Antipiracy Campaign Hijacks International Law By Francis Njubi Nesbitt

The antipiracy campaign is fast becoming a major embarrassment for the new Obama administration.  In a rash and misguided move, for instance, the U.S. Navy is preparing to transfer 16 suspects to Kenya for prosecution under a secret agreement signed in January.   This is a very bad idea.   Eight suspects transferred to Kenya in December under a prior agreement with Britain are already complaining that prison authorities physically abused them.  

We know from Obama's recent executive orders that the new administration supports some types of renditions that allowed the CIA to secretly abduct and transfer captives to third countries for interrogation.   Although Executive Order 13491 on interrogations created a task force to ensure that captives were not transferred to countries where they might be tortured, the antipiracy transfers seem to contradict the spirit of this order.  

Plans to transfer captives to Kenya and other U.S. allies in the region under secret agreements threaten to further destabilize the region.   The secrecy and implied impunity with which the antipiracy campaign is being conducted are already fanning suspicions and resentments in the region.   In 2007, human rights groups in the region accused the U.S. of instigating the abduction and rendition of over 80 Somali suspects from Kenya to Somalia and then to Ethiopia where some claim they were tortured.  This new agreement with Kenya should be examined in this context.  

Antipiracy rendition policy is operating under cover of a United Nations Security Council resolution 1851 (16 December 2008) that gave authority to "states and regional organizations able to do so" to pursue and arrest suspected pirates on Somalia waters and territory.   Resolution 1851 basically announced open season on Somalia for any "state or regional organization" able to violate the country's sovereignty.   Foreign forces can now invade Somalia territory with impunity so long as they claim to be pursuing suspected pirates.   The lawless atmosphere has already attracted mercenaries and other assorted adventurers and profiteers.   With this resolution the U.N. has become part of the problem in the region despite Secretary General Ban Ki- moon's admonition that piracy should be placed in the context of an "inclusive peace process.  " 

To make matters worse, the resolution also invited these states and organizations to "conclude special agreements" with countries willing to prosecute the suspects.   This broad delegation of legal powers to faceless and unspecified "states and organizations" is shockingly irresponsible behavior by the most powerful body of the United Nations.   It is an abdication of responsibility that allows powerful nations and unspecified "organizations" to run rough shod over Somalia territory.  

On 16 February 2009, the International Commission of Jurists released a major report Assessing Damage, Urging Action, on the serious damage done to international law by temporary exemptions granted in the name of counterterrorism.   According to Justice Arthur Chaskalson, the chair of the panel of eminent judges and lawyers who conducted the three-year study: "Many governments, ignoring the lessons of history, have allowed themselves to be rushed into hasty values and violated human rights.  " The panel warned that  "temporary" counterterrorism exceptions were becoming permanent features of international and national law.   They urged the international community to repeal abusive policies and practices such as renditions, torture, secret detentions, unfair trials and impunity for human rights violations.   This is the context in which the antipiracy laws are being enacted.   The panel argues that "the change in the U.S. administration provides a unique opportunity for change" by restoring longstanding international norms.   Unfortunately, recent actions by the U.S. in the antipiracy campaign continue to undermine human rights laws and norms.  

Transferring suspects to Kenya and other U.S. allies in the region could expose them to conditions that could expose them to physical harm. Kenya's justice system is known to be extremely slow and inefficient and its prisons overcrowded.   Judges and prosecutors are overworked and susceptible to political and economic threats and inducements.   At the same time, the agreement invites retaliatory attacks from Islamists who blame Kenya for facilitating U.S. intervention in the region.   It is instructive that threats to Kenya have increased since the antipiracy campaign started.  The Obama administration needs to rethink this suspect transfer policy if it wants to avoid another embarrassing fiasco involving allegations of torture and violation of human rights.  

The dilemma for the Obama team is that the suspects cannot be turned over to the Transitional Federal Government in Somalia because it would violate Article 3 of the Convention on Torture that prohibits transfer of prisoners to countries where they are in danger of facing serious human rights violations such as torture, serious injury or death.   European and U.S. courts could try the suspects but the cases may be difficult to prosecute successfully in legal systems that protect suspects' rights.   In addition, there is the fear that the Somali individuals involved could claim asylum after serving their sentences since deportation back to Somalia is not an option.   Faced with this dilemma, the antipiracy campaign proposes to try the suspects in the region.   This may be a worse option than the current practice of dropping suspected pirates off on isolated beaches along Somalia's 1,800-miles coastline.  

Instead of making Somalia a free fire zone and destabilizing the region further by dumping piracy suspects on countries such as Kenya, the international community should consider putting together a multifaceted campaign to tackle the complex security problems in south central Somalia.   This campaign should include a multinational force with powers (and resources) beyond those of the African Union Mission in Somalia (AMISOM).   The problems of piracy, anarchy, poverty and hunger are interrelated and cannot be contained without a political settlement and a credible ceasefire that can then be followed by deployment of a peacekeeping force.   The long-term goal should be strengthen the security forces of the state by providing funding, training and equipment.  

Susan Rice, the U.S. ambassador to the U. N., recently signaled a continuation of the gradualist Bush policy in the region by pressuring Nigeria to fulfill its promise to send peacekeeping troops to Somalia.   Nigeria demurred, however, arguing that it lacks the capacity to deliver the troops.   This is a slow start indeed for an administration that promised bold measures on the international arena.   AMISOM is underfunded, understaffed and undermanned.   It lacks the resources to have any impact on the conflict.   The Obama team should be talking about brokering a ceasefire first and then providing funding, logistical support, training and equipment to AMISOM in the immediate future while preparing for a fully-fledged United Nations peacekeeping/enforcement operation.   Only a political settlement will create the conditions for a successful peacekeeping operation.  The only way to reach a credible political settlement, however, is to bring all stakeholders to the table.  Thus the Obama team will have to revise the Bush administration's blacklist of untouchable militia.  After all, the U.S. is known to have associated itself with considerably less savory warlords just three years ago.

The U.S., E.U., China and other stakeholders need to stop looking at Somalia through the lens of trade and take serious steps to stabilize the situation in the region or face further threats to international security.   The root causes of violence and piracy are the anarchy and lawlessness that have plagued southern Somalia for 17 years.   These countries have already shown their ability to mobilize tremendous resources in record time to fight piracy.   Its time similar assets and will were redirected toward dealing with the root causes rather than the symptoms.  

Meanwhile the antipiracy campaign must not be used to violate the sovereignty and territorial integrity of Somalia.   U.N. Resolution 1851 should not be renewed.   All antipiracy actions must conform to international law including the 1982 U.N.   Convention on the Law of the Sea, the U.N. Convention on Torture and the 1948 International Convention on Human Rights.   The days of forming international posses to hunt down and lynch pirates should have been over by now.   Measures should be taken to protect Somalia's rights to its offshore natural resources including fisheries.   With respect to individuals suspected of piracy, an international tribunal such as those established to try suspects implicated in the Rwanda and Kosovo conflicts would insulate countries such as Kenya from blame and would be more appropriate than the current ad hoc and corporate centered development of international customary law.  

Francis Njubi Nesbitt teaches politics and conflict resolution at San Diego State University.   He is the author of Race for Sanctions: African Americans against Apartheid, 1946-1994 and is completing a book on U.S. policies in the Horn of Africa region.