The role of information sharing in counter-piracy in the horn of Africa region: a model for transnational criminal enforcement operations.

• Author: McLaughlin, Rob

1. INTRODUCTION II. OUTLINE III. LENS 1: DIRECT ENFORCEMENT AND PROSECUTION 1. THE LEGAL CONTEXT OF DIRECT ENFORCEMENT A. THE LAW AS A FACILITATOR OF INFORMATION SHARING FOR 'AT SEA' ENFORCEMENT 2. THE LAW AS A CHALLENGE TO AT SEA ENFORCEMENT CAPACITY 3. SOME INDICATIVE INFORMATION SHARING AND COORDINATION RESPONSES IV. LENS 2: PLANNING AND COORDINATION 1. CONTACT GROUP ON PIRACY OFF THE COAST OF SOMALIA (CGPCS) 2. SHARED AWARENESS AND DE-CONFLICTION (SHADE) 3. CGPCS/SHADE AND THE PROLIFERATION SECURITY INITIATIVE

1. INTRODUCTION

   In 2014, rates of Somali piracy were at their lowest in six years, and no new incidents were reported in all of 2015. (2) This is in large part due to a coordinated improvement in the manner by which the international community has approached the problem. The resultant response--a multi-pronged approach involving discrete but fundamental aspects of nation-building in Somalia, capacity-building in other states in the region (particularly Kenya, the Seychelles, and Mauritius), target hardening, regional criminal prosecutions, and naval patrols--has been undertaken by a veritable alphabet soup of states, interest groups, and organisations. While the short-term success of these operations is unquestionable (as evidenced by the drop in piracy attack numbers), the time it took for these measures to generate noticeable impact--and the reports and literature detailing these efforts--suggests that the interaction between the various parties involved in this process has been occasionally dysfunctional. However, this focus on the failures and obstacles tends to obscure an important set of successes. This paper therefore seeks to examine the way in which one of these arguable successes--functional and effective information sharing regimes--has contributed the broader effectiveness of counter-piracy measures. Our analysis will also seek to illustrate how these now effective intelligence sharing regimes might form a model that could be useful in dealing with other maritime-based transnational law enforcement operations.

2. OUTLINE

   This paper will focus upon the role of information sharing in combatting the generally transnational criminal offence of piracy. This issue will be examined through several discrete legal and operational lenses, and buttressed by the empirical data gathered by a range of analyses of Somali piracy. (3) The first lens is reactive direct enforcement by naval patrols and regional prosecutors. This analysis will indicate that without effective information sharing mechanisms in place, it would be nigh impossible to engage in this form of enforcement--an activity that is seen as crucial to redressing perceptions of pirate impunity in Somalia. The second lens is the role of effective information sharing in pre-emptive direct enforcement planning and coordination. This analysis will focus on the utility of bespoke, informal, flexible mechanisms--such as the Contact Group on Piracy off the Coast of Somalia (CGPCS), and the Shared Awareness and De-confliction (SHADE) coordination mechanism--as opposed to more inflexible formalised processes. This part of the analysis will also ask why the efficiency and levels of State 'buy-in' in respect of piracy off the coast of Somalia have been so different to a similarly informal, bespoke process (the Proliferation Security Initiative (PSI)).

   The third lens to be considered is the role that information sharing has played in combatting piracy as an organised criminal enterprise rather than as a series of isolated maritime offences. The focus will be upon parsing the difficulties that are faced by investigators in tracing ransom money back to the organised crime group leaders in such a way that will allow for prosecutions. One conclusion that will emerge from this consideration is that the sharing of such piracy-related financial and transactional intelligence is at a far less mature stage than the sharing of operational intelligence in relation to pirate incidents themselves. The analysis will pose some possible explanations for this. The final lens will address the way in which information sharing has led to effective nation-building and capacity-building within Somalia and the Horn of Africa region, and the way in which this has contributed to piracy suppression. It is perhaps a little recognised 'spin-off' of transnational arrangements related to piracy prosecutions, such as prison transfer laws and agreements, that information sharing for law enforcement and sentence recognition purposes can indeed pave the way for building broader criminal justice information sharing networks and capacities.

3. LENS 1: DIRECT ENFORCEMENT AND PROSECUTION

   As at May 2014, there were approximately 1,200 Somalis having been, or currently being, prosecuted, or awaiting prosecution, in 22 states. (4) This is a significant dent in the pirate workforce, but not a debilitating one--there remains no shortage of young Somali men who are willing to try their luck in order to achieve a small share of a ransom, which would still amount to many times their probable life earnings in Somalia at current rates. (5) Similarly, there remains no shortage of weapons, skiffs, GPS and associated marine navigation equipment, willing investors, and coastal launch points where the Federal or Regional Governments' writs do not run. Somali Pirate Action Groups (PAG) still routinely put to sea. (6) International navies still intercept PAGs and--depending upon an intricate but vital assessment of the likely admissibility and relevance of the situational evidence they can collect in relation to the likely prosecution venue--will either seize the PAG's main pirate paraphernalia (such as boarding ladders and some types of weapons) and then send them back towards Somalia (so called 'catch and release'), (7) or detain the PAG, collect evidence, and then (if they do not seek to prosecute the suspects in their own courts) transfer the suspects to a third State jurisdiction (such as Kenya, Seychelles, or Mauritius). At every stage of this release or prosecute assessment, however, the role of information sharing is a--if not the--key consideration. Information may be the intelligence on PAG movements, which is used to vector a warship into position. Information may be evidence for a prosecution, such as photographs, boarding team statements, charts with positional data. Information may be vital contextual background which Judges will require, at least in their first case, such as a formal explanation of the way GPS works, and the accuracy of GPS positioning data. (Such data is generally the primary piece of information used to prove that the location the alleged offence was in international waters, which is a specific element of the 1982 Law of the Sea Convention definition of the offence, and of many national piracy offences. (8)) Our aim in this first section of the paper is therefore to illustrate how information sharing and coordination projects have actually facilitated both the apprehension and prosecution processes.

   1. The legal con text of direct enforcement

   1. The law as a facilitator of information sharing for 'at sea' enforcement

   The stepping off point for any analysis of information sharing for counter-piracy law enforcement purposes is the core jurisdictional fact of universal jurisdiction, (9) or (perhaps more accurately) concurrent municipal jurisdiction. (10) Article 105 of the Law of the Sea Convention 1982 (LOSC) reflects previous treaty-based definitions of piracy, and generally crystallises long-standing customary international law:

   Seizure of a pirate ship or aircraft

   On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. (11) The consequence, in essence, is that if a state vessel of any state (warship, marine police, coast guard--a state vessel on non-commercial service) apprehends suspected pirates, it may take those pirates to its own territory for prosecution, repatriate them to their own state of nationality for prosecution, hand them to the state whose flag the pirated vessel flies for prosecution, or transfer them to an unconnected third state for prosecution. That third state may prosecute those suspected pirates regardless of the fact that they have no other nexus to the crime--it did not take place in their territory or on a ship flying their flag; none of the suspected pirates or the victims are of their nationality; and so on. This is the power of universal jurisdiction, and explains why it is limited to only a handful of crimes. In terms of information sharing, this jurisdictional fundamental is, in many ways, even more important that the specific definition of the crime (which, as we shall note below, can differ between states in terms of how it is incorporated into their domestic systems).

   The second important--but not essential--component of the capacity of the law to set the stage for, and to facilitate, information sharing for counter Somali piracy law enforcement purposes, is the series of UN Security Council Resolutions (UNSCRs) relating to the threat posed by piracy off the coast of Somalia. (12) To some extent, the UNSCRs merely reinforce existing legal authorities, as the resolutions themselves routinely declare:

   9. Affirms that the authorization provided in this resolution applies only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of member states under international law, including any rights or obligations under the Convention...