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Cablegate: Somalia Piracy: Demarche Instructions for Uk And

VZCZCXYZ0002
OO RUEHWEB

DE RUEHC #1430 3200104
ZNR UUUUU ZZH
O P 150050Z NOV 08
FM SECSTATE WASHDC
TO RUEHLO/AMEMBASSY LONDON IMMEDIATE 0000
RUEHFR/AMEMBASSY PARIS IMMEDIATE 0000
INFO RUCNDT/USMISSION USUN NEW YORK PRIORITY 0000

UNCLAS STATE 121430

SIPDIS

E.O. 12958: N/A
TAGS: UNSC PREL PHUM PHSA EWWT KCRM SO XA XW
SUBJECT: SOMALIA PIRACY: DEMARCHE INSTRUCTIONS FOR UK AND
FRENCH GOVERNMENTS

1. This is an action cable see paragraph 2.

2. Posts are requested to demarche host governments at the
appropriate level to relay USG concerns about French
and British edits to the draft UN Security Council resolution
(UNSCR) on Somalia piracy. Post may draw from
the background in paras 4 and 5 and the USG positions in
paras 6-11 to achieve objectives in para 3.

----------
OBJECTIVES
----------

3. Our objectives are to try to get the British and French
to agree to the following four aspects of our UNSCR
on Somalia piracy:

-- retention of the original paragraphs related to the 1988
Convention on the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation;

-- retention of Operative Paragraph (OP) 9 and OP 10
providing greater authorities to combat Somali piracy;

-- retention of language commending AMISOM, welcoming
recently brokered agreements, and OP15bis if the UN fails
to deliver a concept of operations for a UN Peacekeeping
Operations, as was called for in the Security Council
Presidential Statement of September 4;

-- retention of language calling for the UN to prepare for a
potential takeover of naval escort of World Food Program
(WFP) vessels when the European Union EU NAVFOR anti-piracy
mission ends;

----------
BACKGROUND
----------

4. Over the past year incidents of piracy and armed robbery
at sea off the Somali coast have exponentially
increased. NATO currently has its Standing NATO Maritime
Group 2(SNMG2) deployed to the area to escort WFP ships
and protect commercial vessels from piracy off Somalia's
coast. The European Union has just approved a plan for an
ESDP mission (EUNAVFOR) to deploy to the area for the next
year. The EDSP mission will take over from NATO when it
leaves in December. NATO will remain engaged with its NATO
Shipping Center and NATO's JFC NAPLES which tracks WFP
vessels and will pass Maritime Situational data to the EU
Operational HQ in the UK. NATO vessels may take up
anti-piracy tasks, if needed, when Standing NATO Maritime
Groups deploy to the area of operations. In addition, the
Combined Maritime Forces created a Maritime Security Patrol
Area in the Gulf of Aden this summer to protect maritime
traffic. Finally, several states (such as Russia, India, and
Malaysia) have sent their own naval forces to the area to
protect merchant vessels from their countries.

5. In December 2007, the United States approached the
governments of the UK and France to pitch the idea for a
UN Security Council Resolution to combat piracy off the
Somali coast. At that time the UK "had the pen" on all
issues related to Somalia on the Council. The UK stated they
wanted to focus on the situation on the ground and
were not prepared to draft a resolution on Somalia piracy.
However, they did not oppose the U.S. doing so.
During the next few months we worked on our draft resolution
with the UK, France, Panama, and several
non-Security Council co-sponsors. After a lot of behind the
scenes work to alleviate the concerns of Indonesia,
Vietnam, and China, the Security Council unanimously passed
resolution 1816 on June 2, 2008. UNSCR 1816, among
other things, provided to states working with the
Transitional Federal Government the authority to enter
Somali territorial waters to interdict pirates. In September
2008, the French approached us with their own
Security Council resolution on piracy. The French stated the
new resolution was needed to give some members of the
EU ample top-cover to participate in the proposed ESDP force.
They also mentioned this was very important to
their President. Even though we effectively retained "the
pen" on Somalia piracy, we did not object to the French
breaking protocol and tabling their resolution. UNSCR 1838
was passed unanimously on October 7, 2008.

------------------------
Overview of USG Position
------------------------

6. The issue of Somalia piracy is of great concern to the
United States government, which is why we took the
initiative in first drafting UNSCR 1816 in early 2008. While
we believe that 1816 was an excellent starting
point, we feel the situation off the coast of Somalia has
changed so much over the last six months that a simple
roll-over of 1816 is no longer sufficient. Specifically, we
feel the international community needs to: address the
problem of how to effectively prosecute pirates; make sure we
have "all necessary means" to interdict pirates inside Somali
territorial waters and in the high seas off the coast of
Somalia; acknowledge the problem of piracy will never go away
until the international community addresses the situation on
the ground; and, ensure the long-term security of WFP
deliveries to Somalia.

------------
SUA language
------------

7. As we see it, the most pressing problem facing the
international community today is the issue of Persons Under
Control (PUCs), or in laymen's terms what to do with the
pirates once they are captured. Currently, many
states may be fearful to do more to interdict pirates because
they do not want them detained on their naval vessels for
long periods of time (in one instance, for almost 6 months),
while they solicit help from the international community to
prosecute them. "Catch and release" poses its own problems.

8. The United States notes there are already sufficient legal
mechanisms to deal with the problem, specifically the United
Nations Convention on the Law of the Sea (UNCLOS) and the
1988 Convention on the Suppression of Unlawful Acts Against
the Safety of Maritime Navigation (SUA). It is with this in
mind that we have proposed OPs 12 and 13. Taken together
these paragraphs call on states to join SUA if they have not
already done so (currently there are 150 party states to
SUA), encourage states to pass implementing legislation so
the conduct associated with piracy can be prosecuted in their
countries, and ask states to carry out SUA obligations. The
SUA provides for parties to accept the
delivery of detained suspects into their countries when so
requested by the master of a ship that is flagged by a SUA
party. Once in the custody of a party state, this country
would be obliged to conduct an immediate inquiry and, if
warranted, extradite the suspected pirates to another SUA
party or submit the case to its competent authorities for the
purpose of prosecution. Admittedly some states, especially
those in the region, do not have the necessary judicial
capacity to effectively prosecute suspected pirates, which is
why we believe OP14 is equally important.

9. From our discussions with the British and French missions
in New York, we understand there is some hesitancy to using
SUA as a legal mechanism to prosecute pirates. Specifically
there were concerns SUA would link the piracy issue to
terrorism. While the negotiation of the SUA was certainly
motivated by worldwide concern about terrorism, the language
of the 1988 Convention explicitly covers all violent offenses
against ships, including conduct associated with
piracy, not just those with a terrorist motive. In this
respect, the 1988 Convention is different from the protocols
to SUA adopted in 2005 by the IMO (but not yet in force),
which are more expressly addressed to terrorist activity -
for example, offenses added by those Conventions include a
requirement that the motive behind the offense be to
intimidate a population or affect government action. In fact,
the Parties to SUA indicated they were concerned about
unlawful acts against the safety of maritime navigation,
particularly those that "jeopardize the safety of persons and
property, seriously affect the operation of maritime
services, and undermine confidence of the people of the world
in the safety of maritime navigation." This succinctly
captures the conditions produced by the conduct related to
Somali piracy today.

10. We believe the SUA convention provides a solid framework
for addressing piracy issues once pirates have been
interdicted. If the conduct by pirates meets the definition
of an existing SUA offense (i.e. if, among other things that
person unlawfully and intentionally "seizes or exercises
control over a ship by force or threat of force or any
other form of intimidation or performs any act of violence
against a person on board a ship if that act is likely to
endanger the safe navigation of that ship."), then it is
quite appropriate to address the case within the ambit of
SUA, particularly if the affected State otherwise lacks
adequate national law to address such activity or to
appropriately cooperate with other states in doing so. SUA
may, in many cases, be both applicable and singularly useful
in combating the conduct with which this UNSCR is concerned.
Further, it is our understanding that the idea of using SUA
mechanisms to prosecute pirates was discussed and supported
by many States at the IMO Council meeting on November 12.

11. The bottom line is that we need to have explicit
language addressing prosecution of suspected pirates in this
resolution. The dramatic increase in piracy attacks since
the last UNSCR is clear evidence that interdiction authority
alone is not enough. However, if the UK or France has a
better alternative to address the PUC issue in an expeditious
manner, we will be happy to consider it. We would be happy
to put French and/or UK legal experts on the topic in touch
with our lawyers at the Department of State and Department of
Defense to work out any concerns on these paragraphs.

-------------------------------
New authorization, OP9 and OP10
-------------------------------

12. While we are very happy with 1816 as a starting point, we
feel the situation has developed so much over the last
six months that a simple renewal is not sufficient. The
authorization in UNSCR 1816 (i.e. paragraph 7) only
extends the legal authorities available to combat piracy on
the high seas into Somali territorial seas. While this
was a good start, this has not proven to be adequate to
address the problems for two reasons: 1.) most attacks
occur outside territorial seas; and 2.) the current legal
authorities available to combat piracy on the high seas
are too narrow to encompass certain more aggressive actions
needed to deter piracy. Since the adoption of
1816 authorization, there have in fact been more incidents of
piracy off the coast of Somalia. First, the USG proposal in
OP 9 and 10 would expand the legal authorities available to
combat piracy making clear that "all necessary means"
are available to combat piracy both in Somali territorial
waters and on the high seas off the coast of Somalia.
Second, the USG proposal would also help provide authority in
the situation where a suspected pirate vessel is found or
flees by permitting the authority to forcibly interdict it.

--------------------------
AMISOM and UN PKO language
--------------------------

13. We also hear from the UK and French Missions in New York
that they have considerable problems with linking the
situation on the ground to the piracy issue. Our preambular
paragraph (PP) 12 is not controversial and taken from
previous resolutions on Somalia. While PP 13 is new
language, the signing of the Djibouti Agreement and the Joint
Cease Fire Agreement are very significant developments in
Somalia that deserves the Council's recognition and praise.
We also assume the Secretary-General's report due November 15
will have issues that should be addressed, which is why we
recommend keeping PP 14. OP15bis is an if needed paragraph
following up on the September 4 PRST, which asked for a
concept of operations for a UN Peacekeeping Operation. If
the Secretariat provides a conop for a UN PKO as requested,
we will not need to introduce OP15, which is why it is in
brackets.

------------
WFP Planning
------------

14. We would also ask for the retention of PP 10 and OP 6.
We in no way want to insinuate that the EU will not
fulfill its commitments to escorting the WFP vessels, as was
relayed to us by the French mission in New York. We
very much appreciate France's leadership on this issue. We
fully expect the EU will successfully complete its
12 month mission and may possibly continue the program longer
than that. However, we want to be ready for the possibility
that one day the EU mission will end and the UN may want to
take over the operation. Recent experience on this issue, as
is being showcased in the transition from EUFOR to MINURCAT,
shows that the more planning for this
possibility the better. Ensuring the long-term delivery of
WFP deliveries to Somalia is a top priority to the
U.S. As you may know the United States provides 80% of WFP
aid to Somalia.

----------------
Deadline and POC
----------------

15. Post is requested to report back results of this demarche
via front channel by 5pm EDT, Monday, November
17. For more information contact IO/UNP Joseph FitzGerald at
202-647-2641.

----------------
Draft resolution
----------------

16. Begin text of U.S. draft UNSCR on Somalia Piracy:

(1) The Security Council,

(2) Recalling its previous resolutions and the statements of
its President concerning the situation in Somalia,
especially resolutions 1814, 1816, 1838, and the President's
Statement of September 4, 2008,

(3) Continuing to be gravely concerned 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, the safety of seafarers, commercial
maritime routes and to international navigation,

(4) Reaffirming its respect for the sovereignty, territorial
integrity, political independence and unity of
Somalia,

(5) Further reaffirming that international law, as reflected
in the United Nations Convention on the Law of
the Sea of 10 December 1982 ("the Convention"), sets out the
legal framework applicable to combating piracy and
armed robbery at sea, as well as other ocean activities,

(6) Taking into account the crisis situation in Somalia, and
the lack of capacity of the Transitional Federal
Government ("TFG") to interdict pirates or patrol and secure
either the international sea lanes off the coast of
Somalia or Somalia's territorial sea,

(7) Taking note of the many public requests from the TFG for
international assistance to counter piracy off its
coasts, including the letter from the Permanent
Representative of the Somali Republic to the United
Nations to the President of the Security Council dated 27
February 2008 conveying the consent of the TFG to the
Security Council for urgent assistance in securing the
territorial sea and international waters off the coast of
Somalia, and the 1 September 2008 letter from the President
of Somalia to the Secretary-General of the
United Nations 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 at sea off the coast of Somalia,

(8) Further taking note of the letters from the TFG and from
other member states to the Security Council to inform
the Council of their actions, as requested in paragraphs 7
and 12 of 1816,

(9) Commending the contribution made by some states, alliance
of states, and regional organizations, including
the North Atlantic Treaty Organization ("NATO") and the
European Union ("EU"), to protect World Food Programme
("WFP") vessels off the coast of Somalia, as well as other
international or national initiatives taken with a view to
implementing resolutions 1814, 1816, and 1838,

(10) Affirming the Council's readiness to authorize the
United Nation's Political Office in Somalia to assume the
responsibility for the long-term security of WFP maritime
deliveries to Somalia,

(11) Noting that a peaceful and stable situation within
Somalia will be an important factor in addressing the
scourge of piracy and armed robbery at sea off the coast of
Somalia,

(12) Commending the contribution that the African Union
Mission to Somalia has made to a lasting peace and
stability in Somalia, recognizing specifically the important
contributions of the Governments of Uganda and
Burundi to Somalia,

(13) Welcoming the signing of a peace and reconciliation
Agreement ("the Djibouti Agreement") between the TFG and
the Alliance of the Re-Liberation of Somalia on August 19,
2008, as well as their signing of a joint ceasefire
agreement on October 26, 2008, and noting that the Djibouti
Agreement calls for the United Nations to authorize and
deploy an international stabilization force,

(14) Welcoming/Noting the report by the Secretary-General of
November 4, 2008, that outlines a detailed concept of
operations for a feasible Multinational Force and/or a UN
Peacekeeping Force to deploy to Somalia,

(15) Determining that the incidents of piracy and armed
robbery at sea against vessels in the territorial sea of
Somalia and the high seas off the coast of Somalia exacerbate
the situation in Somalia, which continues to
constitute a threat to international peace and security in
the region,

(16) 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 at sea;

2. Deplores the payment of ransoms for pirated vessels by
the international shipping community;

3. Welcomes the efforts of the International Maritime
Organization ("IMO") to update its guidance and
recommendations to the shipping industry and to governments
for preventing and suppressing piracy and
armed robbery at sea against ships and to provide this
guidance as soon as practicable to all member states and
private industry contacts transiting the Gulf of Aden and
areas around Somalia coast;

4. Calls upon the industry and insurance companies to
continue to cooperate with the IMO and ensure that their
vessels receive appropriate guidance and training on
avoidance, evasion, and defensive techniques to take if
under the threat of attack or attack when sailing in the
waters off the coast of Somalia;

5. Further calls upon States and interested organizations,
including the IMO, to provide technical assistance to
Somalia and nearby coastal States upon their request to
enhance the capacity of these States to ensure coastal and
maritime security, including combating piracy and armed
robbery at sea off the Somali and nearby coastlines;

6. Welcomes the decision by NATO and the EU European
Security and Defense Policy ("ESDP") mission to counter
piracy off the Somalia coast, including by escorting vessels
of the WFP, and requests the Department of
Political Affairs, in collaboration with the Department of
Peacekeeping Operations, to prepare for the possible
United Nations administration of the WFP escort missions
should NATO and ESDP mission cease escorting WFP vessels;

7. Calls upon States and Regional Organizations that have
the capacity to do so, to take part actively in the fight
against piracy and armed robbery at sea against ships off the
coast of Somalia, in particular by deploying naval
vessels and military aircraft, and consistent with this
resolution, by seizing and disposing of boats, vessels,
arms and other related equipment used in, or capable of being
used in, the commission of piracy and armed robbery
off the coast of Somalia and by surveillance of safe havens
and staging areas ashore;

8. Further calls upon States and Regional Organizations to
coordinate their efforts to deter acts of piracy and
armed robbery at sea in cooperation with each other, the IMO,
the international shipping community, flag states,
and the TFG;

9. Decides that for a period of 12 months from the date of
this resolution States and Regional Organizations
cooperating with the TFG in the fight against piracy and
armed robbery at sea off the coast of Somalia, for which
advance notification has been provided by the TFG to the
Secretary General, may enter into the territorial seas of
Somalia for the purpose of repressing acts of piracy and
armed robbery at sea;

10. Decides that for a period of 12 months from the date of
this resolution States and Regional Organizations
cooperating with the TFG in the fight against piracy and
armed robbery at sea of the coast of Somalia, for which
advance notification has been provided by the TFG to the
Secretary-General, may use, off the coast of Somalia, all
necessary means to repress acts of piracy and armed robbery
at sea;

11. Affirms that the authorizations 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 the Convention,
with respect to any other situation, and underscores in
particular that this resolution shall not be considered as
establishing customary international law;

12. Urges all States, and in particular flag, port, coastal
and regional States, and States of the nationality
of victims and perpetrators of piracy and armed robbery at
sea, that have not already done so to become parties as
soon as possible to the 1988 Convention for the Suppression
of Unlawful Acts Against the Safety of Maritime Navigation
("SUA Convention"), the 1988 Protocol for the Suppression of
Unlawful Acts against the Safety of Fixed Platforms Located
on the Continental Shelf ("1988 Fixed Platforms Protocol"),
the Protocol of 2005 to the Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation
("2005 SUA Protocol"), and the Protocol of 2005 to the
Protocol for the Suppression of Unlawful Acts Against the
Safety of Fixed Platforms Located on the Continental Shelf
("2005 Fixed Platforms Protocol");

13. Urges States party to the SUA Convention to implement
their obligations under the SUA Convention, particularly by
(a) making the offenses set forth in article 3 of the SUA
Convention punishable by appropriate penalties that take
into account the grave nature of those offenses, as provided
for in article 5 of the SUA Convention; (b) taking such
measures as may be necessary to establish their jurisdiction
over the offenses set forth in article 3, and to notify the
Secretary-General of the IMO when they have done so, as
required by article 6; (c) accepting persons delivered to
them pursuant to article 8 of the SUA Convention, to
extradite alleged offenders or submit such cases to the
competent
authorities for prosecution as set out in article 10 of the
SUA Convention, and to provide the greatest measure of
assistance in connection with criminal proceedings brought in
respect of offenses set forth in article 3, as required
by article 12 of the SUA Convention; (d) providing relevant
information in their possession of the commission of offenses
set forth in article 3 to those States having established
jurisdiction in accordance with article 4, as called for in
article 14 of the SUA Convention; and (e) providing to the
Secretary-General of the IMO the information described in
article 15 of the SUA Convention;

14. Calls upon all Member States and relevant organizations
to work with State parties to the SUA
Convention to build judicial capacity for the successful
prosecution of persons suspected of offenses set forth in
article 3 of the SUA Convention, if needed, and to assist
Member States who need assistance in ratifying, acceding
and/or fully implementing the SUA Convention, the 1988 Fixed
Platforms Protocol, the 2005 SUA Protocol, and the
2005 Fixed Platforms Protocol;

15. Instructs the UN Secretariat, working with the
Secretary-General of the IMO, to act as a clearing house
to make recommendations as to which States and/or appropriate
entities have the authority to prosecute
pirates and other criminals of armed robbery at sea under all
relevant international law after a successful
interdiction by those acting under the authority of this
resolution, to work with those States and/or appropriate
entities to ensure that all captured pirates and armed
robbers at sea are prosecuted for their crimes, and to
hold periodic donors' conferences to help regional SUA states
develop the needed capacity to prosecute pirates
under their SUA obligations;

(15bis. Requests the Secretariat to provide for Council
consideration, a concept of operations for a UN peacekeeping
operation, no later than 15 days from the adoption of this
resolution. The concept of operations should include a
geographic focus on southern and central Somalia, with key
Mission activities focused on: 1) supporting implementation
of the Djibouti Peace Agreement, including monitoring and
verification of any ceasefire and joint security arrangements
and liaison with the Joint Security Committee (JSC); 2)
providing protection for the Transitional Federal
Institutions to help them carry out the functions of
government and security for key infrastructure; to
facilitate, within
capabilities and in its areas of deployment, humanitarian
assistance to affected populations by helping to create
the necessary security conditions; and 3) protection of UN
personnel, facilities, installations, equipment and
mission, and ensuring the security and freedom of movement of
UN personnel;) (Language to be inserted into the
resolution if DPKO does not provide a conops on a PKO as was
directed in the PRST of Sept. 4.)

16. Requests the Secretary-General to continue to report to
the Security Council periodically on the situation in
Somalia, the UN efforts in Somalia, and international efforts
to combat piracy and armed robbery at sea off the
Somalia coast;

17. Decides to remain seized of the matter.
RICE

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