The fight against piracy and armed robbery against ships off the coast of Somalia
International cooperation illustrated
Head, Department of International Law,
University of Malta
To Professor Attard – teacher and mentor extraordinaire
The age-old crime of piracy has a dark and sinister face; having resurfaced with startling speed during the 1980s, it is now viewed with great concern by all nations of the world.1 Any ship of whatever kind is susceptible to maritime violence once at sea: whether a tanker, merchant ship or fishing trawler, its easy accessibility, relative isolation and promise of valuable cargo renders it enticing prey to renegade and vicious criminals plying the seas in various parts of the world’s ocean spaces, mainly South-East Asia and the Far East, the Indian Sub-Continent, the Americas and Africa. It has been noted that such attacks against ships:
threatened seafarers, the security of navigation and the marine environment, and also had the potential to disrupt the provision of humanitarian aid, fishing, tourism and marine scientific research. The alteration of navigational routes in order to bypass areas of suspected pirate activity also affected commerce.2
1 Before this, piracy was considered to have died out with the general conception being that ‘piracy … is now extremely rare’. See: A. van Zwanenberg, ‘Interference with ships on the high seas’, ICLQ 10, 1961, pp. 785–817, p. 788; E. D. Dickinson, ‘Is the crime of piracy obsolete?’, Harvard Law Review 38, 1924–25, pp. 334–360.
2 UN Doc. A/63/174, Report on the work of the United Nations open-ended Informal Consultative Process on Oceans and the Law of the Sea at its ninth meeting; letter dated 25 July 2008 from the Co-Chairpersons of the Consultative Process addressed to the President of the General Assembly, 25 July 2008, para. 47. See also UN Doc. 63/63, Oceans and the Law of the Sea: Report of the Secretary General, 10 March 2008, para. 54 and UN Doc. A/56/121, Report on the work of the United Nations Open-ended Informal Consultative Process established by the General Assembly in its resolution 54/33 in order to facilitate the annual review by the Assembly of developments in ocean affairs at its second meeting; Letter dated 22 June 2001 from the Co-Chairpersons of the Consultative Process addressed to the President of the General Assembly, 22 June 2001, para. 286.
Piracy as a general term constitutes a particular form of maritime violence usually characterized by aggression, plunder, and sometimes, even hostage-taking and death. However, the particular circumstances, motivations, planning and methods of attack differ; the same can be said of the legal characterization given to the offence, depending mainly on the location of commission of the particular acts, as shall be seen. Factually, what is generally referred to as ‘piracy’ may be assimilated to ad hoc maritime muggings involving robbery – armed or otherwise – targeted mainly at money, crews’ personal effects and ship’s equipment. Alternatively, the ship may be temporarily hijacked for such time as is necessary to steal its cargo; hijacking may also be permanent – particularly prevalent in the Far Eastern region – and sometimes the vessel is turned into a phantom ship for use in other crimes such as cargo fraud, drug or people smuggling or even maritime terrorism.
UNCLOS3 provides for universal jurisdiction for the crime of piracy jure gentium, a crime of such gravity that it is included among the few classical examples of norms possessing jus cogens status. However, as is the case in other contemporary threats to maritime security such as migrant smuggling, this ‘Constitution of the Oceans’ fails to regulate similar, equally grave attacks on ships, thus creating a serious jurisdictional lacuna. The international community has however stepped in to fill this gap in an impressive cooperative effort consisting in the conclusion of treaties and other instruments, and most recently in a series of UN Security Council Resolutions to combat the situation off the coast of Somalia, importing concepts from other effective regimes in the fight against maritime drug smuggling for example, and thus demonstrating the effectiveness of international law to meet current security threats. This contribution aims to give an overview of the crime and to discuss such initiatives in order to demonstrate the importance of cooperation in meeting current threats to maritime security, typified, in the immediate case, by the fight against piracy and armed robbery against ships.
The significance of location
The definitional issue is central to the legal characterization of piracy and consequently, to the possibility of exercising jurisdiction and control over pirate vessels. Article 100 of UNCLOS appears as an exception to the rule of flag State exclusivity over the high seas as it urges all States to cooperate in the repression of the crime of piracy. The description of the offence of piracy requires the act to be committed on the high seas or outside the jurisdiction of any State.4 This effectively limits the exercise of jurisdiction by non-flag States to attacks occurring in the
3 United Nations Convention on the Law of the Sea, 1982.
4 By the phrase ‘outside the jurisdiction of any State’ (in Articles 100, 101(1)(a)(ii) and 105) the ILC had chiefly in mind ‘acts committed by a ship or aircraft on an island constituting terra nullius or on the shore of an unoccupied territory.’ See Report of the ILC covering the work of its 8th Session (A/3159), Article 39, Commentary para. (4)), II YB ILC 1956, 253, 282.
high seas or the EEZ,5 since islands constituting terra nullius and unoccupied territories are no longer of relevance today.6 The ILC believed that where the attack took place within the territorial sea of a State, it was a matter for that affected State to take the necessary measures for the repression of acts within its territory.7 In addition to this, ‘acts committed on board a ship by the crew or passengers and directed against the ship itself, or against persons or property on the ship, cannot be regarded as acts of piracy’.8 This is highlighted by Article 101(a)(i) which indicates that on the high seas, attacks against another ship or aircraft are necessary in order for those attacks to be classified as piracy. Another limitation under the UNCLOS regime is that, in limiting the definition to private motivations,9 the Convention excludes the possibility of politically motivated acts classifying as piracy. It is therefore, only in the case of piracy committed on the high seas or outside the jurisdiction of any State that universal jurisdiction exists; in other words, only in the instances outlined in Article 101 may any State seize the pirate vessel and its cargo and arrest those on board, in accordance with Article 105 of UNCLOS.
This understanding of the crime of piracy jure gentium effectively excludes many attacks on vessels occurring in internal waters or territorial seas, and where the ship may be hijacked or attacked for political motivations. In view of the fact that many acts of maritime violence risk remaining unprosecuted owing to the fact that they do not amount to the international crime of piracy, the international community has taken steps to ensure that these acts do fall under a jurisdictional regime nonetheless.
International focus is centred upon widening the purview of attention away from the strict definition of piracy jure gentium as is evidenced by both the IMO’s work in this area, as well as that of the IMB which – for statistical purposes – defines piracy and armed robbery as ‘an act of boarding or attempting to board any ship with the apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in the furtherance of that act’. Similarly, ‘armed robbery against ships’ is defined in the IMO’s Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships10 as:
any unlawful act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, directed against a ship or against persons or property on board such ship, within a State’s jurisdiction over such offences.11
5 The piracy provisions apply to the EEZ by virtue of Article 58(2) UNCLOS.
6 The only instance where this may become relevant is in the case of Antarctica.
7 ILC Commentary, fn 4, para. (1)(iv) 253, 282.
8 Ibid., 253, 282.
9 UNCLOS, Article 101(a).
10 Resolution A.922(22) of 29 November 2001, Annex, para. 2.2.
11 Other instruments exist which take a similar approach. See, for example, CMI Model National Law on Acts of Piracy and Maritime Violence. Available on-line at: www.comitemaritime.org/worip/worip_menu.html.
Reporting and statistics
Efforts directed at curbing the crime and increasing awareness of attacks on vessels focus on the reporting of incidents, with the objective of highlighting the frequency and gravity of the attacks. Both the IMO and the IMB–PRC have been active in this area. At its 65th session in May 1995, the MSC instructed the Secretariat to issue – as from 31 July 1995 – monthly reports of all incidents of piracy and armed robbery reported to the IMO as well as quarterly reports on a regional basis. At its 66th session, the MSC also instructed the Secretariat to prepare annual summaries of all attacks reported to the Organization during the previous year. Furthermore, since July 2002, the Secretariat has – following the MSC’s instructions12 – started classifying separately any reported acts at sea (that is, in international or territorial waters), armed robberies in port and attempted acts of armed robbery. These periodical reports also uncover changing trends and patterns in the methods and capabilities of pirates. One notable feature, commencing in 2001 was an increased link to organized crime. A brief overview of the statistics for the past few years serves to give a general understanding of the incidence of the crime.
In 2005, 264 – attempted and actual – acts of piracy and armed robbery against ships were reported to the IMO, representing a decrease of 66 incidents over 2004. It was noted that hijacking had been particularly prevalent in waters off the coast of Somalia and had affected two ships, operated by the UN World Food Programme, carrying food aid to Somalia.13 The IMO Annual Report for 200614 recorded a decrease of 25 (9 per cent) over the figure for 2005, with most attacks reported to have occurred or been attempted in the concerned coastal States’ territorial waters while ships were at anchor or berthed.15 Crew members, in many reports, were violently attacked by groups of 5 to 10 individuals carrying guns or knives. In 2007, the total number of incidents reported was 282 against 241 in 2006, representing an increase of 17 per cent from the previous year.16 According to the IMB, the waters around Somalia remained particularly dangerous areas for navigation and vessels were not making scheduled calls to ports in Somalia and were advised to keep as far away as possible from the Somali coast – ideally
12 MSC 75/24, para. 18.41.
13 See also C/ES.23/17(a), Piracy and Armed Robbery against ships in waters off the coast of Somalia. Note by the Secretary-General of IMO.
14 MSC.4/Circ.98, 13 April 2007, Reports on Acts of Piracy and Armed Robbery against Ships, Annual Report 2006, para. 4.
15 MSC.4/Circ.98, 13 April 2007, Reports on Acts of Piracy and Armed Robbery against Ships, Annual Report 2006, para. 5.
16 MSC.4/Circ.115, 10 April 2008, Reports on Acts of Piracy and Armed Robbery against Ships, Annual Report 2007, para. 4. Again, most of the attacks worldwide were reported to have occurred or been attempted in the coastal States’ concerned territorial waters while the ships were at anchor or berthed (ibid., para. 5).
more than 200 nm until a more permanent and encouraging sign was noted.17 Indeed, it was reported that:
[t]he significant increase in the incidents can be directly related to the increase in the reported incidents in Nigeria (42) and Somalia (31) as compared to the attacks reported in Nigeria (12) and Somalia (10) in 2006. This rise can be attributed to the increased ability of the pirates to attack vessels further out at sea as well as being better armed, organized and last but not least lack of proper law enforcement.18
In 2008, the number of reported incidents of piracy and armed robbery was once again on the rise, together with the violence associated with such attacks and the links to well-organized criminal networks.19 As at 30 October, IMO reported a total of 4,446 incidents since it began compiling statistics in 1984.20 Furthermore, the available statistics likely underestimate the breadth of the problem as shipowners are reticent to report incidents owing to resulting business disruptions and increased insurance premiums.21
More than one-third of the piracy incidents reported worldwide in the first six months of 2008 took place in Somalia and Nigeria,22 so much so that the decrease of attacks in other parts of the world was negated by the sharp increase in attacks in waters off the coast of Somalia. The Gulf of Aden and East coast of Somalia rank as the number one piracy hotspot with attacks in Somalia increasing by 75 per cent this year.23 As at November 2008, in the Gulf of Aden and East coast of Somalia there have been 92 attacks on vessels, 36 of which have been successful hijackings. 14 vessels being held with 268 crew hostage. Between 10 and 16 November 2008 alone, there were 11 attacks in this region with three vessels hijacked and another four vessels fired upon.24
17 ICC International Maritime Bureau, Piracy and Armed Robbery against Ships, Report for the Period 1 January–30 June 2007, para. 105.
18 ICC International Maritime Bureau, Piracy and Armed Robbery against Ships, Annual Report, 1 January–1 December 2007, p. 24.
19 See UN Doc. A/63/63, fn 2, paras 54 and 55. Also noted in UN Doc. A/56/58, Oceans and the Law of the Sea: Report of the Secretary-General, 9 March 2001, para. 180.
20 UN Doc. A/63/63, fn 2, para. 56.
21 Note in this regard UN Doc. A/56/121, fn 2, para. 66.; UN Doc. A/63/174, fn 2, paras 9 and 53.
22 M. Hand, ‘Somalia and Nigeria are biggest piracy hotspots’ Lloyd’s List, 11 July 2008. Available on-line at: www.lloydslist.com/ll/news/viewArticle.htm?articleId=20017551537.
23 See also ICC International Maritime Bureau, Piracy and Armed Robbery against Ships, Report for the Period 1 January–30 September 2008, p. 25 which noted a dramatic increase in the number of incidents reported in the third quarter (83) as compared to the first (53) and second (63) quarters of 2008 which increase was directly attributed to the increased piratical activity in the Gulf of Aden and off the East coast of Somalia.
24 ‘VLCC hijacked by pirates’ (18 November 2008). Available on-line at: www.icc-ccs.org/index.php?option=com_content&view=article&id=319:vlcc-hijacked-by-pirates&catid=60:news&Itemid=51.
The importance of cooperation
The UN General Assembly has repeatedly expressed concern at the problem of transnational organized crime and threats to maritime safety and security, of which piracy forms a part. Regarding the suppression of illegal activities on the oceans, international cooperation continues to be cited as a key tool in this regard.25 The General Assembly’s resolution on Oceans and the Law of the Sea,26 reiterates the call made in earlier resolutions in that inter alia it encourages States to cooperate in addressing threats to maritime safety and security (including piracy) through bilateral and multilateral instruments and mechanisms aimed at monitoring, preventing and responding to such threats. It also urges:
all States, in cooperation with the International Maritime Organization, to actively combat piracy and armed robbery at sea by adopting measures, including those relating to assistance with capacity-building through training of seafarers, port staff and enforcement personnel in the prevention, reporting and investigation of incidents, bringing the alleged perpetrators to justice, in accordance with international law, and by adopting national legislation, as well as providing enforcement vessels and equipment and guarding against fraudulent ship registration.