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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