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