 of Resolution 1950 repeats the Councilâs encouragement of States Parties to the Law of the Sea Convention and the SUA Convention âto fully implement their relevant obligations,â and repeats in operative paragraph 12 a call to all States âto criminalize piracy under their domestic lawsâ as stated in operative paragraph 2 of Resolution 1918.
With regard to ransom payments, Resolution 1950 usefully adds three new operative paragraphs:
â¢ â15. Urges all States to take appropriate actions under their existing domestic law to prevent the illicit financing of acts of piracy and the laundering of its proceeds;
â¢ â16. Urges States, in cooperation with INTERPOL and Europol, to further investigate international criminal networks involved in piracy off the coast of Somalia, including those responsible for illicit financing and facilitation;
â¢ â17. Stresses in this context the need to support the investigation and prosecution of those who illicitly finance, plan, organize, or unlawfully profit from pirate attacks off the coast of Somaliaâ.
In addition to renewing its call for enhanced prosecutions, operative paragraph 12 of Resolution 1950 now usefully includes a specific reference to âanyone who incites or facilitates an act of piracy,â language that draws upon subparagraph (c) of the definition of piracy in Article 101 of the Law of the Sea Convention.
With regard to the possible ambiguity mentioned above regarding TFG authorizations, the resolution made no substantive change in operative paragraph 8 to the wording in paragraph 8 of Resolution 1897. Resolution 1950 makes no reference to the expiration of the TFGâs authority in August 2011.
Finally, Resolution 1950 takes note of the various developments that have occurred in the past twelve months in an effort to suppress piracy off the coast of Somalia.
On balance, Resolution 1950 is an incremental improvement of Resolution 1897.
- Next Steps for the IMO, DOALOS, and UNODC
Two of the IMOâs main committees have piracy on their agenda for their next meetings in mid- and late-November.
The Legal Committee has recently considered a review of national piracy legislation conducted by the IMO, the UN Office on Drugs and Crime (âUNODCâ), and the UN Legal Officeâs Division of Ocean Affairs and Law of the Sea (âDOALOSâ). DOALOS has recently added information about piracy to its website, including national piracy legislation. The legislation of thirty-one States is currently included. All States should be encouraged by the IMO and the Security Council to review and update their legislation, taking advantage of the UNODC and IMO offers of assistance where necessary.
The Maritime Safety Committee will consider a number of submissions from Member States, industry groups, and the IMO Secretariat. Many of these submissions provide information on efforts by the Contact Group on Piracy off the Coast of Somalia and by industry to support investigation and prosecution of piracy suspects, as well as on-board defensive measures and post-piracy care for seafarers. These submissions are likely to be received favorably by the Committee.
Efforts to enhance further prosecutions of pirates will not be sufficient to suppress piracy off the coast of Somalia. Given the vast area of the Indian Ocean in which pirates are now operating, steps must be taken to reduce the quantity of arms and paraphernalia available to pirates in Somalia, as well as the opportunities for pirates to leave their âdensâ in Somali ports (on âmothershipsâ) and shoreline bases (on skiffs). The suggestions above are, for the most part, proposed to meet these objectives.
About the Author:
Captain J. Ashley Roach, JAGC, USN (ret.), a thirty-year ASIL member, retired from the Office of the Legal Adviser, U.S. Department of State, in January 2009. The views expressed herein are his own and are not intended to reflect the views of any department or agency of the U.S. government. This Insight reflects developments through November 23, 2010.
 J. Ashley Roach, Agora: Piracy ProsecutionsâCountering Piracy off Somalia: International Law and International Institutions, 104 Am. J. Intâl L. 397 (2010).
 S.C. Res. 1950, U.N. Doc. S/RES/1950 (Nov. 23, 2010), available at http://www.un.org/News/Press/docs/2010/sc10092.doc.htm [hereinafter Resolution 1950]. The resolution was co-sponsored by all members of the Council, plus Canada, Denmark, Germany, Greece, Norway, Somalia, and Ukraine. The resolution was adopted without debate.
 U.N. Security Council, Report of the Secretary-General on Possible Options to Further the Aim of Prosecuting and Imprisoning Persons Responsible for Acts of Piracy and Armed Robbery at Sea Off the Coast of Somalia, Including, in Particular, Options for Creating Special Domestic Chambers Possibly with International Components, a Regional Tribunal or an International Tribunal and Corresponding Imprisonment Arrangements, Taking into Account the Work of the Contact Group on Piracy off the Coast of Somalia, the Existing Practice in Establishing International and Mixed Tribunals, and the Time and Resources Necessary to Achieve and Sustain Substantive Results, S/2010/394 (July 26, 2010), available at http://www.un.org/Docs/journal/asp/ws.asp?m=S/2010/394. This report was prepared pursuant to the Councilâs request in S.C. Res. 1918, Â¶ 4, U.N. Doc. S/Res/1918 (Apr. 27, 2010), available at http://www.un.org/Docs/sc/unsc_resolutions10.htm [hereinafter Resolution 1918].
 U.N. Secretary-General, Report of the Secretary-General on Somalia, U.N. Doc. S/2010/447 (Sept. 9, 2010), and id., Report of the Secretary-General pursuant to Security Council Resolution 1897 (2009), U.N. Doc. S/2010/556 (Oct. 27, 2010), available at http://www.un.org/Docs/sc/sgrep10.htm.
 Security Council, 6374th Meeting, U.N. Doc. S/PV.6374 (Aug. 25, 2010), available at http://www.un.org/Depts/dhl/resguide/scact2010.htm. Early in the meeting, the Councilâs President read a statement, which, after welcoming the appointment of the Special Adviser, included the Councilâs request that the Secretary-Generalâs report include âany new information and observations . . . on possible ways to advance the ongoing cooperation . . . in prosecuting and imprisoning persons responsible for acts of piracy ad armed robbery at sea off the coast of Somalia.â U.N. Security Council, Statement by the President of the Security Council, U.N. Doc. S/PRST/2010/16 (Aug. 25, 2010).
 U.N. Secretary-General, Secretary-General Appoints Jack Lang of France Special Adviser on Legal Issues Related to Piracy off Coast of Somalia, U.N. Doc. SG/A/1260-BIO/4230-L/3162 (Aug. 26, 2010), available at http://www.un.org/News/Press/docs/2010/sga1260.doc.htm.
Statement of Lynn Pascoe, U.N. Under-Secretary-General for Political Affairs, U.N. Security Council, 6417th Meeting, U.N. Doc. S/PV.6417, at 3 (Nov. 9, 2010), available at http://www.un.org/Depts/dhl/resguide/scact2010.htm.
 Jeff Davis, Kenya Cancels Piracy Trial Deals, Daily Nation, Sept. 30, 2010, available at http://www.nation.co.ke/News/Kenya%20cancels%20piracy%20trial%20deals/-/1056/1021740/-/u7eds2z/-/. It appears Kenya is still willing to accept suspected pirates on a case-by-case basis. Celestyne Achieng, Kenya Takes in More Piracy Suspects from U.S. Navy, Reuters, Oct. 12, 2010, available at http://af.reuters.com/article/tanzaniaNews/idAFLDE69B1Y920101012.
 Walter Menya, Why Kenya Broke Deal on Piracy Trials, Daily Nation, Oct. 9, 2010, available at http://www.nation.co.ke/News/Why%20Kenya%20broke%20deal%20on%20piracy%20trials%20/-/1056/1029504/-/sq0txdz/-/index.html.
 The U.N. Office on Drugs and Crime (UNODC) website details what the UNODC has been doing to counter piracy off Africa. See, e.g., Eastern Africa: What Are We Doing?, UNODC, http://www.unodc.org/easternafrica/en/piracy/ongoing-activities.html; Counter Piracy Programme, UNODC (Nov. 2009), http://www.unodc.org/documents/easternafrica//piracy/UNODC_Counter_Piracy_Programme.pdf.
 Judgment, Republic v. Chief Magistrateâs Court, Mombasa & Attorney General, Misc. App. No. 434 of 2009, High Court of Kenya, Mombasa (Nov. 9, 2010) (copy on file with author).
 S.C. Res. 733, U.N. Doc. S/Res/733 (Jan. 23, 1992), available at http://www.un.org/documents/sc/res/1992/scres92.htm.
 See Resolution 1897, supra note 3, Â¶ 2; U.N. Security Council, Report of the Monitoring Group on Somalia Pursuant to Security Council Resolution 1811 (2008), at 55, U.N. Doc. S/2008/769 (Dec. 10, 2008), available at http://www.un.org/Docs/journal/asp/ws.asp?m=S/2008/769.
 See Asset Recovery Knowledge Center, Basel Institute on Governance, www.assetrecovery.org [hereinafter Asset Recovery]; Chatham House, Piracy and Legal Issues: Reconciling Public and Private Interests, 16-17 (Oct. 1, 2009), available at http://www.chathamhouse.org.uk/files/15221_011009piracy_law.pdf [hereinafter Chatham House]. For details on U.S. efforts toward disrupting pirate revenue, see U.S. Government Accountability Office, Maritime Security: Actions Needed to Assess and Update Plan and Enhance Collaboration among Partners Involved in Countering Piracy off the Horn of Africa, 67-68 GAO-10-856 (Sept. 2010), available at http://www.gao.gov/cgi-bin/getrpt?GAO-10-856.
 Resolution 1897 merely acknowledges the problem and calls upon States and the International Maritime Organization to provide technical assistance to Somalia and nearby coastal States to enhance their capacity to ensure coastal and maritime security. Resolution 1897, supra note 3, Â¶ 5.
 Memorandum Opinion and Order, United States v. Said, No. 2:10cr57, (E.D. Va. Aug. 17, 2010), available at http://www.brymar-consulting.com/wp-content/uploads/piracy/Piracy_100817.pdf. It is beyond the scope of this Insight to explore the many difficulties with this decision, which have been the subject of several insightful commentaries on the web. See Douglas Guilfoyle, Prosecuting Pirates in National Courts: US v Said and Piracy under US Law, EJIL: Talk! (Aug. 23, 2010), http://www.ejiltalk.org/prosecuting-pirates-in-national-courts-us-v-said-and-piracy-under-us-law/; David Glazier, How to Define Piracy (Contâd): A Critique of U.S. v. Said, Opinio Juris (Aug. 18, 2010, 7:45 AM), http://opiniojuris.org/2010/08/18/ how-to-define-piracy-contd-a-critique-of-us-v-said/; Eugene Kantorovich, Piracy Charges Dismissed by Federal Judge, Volokh Conspiracy (Aug. 17, 2010, 7:55 PM), http://volokh.com/2010/08/17/ piracy-charges-dismissed-by-federal-judge/?utm_source=feedburner&utm_medium =feed&utm_campaign=Feed%3A+volokh%2Fmainfeed+%28The+Volokh+Conspiracy%29&utm_content=Google+Reader.
 U.S. Const. art. VI, Â§ 2.
 See Roach, supra note 1, at 402. The United States has appealed this decision to the Fourth Circuit. United States v. Said et al., No. 10-4970 (4th Cir. Sept. 10, 2010).
 Opinion and Order, United States v. Hasan, No. 2:10cr56, (E.D. Va. Oct. 29, 2010), available at http://www.brymar-consulting.com/wp-content/uploads/piracy/US_v_Hasan.pdf; Landmark Somali âPirateâ Trial in US to Last Three Weeks, AFP, Nov. 11, 2010, available at http://www.google.com/hostednews/afp/article/ ALeqM5hzCkusNA68XrFwMYzVGoAe1u6u8A?docId= CNG.c475d315dd94dc3d274371ac27c49236.951. For a critical comparison of the opinions in Said and Hasan, see H. Alan Black, III, Pirates Win 1, Lose 1 in Virginia Split Doubleheader, Maritime Law Association of the United States Marine Ecology and Maritime Criminal Law Committee [MLAUS], at 6-10 (Nov. 2010), available at http://mlaus.org/memberportal/uploadedFiles/ 210_Bilge%20&%20Barratry%20Vol.%201,%20Issue%202%20November%202010.pdf. The declaration filed in the Hasan case on the customary international law of piracy by Legal Adviser Harold Koh, referred to in Mr. Blackâs article, is available at http://www.oceanlaw.org/downloads/articles/Harold_Koh_Declaration-Piracy2010.pdf.
 African Union Peace and Security Council, CommuniquÃ© of the 245th Meeting of the Peace and Security Council, Â¶ 9, PSC/MIN/1(CCXXXXV) (Oct. 15, 2010), available at http://www.amisom-au.org/uploads/Final_communique_on_Somalia_Eng.pdf.
 The Monitoring Group on Somalia earlier this year recommended that the âSecurity Council authorize international naval forces in the Gulf of Aden and the Indian Ocean . . . to seize any weapons encountered in the course of their operations and to actively interdict arms trafficking in accordance with their capabilities.â U.N. Security Council, Report of the Monitoring Group on Somalia Pursuant to Security Council Resolution 1853 (2008), Â¶ 279(e), U.N. Doc. S/2010/91 (Mar. 10, 2010), available at http://www.un.org/Docs/journal/asp/ws.asp?m=S/2010/91.
 Intâl Expert Group on Piracy off the Somali Coast, Piracy off the Somali Coast (Workshop Commissioned by the Special Representative of the Secretary General of the UN to Somalia Ambassador Ahmedou Ould-Abdallah) Final Report: Assessment and Recommendations, at 42 (Nov. 21, 2008), available at http://www.imcsnet.org/imcs/docs/somalia_piracy_intl_experts_report_consolidated.pdf.
 On October 21, 2010, at the 6407th meeting of the Security Council, with the situation in Somalia on its agenda, the Commissioner for Peace and Security of the African Union Commission reported the following request to the Council set out in the communiquÃ© of the 245th meeting of the African Union Peace and Security Council, Oct. 15, 2010, supra note 21, Â¶ 15, which called on the Security Council to impose, âin response to the request by the AU and the region, a naval blockade and a no-fly zone over Somalia to prevent the entry of foreign elements into Somalia, as well as flights and shipments carrying weapons and ammunitions to armed groups inside Somalia which are carrying out attacks against the TFG, AMISON and the Somali population . . . .â U.N. Security Council, 6407th Meeting, U.N. Doc. S/PV.6407, at 5 (Oct. 21, 2010), available at http://daccess-dds-ny.un.org/doc/UNDOC/PRO/N10/595/78/PDF/N1059578.pdf?OpenElement [hereinafter 6407th Meeting]. Earlier, at the 6386th meeting of the Council on September 16, 2010, the Kenyan Foreign Minister called for a blockade of the southern Somalia port of Kismaayo. U.N. Security Council, 6386th Meeting, U.N. Doc. S/PV.6386, at 7 (Sept. 16, 2010), available at http://daccess-dds-ny.un.org/doc/UNDOC/PRO/N10/536/41/PDF/N1053641.pdf?OpenElement. This was after the Secretary-Generalâs new Special Representative for Somalia called attention to the illicit trade at Kismaayo. Id. at 3. See also NATO Frustrated, supra note 24.
 Resolution 1918 â[c]alls on all States, including States in the region, to criminalize piracy under their domestic law. . . .â Resolution 1918, supra note 4, Â¶ 2. Resolution 1897 â[u]rges States parties to the [Law of the Sea] Convention and the SUA Convention to fully implement their relevant obligations under these Conventions and customary international law. . . .â Resolution 1897, supra note 3, Â¶ 14
 See Asset Recovery, supra note 15; Chatham House, supra note 15.
 Working Group 2 of the Contact Group on Piracy off the Coast of Somalia has developed a âlegal toolboxâ to facilitate that cooperation. See Intâl Mar. Org. [IMO], IMO Doc. MSC 88/18/4 (Sept. 20, 2010); and IMO Doc. MSC 88/INF.10 (Sept. 20, 2010).
 Resolution 1897 renews the authorizations âas set out in paragraph 10 of Resolution 1846 (2008) and paragraph 6 of Resolution 1851 (2008) granted to States and regional organizations cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advanced notification has been provided by the TFG to the Secretary-General.â Resolution 1897, supra note 3, Â¶ 7 (emphasis added).
 The mandate of the Transitional Federal Institutions of Somalia, including the TFG, expires on August 20, 2011. 6407th Meeting, supra note 26, at 5 (remarks of Ramtane Lamamara, Commâr for Peace and Security of the African Union Commân).
 The 97th meeting of the Legal Committee was held November 15-19, 2010, and the 88th meeting of the Maritime Safety Committee is scheduled for November 24-December 3, 2010. See International Maritime Organization, www.imo.org (last visited Oct. 29, 2010).
 See Intâl Mar. Org. [IMO], Draft Report of the Legal Committee on the Work of its Ninety-seventh Session, Â¶ 9, IMO Doc. LEG 97/WP.5 (Nov. 18, 2010).
 See IMO, Piracy: Review of National Legislation, Â¶ 10, IMO Doc. LEG 97/9 (Sept. 10, 2010), available at http://www.amtcc.com/imosite/meetings/IMOMeeting2010/LEG97/LEG%2097-9.pdf (âPursuant to the Djibouti Code of Conduct article 11, work is being undertaken by the IMO Counter Piracy Project Implementation Unit to assist the Participants to the Code to review their national legislation with a view to ensuring that national laws are in place to criminalize piracy and armed robbery against ships . . .â); Eastern Africa: Donors and Partners, UNODC, http://www.unodc.org/easternafrica/en/piracy/donors-and-partners.html.
 The IMO Council is considering how to improve public access to IMO documents. The revised public IMO website reflects some of these developments. See International Maritime Organization, http://www.imo.org (last visited Oct. 29, 2010). In addition, the U.S. Coast Guard provides public access to some IMO documents. See U.S. Coast Guard: International Maritime Organization Homepage (Oct. 19, 2010), http://www.uscg.mil/imo/.