Cablegate: Piracy Prosecution - Demarche Request

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DE RUEHC #0603 2711215
ZNR UUUUU ZZH
P R 281156Z SEP 09
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TO RUEHDR/AMEMBASSY DAR ES SALAAM PRIORITY 0000
INFO RUEHNR/AMEMBASSY NAIROBI 0000

UNCLAS STATE 100603

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: MARR MOPS MP PBTS PHSA
SUBJECT: PIRACY PROSECUTION - DEMARCHE REQUEST

1. (SBU) Summary: This is an action request (see paragraphs
2 and 3). Kenya currently has more than 100 suspected
pirates in custody, either awaiting trial or on trial. The
burden needs to be shared more broadly. The United States
will continue to press victim states to take responsibility
for prosecution but is also pursuing alternative
transfer/prosecution arrangements within the region. Based
on input from Post, we understand Tanzania does not currently
have the domestic legal framework to prosecute
pirates in cases without a Tanzanian nexus, and may not have
the political will to amend their law to expand their
jurisdiction or to assist the United States by accepting
piracy suspects for prosecution.
Nevertheless, we believe it is appropriate to engage the GoT
on Tanzania,s potential role in pirate prosecution and our
interest in entering into a transfer/prosecution MoU with
them, to take effect when they have made the necessary
changes to their domestic law. End Summary.

Action Request
---------------

2. (SBU) Post is requested to demarche host government
officials as soon as possible with the following objectives:

--to express our strong interest in Tanzanian legislative
reform that would recognize piracy as a universal crime that
can be prosecuted in national courts regardless of whether
the case has a nexus to Tanzania.

--if the GoT is interested, offer USG support to identify
technical assistance to review and/or draft the necessary
legislation to expand the jurisdiction of their domestic
courts to enable prosecution of acts of piracy, even where a
Tanzanian nexus is absent.

-- to express our strong interest in pursuing conclusion of a
Memorandum of Understanding with the United States to
facilitate the transfer of suspected pirates to Tanzania for
the purposes of prosecution, and gauge GoT receptivity to the
proposal.

-- if the GoT is interested, Post should share the draft MoU
text and accompanying explanatory notes (sent via e-mail)
with the GoT and propose that GoT and U.S. experts meet via
video-conference within 10 days to discuss the text and
address questions the GoT authorities may have.

Suggested Points to Make
------------------------

3. We recognize that the economic and security interests of
Tanzania are being negatively affected by piracy,
particularly as the range and sophistication of pirate
operations grow.

-- We are pleased that we have established a strong
partnership with Tanzania with regard to maritime
security and note the presence of U.S. forces patrolling and
protecting the seas off the Horn of Africa. We are committed
at the most senior levels of government to combat piracy
through actions such as our Naval presence and through our
efforts to address instability in Somalia -- the root cause
of piracy in the region.

-- A key challenge our Naval patrols face is transfer of
suspected pirates that they interdict. It is imperative both
from the point of view of justice and the core mission of the
patrols that suspects not be held for long periods while
transfer options are explored.

-- We believe that the first option for prosecution should be
the victim states, be it the flag state of the pirated ship,
the ship owner, or the country or countries with crew on
board. We will continue to urge affected states to accept
suspects for prosecution. However, when such options are not
available, a second best solution is to try suspects in the
region, closer to their home, and where piracy is harmful to
commercial and maritime security.

-- The United States, the United Kingdom, and the European
Union have MoUs with the Government of Kenya regarding
transfer and prosecution of suspects, the UK has a similar
MOU with the Seychelles, and the EU is in the process of
finalizing an arrangement with the Seychelles. However, it
is important that the prosecution effort be shared more
broadly.

-- We are very interested in exploring the conclusion of an
MoU with Tanzania that would set out a framework to
facilitate the transfer of suspected pirates to Tanzania for
purposes of prosecution.

--We recognize that the GoT may need to make some legislative
changes to enable its courts to prosecute cases of piracy
when there is no nexus with Tanzania. If the GoT is
interested, we will encourage international efforts to
provide Tanzania with technical assistance to review and/or
draft the necessary legislation.

-- As we have done with respect to Kenya, we will continue to
impress upon victim states their responsibility to prosecute,
or, if they are unable to do so, to provide assistance and
support to the prosecuting state. In our experience, one key
area of need is facilitating the presence of
witnesses at trial and defraying related expenses. The
international community is providing support to Kenya for
this and other aspects of piracy prosecution, and we would be
pleased to discuss these matters with Tanzania in more detail.

-- We note, as well, that the U.S. forces involved in
counter-piracy efforts have been well-trained in evidence
collection. As we have done with Kenya, it is our
expectation that any case presented to Tanzania would be
accompanied by a well-developed package of evidence for your
prosecutors. If we are able to conclude an MoU with the GoT,
we would ensure our forces have an understanding of any
special requirements your courts need in terms of evidence.

-- Also as with Kenya, we would look forward to discussing
with you potential constraints on the capacity of the
Tanzania court or prison systems.

-- As appropriate: if you are interested, we have a proposed
text for your review and our legal experts will be available
for follow-on discussion via video conference within the next
10 days.

4. Please slug responses for: L/LEI Jennifer Landsidle;
L/OES Kevin Baumert; AF/E: Susan Driano and Justine Treadwell.
CLINTON

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