4 ESDP: Piracy off the coast of Somalia
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| Council Decision amending Joint Action 2008/851/CFSP on a European Union operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast
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| Legal base | Articles 28 and 43(2) EU; unanimity
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 8 November 2010
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| Previous Committee Reports | None; but see (31809) —: HC 428-ii (2010-11) chapter 22 (15 September 2010); also see (31174) 16450/09: HC 5-iii (2009-10), chapter 19 (9 December 2009); (30982) —: HC 19- xxvii (2008-09), chapter 29 (14 October 2009); also see (30724) — and (30728) —: HC 19 xxiii (2008-09), chapter 9 (8 July 2009) and (30341) —, (30348) — and (30349) —: HC 19-iv (2008-09) chapter 17 (21 January 2009); (30400) 13989/08: HC 16-xxxvi (2007-08), chapter 17 (26 November 2008) and HC 16-xxxii (2007-08), chapter 10 (22 October 2008); and (29953)—: HC16-xxx (2007-08), chapter 19 (8 October 2008)
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| Discussed in Council | To be determined
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
4.1 In response to growing international concern over the
problem of piracy off the coast of Somalia, the United Nations
Security Council adopted Resolution (UNSCR) 1816 (2008) in June
which encouraged "States interested in the use of commercial
maritime routes off the coast of Somalia, to increase and coordinate
their efforts to deter acts of piracy and armed robbery at sea".
Then, on 7 October 2008, the Security Council unanimously adopted
UNSCR 1838, which was initiated by France and co-sponsored by
19 countries (Belgium, Croatia, the US, UK, Italy, Panama, Canada,
Denmark, Spain, Greece, Japan, Lithuania, Malaysia, Norway, the
Netherlands, Portugal, Korea and Singapore).
4.2 The previous Committee's reports set out
the history of the European Union's endeavours to address this
problem, leading to the creation of the first ESDP naval operation,
Operation Atalanta, and subsequent developments.[5]
4.3 These include, in January 2009, an Explanatory
Memorandum from the then Minister for Europe, giving "an
overview on decisions made to facilitate the progress of Operation
Atalanta" and incorporating a Joint Action launching the
operation and two Council Decisions on Status of Force Agreements
with both the Somali Republic and Djibouti.
4.4 Subsequent reports have covered:
— an
exchange of letters between the EU and Kenya that give the right
to enter and freedom of movement within the territory (including
territorial waters and airspace) of Kenya "strictly limited
to the necessities of the operation";
— a further EU-Kenya agreement on the handover
of pirates for trial;
— a Status of Forces Agreement (SOFA) with
the Seychelles, allowing the EU to freely enter territory (including
territorial waters and airspace) of the Republic of the Seychelles
and the right to detain pirates in the Republic of the Seychelles
waters;
— an agreement to allow the transfer of
persons detained by EUNAVFOR in connection with armed robbery
and associated seized property to the Seychelles for the purpose
of investigation and prosecution;
— information on attempted and successful
attacks with regard to the year to 9 June 2009, noting that the
ratio of successful attacks in the Gulf of Aden had reduced from
1 in 3 at the end of 2008 to about 1 in 8 for most of the year
to date and 1 in 11 in May, but also that these international
effort may have had effect of pushing pirates to operation further
South East including in Seychelles waters;
— a new piracy resolution (UNSCR 1851)
adopted by the Security Council on 16 December 2008, which called
for the establishment of an International Contact Group on Piracy
off the Coast of Somalia (CGPCS), and gave details of the work
upon which the CGPCS had embarked;
— agreement in May that, having reached
Initial Operation Capacity (IOC) on 13 December 2008 and being
intended to last until 13 December 2009, Operation Atalanta should
be extended for a further 12 months;
— the previous Minister for Europe's views
on the achievements, failings and lessons learned so far in the
mission's first year, which said that a more detailed review would
be undertaken at the end of Atalanta's first year in December
2009;
— action the Government and the EU had
taken during the year of operation to address the root causes
of the immediate problem;
— a Council Decision extending Operation
Atalanta until 13 December 2010 and amendments to the existing
Joint Action to include:
- monitoring of fishing activities
off the coast in Somalia;
- the need for Operation Atalanta to liaise and
cooperate with international bodies working in the region;
- assisting the Somali authorities by sharing information
on fishing activities;
- a Council Decision establishing an EU Training
Mission for Somalia, to provide (in Uganda) training for Somali
security forces.[6]
4.5 The 14 June 2010 Foreign Affairs Council
agreed to extend the Area of Operations for Operation Atalanta.
The new Area of Operations will extend to longitude 65° East
and latitude 15° South. Annex A to the Minister for Europe's
(David Lidington) Explanatory Memorandum of 23 July 2010 showed
both the current and proposed Areas of Operation.
4.6 The Minister explained that:
— Operation
Atalanta's success in reducing the number of successful pirate
attacks in the critical Gulf of Aden trade artery has resulted
in some displacement of pirate activity into the wider Somali
Basin and Indian Ocean;
— attacks have taken place as far as 1,300
nautical miles off the coast of Somalia;
— in order to best address and target the
increasing area of pirate activity, EU Member States agreed that
a larger Area of Operations is needed;
— the new Area of Operations will provide
EU Naval Forces (EUNAVFOR) with the command and control authority
to operate in the larger area only if there is an attack or intelligence
of pirate activity there;
— it will also allow for the application
of current Rules of Engagement in the larger area;
— it does not mean that EUNAVFOR will increase
its patrolling area, or require extra forces in order to cover
the larger Area of Operations.
4.7 The Minister went on to say that, although
pirate attacks continued to plague merchant shipping, the actual
number of successful attacks had reduced significantly, especially
in the critical Gulf of Aden transit artery. The international
community had, he said, shown unity and resolve in tackling piracy,
the EU mission having ensured safe passage of over 300,000 tonnes
of food aid to Somalia. However the threat of piracy had not diminished
and continued to pose a threat to international shipping. Whilst
pirate activity in the Gulf of Aden had been dramatically reduced,
there had been an increase in pirate attacks in the much broader
Somali basin. Ministers had accordingly agreed at the 14 June
2010 Foreign Affairs Council to support the Operation Commander's
recommendation that Operation Atalanta's mandate be extended by
a further two years until December 2012. This extension would
allow the Operation to generate assets and personnel and their
deployment more strategically. At this stage, this was a political
agreement and formal scrutiny would not be required until later
in 2010, when a Council Decision was agreed. He would ensure the
Committee was given as much opportunity as possible to scrutinise
the proposed Council Decision when it became available.
4.8 In the meantime, the Minister noted that
the UK continued to provide a significant direct contribution
to a number of international efforts to counter piracy, including
the Operation commander, Operation headquarters and the planned
allocation of a frigate in early 2011 to Operation Atalanta; provision
of a frigate and Deputy Commander to the Combined Maritime Forces'
(CMF) presence in the region; provision of a frigate and recent
task force command of NATO's Operation OCEAN SHIELD; and leading
a Working Group within the Contact Group on Piracy off the Coast
of Somalia (CGPCS) with lead responsibility for operational naval
coordination and regional capability development.
4.9 The Minister also described the cost of the
EU's Operation Atalanta to the UK as "very limited":
"Command structures for EU-led operations are
funded by all Member States through common costs. This year, Operation
Atalanta's common costs, including the headquarters, total €9.4M;
the UK contributes €0.5M. The level of the first call for
2010 equates to less than 50% of the overall agreed budget, therefore
a further call for funds would if required be received as a result
of the mid-year review process in July. Extending the area of
operations will have a negligible effect on the overall cost of
the operation to the UK."
4.10 Finally, the Minister said that the document
would be agreed by written procedure.
Our assessment
4.11 No questions arose from this document,
which we cleared.
4.12 Looking ahead, we noted the related issues
raised in the previous Committee's most recent report.[7]
There, they referred again to a relevant letter published by "The
Times" on 5 December 2009 from the Prime Minister of the
Transitional Federal Government of Somalia, which they
reproduced at Annex 1 to their Report, and in which he called
for:
— help
in the restoration of both effective government and the training
of national security forces required to secure peace and enforce
laws;
— restoring and enforcing Somalia's economic
exclusion zone "so that Somalia can use its vast potential
wealth in fish, oil and gas to fund its own future";
— a large scale civil affairs programme
to train Somalia's young people and establish legitimate commercial
livelihoods.
4.13 Though there had been a response to the
request for help in the training of Somalia's national security
forces, it was not clear to what extent the other two were being
effectively addressed. We therefore again ask that the Minister
address these issues in his Explanatory Memorandum on the prospective
Council Decision and provide information concerning any reviews
of Operation Atalanta's effectiveness, together with his views
about progress thus far and on the best way forward.
The draft Council Decision
4.14 The draft Council Decision extends Operation
Atalanta until 12 December 2012.
4.15 In addition, the Minister of Europe (David
Lidington) says in his Explanatory Memorandum of 8 November 2010
that the lessons learnt thus far highlight the requirement for
two technical amendments to Joint Action 2008/851/CFSP
— the collection of personal data, such as fingerprints,
of apprehended persons with a view to tracing their identity and
enhancing possible prosecution; and allowing EU classified information
to be shared with partners in theatre, when deemed necessary.
4.16 With regard to the first of the proposed
changes, the draft Council Decision says:
"In Article 2, the following paragraphs shall
be added:
"(g) collect data concerning persons referred
to in paragraph (e) above related to characteristics likely to
assist in their identification, including any specific objective
physical characteristics not subject to change such as dactyloscopic
data;
"(h) for the purpose of circulating the
data via INTERPOL's channels and checking it against INTERPOL's
databases, transmit to the National Central Bureau (NCB) of the
International Criminal Police Organisation — INTERPOL located
in the Member State where the Operational Headquarters is stationed
in accordance with arrangements to be concluded between the Operation
Commander and the Head of the NCB, the following data:
"— personal data concerning persons
referred to in paragraph (e) above related to characteristics
likely to assist in their identification, namely any specific
objective physical characteristics not subject to change, such
as dactyloscopic data, as well as the following particulars, with
the exclusion of other personal data: surname, maiden name, given
names and any alias or assumed name; date and place of birth,
nationality; sex, place of residence, profession and whereabouts;
driving licenses, identification documents and passport data;
"— data related to the equipment
used by such persons."
4.17 With regard to the second proposed change,
the draft Council Decision says:
"(d) In Article 15, the following paragraph
3 shall be added:
"3. The High Representative is hereby authorised
to release to third States and international organisations present
in the area of operation classified EU information and documents
generated for the purposes of the EU operation at the level RESTREINT
UE, where such release at theatre level is necessary for operational
reasons, in accordance with the Council's security regulations."
The Government's view
4.18 After outlining the general situation and
the UK contribution in the same terms as in June (c.f. paragraphs
4.7-4.8 above), and adding the welcome news that the EU mission
has now ensured safe passage of over 400,000 tonnes of food aid
to Somalia, the Minister says that:
—
regional judicial and penal capacity space is at a premium, placing
pressure on Operation Atalanta only to pursue prosecutions where
there is a high likelihood of success;
— whilst the Contact Group on Piracy off
the Coast of Somalia (CGPCS) is supporting the efforts of the
UN Office of Drugs and Crime to enhance regional capacity, the
collection of personal data, e.g. fingerprints, of suspected persons
and transmission to INTERPOL's forensic database would strengthen
the operation's ability to successfully prosecute pirates;
— this information would only be collated
in accordance with national and international law;
— the ability to share EU classified information
in theatre, when deemed necessary, would enhance awareness between
partners participating in counter-piracy, benefitting operations
as a whole.
4.19 The Minister also says that, with regard
to the Financial Implications:
— common
costs for the operation — €8.3 million in the previous
year — are met by all EU Member States, and are paid through
contributions by Member States via the "ATHENA" financial
mechanism based on the GDP of each nation;
— other costs will be met by the participating
nations;
— the UK's previous contribution of £1.29
million per annum is expected to remain broadly consistent if
the mandate is extended and will be funded from HMG's Peace Keeping
budget.
Conclusion
4.20 We have no wish to hold up the extension
of Operation Atalanta's mandate, given the importance of the threat
to international stability that it is endeavouring to tackle.
But there are some ambiguities that need clarifying.
4.21 First, what is meant by dactyloscopic
data? And what other data might be collected and transmitted to
INTERPOL? Would this include an apprehended suspected pirate's
DNA?
4.22 Secondly, what is meant by the statement
that "this information would only be collated in accordance
with national and international law"? Whose national law?
And which international law? Would the individuals concerned be
obliged to provide the information specified in the proposed changes?
Or, if there is no element of compulsion, what purpose would be
served by a provision, compliance with which by the apprehended
person or persons is purely voluntary?
4.23 We also note that, once again, there
is no response to the request (c.f paragraphs 4.12 and 4.13 above)
concerning his reaction to the 5 December 2009 open letter from
the Prime Minister of the Transitional Federal Government of Somalia
calling for (in addition to help in the restoration of both effective
government and the training of national security forces required
to secure peace and enforce laws, to which there has been a response)
the restoration and enforcement of Somalia's economic exclusion
zone "so that Somalia can use its vast potential wealth in
fish, oil and gas to fund its own future" and a large scale
civil affairs programme to train Somalia's young people and establish
legitimate commercial livelihoods. Nor is there any information
concerning any reviews of Operation Atlanta's effectiveness, or
his views about progress thus far and on the way forward. At the
very least it would be helpful for the House to have some sense
of what activity is being undertaken by the EU or other parts
of the international community to solve the underlying problems
outlined in the Somali Prime Minister's letter, and what success
Operation Atalanta has had beyond the generalities in the Minister's
Explanatory Memorandum.
4.24 In the meantime, we shall retain the
document under scrutiny.
5 See headnote. Back
6
See (31259) -: HC 5-vii (2009-10), chapter 2 (20 January 2010)
and the subsequent the European Committee debate at http://www.publications.parliament.uk/pa/cm200910/cmgeneral/euro/100308/100308s01.htm. Back
7
See (31174) 16450/09: HC 5-iii (2009-10), chapter 19 (9 December
2009). Back
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