The Growing Threat of Piracy to Regional and Global Security
1. Piracy is obviously not a new phenomenon, but the scale of the problem and the perception of the threat it poses to merchant shipping have fluctuated throughout history. The past few years have seen a significant increase in the number of acts of piracy. Two hundred and ninety three attacks were reported worldwide in 2008. Their location is shown on the map in Appendix 2.
2. The large majority of attacks in 2008 has taken place off the coast of Somalia. This report will therefore focus on developments there. It will assess the current threat posed by piracy in the light of the situation off Somalia and suggest ways to enhance international counter-piracy efforts.
3. The “piracy boom” off the coast of Somalia has led to a re-evaluation of the nature and scale of the threat posed by piracy, as well as of the international response. Pirate attacks in Somalia have become bolder and, to a certain extent, more sophisticated. In 2008, Somali pirates attacked, among others, deliveries of humanitarian assistance, private sailing ships, a supertanker, and a freighter carrying weapons. While the threat was previously considered a largely regional problem requiring a regional response, the situation in Somalia has led to an increased, and, in many regards, unprecedented, international response, involving a great variety of players - governments, international institutions, representatives of the shipping community, etc. The international naval presence in the Gulf of Aden and the Somali Basin is the most visible aspect of this response and has also brought together a large coalition of nations and multinational deployments. Both NATO and the EU have deployed operations in the region and are now considering their potential role in the longer term in fighting piracy on the world’s seas.
4. The situation in Somalia has also highlighted the shortcomings of the international legal framework, raising questions regarding the definition of piracy, and the effectiveness of existing mechanisms for arresting and prosecuting pirates.
II. UNDERSTANDING AND ASSESSING THE THREAT OF PIRACY
A. DEFINING PIRACY
5. The traditional definition of piracy can be found in article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) of 1982:
“Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”
6. An attack on a ship is thus only considered an act of piracy if it takes place on the high seas1 or in a place outside the jurisdiction of any state. For the purposes of the anti-piracy provisions of UNCLOS, the legal regime of the high seas also extends to the exclusive economic zone. If the attack occurs in the territorial waters of a state, in a port, or in other areas within the jurisdiction of a state, it is considered armed robbery, and a different legal regime applies. 7. The recent increase in attacks on ships off the coast of Somalia – many of which have taken place in territorial waters – has led the international community to reconsider this distinction between piracy and armed robbery in the specific Somali context, as will be discussed below.
B. GLOBAL TRENDS2
8. International awareness of and concern about the growing number of pirate attacks developed at the end of the 1970s and the beginning of the 1980s, leading to the codification, in UNCLOS, of the international legal framework relating to piracy, and to the adaptation of existing international maritime institutions. The establishment by the International Maritime Bureau (IMB)3, in Malaysia, of the Piracy Reporting Centre (PRC) in 1992 was another important step towards promoting a better understanding of the scale of the challenge and enhancing international prevention and response efforts. The PRC’s main objective is to act as the first point of contact for the shipmaster to report an actual or attempted attack.
9. The data compiled by the PRC since its creation shows an overall increase in the number of incidents of piracy and armed robbery (attempted and actual attacks) over the past 15 years, with peaks in 2000 (469 incidents) and 2003 (445 incidents). Current levels remain below these peaks. However, IMB data shows a regular increase over the past three years, from 239 incidents of piracy and armed robbery in 2006 to 293 in 2008. 2008 saw an 11% increase in the number of incidents compared to 2007. This trend is likely to continue in 2009; the IMB already reported some 294 incidents worldwide from January to September 2009. It should be noted that, because the IMB data relies on the reporting of incidents by shipmasters, actual numbers of attacks are probably higher.
Evolution in the number of incidents of piracy and armed robbery worldwide 1993-2009 (IMB data) (the data for 2009 includes incidents reported between January and September) - see word file
10. The increase in the overall number of incidents over the past three years is primarily due to the proliferation of pirate attacks off the coast of Somalia. In contrast, the number of incidents decreased in other regions of the world, notably in South East Asia, which until recently was the area most affected by piracy. After Somalia, Nigeria saw the second highest number of serious attacks in 2008.4 The IMB received 30 reports of actual attacks and 10 reports of attempted attacks in Nigeria, but the organisation believes that many more incidents were not reported. Attacks take place primarily in Nigeria’s territorial waters, around Lagos, the country’s economic capital and along the Bonny River in the southern Niger Delta, and are largely targeted at the oil industry. It is thus widely believed that piracy in Nigeria is at least partly politically motivated, and connected with insurgent movements of the Niger Delta. Incidents also tend to be quite violent; 39 crew members were kidnapped in pirate attacks in Nigeria in 2008.
C. CASE STUDY: SOMALIA
Political overview 11. The recent piracy boom in Somalia has benefited from the extremely volatile political and security environment in the country. Since the collapse of Mohamed Siad Barre’s rule in 1991, Somalia has had no effective central authority. The Transitional Federal Government (TFG), established in 2004 and recognised by the international community as the legitimate state authority, controls only parts of the country, and continues to face a serious challenge from numerous armed opposition groups. Further adding to the weakness of central institutions, the Puntland region and the self-declared Republic of Somaliland in northern Somalia have established their own autonomous self-administration institutions.
12. In 2006, the TFG was overthrown by the Islamic Courts Union (ICU), a loose network of sharia courts supported by radical Islamist militia groups. The TFG retook control after only a few months, thanks to the intervention of Ethiopian forces with foreign backing. The ICU was hit hard, but its remnants formed new opposition movements, mainly the Alliance for the Reliberation of Somalia (ARS), which only recently joined the governing coalition, and the radical Al-Shabaab movement, which arguably represents the strongest armed opposition to the TFG today.
13. A number of recent developments have raised hopes for positive change. Ethiopian forces completed their withdrawal at the beginning of 2009, thereby removing one of the main rallying grounds for armed opposition groups. In August 2008, moderates from the governing faction and the ARS signed the Djibouti Peace Agreement, leading to an expanded unity parliament and the selection of a new government. Former president Abdullahi Yusuf resigned and was replaced by Sheikh Sharif, chairman of the ARS and a former moderate leader of the ICU. In an important symbolic move, both the Cabinet and the parliament relocated to Mogadishu in February-March 2009. The President and the Unity Government have led an active policy of engagement towards those opposition groups which remain outside the Djibouti reconciliation process and have reached out to influential clan leaders and Islamic clerics. This policy has had some success in undermining public support for insurgents and creating splits between radical and more moderate elements.
14. Nevertheless, the security situation in Somalia has remained extremely unstable. AlShabaab, in particular, continues to pose a serious threat to the Sharif administration. Attacks against government targets and African Union peacekeepers intensified in the spring and summer and became more sophisticated, lethal and co-ordinated, with increasing use of asymmetrical warfare. Armed opposition groups have managed to consolidate their control over large parts of south and central Somalia, while the TFG currently only remains in control of the southern districts of Mogadishu, as well as the airport and seaport. This situation led the TFG to declare a state of emergency in June.
15. Renewed combat has also contributed to a further deterioration of the humanitarian situation. More than three million people are in need of humanitarian assistance (43% of the population), and according to the Office of the United Nations High Commissioner for Refugees, 1.3 million Somalis remain internally displaced. The recent intensification of fighting in Mogadishu has reportedly caused some 200,000 additional displacements.
Piracy trends 16. The extreme weakness of central institutions and rule of law in Somalia has allowed numerous criminal organisations – including pirate networks – to develop and operate throughout the country, while local and central law enforcement authorities have been unable to respond effectively. Already at the turn of the Millennium, several studies noted with concern a sharp increase in pirate attacks off the Horn of Africa.5 Concerns redoubled in late 2005 after a failed pirate attack on Seabourn Spirit, a Bahamas-flagged, US-operated, cruise liner. The short rule of ICU provided a brief relief, as the new rulers actively cracked down on piracy.
17. 2008 saw the sharpest increase in the number of attacks in recent years, from 44 incidents in 2007 to 111, or a 250% increase. The IMB had already reported 164 incidents from January to September 2009. According to NATO data, there were two attacks in the Gulf of Aden and fifteen attacks in the Somali Basin in October 2009. The majority of attacks in 2008 and in the first nine months of 2009 took place in the Gulf of Aden, a narrow corridor, which separates Somalia from Yemen by 170 nautical miles at the widest point and as little as 100 nautical miles at other points. Because of the geography of the Gulf and its importance for global maritime flows, attacks there have a greater disruptive effect than they may elsewhere. However, the larger international naval presence in the Gulf seems to have led pirates to focus increasingly on the Somali Basin – the South-western part of the Arabian Sea off the coast of Somalia –, which represents an area five times that of the Gulf of Aden and thus more difficult to defend. The IMB’s data indicates that attacks are taking place on an ever larger area, further out at sea, further south, as far as off the coasts of Kenya, Tanzania, the Seychelles and Madagascar, and further east, as far as off the coast of Oman and into the Bab el Mandeb. While the south west monsoon made boat activity off the East coast of Somalia difficult from May to September, attacks are expected to resume with increased intensity in the autumn.
Incidents of Piracy and Armed Robbery off the coast of Somalia and in the Gulf of Aden 2003-2009 (IMB data) (the data for 2009 includes incidents reported between January and September) - seeword file
18. It is difficult to identify the causes of the recent “piracy boom” in Somalia with certainty. It is widely acknowledged that many pirates are connected with local fishing communities. The Somali fishing industry has suffered greatly over the past decade from illegal6, unreported and unregulated fishing by foreign vessels in the region, a phenomenon that has also benefited from the incapacity of Somali authorities to enforce relevant regulations.7 Pirate networks may thus have been at least partly inspired by a desire to seek redress for the damage done by foreign overfishing.8 In a country where extreme poverty is widespread, piracy provides an attractive source of income. However, piracy could not have thrived in Somalia without the favourable political environment characterised by widespread lawlessness and weak governance.
D. SOMALIA AS EVIDENCE OF AN EVOLVING THREAT
19. Besides the sheer increase in the number of attacks, the situation in Somalia illustrates an evolution of the threat that piracy poses to international shipping.
20. Evidence shows that the multiplication of attacks is connected with an increase in the number of pirates in operation, from a dozen in 2006 to an estimated 1,000-1,500 today.9 Experts have identified two main networks of Somali pirates. One is based in Puntland and operates mainly out of Eyl. A second traditional pirate network has its roots in Central Somalia around Harardheere (Xarardheere).10 According to UN reports, both networks tend to overlap and cooperate to some extent.
21. Attacks follow an increasingly similar pattern. The IMB reports that all attacks and attempted attacks in 2008 and 2009 were carried out against steaming ships, and the data below shows that the main purpose of such attacks is to hijack the ship and take the crew hostage with a view to obtaining a ransom for their liberation.
Incidents of piracy and armed robbery in the Gulf of Aden / Somalia in 2009 by type of attack (IMB data) - see word file
Incidents of piracy and armed robbery in the Gulf of Aden / Somalia in 2009 by type of violence to crew (IMB data) - see word file
22. The capture of a ship is usually conducted by groups of 10-20 pirates aboard speedboats. The pirates board the ship using grappling hooks and aluminium ladders. Once boarded, the ship is led to a safe port – Eyl, Hobyo and Harardheere are the main bases – and kept there awaiting payment of a ransom.
23. The pirates’ methods and equipment have been perfected. They make greater use of modern technology, including GPS and satellite phones, and sophisticated weapons, such as Man Portable Air Defence Systems (MANPADs) and Rocket Propelled Grenades (RPGs). While attacks used to be carried out from small fishing ships, Somali pirates increasingly use so-called “mother ships”, i.e. larger ships which can carry smaller ones, and launch them whenever a target has been identified. These mother ships can travel longer distances and have allowed pirates to carry out bolder attacks farther out at sea, increasingly reaching points beyond 400 nautical miles off the coast.
24. Ransoms have also shot up to US$ 1 million and more in the highest profile cases, from only tens of thousands US$ a few years ago. It was reported, for instance, that a ransom of US$ 2 million was paid for the liberation of the French yacht Le Ponant, captured in April 2008. The Saudi supertanker Sirius Star, whose value was estimated at US$ 100 million, was released in January 2009, reportedly after payment of a US$ 3 million ransom. Release of the Ukrainian ship Faina, its crew of 21 sailors and a load of tanks and weapons, in February 2009, over four months after its capture, also reportedly followed payment of a ransom exceeding US$ 3 million.
25. There are clear indications that pirates benefit from the complacency or, in some cases, the support of corrupt local officials, and rely on wealthy and influential contacts, who help finance operations, procure equipment and deal with the proceeds of ransom payments. More attention should be paid to these aspects of the problem and greater priority given to tracking and interdicting movements of weapons and funds in support of piracy, including from neighbouring countries.
26. All these elements point to a longer-term, more organised and more aggressive threat. However, while it would be wrong to downplay the threat, the level of sophistication and organisation of Somali pirate networks should not be exaggerated either. The November 2008 report of the UN Monitoring Group on Somalia makes it clear that pirate militias remain, for the most part, “loosely organised and poorly trained”, and that their membership is fluid.11 Overall, attacks also continue to demonstrate a relatively low level of sophistication, and remain largely opportunistic – rather than directed against pre-determined targets. Finally, when looking at the type of threat that piracy poses, it is important to remember that pirates operate first and foremost as a “business” and not as a political movement or a paramilitary force.12
E. PIRACY IN SOMALIA: A MULTI-FACETED THREAT
27. Traditionally, piracy has been considered mostly as a local or regional problem, requiring regional solutions. Developments in Somalia have highlighted the potential threat that piracy can pose to international security, on several accounts.
28. First, piracy poses a threat to the shipping industry and to maritime trade. It is estimated that 90% of world trade is transported by sea. The Gulf of Aden and the Somali coast are part of one of the most important routes for global maritime traffic. Some 20% of world trade and 12% of the world production of crude oil13 are transported via this route. This represents some 20,000 to 30,000 ships passing through the area annually.
29. In terms of sheer numbers – 111 out of 20,000 ships were attacked in 2008 – the impact of piracy on maritime traffic in the Gulf of Aden / Somalia can seem minimal. However, the cost of piracy can be measured using several other indicators. First, of course, is the immediate cost of ransom payments for companies whose ships are hijacked. Second, reports indicate that insurance premiums for commercial shipping in the Gulf of Aden have increased tenfold over the course of the past year14 and that shipping companies have started re-rerouting ships to the Cape of Good Hope, a shift which will affect transportation costs, as well as the price of transported goods.15 The capture of the Sirius Star also demonstrated the potential cost of attacks directed against oil tankers and, by extension, the specific threat that piracy can pose in terms of energy supply security; this single incident drove the price of crude oil up by 1.4%.16
30. The Faina incident also highlighted the risk that dangerous material could fall into the hands of pirates, including military or even nuclear material. Additionally, the use of hijacking and kidnapping has compelled foreign governments to intervene in order to guarantee the safety and security of their citizens engaged in private or business activities in the region.
31. In the case of Somalia, the strong response by the international community was also initially prompted by the threat piracy posed to deliveries of humanitarian assistance. The World Food Programme (WFP) delivers food aid to over two million people in Somalia. Ninety per cent of this aid arrives by sea. Pirate attacks forced the WFP to suspend food deliveries by sea on several occasions, until military escorts started in November 2007. This illustrates the great disruptive impact that piracy can have on the distribution of international assistance to the populations in need, and how it can, by extension, worsen the humanitarian crisis in Somalia. Speaking at the NATO PA’s spring session in Oslo in May 2009, the Executive Director of the WFP, Josette Sheeran, emphasized the close link between food and security, and called on aid and security communities to build further synergies in their respective efforts, citing Somalia as a remarkable example of co-operation, where naval deployments in the region have allowed vital food supply routes to remain open and thereby avoid a further destabilisation of the security situation in the poorest regions of the country.
32. Piracy also feeds corruption and other criminal activities, and in turn benefits from the trafficking networks put in place by organised crime gangs. Altogether, they contribute to the broader political instability in the country.
33. A more controversial question is the existence of links between pirates and terrorist groups. In the Somali context, the main concern would be collusion between pirates and the Al-Shabaab movement. Al-Shabaab was originally established as the militant arm of the ICU, but has now evolved into an autonomous force and the strongest anti-government militia in southern Somalia. The group has developed the use of terror tactics, such as improvised explosive devices and suicide bombers, has started to target international peacekeepers and aid workers, and is attracting foreign fighters. The spokesman for the movement recently declared the group to be aligned with al-Qaeda, although the exact nature of Al-Shabaab’s links with al-Qaeda remains unclear. These developments have nevertheless raised growing international concern, and in March 2008, the US government designated Al-Shabaab a terrorist organisation.
34. There is so far no evidence of collusion between Somali pirates and Al-Shabaab, in the sense that pirates would be recruited by Al-Shabaab to conduct terrorist attacks at sea.17 Experts point out that the pirates’ activities are incompatible with the principles of Islam, and that the ICU actively cracked down on piracy. A more immediate concern is the risk that the proceeds of piracy be used to finance terrorist organisations. However, here again, evidence of a direct link is so far lacking. This, however, highlights the importance of better tracing financial flows connected with piracy, a task that is mainly conducted by the UN Office on Drugs and Crime and Interpol at present.
III. ENHANCING THE GLOBAL RESPONSE
35. The multi-faceted – and, in many ways, exceptional – threat posed by piracy off the coast of Somalia has in turn prompted an exceptional international response.
A. THE EXISTING LEGAL FRAMEWORK AND ITS LIMITS
36. International law on piracy is based on rules of customary law, which have been codified in UNCLOS. The main provision is article 105, which states that:
“On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.”
37. Article 105 thus gives any state the authority to seize pirate ships and then to prosecute the alleged pirates, even if the state concerned has no link of nationality with the ship, the victims or the assailants. This is referred to as universal jurisdiction. States do not, however, have an obligation to exercise this authority.
38. Article 107 of UNCLOS defines the categories of ships or aircrafts entitled to seize pirate ships. It states:
“A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.”
39. This does not mean, however, that pirate attacks are considered acts of war. Although UNCLOS establishes an international regime for combating piracy, warships engaged in counterpiracy operations are treated as police or law enforcement forces. This also means that captured pirates are not considered prisoners of war, and should therefore be prosecuted in the regular court systems.
40. While it is widely accepted that UNCLOS authorises the use of force in counter-piracy operations, legal opinions differ regarding the exact circumstances in which force could be used. In this regard, it is important to understand that counter-piracy actions take place in a very specific context, in which pirates are civilians in a situation that is not considered as an armed conflict, and in which warships are considered as conducting police action. Use of force in self-defence is incontrovertible. However, it has also been argued that the use of force against pirates may be acceptable in other circumstances, provided that it is unavoidable, reasonable and necessary, and that the human rights of the person are respected.18
41. Developments in Somalia have revealed several problems connected with the implementation of UNCLOS piracy-related provisions. First, many pirate attacks have taken place in Somalia’s territorial waters, where the provisions of UNCLOS are not applicable, and where foreign navies would therefore not normally be authorized to intervene. Second, the Constitution or legal provisions of several countries forbid the use of military power for law enforcement missions, or restrict it to specific cases. Finally, states have sometimes been unable to prosecute pirates because of the lack of adequate provisions in their national legislation.
42. These problems show that UNCLOS provisions can only be effectively implemented if the following two conditions are met: 1. the international legal framework is complemented by adequate national legislation in all states concerned; 2. legal provisions are backed by effective enforcement capacity both for the arrest and for the prosecution of suspected pirates. The international response to events in Somalia has partly addressed these problems.
B. SOMALIA: THE LEGAL RESPONSE
43. The United Nations Security Council (UNSC), which has closely monitored the political and security situation in Somalia since 1991, has led efforts to adapt the international legal framework to the specific challenges posed by the proliferation of piracy off the coast of Somalia. The Council agreed upon a series of resolutions in 2008 dealing specifically with this issue. All these were adopted under Chapter VII of the UN Charter which gives the UNSC extensive powers to respond to threats to international security. Indeed, these resolutions have introduced several exceptional measures. The UNSC did not, however, go as far as to classify piracy as a threat to international security as such, but rather as an aggravating factor in the specific context of Somalia.19
44. The most striking aspect of the UNSC response to piracy in Somalia has been the extension of the legal regime of piracy, as set forth by UNCLOS, to the territorial waters of Somalia. This measure effectively abolishes the distinction between the high seas and territorial waters, and allows foreign navies engaged in counter-piracy operations to operate throughout the entire zone. An initial authorisation was granted for six months by UNSC resolution 1816 of 2 June 2008, and extended for another 12 months by UNSC resolution 1846 of 2 December 2008. It will likely be renewed at the end of this year.
45. Resolution 1851 of 16 December 2008 introduced yet another exceptional measure, authorising states engaged in counter-piracy in the region for a 12-month period starting on 2 December 2008, to “undertake all necessary measures that are appropriate in Somalia”, i.e. to intervene on land for the purposes of counter-piracy efforts.
46. The UNSC has been very careful to stress the exceptional nature of these measures. All resolutions state explicitly that their provisions apply exclusively to Somalia; that they should not be considered as establishing new rules of international customary law; that they were adopted following the consent of Somali authorities; and that they are limited in time and kept under review by the UNSC.
47. UNSC resolutions on piracy have also addressed some of the problems relating to the question of jurisdiction for arresting and prosecuting pirates. In particular, UNSC resolutions 1846 and 1851 have confirmed the applicability of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), a matter that had previously been a subject of debate among legal experts. Article 6 of the SUA Convention creates an obligation for State parties to take necessary measures to establish their jurisdiction when unlawful acts are perpetrated against their ships, in their territory or by one of their nationals. However, it does not go as far as UNCLOS in authorising universal jurisdiction – i.e. any state can claim jurisdiction over any act of piracy. In this sense, neither UNCLOS nor the SUA Convention taken separately provide a perfect legal framework. As explained by Agustin Blanco-Bazan, Senior Deputy Director for Legal Affairs at the International Maritime Organisation, at a recent seminar organised by the European Commission: “Against these complexities, legal certainty can only be achieved on the basis of an adequate implementation in national law of both UNCLOS anti-piracy provisions and the SUA treaties. At most, SUA should be considered as complementing UNCLOS, never as replacing it. The gaps left by the multiple jurisdiction established by SUA should be filled by provisions implementing the universal jurisdiction established by UNCLOS.”20
48. Very few states, however, have incorporated the universal jurisdiction clause of UNCLOS for crimes of piracy. In most cases, criminal legislation on piracy, when it exists, restricts the exercise of a state’s jurisdiction to those cases where a link with the state can be established (acts perpetrated against ships flying the state’s flag, in the state’s territorial waters, or by a national of the state). As a result, several states participating in counter-piracy operations off the coast of Somalia have sometimes had to release pirates they had arrested because they were unable to establish jurisdiction on the basis of their national legislation. Several governments have also stressed that even in those cases where the capturing state could establish jurisdiction, transferring pirates to North America or Europe to prosecute them there was not an ideal option. To address these concerns and existing legal vacuums, states participating in counter-piracy operations off the coast of Somalia have pushed for alternative options.
49. The conclusion of extradition agreements can, for instance, facilitate the prosecution of pirates by allowing states whose warships detain them to extradite them to the flag state of the attacked ship, for example. In the long run, of course, it should be up to Somalia’s courts to prosecute pirates, a large majority of whom are its own nationals.
50. Other legal mechanisms have also been envisaged. Thus, the United Kingdom, the United States and the European Union have concluded agreements with the Kenyan government, allowing for the pirates captured by these navies to be delivered to Kenya with a view to their prosecution in local courts. Other states are considering signing similar agreements with the Kenyan authorities. The European Union is also considering concluding agreements with other governments in the region, including Djibouti21, the Seychelles and Tanzania.
51. This approach nevertheless raises a number of issues. First is the issue of incorporation in the national legislation of regional states of the universal jurisdiction clause of UNCLOS. Without this, regional states would also be unable to exercise jurisdiction over cases of piracy when no link of nationality can be established.
52. A second issue relates to the capacity of the judicial system in regional states to absorb this additional burden. Certain experts warn that the Kenyan judicial system is already reaching its limits. Regional states also have to be willing to take on these cases, which in turn raises the issue of compensation, either through direct financial contributions or assistance for capacity building in the judicial sector. This issue is further addressed in chapter IV below.
53. Finally, the requirement in most North American and European countries that prisoners cannot be transferred to a foreign legal system in which they run the risk of inhuman or degrading treatment would also probably preclude agreements with certain states of the region.
54. In order to address these problems, several governments have suggested that pirates could be tried by the International Criminal Court or by an international tribunal created for this purpose. The former option is not desirable, as it would mean assimilating acts of piracy to war crimes, which they are obviously not. The latter solution would certainly solve difficulties relating to the establishment of national jurisdiction over crimes of piracy and would ensure that all crimes of piracy are treated in an equal, fair and consistent manner under established rules of international law. A special tribunal could be created by the UN Security Council on the basis of Chapter VII of the UN Charter, following the model used for the International Criminal Tribunals for the former Yugoslavia and for Rwanda. However, creating a new institution would necessarily take time and require substantial administrative and financial resources, and would thus come at a significant cost. A number of legal issues would also need to be addressed, such as defining applicable sentences and, more generally, adopting detailed rules of procedure. Rules exist to try pirates in national courts; what is lacking for now is proper implementation of these rules. Priority should thus be given to perfecting national legislation to allow for the prosecution of pirates under domestic law, both in regional states and in states which have deployed navies in theatre.22 The establishment of an international tribunal could be considered as a last resort option should national solutions prove inadequate or insufficient.
55. While issues relating to the arrest and prosecution of pirates have received a lot of attention, another important legal question – one that has been largely ignored – relates to the legal status of ransom payments. Under British law, making ransom payments is not unlawful as long as the money is intended for the release of crews, captured ships or cargo. However, if ransom money were used by pirates to buy weapons or drugs – a highly likely prospect in the Somali context – one could argue that it should fall under relevant domestic criminal provisions regarding money laundering, which, in the UK, might oblige the payer to report this as a suspicious transaction and obtain consent from the Serious Organised Crime Agency. Similar problems might also arise should a link between piracy and terrorism be established. Ransom payments might then risk being considered as financial support for terrorist activities, and might therefore risk exposing payers to criminal proceedings unless they have filed a suspicious activity report and obtained consent. The establishment of a link between piracy and terrorism might also raise further questions regarding insurance coverage.23
C. SOMALIA: THE INDUSTRY AND STAKEHOLDERS’ RESPONSE
56. A key element in addressing the threat posed by piracy to maritime flows is enhancing the shipping industry’s response, i.e. ensuring that ships are better protected against pirate attacks and their crews better prepared to react in the event of an attack. Several international organisations and stakeholders associations have stepped up their efforts towards this aim.
57. The role of the IMB Piracy Reporting Centre should be emphasised in this regard. Reporting incidents of piracy is a first essential step towards promoting better understanding and awareness of the problem, and drawing up appropriate responses. In this regard, greater awareness among shipmasters and shipowners, particularly in connection with the situation in Somalia, seems to have led to more systematic reporting of incidents.
58. The International Maritime Organisation (IMO) has played a leading role in promoting guidelines and best practices. The latest IMO guidelines, contained in MSC Circular 1334 of June 2009 “Guidance to Ship Owners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships”, provide a detailed checklist of required or recommended practices. This was complemented by the “Best Management Practices to Deter Piracy in the Gulf of Aden and off the Coast of Somalia” adopted by 11 international industry and insurance representatives in March 2009 and revised in August 2009. This document contains tailored guidance for ships sailing through this area, including measures put in place by the international military naval presence, such as recommended routes, transit corridors, alert procedures, etc.
59. These documents aim to assist the shipping industry in preventing piracy and armed robbery against ships and responding to attacks when they occur. They deal with such issues as the adoption of ship security plans; reinforced protection measures (preventing access, increasing bridge staffing levels and lookouts, installing electric fences, etc.); evading tactics (for instance, maintaining a maximum sustainable speed, even under attack); and defensive measures (use of high-pressure directional water jets, of high-frequency sounds, etc.). The use of onboard armed private security guards is more controversial. The IMO, the IMB, shipowners’ associations, as well as many governments, discourage this practice, citing the possible escalation of violence, as well as other legal issues and potential risks involved. In any event, most ships, because of their design and speed, would not normally require special protection. The issue of armed security guards is thus relevant to only a small fraction of particularly vulnerable ships.
60. The International Ship and Port Facility Security Code (ISPS Code) of December 2002 also includes a comprehensive set of measures to enhance the security of ships and port facilities. It requires all port facilities and vessels to create and submit a security assessment and plan to address vulnerabilities. Any ship not meeting this standard can be denied entry into any participating country. An EU directive of October 2005 incorporates and builds upon the provisions of the ISPS code.
61. Greater awareness of the dangers connected with the situation in Somalia, and active campaigning by international maritime bodies and shipowners’ associations, seem to have led to greater levels of compliance by ships with these regulations. Several major flag states – Bahamas, Cyprus, Japan, Liberia, Marshall Islands, Panama, Singapore, the United Kingdom and the United States – also recently adopted a declaration of intent – the New York declaration – in which they committed to promulgating internationally recognised best management practices for selfprotection to vessels on their registers, and to ensuring that vessels on their register have adopted and documented appropriate self-protection measures in their Ship Security Plans as part of ISPS Code compliance. The EU is also currently considering a joint initiative with the Egyptian government, which would aim to monitor ships entering the Suez Canal for compliance with international maritime safety regulations. These are all welcome steps; promoting greater compliance with maritime safety and security regulations and awareness of best management practices to deter piracy is an essential step towards a long-term solution and requires a joint effort by flag states, international maritime bodies and shipowners’ associations.
D. SOMALIA: AN UNPRECEDENTED MILITARY RESPONSE
62. The proliferation of piracy off the coast of Somalia has led to an unprecedented multinational naval deployment, under the overall authority of the UN Security Council and with the consent of Somali authorities. The military response was initially justified by the need to protect deliveries of humanitarian assistance. However, navies have progressively taken on and performed a broader range of tasks: surveillance; deterrence; provision of escorts and vessel protection detachments (VPDs)24 to humanitarian convoys, but also to other high-risk ships; intervention, i.e. liberation of hijacked ships; boarding of suspect vessels, and apprehension of suspected pirates. Naval deployments have also increased from just a few ships at the end of 2008 to some 30 ships today, including several multinational deployments (US-led coalition, NATO and EU operations), as well as a number of individual national deployments.
63. From November 2007 to June 2008, France, Denmark, the Netherlands and Canada provided escorts for WFP convoys. The US-led Combined Task Force 150 (CTF 150) was the first multinational naval force to be deployed to Somalia. CTF 150 was originally created in 2001 to conduct anti-terrorist operations as part of Operation Active Endeavour. Its mandate was later extended to counter smuggling, people trafficking, narcotics trade and piracy.
64. CTF 150 ended its counter-piracy operations in January 2009, when the newly created Combined Task Force 151 (CTF 151) took over. The establishment of CTF 151 was a response to the difficulties encountered by several coalition partners to perform counter-piracy operations in the framework of CTF 150, due to the lack of adequate rules of engagement. CTF 151 is entirely dedicated to counter-piracy missions.
65. On 9 October 2008, in response to a request from the UN Secretary General, NATO Defence Ministers decided to deploy three ships from the Standing NATO Maritime Group 2 (SNMG 2) to contribute to counter-piracy operations off the coast of Somalia. SNMG 1 and SNMG 2 are multinational, integrated maritime forces made up of vessels from various allied nations. These vessels are permanently available to NATO to perform various tasks from participating in exercises to intervening in operational missions.
66. Operation Allied Provider was launched on 24 October 2008. It was conducted under the operational control of the Allied Maritime Component Command Headquarters Naples, under the direction of Allied Joint Force Command Naples. The NATO ships provided escort to eight WFP and one African Union convoys and conducted deterrence patrols and aerial surveillance. The operation was terminated on 12 December 2008 when NATO handed over to the EU operation Atalanta.
67. Atalanta – EUNAVFOR Somalia is the first-ever EU naval operation conducted under the European Security and Defence Policy (ESDP). EUNAVFOR was approved by the EU Council on 8 December 2008 for an initial mandate of a year and reached its Initial Operational Capability on 13 December 2008. The mission also took over EUNAVCO, the co-ordination cell established in September 2008 to support surveillance and protection activities carried out by EU member states in the Gulf of Aden. The EU Operational Headquarters is located in Northwood, United Kingdom. Eight million three hundred thousand euros have been allocated to cover the common costs of the operation. In June 2009, the EU Council decided to extend the operation for another year until the end of 2010. In response to new patterns of attack, Atalanta’s operational area was also expanded to cover the area out to the Seychelles archipelago. EUNAVFOR is currently the largest multinational deployment operating in the region.
68. As part of its anti-piracy response, the EU has also established the Maritime Security Centre – Horn of Africa (MSCHOA), which has become a key hub for registering ship movements in the region and co-ordinating the response in the event of an attack. Ships entering the area can register with the Centre, update the position of their vessels, and receive information and guidance designed to reduce the risk of pirate attacks. Based on the information provided by shipmasters or ship owners, the MSCHOA assesses the risk of the ship being targeted for an attack and recommends participation in a group transit or, in the case of a high-risk ship, an individual escort. According to an EU estimate, some 70% of ships entering the area register with MSCHOA. The EU centre also runs Mercury, a web-based communication system, which provides live information to all registered users (industry and navies) on incidents and thus facilitates the sharing of information and a co-ordinated response.
69. It should be noted that EUNAVFOR and the MSCHOA are only one aspect of the EU action in Somalia. Other EU programmes are outside the scope of the ESDP and deal with political and diplomatic support to the peace process, development co-operation and humanitarian aid. The EU is currently reviewing its policy in Somalia with a view to building greater synergies between the different pillars of its action. As part of this review process, the Union is also considering a potential role in building capacity in the security sector. This issue is examined in greater detail in Chapter IV below.
70. At the beginning of March 2009, NATO Allies decided on a second contribution to counterpiracy efforts in Somalia. Operation Allied Protector was conducted in 2 phases: from April to 29 June 2009 by five ships from the SNMG 1 and from 29 June to mid-August by five ships from the SNMG 2. The operation was conducted under the operational control of Allied Maritime Component Command Northwood (MCC Northwood) and was therefore located close by the EU Operational Headquarters for Atalanta.
71. On 17 August 2009, the North Atlantic Council adopted an enhanced mandate for the Alliance’s operations off the coast of Somalia and launched Operation Ocean Shield, which replaces Allied Protector. Ocean Shield aims to provide a longer term NATO contribution to counter-piracy efforts. Like NATO’s previous operations, Ocean Shield is tasked with deterring, defending against and disrupting pirate activities in the area. The operation will also, at least initially, rely on the use of the SNMGs, starting with the currently deployed SNMG 2. It will remain under the operational control of MCC Northwood and under the overall command of Allied Joint Command Lisbon. However, the operation’s mandate includes more robust rules of engagement, as well as a new task of assisting with regional capacity building upon request. With this new tasking, NATO Allies recognise that rooting out piracy in Somali waters requires a broader approach, including in particular, assisting neighbouring states, through capacity building initiatives, progressively to take the lead in combating piracy in the region.
72. Besides the three multinational operations – the US-led CTF 151, EUNAVFOR – Atalanta and NATO’s Ocean Shield – currently deployed in the region, several other navies are also present. Japan maintains two vessels and two maritime patrol aircrafts in the region. In July 2009, it adopted a new Anti-piracy Measures Law, which broadens the mandate and powers of Japanese ships engaged in counter-piracy operations. In particular, the new law allows escorting of non-Japanese ships, as well as the possible use of force to deter acts of piracy. Russian ships have been present in the region since October 2008. One destroyer and two support ships are currently deployed as part of a Pacific Fleet Task Force. Both Russia and NATO have expressed willingness to consider stepping up their co-operation in counter-piracy efforts. The Chinese navy is also present in the area since December 2008. This was the first overseas deployment of the Chinese navy for an active operation. Three ships, including one supply vessel, are currently deployed. Malaysia, which has extensive experience combating piracy in the Malacca Straits, has deployed five warships in stages to the area. India also maintains one vessel in the Gulf of Aden and one off the Seychelles. Iran ordered the deployment of several warships to the region in December 2008. Unlike other abovementioned navies, Iran does not currently participate in political and tactical co-ordination structures. The table below presents a rough picture of naval deployments as of mid-September 2009.
73. The variety and unprecedented nature of naval deployments off the coast of Somalia has meant that participating navies have had to learn to work together and develop pragmatic coordination and co-operation mechanisms. A certain division of labour has been established, whereby EUNAVFOR is principally responsible for escorting WFP shipments. Nevertheless, NATO, as well as other individual navies, have expressed their willingness to assist with this task if necessary. Monthly meetings of the so-called Shared Awareness and De-confliction (SHADE) group provide a key venue for tactical coordination. Most deployed navies, as well as representatives of the shipping community, participate in these meetings, which are co-chaired by officials from the US-led Combined Maritime Forces and EUNAVFOR. The establishment of the Internationally Recommended Transit Corridor (IRTC) in the Gulf of Aden is another remarkable example of co-operation. Group transits through the corridor are protected by ships from EUNAVFOR, NATO and CTF 151.25 A position of IRTC coordinator – which rotates among the three multinational deployments – has been created to ensure proper tactical coordination. Not all ships passing through the area join group transits, however. Several navies regularly escort their national ships.
74. Naval co-operation off the coast of Somalia has greatly benefited from the experience gained in other previous multinational deployments, such as NATO’s Operation Active Endeavour in the Mediterranean, or the US-led CTF 150. In turn, counter-piracy deployments will no doubt provide extremely valuable lessons for current and future co-operation in the maritime domain. The current level of tactical coordination between EU and NATO deployments – which certainly owes a great deal to the close proximity of both operations’ headquarters in Northwood – should also be saluted. While political blockages in Brussels between NATO and the EU will regrettably continue to hamper the development of a genuine strategic co-operation between both institutions, coordination at the tactical level – however informal – plays a key role in preventing futile competition which would only undermine the achievement by both organisations of their shared aims.
75. Despite this enhanced and better co-ordinated military presence, a number of difficult operational challenges remain. A first challenge relates to the complexity of the theatre. In this regard, a distinction needs to be made between the Gulf of Aden and the Somali Basin. The geography of the Gulf of Aden has allowed the international military presence to establish the IRTC. While attacks in the Gulf continue, despite the establishment of the group transit scheme through the IRTC, these measures have certainly provided enhanced protection for ships sailing through the area. It would be difficult, however, to implement similar measures in the Somali Basin. First, the area to protect is about five times greater than the Gulf of Aden and 100 times that of the IRTC. Additionally, traffic through the Somali Basin does not follow clear patterns, which would make the establishment of transit corridors difficult and necessitate a far greater number of warships than is currently deployed in the area. Protecting shipping in the Somali Basin thus requires a different approach. As an immediate remedy, international navies have recommended that ships sail as far away as possible from the Somali coast.26 However, military experts agree that, given the limited number of warships in the area, only a greater and coordinated use of air surveillance can help navies provide improved coverage and shorter response times. In this regard, the deployment of NATO AWACS aircraft to the region, in support of Operation Ocean Shield, could usefully reinforce other surveillance assets already in theatre as part of national deployments, Atalanta and CTF 151. Greater use should also be made of ship-based, as well as land-based, Unmanned Aerial Vehicles.27 Also, the satellites operated by the European Space Agency and others can provide very helpful information concerning the whole operation.
76. Force generation also remains a challenge for the three multinational deployments. While the number of ships deployed in the area has increased from 20 in April to some 30 today, the military presence remains insufficient to provide proper deterrence and protection. According to one estimate, some 60 vessels would be necessary to protect the internationally designated shipping lanes alone.28 Current levels therefore need to be sustained and other international partners should be encouraged to join the current coalition. Achieving the current political and military objectives of the EU and NATO missions will probably necessitate a continued presence for at least another two years, which in turn will require adequate commitments of naval assets. In this respect, NATO governments should consider contributing specific assets to the counter-piracy operation, beyond the use of the SNMGs. As both NATO and the EU consider assisting with capacity building initiatives and defence and security sector reform in countries of the region, member states will also have to provide required training capabilities.
77. Although tactical coordination between the different national and multinational deployments has already been greatly enhanced, there is still room for further improvements. In particular, convincing other navies to join group escort and area protection schemes, as opposed to providing individual escorts exclusively for those ships presenting a national interest, would ensure a more efficient use of resources. Other ongoing problems relate to the sharing of information, the compatibility of communication systems, competing reporting procedures, etc.
78. Legal issues also have an impact on the conduct of operations. Three examples can be mentioned here. A first key issue relates to the prosecution of pirates. The international naval presence can only have a deterrent effect if pirates know that the risk of being arrested and prosecuted for piracy is credible. However, in order to ensure that captured pirates can be prosecuted, participating navies need either to have adequate provisions in their national legislation, or an agreement with another state for the transfer and prosecution of captured pirates. In this regard, NATO’s operations are problematic, as, unlike the EU, NATO as an organisation has no agreement with Kenya or other regional states for the transfer of captured pirates. As a result, and with the exception of US and UK warships, navies participating in the SNMGs, whose national legislation does not allow for the exercise of universal jurisdiction, may be compelled to release captured pirates in those cases in which their national legislation does not provide a sufficient legal basis for them to establish jurisdiction. This situation is regrettable as it runs counter to the mission’s objectives and tends to put ships participating in the NATO deployment at a disadvantage compared with other multinational operations.
79. A second legal issue with operational ramifications relates to the foreign navies’ ability to apprehend mother ships and prosecute individuals whose role is to facilitate an attack, but who do not participate directly in the attack as such. The definition of piracy contained in UNCLOS is broad enough to encompass the operation of mother ships. However, here again, the two complementary conditions of an adequate operational mandate and legal framework need to be met.
80. A third legal issue, which was raised in the context of WFP ships in particular, relates to the ability of foreign navies to embark VPDs on board civilian ships. Compared with individual escorts, VPDs provide a simpler and less resource-intensive means of protection. However, placing VPDs on a civilian ship normally requires the consent of the flag state of that ship, a necessary yet rather cumbersome requirement. As the WFP uses ships for its operations which fly a variety of different flags, navies would each normally have to conclude agreements with all potential flag states. In order to address this problem, the EU is looking to conclude agreements with 10 major flag states providing EUNAVFOR with a permanent authorisation to embark VPDs on their ships when used for WFP shipments.
81. A final operational challenge for foreign navies deployed in the Gulf of Aden and the Somali Basin relates to public diplomacy. To be successful, foreign deployments in the region need to be accepted and supported by the local population. Yet, without proper communication and public diplomacy, they run the risk of being perceived by locals as primarily motivated by the defence of Western interests. This risk is even more acute in the context of persistent resentment among the local population towards illegal foreign fishing in the region. Greater efforts should therefore be made to communicate the rationale for the foreign presence in Somali waters, emphasise the fact that foreign deployments were requested and authorised by Somali authorities, stress the benefits of foreign assistance to Somalia – of which military deployments are only one dimension – and explain that the ultimate goal of this assistance is to allow local authorities to provide for the security and welfare of its citizens in a sustainable manner. Similar outreach policies towards other regional states would also be useful. Here again, naval deployments in the region should be seen as an opportunity to build new synergies.
82. So how successful have naval deployments been so far? The end of 2008 and beginning of 2009 saw a drop in the number of successful attacks. In October and November 2008, one in three attacks was successful; the proportion of successful attacks dropped to one in five in December 2008, and one in seven in January 2009. According to the latest IMB report, this trend now seems to be reverting. In the period from Jan, uary to March 2009, 1, in 6 a, ttacks in the Gulf of Aden and Somalia were successful, whereas from April to June 2009, 40% of attacks succeeded. It is also important to note that the rates of successful attacks in the Gulf of Aden are systematically and significantly lower than in the Somali Basin. Thus, in the first quarter of 2009, the IMB reported one in seven successful attacks in the Gulf of Aden, versus one in three in the Somali Basin; for the second quarter of 2009, respective rates are one in three in the Gulf of Aden and one in two in the Somali Basin. According to NATO data, as of 10 November, no successful hijack had taken place in the Gulf of Aden since August 2009. These figures demonstrate once more that these two areas pose different challenges in terms of protection.
83. What emerges from recent trends is thus a mixed picture. The relative drop in the ratio of successful attacks seems to indicate that the international military presence is more effective and able to respond more quickly to incidents. Nevertheless, several other factors could also explain that fewer attacks succeed, including greater awareness among the shipping community of the risks involved and better compliance with safety and security regulations and best practices. Besides, the overall number of attacks remains high, which seems to indicate that piracy remains an attractive business, that pirate networks still have “spare capacity” and that the deterrent effect of the international maritime presence remains limited. Attacks nevertheless receded slightly during the monsoon, and have resumed at a lower level than expected since the end of the monsoon season. This could be due, in part, to more vigorous action by local authorities, particularly in the Puntland region, and to emerging signs of condemnation of the pirates’ practices in certain local communities. It could also be due to ex-pirates moving to other less dangerous and more lucrative criminal activities. However, whether this lull will become a durable trend remains to be seen.
IV. LESSONS LEARNED AND RECOMMENDATIONS FOR THE FUTURE: TOWARDS A COMPREHENSIVE APPROACH TO PIRACY OFF THE COAST OF SOMALIA
84. International military efforts can only provide a limited contribution to the struggle against the proliferation of piracy off the coast of Somalia. Piracy is as much a land-based as a sea-based challenge, and is a symptom of broader problems relating to governance, instability, poverty, corruption and organised crime. To eradicate piracy, it is therefore essential to address its root causes and the favourable environment that has allowed it to develop in Somalia. As stated in the UN Secretary General’s report of March 2009 on a long-term international strategy to combat piracy off the coast of Somalia, the current situation in that country requires a multi-faceted and integrated approach. This was also acknowledged by the UN Security Council in its resolution 1872 of 26 May 2009, which recognises “that ongoing instability in Somalia contributes to the problem of piracy and armed robbery at sea off the coast of Somalia” and stresses “the need for a comprehensive response by the international community to tackle piracy and its underlying causes”.
85. Such a comprehensive response should combine three elements: * enhance further legal, industry and military tools to combat piracy off the coast of Somalia, and look at what lessons can be learned for the future; * link piracy-related measures with existing initiatives in the political, diplomatic, development and humanitarian realms; * engage neighbours with a view to finding a long-term regional solution.
Enhancing legal, industrial and military tools to combat piracy 86. The creation of a “Contact Group“ on piracy off the coast of Somalia in January 2009 aimed at providing an inclusive forum for addressing the different problems raised by the international community’s response to piracy in Somalia. Under the overall authority of the UNSC, the group brings together Somali authorities, governments of the region, as well as other states and international organisations making a tangible contribution to counter-piracy efforts or significantly affected by piracy. Four working groups have been established, each under the leadership of a nation or international organisation. The United Kingdom is the lead nation, together with the IMO, for Working Group 1, which deals with military and operational co-ordination, information sharing, and capacity building. Working Group 2, chaired by Denmark, deals with judicial issues. Working Group 3, chaired by the United States, with co