Content downloaded/printed from HeinOnline (http://heinonline.org) Wed Nov 6 03:36:58 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0042-6571
50TH ANNIVERSARY COMMEMORATIVE ESSAY
Somalia: State Failure, Piracy, and the Challenge to International Law
MARIO SILVA*
Introduction .......................................................................................... I. T he Failed State ......................................................................... A . In General ........................................................................ B. Case Study: Somalia ........................................................ 1. Political Instability in Somalia ............................. 2. Economic Instability in Somalia .......................... 3. Humanitarian Challenges and Societal Instability in Somalia ............................................ II. P iracy ......................................................................................... A . In General ........................................................................ B. International Treaties and International Actions to Halt P iracy ............................................................................... 1. Actions Taken by the United Nations .................. 2. Other Actions Taken by the International C ommunity ........................................................... C. Challenges to Anti-Piracy Actions .................................. Conclusion ...........................................................................................
* National University of Ireland, Galway, PhD Candidate; Oxford, M.St. (International Law); University of Toronto, B.A. (with Honors); La Sorbonne, Certificat Pratique de Langue Franqaise. The views expressed in this Essay are those of the writer. The writer wishes to express his thanks to Professor Errol Mendes (University of Ottawa) and Professor William Schabas (NUI Galway) for their helpful comments in reviewing earlier drafts of this Essay.
554
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
[Pliracyis a symptom of the state of anarchy which has persisted in [Somalia]for over 17 years. -UN Secretary-General Ban Ki-moon, December, 20081
INTRODUCTION
The notion of the state as the ultimate authority in the international system is a widely held belief and is directly linked to the principle of state sovereignty.2 The inability of a state, however, to maintain effective control and provide security for its citizens creates a serious dilemma for the international system and its desire to respect state sovereignty. In Somalia the failure of the state to provide good governance, security, and respect for the rule of law is at the very heart of the country's endemic conflict. These inabilities, in turn, have fuelled piracy and provided a breeding ground for terrorist activity. It is a long-held principle of international law that each state has the right to conduct its domestic affairs without interference from any other state.3 The 1933 Montevideo Convention on the Rights and Duties of States identifies some of the fundamental legal characteristics of a state. 4 These legal characteristics include: a permanent population; a defined territory; and a government capable of maintaining effective control over its territory and conducting international relations with other states or gaining international recognition.5 In the past, the definition and understanding of states was founded on these characteristics. However, the contemporary assessment of countries such as the Democratic Republic of Congo, Somalia, and Haiti 6 raises strong concerns about the adequacy of this traditional definition. As a result, the concept of the "failed state" has emerged, along with
1. Piracy Problem Inseparablefrom Overall Somali Crisis, Ban Warns, UN NEWS SERVICE, Dec. 16, 2008, http://www.un.org/apps/news/story.asp?NewslD=29334. 2. The sovereignty principle is entrenched in the Treaty of Westphalia (1648 Peace of Westphalia) and the legal implications of this sovereignty are marked by the 1945 United Nations Charter. See generally Brad R. Roth, State Sovereignty, International Legality, and Moral Disagreement (Mar. 3, 2006) (paper presented at the 2006 University of Georgia School of Law International Law Colloquia), availableat http://www.law.uga.edu/intl/roth.pdf. 3. Id. at 11. 4. Convention on the Rights and Duties of States art. 1, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19. 5. Id.; see also Oona A. Hathaway, InternationalDelegation and State Sovereignty, 71 LAW
& CONTEMP. PROBS. 115, 147-48 (2008).
6. The Fund for Peace, The FailedStates Index, FOREIGN POL'Y, July-Aug. 2009, at 81.
2010]
SOMALIA: STATE FAILURE AND PIRACY
such concepts 7as "human security," "soft power," and the "responsibility to protect.", This Essay explores the problems experienced by Somalia as a failed state, and the impact of piracy on international commerce and maritime security. Somalia has been unwilling or unable to combat piracy within its waters. Its lack of central governance limits the country's capacity to tackle onshore piracy. Furthermore, the active offshore piracy that is taking place in the Gulf of Aden provides a clear indication of the state of anarchy within Somalia. 8 It is not possible to confront piracy without addressing the collapse of the Somali state and the inherent poverty, governance issues, and absence of the rule of law in this troubled region. In addition, the ongoing civil war in Somalia has led to the internal displacement of millions of people, making the country a refuge for suspected terrorist organizations. 9 The international community must play a role in peace-building and state reconstruction to enable Somalia to deal with piracy in a meaningful and effective way. I. A. In General
THE FAILED STATE
From both a political and legal perspective, a "failed state" 1° can be said to possess specific geographical, political, and functional characteristics. Geographically, failed states are essentially associated with in7. The term "responsibility to protect" was first presented in the report of the International Commission on Intervention and State Sovereignty in December 2001. The Commission had been formed in response to then-Secretary-General Kofi Annan's question of when the international community must intervene for human protection purposes. Building on Francis Deng's idea of "sovereignty as responsibility," the Commission addressed the question of when sovereignty-a fundamental principle of international law-must yield to the protection against the most egregious violations of humanitarian and international law, including genocide, ethnic cleansing, and crimes against humanity. Int'l Comm'n on Intervention & State Sovereignty, The Responsibility to Protect, 11-18, Dec. 2001, availableat http://www.iciss.ca/pdf/Commission-Report.pdf. 8. Alemayehu Fentaw, Anarchy, Terrorism, and Piracy in Somalia: New Rules of EngageMay 27, 2009, CHRON., AM. the International Community, ment for http://www.americanchronicle.com/articles/view/l103942. 9. Id. 10. The term itself is of fairly recent vintage and was first used by Gerald B. Helman and Steven Ratner in an article. Gerald B. Helman & Steven Ratner, Saving Failed States, FOREIGN POL'Y, Winter 1992-93, at 3. 11. Daniel Thurer, The "FailedState" and International Law, 81 INT'L REV. RED CROSS 731, 733-34 (1999). ("The term 'failed' State does not denote a precisely defined and classifiable situation but serves rather as a broad label for a phenomenon which can be interpreted in various ways.").
556
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
ternal and endogenous problems, despite incidental cross-border impacts. Politically, failed states face an internal collapse of law and order. Functionally, failed states lack bodies capable of representing them at the international level and lack the capacity for accepting external influence. 12 Defined legally, "a 'failed State' is one which, though retaining legal capacity, has for all practical purposes lost the ability to exercise it.... [T]here is no body which can commit the State in an effective and legally binding way, for example, by concluding an agreement."' 3 A failed state possesses no control over the use of force by coordinated institutions, no functional governmental authority, no security for its residents, and no control of its borders.' 4 Functioning states serve as the foundation of the international system, whereas failed states threaten the very structure of international relations. They are liabilities in virtually every regard; the unbridled criminality, humanitarian disasters, and domestic conflicts that afflict failed states also affect neighboring states, the surrounding region, and the world as a whole. 15 State failure presents considerable challenges for the international community because the deterioration of a state creates a humanitarian crisis in terms of poverty, disease, violence, and refugees, and because failed states become breed16 ing grounds for terrorist groups.
B.
Case Study: Somalia
Somalia is a prime contemporary example of a failed state.' 7 Various parties have struggled for control of Somalia since its formation in 1960 following the unification of the Italian and British territories. 18 Soma12. Id. 13. Id. at 734. 14. Donald W. Potter, State Responsibility, Sovereignty, and Failed States 4 (Sept. 29, 2004) (unpublished paper presented to the Australasian Political Studies Association Conference, University of Adelaide), available at http://www.adelaide.edu.au/apsa/docs-papers/Others/potter.pdf; see also Thiirer, supra note 11, at 731. 15. Robert I. Rotberg, The Failure and Collapse of Nation-States: Breakdown, Prevention and Repair, in WHEN STATES FAIL: CAUSES AND CONSEQUENCES 1, 5-9 (Robert I. Rotberg ed., 2004). 16. Rosa Ehrenreich Brooks, FailedStates, or the State as Failure?,72 U. CHI. L. REV. 1159, 1162 (2005). 17. The Republic of Somalia, formerly known as the Somali Democratic Republic, is a country located in the Horn of Africa with a population of 9.8 million. CENT. INTELLIGENCE AGENCY, Somalia, in THE WORLD FACTBOOK (2010), available at https://www.cia.gov/library/ publications/the-world-factbook/geos/so.html.
18. SETH D. KAPLAN, FIXING FRAGILE STATES: A NEW PARADIGM FOR DEVELOPMENT 117
(2008).
2010]
SOMALIA: STATE FAILURE AND PIRACY
lia's history has been marked by perpetual violence, military coups, assassinations, alliances, and more recently, the ascent of radical Islamic militancy. As a result of this volatility, there has been virtually no control of Somalia's borders for more than a decade. This lack of control, coupled with unstable and unworkable governments, has created a very dangerous situation for Somali security, seriously undermining the country's long term stability and that of its neighbors. 19 Many different groups bear responsibility for Somalia's present difficulties, ranging 0 from clans, sub-clans, 2 criminals, nationalists, warlords, military enti21 ties, and Islamists. Prior to the civil war that started in 1990, Somalia was a major exporter of agricultural produce and seafood. Somalia's trading partners included the neighboring countries of Kenya and Ethiopia.22 The civil war destroyed Somalia, deprived its people of their homes and livelihoods, and created a parallel economy driven by piracy. 23 After the forced departure of President Mohamed Siad Barre in 1991, the Somali state essentially ceased to exist, lacking any coordinated governmental authority.24 Since that time, there have been at least fifteen unsuccessful attempts to establish a government in Somalia. 25 Similarly, no meaningful security body has been able to replace the Somali army following its collapse in 1991. Opposition groups have undermined virtually every attempt at replacement, essentially converting soldiers into domestic mercenaries. The absence of designated policing authorities has created an "ongoing security vacuum [that] has encouraged the clan violence
19. Workshop Commissioned by the Special Representative of the Secretary General of the UN to Somalia Ambassador Ahmedou Ould-Abdallah, Nairobi, Kenya, Nov. 10-21, 2008, Piracy Off the Somali Coast, Final Report, at 33-34 (Nov. 21, 2008), available at http://www.imcsnet.org/imcs/docs/somalia-piracy-intl-experts-report-consolidated.pdf [hereinafter UN Workshop]. 20. The major clan groups are the Darod, Hawiye, Isaaq, Dir, Rahanwayn, and Digil. See TED
DAGNE, SOMALIA: CURRENT CONDITIONS AND PROSPECTS FOR A LASTING PEACE 24 (Cong.
Research Serv., CRS Report for Congress Order Code RL 33911, Oct. 21, 2009), available at http://www.fas.org/sgp/crs/row/RL33911 .pdf. 21. See generally Ken Menkhaus, The Crisis in Somalia: Tragedy in Five Acts, 106 AFR. AFF. 357 (2007). 22. UN Workshop, supra note 19, at 29. 23. Id. at 29-30. 24. Mohamed Siad Barre took control of Somalia in 1969 and ruled by fomenting disunity among the various clans and sub-clans, and by promoting the Darod clan. He was deposed from power by the Habar Gida militia sub-clan of the Hawiye clan headed by General Muhammad Farah "Aideed." Jason McLure, The Troubled Horn of Africa: Can the War-torn Region Be Stabi-
lised?, 3 CQ GLOBAL RESEARCHER 149,163-64 (2009).
25. Id. at 151, 157.
558
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
and anarchy that make Somalia a global poster child for a 'failed state"' 26 politically, economically, and socially. 1. PoliticalInstability in Somalia
At the political level, the current Somali government appears to have a working cabinet. In reality, however, the cabinet has no real departmental support and no civil servants serving in staff positions. Most importantly, the cabinet lacks almost any funds. 27 Also absent are any of the services that working governmental departments typically provide.28 Subsequently, the only defining characteristics of the Somali government are corruption and criminality. The lack of central governance has also facilitated the formation of small fiefdoms. Inherently unstable, the fiefdoms often experience rapid transitions in leadership. For example, in the capital city of Mogadishu, multiple groups compete and have competed politically and militarily for neighborhoods and even particular streets. The effort to control Mogadishu is heightened by its status as a port, which affords considerable financial opportunities to those in power. Although the Transitional Federal Government (TFG) was formed in 2004 under President Abdullahi Yusuf, a radical group known as the Islamic Courts Union (ICU) took control of Mogadishu in June 2006.29 On December 28, 2006, Ethiopian troops (in support of the TFG) helped push the ICU out of Mogadishu. The TFG is now an Islamist regime led by President Sheikh Sharif Sheikh Ahmed,3 ° who was elected by the Somali Parliment in January 2009.31 His power, however, nominally extends no farther than the capital city of Mogadishu. In coordination with the military wing known as al-Shabaab, the ICU assumed control from the TFG over central and southern Somalia. 32 As a result, the TFG is now completely disconnected from central Somalia. 33 Irrespective of this control, Somalis
26. Id. at 151.
27. Id. at 157. 28. Id. (detailing the need for businessmen to print their own currency and for Somali citizens to seek passports from neighboring countries). 29. DAGNE, supra note 20, at 11; McLure, supra note 24, at 166. 30. Before the Ethiopian invasion, Sheikh Ahmed served as chair of the ICU, which had originally been formed in opposition to the Ethiopian-supported TFG under President Abdullahi Yusuf, a Darod warlord. Ahmed's power base was built on his opposition to the Ethiopian occupation and Yusuf's corrupt government. He is originally from the Hawiye clan and is considered a moderate Islamist. See McLure, supra note 24, at 166-67. 31. DAGNE, supra note 20, at 3. 32. Id. at 5; McLure, supra note 24, at 167. 33. DAGNE, supra note 20, at 5; McLure, supra note 24, at 167.
20101
SOMALIA: STATE FAILURE AND PIRACY
559
living in the central and southern regions do not support al-Shabaab and the ICU, and the ICU's deployment of Sharia law and continuing insurgent conduct has actually created greater alienation from the local population.3 4
Intervention by foreign countries aimed at assisting Somalia in restoring a central government and in quelling internal strife has only served to further exacerbate the domestic conflict. 35 Ethiopia's intervention in 2006 only led to more chaos and instability in the country, with humanitarian, political, and security conditions further deteriorating across south-central Somalia.36 As a result, Ethiopia withdrew from Somalia in January 2009. 37 2. Economic Instability in Somalia
Economically, Somalia also fits the model of a failed state. Somalia is one of the world's poorest countries, largely resulting from civil war and the decades-long absence of a functioning national government.38 No agency exists to collect data on Somalia's economic performance.39 Essentially no industry or infrastructure of any kind exists, and as a result, Somalia relies heavily on funds from abroad to supplement local agricultural activities. Almost forty percent of Somalia's GDP and sixty-five percent of its export earnings come from livestock.40 Somalia has one of the lowest GDPs in the world. 4' The activities of various warring factions severely undermine the effort to normalize the economy and provide assistance to Somalis. In addition, the environmental stress on Somalia's resources inhibit it from fully realizing its economic potential and further contribute to its
34. McLure, supra note 24, at 167-68. The strict application of Sharia law has resulted in punishments such as: the amputation of limbs for theft; public stoning for women who commit adultery (even as a result of their being raped); and flogging for criminals generally. Id. 35. Ethiopia's interventions in Somalia are in large part a function of its dispute with Eritrea. Id. at 151. Al-Shabaab rejected the new president's overtures for peace and instead has perpetuated the conflict, bolstered by support and arms from Eritrea. Id. at 167. As a result, al-Shabaab has become increasingly strong and expanded its control of territory, especially in central Somalia. Id. 36. DAGNE, supra note 20, at Summary. 37. Id. 38. See The World Bank, Somalia, http://www.worldbank.org/somalia/ (last visited Feb. 16, 2010).
39. SHOREH NAJI ET AL., CARLETON UNIV., SOMALIA: A RISK ASSESSMENT BRIEF 4 (Feb.
28, 2009), available at http://www.humansecuritygateway.com/documents/CIFP Somalia_ RiskAssessmentBrief.pdf.
40. CENT. INTELLIGENCE AGENCY, supra note 17.
41. Id.
560
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
failed state status. Somalia must import close to sixty percent of the grain needed to feed its people.42 Drought has been a persistent problem for over two million Somalis.43 Although savannah woodlands cover over sixty percent of the country, uncontrolled deforestation severely inhibits Somalia's ability to prosper. 44 Illegal fishing and toxic waste dumping are rapidly depleting any maritime resources that the country possesses. Somalia has been unable to prevent this progression.45 Dumping activities include the disposal of radioactive and chemical waste along the coast of Somalia for a fraction of the cost of doing so elsewhere.a6 Furthermore, during the decade that followed Barre's ousting, some European and Asian countries took advantage of the chaos in Somalia by illegally sending their commercial fleets to fish in Somali waters without providing any compensation for such use.4 7 Roger Middleton, a Horn of Africa analyst, argues that what began as a legitimate fight by Somali fishermen against foreign exploitation has morphed into a criminal enterprise following the discovery of piracy's lucrative potential. 48 Not only do non-fishermen, who are motivated entirely by money, capitalize on the illegal fishing to supposedly legitimize and expand their pirate activities, 49 but local fishermen also may resort to piracy. Under the circumstances where the livelihood of local Somali fishermen has been eliminated by the illegal conduct of other countries there may be few alternatives to such piracy. In addition, increased piracy also creates a parallel economy which disrupts legitimate business and trade, further eliminating legitimate economic alternatives to piracy.5 ° For twenty years, the international community has largely ignored Somalia's internal problems. With the emergence of international piracy along Somalia's coastline, however, these problems threaten to spread throughout the broader region: If the problem [of piracy] continues to be largely ignored, Somalia's downward spiral will continue-probably exponentially.
42. McLure, supra note 24, at 154. 43. SHOREH NAJI ET AL., supra note 39, at4. 44. Id. 45. Id. 46. Id. 47. Alisha Ryu, Somali Piracy Exposes Weakness in UN Law of the Sea (Voice of America radio broadcast Apr. 8, 2009) (transcript available at http://www.voanews.com/english/news/a13-2009-04-08-voa67-68785907.html). 48. Id. 49. Id. 50. UN Workshop, supra note 19, at 29.
2010]
SOMALIA: STATE FAILURE AND PIRACY
This will very quickly have impacts on countries within the region. In the longer term, economic and political instability will surely spread beyond this in ways which will have consequences for the wider Middle East, Africa and in due course the wider world.5 3. HumanitarianChallenges and Societal Instability in Somalia
Somalia can also be seen as a failed state from a societal perspective. Human rights abuses, indiscriminate violence, and arbitrary arrests and detentions in Somalia have created a humanitarian crisis.52 On March 28, 2008, the United Nations Human Rights Council expressed serious concerns regarding the violations of humanitarian and human rights law in Somalia.53 Human trafficking of young women and children for the purpose of prostitution, as well as male slave workers, is as commonplace as piracy and presents another symptom of organized crime in Somalia. 54 Moreover, Somalia is not a party to either the Protocols Against the Smuggling of Migrants by Land, Sea and Air 55 or the Protocol to Prevent, Suppress and Punish Trafficking in Persons,56 which are both supplements to the United Nations Convention against Transnational Organized Crime.57 The humanitarian conditions in Somalia are both a result and a cause of the country's failed state status. For example, the Ethiopian intervention led to more chaos and instability in Somalia, as well as the deterioration of humanitarian, political, and security conditions in the country. In the past two years, more than 22,000 civilians have been killed; an estimated 1.1 million people have been displaced; and 476,000 Somalis have fled to neighbouring countries.58
51. 52. 53. 54. Id. at 33. Id. at 10. Id. Id. at 21-22.
55. Protocol against the Smuggling of Migrants by Land, Sea and Air, Nov. 15, 2000, S.
TREATY DOc. NO. 108-16 (2004), 2241 U.N.T.S. 480. 56. Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Nov. 15, 2000, S. TREATY DOc. NO. 108-16 (2004), 2237 U.N.T.S. 319. 57. Convention Against Transnational Organized Crime, Nov. 15, 2000, S. TREATY DOc. No. 108-16 (2004), 2225 U.N.T.S. 209 [hereinafter Transnational Organized Crime Convention]. 58. DAGNE, supra note 20, at 6. And even more than the prior fourteen years of lawlessness, 2007 and 2008 were an "unmitigated disaster" for the people of Somalia: The conflict pits the Ethiopian forces and Somalia's ineffectual, internationally backed
transitional government against a powerful but fragmented insurgency. All sides have routinely committed war crimes and serious human rights abuses....
562
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
In addition, health conditions in Somalia are also among the worst in the world. Infant, child, and maternal mortality rates in Somalia are among the highest of any country. 59 Cholera is endemic to the country and diarrhoeal disease-related dehydration, respiratory infections, and malaria are the main killers of infants and young children, together accounting for more than half of all child deaths. 60 Lack of access to safe water, poor food quality, and substandard domestic hygiene represent the major underlying causes of diarrhoea. Somalia also ranks among the countries with the highest rates of tuberculosis. Overcrowded camps, lack of treatment facilities, poor quality drugs, and high rates of malnutrition make tuberculosis one of the most deadly diseases in the coun6 1 try. Furthermore, Somalis must rely on foreign international agencies for food, shelter, and medical supplies. In September 2008, forty-one percent of all Somalis (over three million people) received humanitarian aid. This represented an increase of seventy-seven percent from the previous January. 62 Meanwhile, violence, theft, and piracy in Somalia have made the delivery of such assistance a perilous task.63 Moreover, the humanitarian supplies that Somalis depend upon are often stolen by various groups who use them for leverage or to increase their positions of 64 power. The rate of unemployment in Somalia is also high, forcing many 65 young people into armed groups and piracy in order to earn a living. Given the present social, political, and economic degradation in Somalia, it is not surprising that piracy is flourishing:
Thousands of civilians have been killed, more than a million people are displaced from their homes, and millions of people teeter at the edge of famine. Aid workers, who had managed to assist Somali communities even during the most lawless periods before 2006, have been the targets of dozens of killings and kidnappings in 2008 and now watch helplessly from neighboring Kenya as the situation spirals out of control. Chris Albin-Lackey, The U.S. Role in Somalia's Calamity, HUFFINGTON POST, Dec. 29, 2008, see http://www.huffingtonpost.com/chris-albinlackey/the-us-role-in-somalias-c_b_153939.html; also HUMAN RIGHTS WATCH, "So MUCH TO FEAR": WAR CRIMES AND THE DEVASTATION OF
at http://www.hrw.org/sites/default/files/reports/ 3 (2008), available SOMALIA somalial208web.pdf (describing the situation in Somalia over the last two years as a "human fights and humanitarian catastrophe"). 59. UNICEF, Somalia, http://www.unicef.org/somalia/health.html (last visited Feb. 16, 2010). 60. Id. 61. Id. 62. NAJI ET AL., supra note 39, at 4. 63. McLure, supra note 24, at 153. 64. Id. at 153, 157; see also NAi ET AL., supra note 39, at 4. 65. UN Workshop, supra note 19, at 11.
20101
SOMALIA: STATE FAILURE AND PIRACY
563
Poverty, lack of employment, environmental hardship, pitifully low incomes, reduction of pastoralist and maritime resources due to drought and illegal fishing and a volatile security and political situation all contribute to the rise and continuance of piracy in Somalia. This situation will remain so until there is an effective and simultaneous action taken against the pirate trade and an alternative means of income support mechanism implemented to replace it; otherwise criminal activity, in some shape or form, will continue to take priority as a means of generating income among the armed militias of Somalia.66 In addition, one of the greatest barriers to resolving the conflicts within the failed state of Somalia is the entrenched and dysfunctional clan system that often breaks down into sub-clan rivalries. 67 A major element of Somalia's internal conflict "has been fuelled in large part by distrust and competition between the country's Byzantine network of clans and subclans and by warlords with a vested interest in instability."' 68 While it would be ideal for the disunifying clan system to be eliminated entirely in Somalia, this is unlikely to occur. This clan system, however, can potentially provide stability and peace. Two of the autonomous regions, Somaliland and Puntland, are based on this clan system, and both regions have enjoyed relative peace, while the south of the country has been mired in anarchy since the 1991 ousting of the dictator Mohamed Siad Barre. 69 The situations in Somaliland and Puntland and, indeed, previously under the Barre regime, exemplify that stability and peace can be maintained in such circumstances provided there is a functional national government that manages these clan alliances effectively. Although both Somaliland and Puntland enjoy a level of stability compared to the chaos in the rest of the country, neither are without their problems as well. Somaliland claims independence as a sovereign nation known as the Republic of Somaliland, although it has no interna-
66. Id. at 15.
67. These clans also provide the necessary coordination and logistical support for piracy activities. The most active groups involved in piracy include the following: Isse Mahmuud and the Leelkase subclan of the Darod clan at the major pirate base of Eyl; Omar Mahmuud of the Darod clan at Garad; the Saad, Ayr, and Suleiman parts of the Habargedir subclan of the Hawiye clan at Hobyo; the Ayr, Sarur, and Suleiman groups of the Habargedir subclan of the Hawiye clan at Hardheee; and the Ayr of the Habargedir subclan of the Hawiye clan at Mogadishu. Id. at 17. 68. McLure, supranote 24, at 153.
69. Id. 157-58. at
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
0 tional recognition. 7 Puntland remains part of greater Somalia, but generally administers its affairs through its own military and government.7' The two regions, however, have "fought for years over the Sool and Sanag regions, part of which Puntland claim[s] on an ethnic basis, while Somaliland says [the regions] are part of its territory under the colonial border Britain left.",72 Somaliland's "capital" city of Hargeysa has a government which includes a legislative branch, a police force, a currency, passports, and a constitution ratified in 2001 .73 However, the dependence of Somaliland on the Port of Berbera for revenue greatly undermines its claim of sovereign status. 74 Because there is virtually no
recognition of Somaliland as an independent state outside the region, no
foreign aid or benefits of any kind are available to Somaliland.75 Puntland, in the northeast of Somalia, is the domain of the Majerteyn sub-clan of the Darod clan. 76 It is comprised of many supporters of former TFG president Abdullah Yusuf Ahmed, who left office in late 2008. The self-declared Puntland State of Somalia came into being in 1998, and while it did not declare full independence, it functions as a virtual "state," independent of other forces within Somalia.77 There is that very little assistance of any kind 78 reaches the people in this region as of threats to aid workers. a result Additional strife arises from Somalia's hardline al-Shabaab insurgents who are battling to oust the moderate Islamist government of President Sheikh Sharif Ahmed. The insurgents are viewed as a proxy for al Qaeda in Somalia. 79 In June 2009, the rebels, who follow a strict version of Sharia law, punished four young men for robbery by ampu70. Id. 71. Id. at 158. 72. Somaliland, Puntland Clash over Disputed Turf Again, REUTERS, Apr. 9, 2007, http://www.alertnet.org/thenews/newsdesk/L09194451 .htn. 73. McLure, supra note 24, at 157. 74. Specifically, eighty-five percent of Somaliland's revenues are derived from these duties. NARI ET AL., supra note 39, at 4.
75. Somaliland Mission, Republic of Somaliland: Accomplishments and Remaining Challenges, http://www.somalilandgov.com/challenges.htm (last visited Feb. 16, 2010). 76. McLure, supra note 24, at 158.
77. Id.; see also CENT. INTELLIGENCE AGENCY, supra note 17. 78. NAJI ET AL., supra note 39, at 5. 79. David Clarke, Somali Islamists Amputate Teenagers' Hands and Legs, REUTERS, June 25,
2009, http://www.reuters.com/article/africaCrisis/idUSLP579259. Although Al Shabaab is suspected of recent terrorist activities in Somalia, "[tjhere is much recent discussion among Somali experts as to whether the Al Shabaab (AS) is becoming involved in piracy or not or whether they will take action against piracy if they take control of coastal regions, specifically the notorious northern Puntland locations." UN Workshop, supra note 19, at 20.
2010]
SOMALIA: STATE FAILURE AND PIRACY
tating a hand and a foot from each man. 80 Violence from the extreme Islamist-led insurgency also gradually has worsened since June 2009: this violence includes the murders of a minister, the Mogadishu police chief, and a legislator.8 1 As a result, the Ahmed-led Somali government, which 82 controls just a few parts of the capital, declared a state of emergency. In sum, Somalia does not have a central government that effectively controls the entire country. 83 Inadequate governance structure, lack of physical and economic infrastructure, and the nonexistence of public services not only have contributed to Somalia's failed nation state status, but also have made it more difficult to effectively combat piracy.84
II.
A. In General
PIRACY
85
As examined in Part I, there is no law and order of any kind in Somalia due to the lack of a central government and extreme poverty. As a result, criminal activity is rampant throughout the country. While some engage in criminal behavior for basic survival, others have created a professional criminal enterprise, especially in the form of piracy. Those who participate in criminal activities typically resist any efforts to establish a safe and stable Somalia, because stability impedes their criminal activity and long term interests. Although the international community has not always taken the problem of piracy seriously, recent events have led to more widespread international concern. It has become apparent that unless piracy is contested, it will spiral out of control, threatening the sea lanes that transport almost half of the world's cargo and effectively underwriting terrorist movements. 86 Piracy is defined in international law by Article
80. Somalis Watch Double Amputations, BBC NEWS, June 25, 2009, http://news.bbc.co.uk/2/
83. UN Workshop, supra note 19, at 11. 84. Id. at 12. 85. Pirates have long been regarded as "hostes humani generis," or common enemies of mankind. Dating back to the time of the Roman Empire, states reserved the right to capture and summarily execute pirates under what became known as "the doctrine of universal jurisdiction." Max
Boot, Pirates, Then and Now, FOREIGN AFF., July-Aug. 2009, at 99.
86. Id. at 103.
566
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
101 of the UN Convention on the Law of the Sea (Law of the Sea Convention) and consists of: (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).87 Piracy has become particularly lucrative in Somalia because in terms of maritime traffic, Somalia is one of the most geographically wellpositioned countries in the world. Located between the Horn of Africa and the southernmost tip of the Arabian Peninsula, Somalia is situated at the crux of all major regional shipping lanes. 88 The strait adjacent to Somalia links the Indian Ocean, Arabian Sea, Gulf of Aden, Red Sea, and the Suez Canal. The most noticeable trend observed in the past year has been a shift in the main area of activity, from southern Somalia and the 89 port of Mogadishu to the Gulf of Aden. The primary objective of Somali piracy is usually to obtain ransom for both ships and crew members. Consequently, shipping companies 0 9 have already suffered losses in excess of one hundred million dollars. To date, piracy has rarely resulted in the killing of hostages. 9 1 While the amounts of ransom demanded are increasing, the average ranges from
87. Convention on the Law of the Sea art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter Law of the Sea Convention]. The definition of piracy, however, may differ in municipal law. See
BOLESLAW A. BOCZEK, INTERNATIONAL LAW: A DICTIONARY 309 (2005). 88. LAUREN PLOCH ET AL., PIRACY OFF THE HORN OF AFRICA 4 (Cong. Research Serv., CRS
Report for Congress Order Code RL 40528, Apr. 21, 2009). 89. ROGER MIDDLETON, PIRACY IN SOMALIA 6 (2008), available at http://www.chathamhouse.org.uk/files/12203-1008piracysomalia.pdf ("[T]he Gulf is a major shipping route with around 16,000 vessels passing through each year and offers much richer pickings than Mogadishu."). 90. DAGNE, supra note 20, at 7. 91. PLOCH ET AL., supra note 88, at 8-9. But see MIDDLETON, supra note 89, at 6 (speculating that while casualties of hostages have been rare, as pirates become more aggressive and ruthless, "it is likely to be only a matter of time before more people are killed").
2010]
SOMALIA: STATE FAILURE AND PIRACY
half a million to two million dollars. 92 In most cases, pirates and shipping companies negotiate the ransom, which is paid in cash.93
Somali piracy has been a major problem since 1991. However, the incidence of such piracy has grown significantly in recent years both in terms of scope and scale. Since 2008, it has expanded to cover the entire maritime region. 94 In addition, pirates have become masterful at identifying vessels that are vulnerable due to slow sailing speeds, small 5 crews, poor security, and ineffective counter-piracy procedures. 9 The 96 International Maritime Bureau (IMB) reports that by May 2009 the number of incidents of Somali piracy, including 114 attempted hijackings and twenty-nine successful hijackings, had already surpassed all attacks in the previous year. 97 Pirate operations, while developing into
more sophisticated and professional undertakings, have also become more aggressive and ruthless. Since 1990, the total number of pirates has increased, according to some reports, from the hundreds to the thou98 sands.
These increases in the extent of piracy appear to be related to the de-
velopment of more effective methods, including the use of more sophisticated equipment by pirates. For example, pirates now use captured fishing trawlers as base ships that can operate much farther away from the coastline than their traditional small skiffs. These 'mother ships,' therefore, increase the pirates' range out to sea. 99 In addition, some pi92. UN Workshop, supra note 19, at 19.
93. Id.
94. In 2007, forty-five incidents of piracy were reported, while sixty-three incidents were reported in the first nine months of 2008, fifty-one of which occurred in the Gulf of Aden, the major shipping lane linking Asia and Europe. UN Workshop, supra note 19, at 16. 95. MIDDLETON, supra note 89, at 4. 96. The London-based International Maritime Bureau released a report detailing the upsurge in piracy in 2008. Worldwide, the number of pirate attacks increased by 11%, an unprecedented rise in maritime hijackings. The Bureau attributed this rise almost exclusively to an explosion of attacks in the Gulf of Aden, the stretch of the Arabian Sea separating war-torn Somalia from Yemen. Of the 293 piratical incidents recorded for the year, Ill attacks occurred on the high seas surrounding Somalia's territorial waters. This represents a staggering annual increase of nearly 200% in the critical trade corridor linking the Suez Canal and the Indian Ocean. INT'L CHAMBER OF COMMERCE INT'L MAR. BUREAU, PIRACY AND ARMED ROBBERY AGAINST SHIPS: 2008 ANNUAL REPORT 26 (2009). 97. Id.; Int'l Chamber of Commerce Commercial Crime Servs., Pirate Attacks off Somalia Already Surpass 2008 Figures (May 12, 2009), http://www.icc-ccs.org/index.php ?option=com.content&view-article&id=352:pirate-attacks-off-somalia-already-surpass-2008figures&catid=60:news&Itemid=51. 98. MIDDLETON, supra note 89, at 6; see also UN Workshop, supra note 19, at 17-18 (noting that "[d]ue to lack of employment there is no shortage of willing recruits for the business"). 99. MIDDLETON, supra note 89, at 4.
568
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
rates now use a system that combines Automatic Identification System interception and satellite positioning to identify and track an intended target, as well as "spotters," who work in ports around the region and provide advanced knowledge of a potential target's routes. 0 0 These means of more rapid target identification can facilitate an attack in less than fifteen minutes between identification and contact.' 0 1 Such efficient timing explains why more ships are captured even when there are inter102 national patrols in the area. More effective methodologies not only allow pirates to attack more vessels, but they also allow pirates to go after more lucrative targets that can garner greater ransoms. For example, at the beginning of 2009 Somali pirates released a number of hostages and hijacked ships for more than $120 million in total ransom. Those released included the Ukrainian MV Faina, which was loaded with T-72 tanks and a significant amount of ammunition and small arms, as well as the Sirius Star Saudi oil supertanker, each of which garnered over $3 million dollars in ran0 som. 1 3 Overall, pirates have earned millions of dollars in ransom while disrupting global trade and causing untold damage to the world's economy. As a result, several countries, including the United States, Russia, and India have deployed warships to tackle piracy in the Horn of Africa 14 region. 0 Due to the various networks of pirates located in different locations and ports, it is generally accepted that no central strategic command structure exists.' 0 5 Although not established conclusively, government officials and clan leaders are likely directly involved in piracy. At a minimum, they undoubtedly receive some form of compensation for their role in these activities-or at least for their lack of effort to stop the pirates.' 0 6 Piracy is believed to be Somalia's biggest industry, and 0 individual pirates are among the country's wealthiest persons. 1 7 Ulti100. UN Workshop, supra note 19, at 19. 101. MIDDLETON, supra note 89, at4. 102. Id.; see also UN Workshop, supra note 19, at 13 ("According to the Commercial Crime Services of the International Chamber of Commerce, 2008 seems to be the year of a new surge of piracy. A total of 199 worldwide incidents were reported to the Piracy Reporting Centre (PRC) of the International Maritime Bureau in the first nine months of 2008. The third quarter of 2008 saw reported incidents spike to 83, compared to the 53 reported in the first quarter and the 63 reported in the second quarter."). 103. PLOCH ET AL., supra note 88, at 9. 104. DAGNE, supra note 20, at 7. 105. Id. 106. MIDDLETON, supra note 89, at 5. 107. David Axe, Why the Somali Pirates are Winning, GUARDIAN.CO.UK., Apr. 9, 2009, http://www.guardian.co.uk/conmmentisfree/cifamerica/2009/apr/09/piracy-somalia-alabama-us-
2010]
SOMALIA: STATE FAILURE AND PIRACY
mately, piracy has grown rapidly in Somalia due to several factors, including "[p]overty, lack of employment, environmental hardship, pitifully low incomes, reduction of pastoralist and maritime resources due to drought and illegal fishing, and a volatile security and political situation." '0 8 Furthermore, the escalation of pirate attacks has coincided with 0 the collapse of the local economy in Somalia's Puntland region. 1 9 B. Actions to Halt Piracy InternationalTreaties and International
There are serious and wide-ranging consequences of Somali piracy. This is particularly the case for vessels containing aid shipments, which require security firms to protect them. Acts of piracy are making the delivery of aid to drought-stricken Somalia more difficult and costly. For example, in 2008, the World Food Programme had to suspend food deliveries temporarily because of the threat of piracy, but now several 1 countries have agreed to provide naval escorts. 1 0 It is therefore incumbent on the international community to effectively confront the issue of piracy in Somalia, whether through measures like naval patrols or through the use of international law. 1. Actions Taken by the UnitedNations
Part VII of the Law of the Sea Convention deals with issues of piracy on the high seas.' 11 Article 100 states that repression of piracy is a collective duty for every state, even in their nonjurisdictional waters.112 Article 105 states that any military vessel has the right to seize a pirate ship and its property on board, arrest the crew, and put them on trial under their national jurisdiction, as long as such a seizure takes place on the high seas or in any waters outside the jurisdiction of that particular state. 113 Under international law, however, a ship may only fire at an1 14 other ship in self-defense. navy. 108. UN Workshop, supra note 19, at 15. 109. Mark Trevelyan, Somali Pirates Wallow in Cash, Leave No Bank Trail, REUTERS, Nov. 21, 2008, http://www.reuters.com/article/idUKTRE4AK3EN20081121 (noting the incentive and political support for piracy when "[t]he administration [in Puntland] is honeycombed with corrupt officials that have links to the pirates, . . . the government ha[s] no funds to pay its military, and the economy [i]s beset by hyperinflation because of massive over-printing of Somali shillings") (internal quotations omitted). 110. MIDDLETON, supranote 89, at 7. 111. Law of the Sea Convention, supra note 87, pt. VII. 112. Id. art. 100. 113. Id. art. 105, 107; see also Eric Pardo Sauvageot, Piracy Off Somalia and Its Challenges to Maritime Security: Problems and Solutions, RES. UNIT ON INT'L SECURITY & COOPERATION,
570
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
Comprehensive international laws such as the Law of the Sea Convention define piracy as encompassing all illegal acts of violence, detention, and depredation (plundering, robbing, or pillaging), committed for private ends taking place on the high seas outside the jurisdiction of any state." 5 This definition excludes the territorial waters of states, such as the coastal waters of Somalia. International law authorizes warships to prevent, deter, and respond to acts of piracy and armed robbery on the high seas, but it does not apply to territorial waters. 1 6 Under the Law of the Sea Convention, however, those same illegal acts of piracy committed inside the territorial waters of a country: do not fall under the definition of piracy, but are simply considered "sea robbery" under international law, and are dealt with by the laws of that country. Domestic laws seldom permit a vessel or warship from another country to intervene. Illegal acts committed for political rather than private ends also fall outside the international law definition of piracy." 17 Therefore, when piracy occurs in the territorial waters of a particular state, pirates are subject to that state's jurisdiction and capacity to prosecute.1 8 The narrow scope of the Law of the Sea Convention's piracy provisions severely limits the availability of international law to deal with piracy in places such as Somalia. Other international instruments apply more broadly to any state that has pirates in its custody. Examples include the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) 119 and the 2000 Convention against Transnational Organized Crime. 120 Each document "contains useful provisions
Jan. 2009, at 253. 114. Id. 115. Law of the Sea Convention, supra note 87, art. 101 and accompanying text. 116. UN Workshop, supra note 19, at 24. 117. Modern Day Piracy and InternationalLaw, FYI ON THE CASE (Simpson Grierson, N.Z.), Dec. 2008, at 2, available at http://www.simpsongrierson.co.nz/assets/publications/ onthecaseiModemDayPiracyDec08.pdf. 118. See Jeffrey Gettleman, Somalia's Pirates Flourish in a Lawless Nation, N.Y. TIMES, Oct. 31, 2008, at Al ("Even if the naval ships manage to catch pirates in the act, it is not clear what they can do. In September, a Danish warship captured 10 men suspected of being pirates cruising around the Gulf of Aden with rocket-propelled grenades and a long ladder. But after holding the suspects for nearly a week, the Danes concluded that they did not have jurisdiction to prosecute, so they dumped the pirates on a beach, minus their guns."). 119. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, S. TREATY DOc. No. 101-1 (1995), 1678 U.N.T.S. 221. 120. Transnational Organized Crime Convention, supra note 57.
2010]
SOMALIA: STATE FAILURE AND PIRACY
relating to mutual legal assistance, assistance in prosecution and extradition, matters not addressed in the law of the sea."' 12 1 In addition, many other international documents address piracy activities tangentially. For example, in 1992, UN Security Council Resolution 733 imposed a gen22 eral and complete arms embargo on Somalia. Furthermore, the Security Council has also adopted resolutions to specifically address the issue of Somali piracy. On June 2, 2008, the Security Council unanimously adopted the US/France-sponsored Resolution 1816, which, in cooperation with the TFG and consistent with international law, authorized for a period of six months for every state to enter Somalia's territorial waters "for the purposes of repressing acts of piracy and armed robbery at sea ... [by] all necessary means.'' 23 Also, multinational naval coalitions have established naval and aircraft patrol 124 initiatives to improve maritime security around the Horn of Africa. Although it is too soon to conclusively determine the effectiveness of these measures, they appear not to have had much impact. 125 On December 2, 2008, the Security Council, acting under Chapter VII of the UN Charter, passed Resolution 1846 to again address the issue of piracy in Somalia's territorial waters. The resolution extended for another twelve months Resolution 1816's authorization of other states to enter Somalia's territorial waters. 126 Resolution 1846 emphasized the need for states to prosecute pirates legally under the SUA Convention, 27 and to
121. UN Workshop, supra note 19, at 27. 122. S.C. Res. 733, 5, U.N. Doc. S/RES/733 (Jan. 23, 1992) (implementing an embargo "on all deliveries of weapons and military equipment to Somalia until the Council decides otherwise"). There is increasing evidence, however, that "the weapons, ammunition, and military equipment being employed by the Somali pirates are imported into Somalia in violation of the arms embargo." UN Workshop, supra note 19, at 24. 123. S.C. Res. 1816, 7, U.N. Doc. S/RES?1816 (June 2, 2008). 124. For example, the Maritime Security Patrol Area was established in August 2008 by the Combined Maritime Forces in support of the International Maritime Organization's ongoing efforts to "counter destabilizing activities in the region and improve security." Press Release, Commander, U.S. Naval Forces Central Command, Maritime Security Patrol Area to Be Established (Aug. 22, 2008), availableat http://www.cusnc.navy.mil/articles/2008/105.html. Effective February 1, 2009, a new Internationally Recommended Transit Corridor replaced and revised the Maritime Security Patrol Area coordinates in order to "reduce the risk of collision between vessels utilizing the previous corridor, provide a measure of traffic separation, and allow maritime forces to conduct deterrent operations in the [Gulf of Aden] with a greater degree of flexibility." Press Release, Maritime Liaison Office, Special Maritime Advisory for Vessels Transiting the Gulf of Aden and Somali Basin (June 8, 2009), available at http://www.cusnc.navy.mil/marlo/ Guidance/08%20JUNE%202009%20SPECIAL%20MARITIME%20ADVISORY%20FOR%20 VESSELS%20TRANSITING.txt. 125. MIDDLETON, supra note 89, at 8. 126. S.C. Res. 1846, 10, U.N. Doc. S/RES/1846 (Dec. 2,2008). 127. Id. 14-15; see also UN Workshop, supra note 19, at 26 ("The SUA Convention pro-
572
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
work together with the International Maritime Organization (IMO) to achieve this goal. 128 The Security Council reiterated its condemnation of all acts of piracy and armed robbery against vessels in Somali territorial waters and on the high seas off the coast of Somalia. It also called upon organizations to cooperate with the shipping industry and the IMO, and to operate consistently with the resolution and relevant 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 off the coast of Soma29 lia." 1
Similarly, Resolution 1851, adopted on December 16, 2008, invited states to make special agreements with other nations in the region to facilitate prosecution of piracy.' It also encouraged the creation of an international cooperation system and a center for the sharing of information.' 3 1 It further held that for twelve months following the adoption of Resolution 1846, [s]tates 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 .... 132
These measures, however, must be undertaken in a manner consistent 133 with applicable international humanitarian and human rights law. These resolutions were adopted after suggestions arose that hijackers could escape the Law of the Sea Convention's definition of pirates by vides a legal basis to effect the rapid transit ashore of pirates captured at sea where both the flag State and the receiving State are States Parties to SUA. The receiving State Party to SUA is required to make an immediate inquiry into the facts, and to notify other State Parties that might have jurisdiction as to whether it intends to exercise its jurisdiction. The receiving State Party is required to extradite such offenders to another State Party with jurisdiction or to submit the case to its competent authorities for the purpose of prosecution. Where one or both of the States concerned are not Parties to SUA, ad hoc arrangements would have to be made to effect the transfer ashore. If the receiving State is unwilling to accept the offender from the ship, the compulsory dispute settlement provisions of SUA are unlikely to provide a timely resolution."). 128. S.C. Res. 1846, supra note 126, 4, 7, 15; see also Sauvageot, supra note 113, at 257. 129. S.C. Res. 1846, supra note 126, T 9. 130. S.C. Res. 1851, 3, U.N. Doc. S/RES/1851 (Dec. 16, 2008). 131. Id. 94-5. 132. Id. 6. 133. Id.
2010]
SOMALIA: STATE FAILURE AND PIRACY
573
claiming that "they are motivated by 'political' rather than 'private' gain, although it appears that the '1 funds are being used for private 34 enrichment in Somali communities." 2. Other Actions Taken by the InternationalCommunity
Thus far, several countries, including France, India, Russia, and the United States have sent their warships to the vicinity of Somalia to combat pirate attacks, 135 with France taking the strongest stand against such piracy.' 36 Recently, India began to take a greater interest in Somali piracy, in part due to its desire to have greater control over the African side of the Indian Ocean Rim in an effort to compete with China's extraterritorial and regional influence.1 37 In December 2008, the Indian Navy reportedly arrested twenty-three Somali pirates. In February 2009, Rusthe U.S. Navy arrested sixteen suspected Somali pirates, and the38 sian Navy has also arrested a number of suspected Somali pirates. In addition, in early 2009, the United States and the United Kingdom signed agreements with Kenya that allow for the extradition of suspected pirates for prosecution to Kenya. 139 Although such agreements are a step in the right direction, the Kenyan judicial system needs additional support to bring such pirates to trial. 140 Moreover, countries must enact appropriate domestic legislation to enable the prosecution of pirates. 14 1 In order to achieve extraterritorial application of domestic laws, 42 however, such laws also must apply on the high seas.1 Kenya has yet to pass the necessary anti-piracy legislation, and it has been argued that Kenya's corrupt judicial system cannot be trusted to conduct free and 43 fair trials. 1 Despite these resolutions and other measures, according to the IMO, the incidence of piracy off the coast of Somalia rose dramatically in 2008.144 The IMO has outlined several principal areas of concern, and in
134. Afua Hirsch, Efforts to Tackle Epidemic Hindered by Lack ofInternationallyAgreed Definition, GUARDIAN, Nov. 20, 2008, at 29, available at http://www.guardian.co.uk/world/ 2008/nov/20/piracy-law-international-definition-commons. 135. MIDDLETON, supra note 89, at 8; DAGNE, supra note 20, at 7. 136. MIDDLETON, supra note 89, at 8. 137. Id. 138. DAGNE, supra note 20, at 7. 139. Id. 140. UN Workshop, supra note 19, Recommendations App. at 8. 141. Id. at 27. 142. Id. at 25. 143. See Ryu, supranote 47. 144. International Maritime Organization [IMO], Piracy in Waters off the Coast of Somalia,
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
January 2009 it adopted the Djibouti Code of Conduct, an important regional agreement to share information and cooperate in the eradication 45 of piracy and armed robbery against ships. 1 The agreement also seeks to stabilize the situation in Somalia through intervention by the Security Council, the UN Political Office for Somalia, the UN Development Programme, the Contact Group on Piracy off Somalia, and other inter46 national entities. 1 Other multilateral undertakings by the North Atlantic Treaty Organization (NATO) and the European Union (EU) have met with some success in dealing with pirate attacks. In late 2008, at the request of UN Secretary-General Ban Ki-Moon, NATO started providing escorts to the UN World Food Programme under Operation Allied Provider, 47 later and 1 under Operation Allied Protector and Operation Ocean Shield. In support of several Security Council resolutions, the European Union launched the EU NAVFOR Somalia Operation Atalanta in December 2008 to "deter, prevent and repress acts of piracy and armed robbery off the coast of Somalia."'' 48 Escorting ships affiliated with the World Food Programme when they deliver aid to Somalia and protecting merchant ships moving through the area constitute the first ever naval operation by the European Union. Another anti-piracy initiative in the region includes the Piracy Reporting Center operated by the IMB, which 49 releases reports on trends and incidents of piracy. 1 In addition, the multinational naval coalition, Combined Maritime Forces, has activated several Combined Task Forces (CTFs) to patrol the Gulfs of Aden and Oman, the Arabian and Red Seas, and the Indian http://www.imo.org/home.asp?topicid=1178 (last visited Feb. 16, 2010) ("[I]n the first quarter of 2008, there were 11 piracy attacks in that region, rising to 23 in the second quarter and rocketing to 50 in the third and 51 in the fourth quarters, making a total of 135 attacks during 2008, resulting in 44 ships having been seized by pirates and more than 600 seafarers having been kidnapped and held for ransom."). 145. IMO, Code of Conduct Concerning the Repression of Piracy and Armed Robbery Against Ships in the Western Indian Ocean and the Gulf of Aden, IMO Doc. C 102/14, Annex at 5 (Apr. 3, 2009), available at http://www.sjofartsverket.se/pages/20647/102-14.pdf, see also Press Release, IMO, High-level Meeting in Djibouti Adopts a Code of Conduct to Repress Acts of Piracy and Armed Robbery Against Ships (Jan. 30, 2009), available at http://www.imo.org/Newsroom/mainframe.asptopic-id= 773&docid= 10933. 146. IMO, supra note 144. 147. North Atlantic Treaty Organization, Counter-Piracy Operations, http://www.nato.int/cps/ en/natolive/topics_48815.htm (last visited Feb. 16, 2010). 148. Press Release, European Union Council Secretariat, EU Naval Operation Against Piracy, May 2009, availableat http://www.consilium.europa.eu/uedocs/cmsUpload/090507%20Factsheet %20EU%20NAVFOR%20Somalia%20-%20version%207_EN.pdf. 149. Sauvageot, supra note 113, at 260.
2010]
SOMALIA: STATE FAILURE AND PIRACY
Ocean. 50 While CTF-150 was chartered under an anti-terrorism mandate, anti-piracy may also be one of its top priorities since its ships have prevented numerous pirate attacks. 51 In January 2009, CTF-151 was established to focus solely on the counter-piracy mission.152 As part of that mission, the CTFs patrol the Internationally Recommended Transit Corridor, which creates for merchant and other vessels a defined zone 53 that is in range of naval assistance. As a result of these measures, in the waters off Somalia's nearly four thousand kilometer coast, warships from more than a dozen countries have formed what UN Secretary-General Ban Ki-moon recently described as "one of the largest anti-piracy flotillas in modem history.' 54 Ships from NATO and EU member states are among those that have been dispatched to that region in recent months to fight a sharp upsurge in piracy. The IMB has stated that 111 pirate attacks took place last year in the corridor linking the Suez Canal and the Indian Ocean, representing a nearly two hundred percent increase from 2007.155 These warships presently patrolling the Gulf of Aden and the Indian Ocean are operating under the legal framework of the Law of the Sea Convention and various Security Council resolutions. The Law of the Sea Convention, however, has been criticized for failing to contemplate the emergence of failed states such as Somalia and failing to address the situation when an act of piracy occurs within a country's territorial waters, or in waters of a neighbouring country, rather than on the high 56 seas. 1
150. Combined Maritime Forces, http://www.cusnc.navy.mil/cmf/cmfcommand.html (last visited Feb. 16, 2010). The CMF includes approximately three dozen ships from Australia, Canada, Denmark, France, Germany, Italy, Pakistan, Turkey, the United Kingdom, and the United States. These ships patrol more than 2.5 million square miles of international waters. Id. 151. MIDDLETON, supra note 89, at 8. 152. Press Release, Commander, Combined Maritime Forces, New Counter-Piracy Task Force Established (Jan. 8, 2009), availableat http://www.cusnc.navy.mil/articles/2009/001 .html. 153. MIDDLETON, supra note 89, at 8; see also supra note 124 and accompanying text. 154. Ryu, supra note 47.
155. INT'L CHAMBER OF COMMERCE INT'L MAR. BUREAU, supra note 96, at 26.
156. See Ryu, supra note 47 ("The international law on piracy assumes that individual states would assume the responsibility of policing and patrolling their own waters and to prosecute those seized in the act of piracy. But not all states have the resources and capacity to ensure maritime security within their waters. This is now being highlighted by the on-going piracy problem in Somalia, which after 18 years is still trying to establish a functioning government.").
576
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
C.
Challenges to Anti-Piracy Actions
There are significant obstacles to using international law to address the problem of Somali piracy. The Somali government lacks any means to investigate, detain, or prosecute pirates operating within its jurisdiction. Although UN maritime law makes piracy on the high seas illegal throughout the world, this law has proven to be ineffective, as evidenced by the dramatic recent increase in piracy in the Horn of Africa. Furthermore, although the Security Council resolutions authorize the pursuit of pirates into Somali waters, most nations have been reluctant to take 57pirates into custody for prosecution in their own domestic courts. 1
The NATO and EU anti-piracy undertakings also face serious challenges, including the coordination of anti-pirate activities among many 58 different states and international organizations. 1 In addition, very large and sophisticated naval vessels were not designed to engage small pirate vessels, and are therefore of limited use. The success of anti-piracy operations depends on such factors as the proximity of pirate vessels to target ships and the availability of military resources such as helicopters. 159 Military personnel are also reluctant to intervene in situations where vessels have already been boarded and are under the control of pirates due to60serious and complicated safety concerns, especially for the hostages.' Therefore, it is readily apparent that institutional, legal, and practical realities severely hamper efforts to effectively deal with maritime piracy in this region, and indeed, in other areas of the world. The net effect of these realities serves to sustain piracy activities at best, and at worst, likely encourages the continuation and expansion of these illegal acts.
CONCLUSION
In light of the serious and persistent limitations on the ability of states, under UN or other multilateral auspices, to effectively challenge piracy, the United Nations must seriously consider the realities of the current situation, their potential consequences, and possible alternative solutions. If the United Nations is to entrust regional alliances with the
157. For instance, the Danes have held on to five pirates accused of carrying out an attack until they decide which country will prosecute the pirates. Sauvageot, supra note 113, at 253-54.
158. Id. at 259.
159. Id. at 252-53; see also MIDDLETON, supra note 89, at 4. 160. See Sauvageot, supra note 113, at 254-55.
20101
SOMALIA: STATE FAILURE AND PIRACY
responsibility for upholding international maritime law, it must establish broader alliances and facilitate better cooperation between them. It must also establish clear rules of engagement for NATO and EU forces in de161 tailed Security Council resolutions. As noted, the Law of the Sea Convention permits the boarding and confiscation of pirate vessels and the arrest of crew members, but only proportionate force may be used to interrupt an act of piracy. Interna162 tional law does not permit firing upon and sinking pirate vessels. Therefore, if meaningful anti-piracy policies are to be implemented, a Security Council resolution is needed to authorize attacking pirate vessels, even if it involves entering the territorial waters of a sovereign state, which is currently a violation of international law. Furthermore, an international consensus must be achieved regarding how pirates should be tried once they have been captured and detained. International bodies such as the UN and EU must aim for legislative harmonization in this regard. One solution would be to place pirates under the jurisdiction of the International Criminal Court.' 63 Because this issue is closely related to that of how to deal with terrorists, one suggested approach is to "negotiate an international agreement that would allow the processing and detention of pirates and terrorists through legal venues such as 4 the International Criminal Court or a specially created 6 1 UN tribunal."' A direct correlation exists between piracy activities off the coast of Somalia and Somalia's status as a failed state. The country's extreme poverty, lack of domestic security, and other factors that have contributed to its failed state status have also fuelled the prevalence of piracy in the region. Actions by the international community to address the piracy problem have helped, but as long as Somalia remains a failed state, piracy will continue to be a problem in the region, and will likely increase. Concurrent actions must be taken to combat piracy and to establish alternate income-earning activities for Somalis. Otherwise, piracy will continue to be used by Somalia's armed militia as a means of generating income.1 65 In addition, states' obligations regarding piracy under
161. Crystals & Gaish, http://francisjcrystals.blogspot.com/2009/04/somali-piracy-part-lissues-of.html (Apr. 14, 2009, 07:20 EST). 162. Id. 163. Id. 164. Boot, supra note 85, at 107. Given the long history of chaos in Somalia, Boot further advocates for the imposition of an international regency similar to the UN administration in Kosovo. 165. UN Workshop, supra note 19, at 15.
578
VIRGINIA JOURNAL OF INTERNATIONAL LAW
[Vol. 50:3
international conventions must be incorporated effectively into domestic law. Parallel coordinated international assistance is necessary to help rebuild the Somali economy, security, and governance, and to establish the rule of law. The Somali government needs to exercise authority in order to maintain security. It also needs to "reconcile clan-based, political, business, and civil society forces to unite Somalis towards building peace."'1 66 Until governmental structures that administer justice are rebuilt, establishing the rule of law in Somalia, and in turn, upgrading its status from that of a failed state, will prove to be impossible. It is apparent that UN-sanctioned actions, whether based on regional alliances or other mechanisms, need to accurately reflect the realities of piracy off the Somali coast. In concert with substantive action to address the internal chaos of this failed state, such combined measures represent the only realistic long term sustainable solution to the issue of Somalibased piracy activities that constitute a growing and unacceptable threat to shipping in one of the most strategic areas of the world.
166. UN Development Programme Somalia, Rule of Law & Security, http://www.so.undp.org/index.php/Rule-of-Law-Security.html (last visited Feb. 16, 2010).
