Maritime Terrorism and the Illicit Trafficking in Arms (Riyaz Hamza)

MARITIME TERRORISM AND THE ILLICIT TRAFFICKING IN ARMS

Riyaz Hamza

12.1 Introduction

In this chapter two specific maritime security threats will be examined: namely, maritime terrorism and the illicit trafficking in arms, including weapons of mass destruction. The two threats are dealt with in the same chapter as they can be considered to a large extent inter-connected.

In his 2008 Report on Oceans and the Law of the Sea, the United Nations Secretary-General identified seven specific threats to maritime security, namely: piracy and armed robbery against ships;¹ terrorist acts involving shipping, offshore installations and other maritime interests;² illicit trafficking in arms and weapons of mass destruction (WMDs);³ illicit traffic in narcotic drugs and psychotropic substances;⁴ smuggling and trafficking of persons by sea;⁵ illegal, unreported, and unregulated fishing (IUU fishing);⁶ and intentional and unlawful damage to the marine environment.⁷

In this volume, piracy and armed robbery against ships is dealt with in Chapter 11; illicit trafficking of drugs is covered in Chapter 15; smuggling and trafficking of persons by sea is found in Chapter 16; while IUU fishing and intentional and unlawful damage to the marine environment is examined in Chapter 17 as new marine security threats.

12.2 Maritime Terrorism

12.2.1Introduction

The term terrorism is devoid of a precise internationally accepted definition. Various legal systems and government agencies use different definitions. Moreover, governments have been reluctant to formulate an agreed upon, legally binding definition.

Section 1 of The Terrorism Act 2000 of the United Kingdom (UK) defines terrorism as follows:

(1)In this Act ‘terrorism’ means the use or threat of action where:

(a)the action falls within subsection (2),

(b)the use or threat is designed to influence the government or to intimidate the public or a section of the public and

(c)the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2)Action falls within this subsection if it:

(a)involves serious violence against a person,

(b)involves serious damage to property,

(c)endangers a person’s life, other than that of the person committing the action,

(d)creates a serious risk to the health or safety of the public or a section of the public or

(e)is designed seriously to interfere with or seriously to disrupt an electronic system.⁸

Similarly the United States Department of State has defined terrorism as ‘premeditated, politically motivated violence perpetrated against non-combatant targets by sub-national groups or clandestine state agents’.⁹

There is a clear distinction between terrorism and piracy. In terms of Article 101 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS)¹⁰ there are five distinct elements that constitute the act of piracy: (i) There must be an illegal act or acts of violence or detention, or any act of depredation; (ii) The said acts must be committed for private ends; (iii) The said acts must be committed by the crew or the passengers of a private ship or a private aircraft; (iv) The said acts must be committed on the high seas or outside the jurisdiction of any State;¹¹ and (v) The said acts must be directed against another ship or aircraft, or against persons or property on board such ship or aircraft.

Therefore, piracy is an act committed for private ends, on the high seas (and by extension to the exclusive economic zone as well) or outside the territorial waters of a State. Terrorism, on the other hand, is said to be committed for a politically motivated purpose, and can occur on land, sea, or air. Further, for piracy you require the ‘two ships’ element. For terrorism however this requirement is irrelevant.

Christopher C Joyner describes maritime terrorism as ‘the systematic use or threat to use acts of violence against international shipping and maritime services by an individual or a group to induce fear and intimidation in a civilian population in order to achieve political ambitions or objectives’.¹²

12.2.2The international legal instruments to combat maritime terrorism

Although the international concern for the security of ships, cargoes, passengers, and crews had been growing steadily over the past several years, it was the Achille Lauro¹³ incident which awakened the maritime community to the real threat or impact that terrorism could pose to the industry.

There are no provisions in UNCLOS that deal directly with maritime terrorism. Therefore, in the light of this incident, the international maritime community was called upon to act.

On 20 November 1985, the Assembly of the International Maritime Organization (IMO) adopted Resolution A. 584(14), titled ‘Measures to prevent unlawful acts which threaten the safety of ships and the security of their passengers and crews’.¹⁴ This Resolution directed the Maritime Safety Committee (MSC) to act as follows: ‘in co-operation with other committees, as required, to develop, on a priority basis, detailed and practical technical measures, including both shore side and shipboard measures, which may be employed by Governments, port authorities, and administrators, ship-owners, ship operators, ship masters, and crews to ensure the security of passengers and crews on board ships’.

The Resolution also authorized the MSC to request the IMO Secretary-General to issue a circular containing information on the measures developed by the Committee to Governments, organizations concerned, and interested parties for their consideration and adoption.

Accordingly, on 26 September 1986, the MSC approved MSC/Circ.443, titled ‘Measures to prevent unlawful acts against passengers and crews on board ships’. The measures discussed in MSC/Circ.443 became known as the IMO ‘security recommendations’ because nothing in MSC/Circ.443 was mandatory.¹⁵

However, the most significant step in the process of countering maritime terrorism was taken by the IMO, with the adoption of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (SUA Convention 1988).¹⁶ At the same Conference the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988 (SUA Protocol 1988)¹⁷ was also adopted.

It must be mentioned that the offences set out in Article 3 of the SUA Convention 1988 are wide enough to encompass even acts of piracy (as defined in Article 101 of UNCLOS) and armed robbery against ships.

No other action was taken by IMO on the issue of maritime terrorism until 5 July 1996, when the MSC adopted MSC/Circ.754, titled ‘Passenger Ferry Security’. The security measures recommended in MSC/Circ.754 related primarily to passenger ferries operating on international routes and the ports serving those routes. However, the Circular provided that the measures might also be applied to international freight ferry operations depending upon the requirements of individual Member Governments.¹⁸

In the aftermath of the terrorist attacks in New York and Washington on 11 September 2001, it had become clear that the shipping industry needed a new, more stringent, and more comprehensive set of measures to address the question of maritime security.

Thus on a proposal made by William O’ Neil, the then IMO Secretary-General, the IMO Assembly on 20 November 2001 unanimously adopted Resolution A.924(22), titled ‘Review of Measures and Procedures to Prevent Acts of Terrorism which Threaten the Security of Passengers and Crews and the Safety of Ships’.¹⁹ By this resolution, the Maritime Safety Committee, as well as other relevant IMO organs, was called upon to undertake a review of all existing IMO instruments in this area for the purpose of ascertaining whether there was a need to update those instruments in the light of recent terrorist activities.

Accordingly, a Diplomatic Conference on Maritime Security was convened by the IMO, from 9 to 13 December 2002. The outcome of the Conference was a new, comprehensive security regime for international shipping, to enter into force by 1 July 2004, in terms of the Tacit Acceptance Procedure (TAP). The most far-reaching change was the introduction of a new Chapter XI-2 to the International Convention for the Safety of Life at Sea 1974 (SOLAS)²⁰, on ‘Special measures to enhance maritime security’. This chapter enshrines the new International Ship and Port Facility Security Code or what is now commonly referred to as the ISPS Code.²¹

Furthermore, it was felt that the SUA Convention 1988 and the SUA Protocol 1988 required a complete overhaul. Accordingly, the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention 2005)²² and the 2005 Protocol to the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (SUA Protocol 2005),²³ were adopted by the IMO.

The United Nations Secretary-General has reiterated that although there are a number of global and regional instruments covering a wide range of terrorist offences, with specific regard to terrorist acts involving shipping, offshore installations, and other maritime interests it is only the SOLAS (more specifically the ISPS Code), the SUA Convention 1988, SUA Protocol 1988, SUA Convention 2005, and SUA Protocol 2005 that are applicable.²⁴

This chapter however will not include an analysis of the provisions of the SUA treaties, namely, SUA Convention 1988, SUA Protocol 1988, SUA Convention 2005, and SUA Protocol 2005, as Chapter 13 (‘Suppression of Unlawful Acts Against the Safety of Maritime Navigation’) provides the reader with a detailed explanation of these instruments. Similarly, a comprehensive analysis of the ISPS Code has been carried out in Chapter 14 (‘Ship and Port Facility Security’), and as such it will not be dealt with in this chapter.

12.2.3Maritime terrorism and offshore activities

Offshore activities would mean any activity conducted at sea for the exploration and exploitation of marine resources and any matter connected therewith. The terminologies used for the offshore equipment adopted to carry out such activities are numerous.

The UNCLOS adopts the terms ‘artificial islands’, ‘installations’, and ‘structures’. However, none of those terms have been defined in the Convention itself.

Literary exposition indicates that they refer to the same thing and can be used interchangeably. An ‘artificial island’ or ‘offshore installation’ or ‘installation (offshore)’, as used in the UNCLOS, refers to a human-made edifice in the territorial sea, in the exclusive economic zone, on the continental shelf, in the archipelagic waters, or in the deep seabed beyond national jurisdiction, which is usually employed to explore for or exploit marine resources. They may be built for other purposes such as marine scientific research, tide observations, and traffic control, and so forth.²⁵

Also of paramount importance to offshore activities are the so called submarine pipelines²⁶ serving such artificial islands, installations, and structures. These submarine pipelines must be distinguished from a submarine cable.²⁷

These offshore installations or structures may be fixed or floating also referred to as mobile.

The fixed installations or structures are structures attached to the ocean floor, often for the purpose of offshore oil drilling. Most of the working space of such platforms is raised above the surface of the sea by rigid supports made of steel or concrete. Attachment to the ocean floor is by a structural support known as a jacket.²⁸

The floating installations or structures are designed to float in the water and can be moved from one location to another. However when they are at location, they are usually affixed to the seabed to keep them stable.²⁹

In the International Convention on Oil Pollution Preparedness, Response and Co-operation 1990 (OPRC)³⁰ ‘offshore unit’ has been defined to mean any fixed or floating offshore installation or structure engaged in oil or gas exploration, exploitation or production activities, or loading or unloading oil.

The SUA Protocol 1988 defines a ‘fixed platform’ to mean an artificial island, installation or structure permanently attached to the sea-bed for the purpose of exploration or exploitation of resources or for other economic purposes.³¹

Article 2 defines several offences in terms of the Protocol:

1.Any person commits an offence if that person unlawfully and intentionally:

(a)seizes or exercises control over a fixed platform by force or threat thereof or any other form of intimidation;

(b)performs an act of violence against a person on board a fixed platform if that act is likely to endanger its safety;

(c)destroys a fixed platform or causes damage to it which is likely to endanger its safety;

(d)places or causes to be placed on a fixed platform, by any means whatsoever, a device or substance which is likely to destroy that fixed platform or is likely to endanger its safety; or

(e)injures or kills any person, in connection with the commission or the attempted commission of any of the above stated offences.

In terms of Article 2.2 any person who attempts to commit any of the offences set forth above or abets another to commit any of the offences set forth above is also said to commit an offence.

Article 2bis of the SUA Protocol 2005 broadens the range of offences that were included in the 1988 Protocol. A person commits an offence if that person unlawfully and intentionally, when the purpose of the act, by its nature or context, is to