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Cablegate: U.S. Proposal for Piracy Mou

VZCZCXYZ0000
OO RUEHWEB

DE RUEHC #3493 3571731
ZNR UUUUU ZZH
O P 221723Z DEC 08
FM SECSTATE WASHDC
TO RUEHNR/AMEMBASSY NAIROBI IMMEDIATE 0000
INFO RUEHDR/AMEMBASSY DAR ES SALAAM PRIORITY 0000
RUEHDJ/AMEMBASSY DJIBOUTI PRIORITY 0000

UNCLAS STATE 133493

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: EWWT MARR MOPS PHSA PREL SO XA XW
SUBJECT: U.S. PROPOSAL FOR PIRACY MOU

SUMMARY
---------------

1. (U) This an action request. Please see paragraphs 2 and
3. MOU text is provided SEPCOR.

ACTION REQUEST
--------------------------

2. (SBU) Post is requested to demarche host government
officials to pursue the following objectives:

-- Deliver the proposed Memorandum of Understanding (MOU)
and the accompanying cover letter in an appropriate format.

-- Thank the GOK for its regional leadership role in
counter-piracy efforts and its commitment to prosecuting
piracy suspects interdicted off the coast of Somalia.

-- Extend appreciation for GOK willingness to enter into a
MOU with United States.

-- Explain that the proposed MOU contains differences from
the MOU concluded by the UK and Kenya, and that the
accompanying cover note highlights those differences in
detail.

-- Ask if Kenya would share the United States' interest in
rapidly concluding the MOU to allow its signing at the
inaugural meeting of the high-level Contact Group on Somali
Piracy in New York, which is expected to take place on
January 6-7, 2009.

-- Request that the GOK be prepared to provide comments and
counter-proposals within one weeks' time, and suggest that a
videoconference be scheduled through Embassy Nairobi to
enable Department lawyers in Washington to participate in
discussions.

COVER LETTER
----------------------

3. (SBU) Begin cover letter text.

As discussed by our respective delegations to the piracy
conference in Nairobi last week, we are forwarding a draft
Memorandum of Understanding (MOU) for your government's
consideration. We would again like to stress our
appreciation for the Government of Kenya's leadership on this
critical issue, and its willingness to take on this important
role in the fight against piracy off the coast of Somalia.

As you will see from the enclosed draft, we have used the
elements of the UK-Kenya MOU as a starting point, but have
incorporated language and elements from other instruments as
well. Specifically, we have drawn upon MOUs and agreements
that the United States has concluded with our allies in the
Caribbean, with whom we cooperate on counter-narcotics and
maritime drug trafficking interdictions. Our goal was to
anticipate and address in advance a few logistical and other
practical issues that are likely to arise in the conduct of
maritime-based law enforcement activities, so that our
collective efforts in the fight against piracy can be as
smooth as possible.

We hope that you will find these additional elements in our
draft acceptable. For your convenience, we have added
explanatory foot notes to the text and have summarized below
the primary differences between the UK-Kenya MOU and the
proposed draft:

1. Additional Preambular References.

The draft makes specific references to what we believe are
additional important international conventions and laws
relevant to the fight against piracy, including the 1988
Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation; the International Convention
Against the Taking of Hostage, 1979; the international
Convention for the Suppression of the Financing of Terrorism,
1999; and the United Nations Convention against Transnational
Organized Crime, 2000. Both the Republic of Kenya and the
United States are party to these instruments.

The draft also refers to Resolution A.922 (22) of the
Assembly of the International Maritime Organization, 29
November 2001, which adopted and set out in its annex the
Code of Practice for the Investigation of the Crimes of
Piracy and Armed Robbery Against Ships ("Code of Practice").
We believe that the code of Practice is a useful starting
point for our respective governments as we develop
operational parameters for the handling and coordination of
evidence, witnesses, and pirates - keeping in mind that the
most important task is to ensure that the investigation meets
any procedural and evidentiary requirements that will be
necessary under Kenyan law.

1. Logistical and Practical Issues

The draft expressly addresses several practical issues, such
as logistics and transit (Section 6) and medical and decedent
affairs (Section 4), which we can expect will arise over the
course of our respective operations. While we have no doubt
that these issues could be mutually resolved without express
terms in the MOU, our past experiences have taught us that
reaching an understanding on these matters in advance can be
useful. This draft includes the elements that we have agreed
to with our allies in the counter-narcotics area, although we
are of course open to alternative suggestions that you may
have.

1. Scope

The draft has a slightly broader scope than the UK-Kenya MOU
in a few key respects.

A. The definition of "security force officials" (vice "UK
forces") in Section 2(e) has been broadened so as to cover
the possibility that pirates that have been detained by a
third party state and transferred to U.S. forces could
subsequently be delivered to Kenya for prosecution. While we
do not know if such a circumstance would arise, we believed
it was an important option for our governments to explore.
The current draft contemplates that this would include
personnel from all States conducting counter-piracy
operations in the vicinity of Somalia pursuant to U.N.
Security resolution. Personnel from other States would be
included only by specific mutual agreement between our two
governments.

B. The definition of "security force vessels and aircraft" in
Section 2(f) has been similarly broadened, except that it
would include those of third States only by agreement of our
two governments.

C. Section 3(1) of the draft contemplates not only the
transfer of pirates that have been interdicted at sea, but
also those that have been interdicted ashore in Somalia.
This is an element that was not salient at the time your
government concluded its MOU with the UK, since it predated
the passage of UN Security Council Resolution 1851 (2008),
which as you know expressly authorized activities ashore in
Somalia. We look forward to discussing with you the
scenarios under which the transfer of such persons for
prosecution or temporary detention in Kenya would or would
not be practicable.

D. Section 3(3)(a) contemplates U.S. assistance not only in
the securing of affidavits or witness statements (as does the
corresponding provision in the Kenya-UK MOU) but also the
facilitation of securing witnesses for trial. This includes
not only U.S. personnel, but also non-government witnesses.
We understand that this issue already has arisen in the
current prosecution your government is handling, and we wish
to make our intentions clear in this regard. This section
also contemplates facilitating obtaining other evidence held
by the security force officials that may not have been
included in the evidence package turned over at the time of
transfer of the suspects.

E. Section 5 addresses temporary detention ashore of those
suspected pirates that Kenya does not intend to investigate,
pending their transfer to another country for investigation
and prosecution.

F. Section 6 is designed to facilitate the timely transfer
ashore to Kenyan authorities of suspected pirates and
subsequent transfer to another country. We look forward to
learning if that can be done without using the extradition
process.

G. Section 7 seeks to identify points of contact for requests
and other communications related to implementation of the
MOU. We look forward to deciding how best that may be
accomplished.

H. We thank you again for your Government's willingness to
work with the United States in the fight against piracy off
the coast of Somalia. We look forward to your comments on
this draft. We would suggest that a teleconference or
videoconference be scheduled in approximately a week's time
to discuss the draft and address any changes that your
government may wish to propose. As always, however, we would
welcome any comments or questions you may have at any time.
End cover letter text.

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

5. (SBU) At the UN/Kenya International Conference on Piracy
around Somalia held in Nairobi on December 10-11 2008, the
GOK expressed willingness to enter into a MOU with the United
States concerning the transfer and prosecution of piracy
suspects interdicted near Somalia. The GOK has already
concluded a similar MOU with the United Kingdom and offered
to use the text of that MOU as a point of departure for
negotiations with the United States. Department is seeking
to conclude the MOU prior to the first Contact Group on
Somali Piracy meeting in New York.

REPORTING DEADLINE
---------------------------------

6. (U) Department greatly appreciates post's continued
support and assistance. Department requests post deliver the
demarche on Tuesday, December 23 and report results by
December 26 via front-channel cable slugged to AF/RSA Jun
Bando, AF/E Susan Driano, and L/UNA John Daley.

DEPARTMENT POINTS OF CONTACT
-------------------------------------

7. (U) Please contact AF/RSA Jun Bando (BandoJ@state.gov or
202-647-5781), AF/E Susan Driano (DrianoS@state.gov or
202-647-8913), or L/UNA John Daley (DaleyJD@state.gov or
202-647-2508) for any necessary further background
information or supporting argumentation to meet demarche
objectives.
RICE

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