The UN Security Council (UNSC) has authorised member states to pursue Somali pirates ashore in order to bring them to justice. The UNSC unanimously made the decision overnight on Tuesday.
The UNSC also authorised the introduction of so-called “shipriders” and the establishment of a nodal point to collate and exchange information related to piracy and the fight against piracy off the Horn of Africa.
The UN body says in a press release that for “the next year, states and regional organisations cooperating in the fight against piracy and armed robbery at sea off Somalia`s coast [can] undertake all necessary measures ‘appropriate in Somalia`, to interdict those using Somali territory to plan, facilitate or undertake such acts”.
The UNSC earlier this month called on all states and organisations “able to do so” to actively participate in defeating piracy and armed robbery off Somalia`s coast.
Its Resolution 1846 of 2008 authorised the deployment of naval vessels and military aircraft as well as the “seizure and disposition of boats and arms used in the commission of” piracy and armed robbery following a request from Somalia`s weak but UN-backed Transitional Federal Government (TFG) for international assistance to counter the scourge.
The UNSC Tuesday adopted Resolution 1851 of 2008 (see full text below) “inviting” member states and regional organisations to now “conclude special agreements or arrangements with countries willing to take custody of pirates in order to embark law enforcement officials, known as ‘shipriders`, from the latter countries to facilitate the investigation and prosecution of persons detained as a result of operations conducted under this resolution”.
The resolution said the UNSC continued to “be gravely concerned by the dramatic increase in the incidents of piracy and armed robbery at sea off the coast of Somalia in the last six months” and added that “pirate attacks off the coast of Somalia have become more sophisticated and daring and have expanded in their geographic scope, notably evidenced by the hijacking of the M/V Sirius Star 500 nautical miles off the coast of Kenya and subsequent unsuccessful attempts well east of Tanzania.
In a related provision, the UNSC also “encouraged” member states and regional organisations “to establish an international cooperation mechanism to act as a common point of contact among them on all aspects of that fight.”
The UNSC, however, made it clear the measures only apply to “the situation in Somalia” and does “not affect the rights or obligations or responsibilities of member states under international law, including under the United Nations Convention on the Law of the Sea, with respect to any other situation”.
It further “underscored that the resolution did not establish customary international law.”
Following the adoption of the resolution, UN Secretary General Ban Ki-Moon briefed the Council on the political and security situation in Somalia, noting that there was now “a credible political process under way” in neighbouring Djibouti.
Ban says the responsibility to bring peace and stability to the country rest with the Somalis themselves, but the continued feuding within the TFG and the recent division between the President and Prime Minister could jeopardize the peace process and affect the functioning and stability of the Transitional Federal Government.
At the same time, he urged the armed groups in Somalia that had cited Ethiopia`s withdrawal as a condition for ending the fighting to now lay down their weapons and join the Djibouti process.
He says Ethiopia`s letter to him on 25 November confirming that it planned to withdraw its troops from Somalia by the end of this month was consistent with the Djibouti Agreement, “but that could easily lead to chaos”.
Regarding the humanitarian situation, he said access remained severely restricted, and the level of insecurity for humanitarian workers and the local civilian population was unacceptably high.
During this year alone, an estimated 250 000 people had been displaced from Mogadishu. The overall number of internally displaced persons stood at 1.3 million and an average of 5,000 Somali refugees arrived monthly in the refugee camps in Kenya.
The number in need of assistance and livelihood support in Somalia stood at 3.2 million.
The UN chief is further deeply concerned about the direct targeting of aid workers and United Nations staff, which had led to the death of four United Nations staff between September and December.
Ban said he shared “the deep concern of member states at the escalation of piracy and armed robbery off Somalia`s coast”. He added that he was particularly impressed “by the actions of member states and international organisations” such as the North Atlantic Treaty Organisation and the European Union “to pool their efforts and resources to fight that scourge”.
However, he said that “everyone must be mindful that piracy was a symptom of the state of anarchy that had persisted in Somalia for more than 17 years.
“Antipiracy efforts, therefore, must be placed in the context of a comprehensive approach that fostered an inclusive peace process in Somalia and assisted the parties to rebuild security, governance capacity, addressed human rights issues and harnessed economic opportunities throughout the country”.
He appealed to Somalia`s people and leaders “to give peace a chance” and put the 17 years of war behind them. He also urged the international community “to send a positive signal … to the Somali people and the African Union that it was willing to provide a security path that would complement the political compromises reached through the Djibouti process,” adding “we must act before it is too late”.
Turning to security arrangements, Ban stressed that the most appropriate response to the complex security challenges in Somalia was a multinational force, rather than a “typical” peacekeeping operation.
Such a force should have the full military capabilities required to support the cessation of armed confrontation to stabilize Mogadishu and to defend itself.
Ban says he has approached 50 countries and three international organizations to request contributions for such a force. “The response has not been encouraging; no member state has offered to play the lead nation role.”
In the absence of adequate pledges for a multinational force, he said he intended to propose to the Council three concrete measures that would provide the necessary security arrangements in support of the Djibouti process. If successful, those would pave the way for the deployment of a United Nations peacekeeping operation, in keeping with resolution 1814 (2008).
· First, the African Union should be provided with “substantial and credible” resources to reinforce AMISOM, including the means to deploy the additional battalions pledged by Uganda and Burundi. He also suggested that all resources pledged for a multinational force be redirected to AMISOM, if a multinational force did not materialise. Financing it would be a major concern, and creative approaches to mobilize the needed funds would have to be explored. As the United Nations Mission in Ethiopia and Eritrea (UNMEE) was being liquidated, assets that could be donated to AMISOM had already been identified, with the General Assembly`s approval.
· Second, the Council should consider ways to build the capacity of Somali parties themselves to restore security, import the Djibouti talks into Somalia and carry forward the peace process, he continued. That could include the provision of training — through international partners — for the joint TFG/ Alliance for the Reliberation of Somalia forces established by the Djibouti Agreement, as well as capacity-building for the police, judicial and corrections sectors. Such efforts would be conducted under an overall security sector reform strategy, which could be nationally owned, with the United Nations assuming a coordinating role.
· Finally, he said, the Council could explore the possibility of establishing a maritime task force, or adding to the current anti-piracy operations a quick reaction component. That would have the capability to launch operations in Somalia in support of United Nations Political Office in Somalia (UNPOS) activities and AMISOM operations.
Ban says the objective is to stabilise Somalia and find a durable solution to the crisis in that country.
He noted that some UNSC members had other suggestions for dealing with the security crisis, including putting AMISOM forces under a UN peacekeeping operation now.
That was not his preferred option.
He was of the view that strengthening AMISOM through, among other things, the provision of financing, logistical support, necessary training and equipment and other reinforcements, facilitated by the UN and member states, was the realistic option at present.
At the same time, he was continuing contingency planning for the deployment of a full-fledged United Nations peacekeeping operation at the appropriate time and under the right conditions, as requested by the Council. He would soon provide a detailed report to the Council covering those proposals.
TFG foreign minister Ali Ahmed Jama said his country had no capacity to interdict or patrol its long coastline to ensure the security of the sea, which is why it supported the international effort and Resolution 1851.
Jama said a “robust peacekeeping operation” was the most effective way to deal with piracy at sea and anarchy on land and despite Ban`s comments he urged the council to “take immediate measures” to upgrade AMISOM to a UN mission, a measure supported by US Secretary of State Condoleezza Rice, who had sponsored Resolution 1851. The UN will meet Monday to review the AMISOM mandate.
Yemen`s Abdullah Alsaidi said a consultative meeting of Arab States in Cairo on 29 November – under the joint presidency of Yemen and Egypt – had affirmed that the security of the Red Sea and the Gulf of Aden was the responsibility of the adjacent coastal states.
He added that the establishment in Yemen of a regional centre for exchanging information on piracy and for mobilizing material support could contribute to the coordination of regional and international efforts in that regard.
Maged Abdelaziz, Egypt`s ambassador to the UN, said the Cairo meeting had confirmed two facts: that there were no pirate activities in the Red Sea, due to the capacity of coastal countries to secure their shores; and that Arab countries bordering the Red Sea had the will to coordinate their efforts to secure the navigation in that body of water, especially given their concern at the escalation of piracy in the southern portion of the Red Sea, which is linked to the Indian Ocean by the Gulf of Aden.
Rice asserted that the root of the piracy problem was “the poverty and lawlessness that has plagued Somalia for decades,” a point made by every other speaker, including South African Ambassador Dumisani Kumalo.
The Djibouti process has helped somewhat, Rice said, but the deteriorating security and humanitarian situation on the ground was threatening that progress daily.
The US, she said believes “that the time had come for the United Nations to consider and authorise a peacekeeping operation”. The US would therefore “continue to raise in consultations the need for a peacekeeping force, in accordance with the African Union`s request”.
“Once peace and normalcy had returned to Somalia, Somalis could start down the path to development. Offering them an alternative to piracy and armed robbery was the best course of action”.
But French ambassador Jean-Marie Rippert says “a classic United Nations peacekeeping operation” will not be possible in the country. Support to AMISOM was a better option and he suggested the establishment of a trust fund for that purpose, as well as for the security efforts of the TFG.
Turning to piracy, Rice said Resolution 1851 would address several shortcomings that have resulted in the sum of the effort to fight the scourge resulting in less than the sum of its parts.
The US envisions a “contact group” that will serve as a mechanism to share intelligence, coordinate activities “and reach out to partners”.
Rice also wants to limit the impunity pirates enjoy: “piracy currently pays, and pirates pay little for their criminality”.
She says the US believes that, with the agreement of the TFG pursuing pirates on land will have a significant impact. “Maritime operations alone are insufficient for combating piracy”.
British foreign secretary David Miliband agreed that the authorisation conferred by paragraph 6 to move the fight on land “was an important additional tool to combat piracy”.
“Any use of force, however, must be both necessary and proportionate,” he added.
SA`s Kumalo, who voted for the resolution, said there was a danger that innocent Somalis could fall victim to those operations.
Russian foreign minister Sergey Lavrov said twenty-first century pirates were well organised and equipped; their actions were “increasingly bold and their demands outrageous”. Lavrov added that security of shipping was of the utmost importance for the Russian Federation.
The Russian Navy had become involved in the antipiracy effort under Resolution 1816 and “more than 30 Russian and foreign ships had recently been involved in thwarting several attacks”.
Chinese foreign vice minister He Yafei said his country has been a victim of the piracy, with six vessels attacked. “Piracy was threatening international peace and security,” he said. He added that China is considering sending warships to contribute to the fight in the near future.
Belgian ambassador Jan Grauls added his country will also be sending a warship, as did Swedish ambassador Anders Liden and Norwegian foreign minister Jonas Gahr Støre. He noted that around 1000 Norwegian ships passed through the Gulf of Aden every year. Norway is also open to requests for technical assistance to strengthen national capacity in the region to combat piracy.
Støre also noted that the more ships arrived to participate in naval operations, the greater the need for organisation and coordination.
Liden was also concerned about smuggling in the area, saying there has been a steady wave of refugees trying to cross the Gulf of Aden from Somalia to Yemen this year. It is a dangerous and often lethal passage, he says, yet over 19 000 Somalis had risked it.
“We need to support the Somalis in recreating a functioning society that can uphold the rule of law and respect for human rights, and where young Somalis will have true opportunities, more attractive than to become criminals or refugees”, he said. The alternative would risk entrenching Somalia as a recruiting ground and safe haven for criminality and terrorism.
Danish ambassador Carsten Staur said the question of judicial infrastructure should now be a major focus of the international community`s attention
Danish naval forces had recently detained a number of suspected pirates in international waters, but, because it was impossible to prosecute the suspects in Denmark or any other State, the detainees had eventually been released.
In the long term, there might be a need to examine the possibility of bringing suspected pirates before an international tribunal, but more practical solutions were necessary in the short term.
In that respect, it was particularly important to conclude regional and bilateral agreements on the extradition and prosecution of pirate detainees.
New and innovative approaches should also be considered, such as Denmark`s suggestion to establish a team of experts to help ensure the prosecution of pirates detained at sea.
The Security Council,
Recalling its previous resolutions concerning the situation in Somalia, especially resolutions 1814 (2008), 1816 (2008), 1838 (2008), 1844 (2008), and 1846 (2008),
Continuing to be gravely concerned by the dramatic increase in the incidents of piracy and armed robbery at sea off the coast of Somalia in the last six months, and by the threat that piracy and armed robbery at sea against vessels pose to the prompt, safe and effective delivery of humanitarian aid to Somalia, and noting that pirate attacks off the coast of Somalia have become more sophisticated and daring and have expanded in their geographic scope, notably evidenced by the hijacking of the M/V Sirius Star 500 nautical miles off the coast of Kenya and subsequent unsuccessful attempts well east of Tanzania,
Reaffirming its respect for the sovereignty, territorial integrity, political independence and unity of Somalia, including Somalia`s rights with respect to offshore natural resources, including fisheries, in accordance with international law,
Further reaffirming that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities,
Again taking into account the crisis situation in Somalia, and the lack of capacity of the Transitional Federal Government (TFG) to interdict, or upon interdiction to prosecute pirates or to patrol and secure the waters off the coast of Somalia, including the international sea lanes and Somalia`s territorial waters,
Noting the several requests from the TFG for international assistance to counter piracy off its coast, including the letter of 9 December 2008 from the President of Somalia requesting the international community to assist the TFG in taking all necessary measures to interdict those who use Somali territory and airspace to plan, facilitate or undertake acts of piracy and armed robbery at sea, and the 1 September 2008 letter from the President of Somalia to the Secretary-General of the UN expressing the appreciation of the TFG to the Security Council for its assistance and expressing the TFG`s willingness to consider working with other States and regional organizations to combat piracy and armed robbery off the coast of Somalia,
Welcoming the launching of the EU operation Atalanta to combat piracy off the coast of Somalia and to protect vulnerable ships bound for Somalia, as well as the efforts by the North Atlantic Treaty Organization, and other States acting in a national capacity in cooperation with the TFG to suppress piracy off the coast of Somalia,
Also welcoming the recent initiatives of the Governments of Egypt, Kenya, and the Secretary-General`s Special Representative for Somalia, and the United Nations Office on Drugs and Crime (UNODC) to achieve effective measures to remedy the causes, capabilities, and incidents of piracy and armed robbery off the coast of Somalia, and emphasizing the need for current and future counter-piracy operations to effectively coordinate their activities,
Noting with concern that the lack of capacity, domestic legislation, and clarity about how to dispose of pirates after their capture, has hindered more robust international action against the pirates off the coast of Somalia and in some cases led to pirates being released without facing justice, and reiterating that the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (“SUA Convention”) provides for parties to create criminal offences, establish jurisdiction, and accept delivery of persons responsible for or suspected of seizing or exercising control over a ship by force or threat thereof or any other form of intimidation,
Welcoming the report of the Monitoring Group on Somalia of 20 November 2008 (S/2008/769), and noting the role piracy may play in financing embargo violations by armed groups,
Determining that the incidents of piracy and armed robbery at sea in the waters off the coast of Somalia exacerbate the situation in Somalia which continues to constitute a threat to international peace and security in the region,
Acting under Chapter VII of the Charter of the United Nations,
1. Reiterates that it condemns and deplores all acts of piracy and armed robbery against vessels in waters off the coast of Somalia;
2. Calls upon States, regional and international organizations that have the capacity to do so, to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with this resolution, resolution 1846 (2008), and international law, by deploying naval vessels and military aircraft and through seizure and disposition of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery at sea off the coast of Somalia, or for which there are reasonable grounds for suspecting such use;
3. Invites all States and regional organizations fighting piracy off the coast of Somalia to conclude special agreements or arrangements with countries willing to take custody of pirates in order to embark law enforcement officials (“shipriders”) from the latter countries, in particular countries in the region, to facilitate the investigation and prosecution of persons detained as a result of operations conducted under this resolution for acts of piracy and armed robbery at sea off the coast of Somalia, provided that the advance consent of the TFG is obtained for the exercise of third state jurisdiction by shipriders in Somali territorial waters and that such agreements or arrangements do not prejudice the effective implementation of the SUA Convention;
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; and recalls that future recommendations on ways to ensure the long-term security of international navigation off the coast of Somalia, including the long-term security of WFP maritime deliveries to Somalia and a possible coordination and leadership role for the United Nations in this regard to rally Member States and regional organizations to counter piracy and armed robbery at sea off the coast of Somalia are to be detailed in a report by the Secretary-General no later than three months after the adoption of resolution 1846;
5. Further encourages all states and regional organizations fighting piracy and armed robbery at sea off the coast of Somalia to consider creating a centre in the region to coordinate information relevant to piracy and armed robbery at sea off the coast of Somalia, to increase regional capacity with assistance of UNODC to arrange effective shiprider agreements or arrangements consistent with UNCLOS and to implement the SUA Convention, the United Nations Convention against Transnational Organized Crime and other relevant instruments to which States in the region are party, in order to effectively investigate and prosecute piracy and armed robbery at sea offences;
6. In response to the letter from the TFG of 9 December 2008, encourages Member States to continue to cooperate with the TFG in the fight against piracy and armed robbery at sea, notes the primary role of the TFG in rooting out piracy and armed robbery at sea, and decides that for a period of twelve months from the date of adoption of resolution 1846, States and regional organizations cooperating 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 undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea, pursuant to the request of the TFG, provided, however, that any measures undertaken pursuant to the authority of this paragraph shall be undertaken consistent with applicable international humanitarian and human rights law;
7. Calls on Member States to assist the TFG, at its request and with notification to the Secretary-General, to strengthen its operational capacity to bring to justice those who are using Somali territory to plan, facilitate or undertake criminal acts of piracy and armed robbery at sea, and stresses that any measures undertaken pursuant to this paragraph shall be consistent with applicable international human rights law;
8. Welcomes the communiqué issued by the International Conference on Piracy around Somalia held in Nairobi, Kenya, on 11 December 2008 and encourages Member States to work to enhance the capacity of relevant states in the region to combat piracy, including judicial capacity;
9. Notes with concern the findings contained in the 20 November 2008 report of the Monitoring Group on Somalia that escalating ransom payments are fuelling the growth of piracy in waters off the coast of Somalia, and that the lack of enforcement of the arms embargo established by resolution 733 (1992) has permitted ready access to the arms and ammunition used by the pirates and driven in part the phenomenal growth in piracy;
10. Affirms that the authorization provided in this resolution apply 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 UNCLOS, with respect to any other situation, and underscores in particular that this resolution shall not be considered as establishing customary international law, and affirms further that such authorizations have been provided only following the receipt of the 9 December 2008 letter conveying the consent of the TFG;
11. Affirms that the measures imposed by paragraph 5 of resolution 733 (1992) and further elaborated upon by paragraphs 1 and 2 or resolution 1425 (2002) shall not apply to weapons and military equipment destined for the sole use of Member States and regional organizations undertaking measures in accordance with paragraph 6 above;
12. Urges States in collaboration with the shipping and insurance industries, and the IMO to continue to develop avoidance, evasion, and defensive best practices and advisories to take when under attack or when sailing in waters off the coast of Somalia, and further urges States to make their citizens and vessels available for forensic investigation as appropriate at the first port of call immediately following an act or attempted act of piracy or armed robbery at sea or release from captivity;
13. Decides to remain seized of the matter.”