Somali Piracy – An Affront to International Law?

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Somali Piracy – An Affront to International Law?^*1

MALCOLM FORSTER

I. INTRODUCTION

WHEN THE INSTITUTE of Maritime Law was founded in 1982, the ancient tradition of piracy might have been expected to be a thing of the past. In that very year, however, the draftsmen of United Nations Convention on the Law of the Sea (UNCLOS), which was seen as recasting and modernising the international legal regime of hydrospace, felt themselves unable to dispense with a proscription of piracy, itself cast in terms which were almost exactly identical to those which had appeared in its predecessor, the Geneva Convention, quarter of a century before.² That 1958 definition³ itself largely codified the pre-existing customary law, so the lineage of the UNCLOS provision testifies to both the longevity and the resilience of the custom of piracy.

In the thirty years since 1982, there have been several important changes in the circumstances surrounding this age-old custom of the sea. Of these, among the most influential, have been the association of the venerable institution of piracy with the recent phenomenon of the ‘failed state’, the linkage (or lack of it) between piracy and terrorism and the impact of human rights concerns on the readiness of States to take robust action (or, on occasion, any action to speak of) against pirates.

II. IS PIRACY A NATURAL CONSEQUENCE OF THE RECENT HISTORY OF SOMALIA?

Somalia⁴ owes its existence to the withdrawal of the colonial power from British Somalialand in 1960, a withdrawal ostensibly co-ordinated with that of Italy from its neighbouring territory of Italian Somalialand. The subsequent political history of the newly-formed country has been unfortunate. The oppressive regime of Mohammed Said Barre, which seized power in 1969, condemned the country to three decades of authoritarianism and human rights abuse. Following the collapse of that regime in early 1991, there was some fear that the country might disintegrate, with the region of Somalialand, in the north-west asserting its ambitions for independence. The northeastern provinces, which form the true ‘Horn of Africa’ and which are collectively known as Puntland, subsequently established themselves as an autonomous, self-governing region, but one which does not at present aspire to statehood. After a false start in 2000, a national government, the Transitional Federal Government (TFG), was established in 2004, to a large extent as a result of international involvement.

The seas surrounding the Arabian peninsula have long been the haunt of pirates, but the modern era of piracy off the Somali coast is said to have begun in the early 1990s, allegedly in desperation caused by the systematic over-fishing of the Somali stocks by foreign fishing fleets. This state of affairs is said to have prompted the dispossessed fisherman to ‘police’ the fishing grounds, demanding payments from foreign vessels in the form of a fishing ‘tax’’, demands which were soon reinforced by resort to small arms.⁵ In 2008, pirates attacked about 120 vessels and the industry was calculated to be worth about $100 million.⁶ The tempo continues to quicken, with no fewer than 97 attacks taking place in the first quarter of 2011.⁷ Whatever may have been the origin of Somali piracy, in its modern form it is clearly no longer a substitute for fishing, but highly organised maritime crime, with few of the current target vessels being fishing trawlers, but rather commercial traffic.⁸ There is evidence that the pirates themselves are financed by investors, both within Somalia and elsewhere, who receive ‘dividends’ from the ransom payments and other proceeds of piracy.⁹

The typical method of operation favoured by the pirates is to approach the target vessel in relatively small skiffs driven by high-performance outboard motors and to scale the ship’s side using grappling lines and boarding ladders.¹⁰ The crew is then often held hostage and a ransom demanded. Despite official disapproval, but understandably, these ransoms are often paid. They are thought typically to amount to $1–2 million.¹¹ The economic impact, of course, is much wider:–

Lawlessness in Somalia is … a threat to international shipping. 23,000 ships transit through (sic) the Gulf of Aden each year, a vital artery of the global economy. Nearly one trillion dollars of trade to and from Europe alone travelled through the Gulf last year.¹²

Latterly, in a disturbing new development, pirates have begun to use captured vessels as sea-going mother-ships, thus transforming the thitherto essentially coastal-based piracy into a ‘blue water’ operation.

As a result of the patrols by the international flotilla, the epicentre of piracy has moved into the almost entirely lawless regions in the south and east of the country. At about the same time, there appeared an apparent connection between piracy and terrorism, perhaps involving al–Qaeda. Also of concern is the possible relationship between the pirates and al Shabab, a local Islamicist group with an appalling record of human rights abuses, including the engagement of child soldiers.¹³ The House of Commons Select Committee on Foreign Affairs, however, recently received ‘no direct evidence of a link between piracy and terrorism’.¹⁴

Somalia is a party to UNCLOS¹⁵ and a Member State of the International Maritime Organisation (IMO). It adopts the modern standard territorial sea of 12 nautical miles and claims a 200-mile exclusive economic zone (EEZ).

III. WHAT DOES INTERNATIONAL LAW REGARD AS PIRACY?

The question of what amounts to piracy is one which some domestic courts have approached with caution. In a leading English case,¹⁶ the then Lord Chancellor warned that:–

A careful examination of the subject shows a gradual widening of the earlier definition of piracy to bring it from time to time more in consonance with situations either not thought of or not in existence when the older jurisconsults were expressing their opinions.

The international law definition of piracy is presently contained in Article 101, UNCLOS, as

(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).

A number of issues stem from this definition.

First, Article 101 appears in that Part of UNCLOS which deals with the legal regime of the High Seas and this is reflected in the geographical scope of the Article. Thus, it would seem that, if the actions proscribed by the article were to be committed in the territorial waters of a State, these would not amount to piracy, unless the domestic law of that State¹⁷ so characterises it. This presents very real problems in some parts of the world, eg in the South-East Asian region, almost all ‘pirate’ attacks take place within territorial seas.¹⁸ Such attacks are classified by the International Maritime Organisation (IMO) as armed robbery against ships.¹⁹ The International Maritime Bureau²⁰ has attempted to paper over this crack in international law by promoting a more inclusive definition of piracy, which is

an act of boarding (or attempted boarding) with the intent to commit theft or any other crime and with the intent or capability to use force in furtherance of that act.

Secondly, as is widely recognised, the Convention regards piracy as essentially a private enterprise operation. For the most part, this presents few practical difficulties, as most pirate attacks are undertaken for material gain, but, if an attack were to be motivated by other impulses (eg terrorism²¹), it would fall outside the definition in UNCLOS.²²

One of the important difficulties in implementing anti-piracy activities is that, in many States, the domestic law of the State do not criminalise the activities of pirates until an attack has actually been undertaken or attempted. While this conclusion might be drawn from the drafting of Article 101, it is more difficult to defend in the light of the definition of ‘pirate ship’ in Article 103, which provides that:–

A ship … is to be considered a pirate ship … if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 101.²³

It would seem clear enough that the Convention therefore imposes on States an obligation to ‘repress’ the activities of such a vessel, even though it has not yet embarked on an attack, provided that there is clear evidence of intention to engage in an activity proscribed under Article 101. Thus, there would seem to be clear authority for a naval patrol vessel to take action against a skiff found at sea carrying boarding ladders, grappling irons, etc (let alone weapons²⁴).

IV. RESPONSE OF THE INTERNATIONAL COMMUNITY TO PIRACY IN SOMALIA

A. Dealing with the Problem – The Shipping Industry and the International Maritime Organisation

i. The International Maritime Organisation

IMO, as the United Nations agency specially responsible for securing the safety of navigation, has been engaged in anti-piracy activities since late in the last century. Initially, it was principally engaged in raising awareness and capacity-building, together with technical assistance missions in affected areas. It then moved into developing regional response organisations to combat piracy, its first success being the establishment in 1994 of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against ships in Asia (RECAAP), which includes an intelligence-sharing function.

When the situation in Somali waters deteriorated, the success of RECAAP prompted IMO to convene in January 2009 a meeting of states in the region to try to produce a similar response. The result of the meeting was the Djibouti Code of Conduct concerning the Repression of Piracy²⁵ and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden (the Djibouti Code). The Code also calls upon States which sign up to it²⁶ to share intelligence about pirate activities and provides for a network of national focal points and information centres to facilitate this process. They are also urged to co-operate in ‘arresting, investigating and prosecuting persons who have committed piracy or who are reasonably suspected’ of having done so, seizing pirate ships and rescuing ships, people and property which have been ‘subject to piracy’.²⁷ There are also extensive co-operation and mutual assistance provisions.

The Djibouti Code, however, while representing a welcome commitment by States in the region to finding, for themselves, a solution to the piracy problem, is couched in the most tentative of terms. Thus, a participating State merely declares that ‘to the fullest possible extent [it] intends to cooperate’ in the achievement of the desired result.²⁸ Furthermore, Article 15 bluntly declares that:–

Nothing in this Code of Conduct is intended to (a) create or establish a legally binding agreement.

In April 2010, IMO established a Project Implementation Unit to assist States to meet their aspirations under the Djibouti Code, which has received something in the order of $14 million to assist in implementing the aspirations of the signatory States.

IMO is also the sponsoring organisation for the Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the SUA Convention). Initially conceived as a weapon in the struggle against terrorism, the treaty is cast in terms broad enough to be applicable in the case of piracy. The Convention provides that:–

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

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

(b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or …

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).²⁹

States Parties are obliged to exercise jurisdiction over offences of this description committed on board ships flying its own flag, or within its territory (including territorial waters) or when the offence is committed by its own nationals³⁰ and they may do so in other circumstances, eg when the victims of the offence include one or more of its nationals.³¹ In any case, States Parties are obliged, if an alleged offender is found within their jurisdiction, either to extradite the offender to a State having jurisdiction or to conduct a bona fide prosecution themselves.³² The Convention entered into force on 1st March 1992 and has over 150 States Parties, but these do not include Somalia. A number of other States in the region, however, have become parties.³³

Under the Djibouti Code of Conduct three Information Sharing Centres have been established, in Dar es Salaam, Tanzania, in Mombasa, Kenya and in Sana’a, Yemen. The three Centres became operational during the first half of 2011 and have since actively collected and disseminated piracy-related information.

ii. Industry Initiatives

The shipping industry has adopted an extensive set of recommendations, known as Best Management Practices (BMP),³⁴ for reducing the risk of pirate attack in the Somali region. These have been endorsed by the International Maritime Organisation (IMO).³⁵

Despite the prevalence of piracy, the Maritime Safety Committee found it necessary as late as May 2011 to adopt a Resolution urging the adoption of Best Management Practices and as a minimum ensuring that masters have up-to-date information about conditions in the High Risk Area,³⁶ that they register with the security centres and ‘effectively implement all recommended preventive, evasive and defensive measures’.³⁷

The approved Best Management Practices for avoiding pirate attack focus on a number of aspects of ship management. Masters are advised that:–

one of the most effective ways to defeat a pirate attack is by using speed to try to outrun the attackers and/ or make it difficult to board.

There have been no recorded instances of pirates boarding a ship travelling at 18 knots or faster, so vessels are advised to maintain this speed or their full sea speed, if that is greater, while passing through the High Risk Area.³⁸ Similarly, while a high freeboard will not in itself guarantee defence against attack, experience shows that freeboard heights of 8 metres and above give a vessel ‘a much greater chance of successfully escaping’ attack.³⁹ In view of the limitations on the effective use of skiffs, pirates also rarely attack in sea state 3⁴⁰ or higher. A particular reason for paying attention to speed and manoeuvring is to counter the tendency of pirates to fire at the bridge of the vessel under attack⁴¹ in order to force it to stop; for this reason, shipowners are advised to consider some form of ‘ballistic protection’ for crew on the bridge.⁴² The bridge should also be protected by metal screens over the windows, layers of chain-link fencing to repel rocket-propelled grenades and by strict controls over access.⁴³ Access to the decks of the vessel should be impeded by the use of physical barriers, such as razor wire or water, foam or seam hoses.⁴⁴ Close circuit television and adequate levels of deck lighting are also recommended.⁴⁵ There are further recommendations about the advisability of providing safe muster points to which non-essential crew can retreat in the case of a pirate attack or even a ‘citadel’, defined as a designated preplanned area purpose built into the ship where, in the event of imminent boarding by pirates, all crew will seek protection and which is designed and constructed to resist ‘a determined pirate trying to gain entry for a fixed period of time’.⁴⁶

Perhaps most important of all is the necessity of reporting to the two monitoring centres which provide the mechanism for liaison with the international naval forces operating off Somalia. These are the UK Maritime Trade (UKMTO) in Dubai, which should be the first point of contact for ships in the region, as it provides a day-to-day interface between masters and the naval forces deployed. Transiting vessels should send regular reports to UKMTO on entering the High Risk Area, daily while in transit through it and finally on leaving it.⁴⁷ In addition, the vessel should be in contact with the Maritime Security Centre – Horn of Africa (MSCHOA), which is the planning and co-ordination Centre for EU Naval forces (EUNAVFOR).⁴⁸ The MSCHOA website⁴⁹ contains up to the minute information on conditions in the High Risk Area and it organises group transits⁵⁰ through the International Recommended Transit Corridor (IRTC). Details of these transits (and of the ‘national convoys’ organised by some countries) are to be found on the MSCHOA website.⁵¹

The most controversial and problematic response for the shipowner is the provision of armed⁵² security personnel aboard the vessel.⁵³ If they are to be carried, the compilers of BMP4 express a clear preference for them to be drawn from dedicated military service personnel, known as Military Vessel Protection Detachments. If non-military armed personnel are on board, this fact must be communicated in the vessel’s reports to UKMTO and MSCHOA.⁵⁴ IMO has published guidance for shipowners in the selection and deployment of private marine security contractors,⁵⁵ which stresses that the principle of the ship’s master remaining in overall command must be respected and stipulates for careful control of firearms and precise rules of engagement.⁵⁶ It insists that the primary purpose of carrying armed private marine security contractors is to ensure the safety of those on the vessel and that the contractors should be required to adopt a graduated scale of response to a potential pirate attack; all reasonable steps should be taken to avoid the use of force. Furthermore,

If force is used, it should be in a manner consistent with applicable law. In no case should the use of force exceed what is strictly necessary, and in all cases should be proportionate to the threat and appropriate to the situation.

Contractors are to ensure

that their personnel not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, or to prevent the perpetration of a particularly serious crime involving grave threat to life.⁵⁷

IMO accompanied this guidance to shipowners with a set of recommendations to flag States,⁵⁸ which, while stressing that the use of armed private marine security contractors is a matter for those States, advised that the States should bear in mind the possibility that the presence of armed personnel may escalate the level of violence⁵⁹ and should have in place a policy on whether or not the use of such personnel would be authorized and, if so, under what conditions.⁶⁰ The UK, which thitherto had set its face against the presence of armed security contractors on British-flagged ships⁶¹ has availed itself of the invitation to promote such a policy⁶² and has indicated that it will only contemplate the use of armed private marine security contractors in the following exceptional circumstances:–

• Where the ship is transiting the High Risk Area;

• In circumstances in which latest BMP are being employed, but (in the opinion of the shipowner and master) are inadequate to protect the ship against acts of piracy; and

• The use of such personnel is assessed as contributing to the reduction of risk to the lives and well-being of those on board.

The UK insists on a nominated security team leader who reports to the master. The policy further states that:–

Lethal force can generally only be used in the context of self defence or defence of others. The decision to use lethal force must lie with the person using force where they believe there to be a risk to human life. Neither the Master nor the security team leader can command a member of the security team against that person’s own judgement to use lethal force or to not use lethal force.⁶³

The carrying of armed personnel on ships likely to be the targets of piracy is not without risk for the personnel involved themselves.⁶⁴ The UK guidance points out:–