UNOSAT Global Report on Maritime Piracy – a Geospatial Analysis

As part of its UNOSAT programme, the United Nations Institute for Training and Research recently launched a global report on the geospatial analysis of piracy activities. UNOSAT uses satellite derived geoinformation in critical areas such as humanitarian relief, human security, strategic territorial and development planning.

The global report, building primarily on data maintained by the International Maritime Organization, explores how trends in geospatial patterns and severity of reported piracy incidents are developing from 1995 to 2013.

Maritime Circulation and Piracy 2006-2013

Courtesy UNOSAT Global Report on Maritime Piracy

Not surprisingly, two areas were observed because of the significant trends in piracy activities: the Western Indian Ocean, including the Gulf of Aden, and the Gulf of Guinea. In the Indian Ocean, including the Malacca Strait, and in South America, no major trends were observed. Piracy in the Malacca Strait, however, continues to be a major disruptor for safe routes in the eastern Indian Ocean.

As for the Western Indian Ocean, the following observations are made:

  • There has been a significant reduction in the number of pirate attacks during 2013 – to the extent one can claim they have almost stopped (28 incidents in 2013, of which only 8 since 15th August). Not a single vessel was hijacked;

  • The median distance from where an attack is reported to the nearest coast has dropped from close to 400 km in 2010 to under 50 km in 2013, thus indicating a considerable reduction in the radius of successful pirate activities;

  • Incidents involving the use of rocket propelled grenades, relatively heavy armour for pirates, has decreased from 43 in 2011 to 3 in 2013;

  • Ransom amounts paid to pirates have decreased from US$150M in 2011 to about US$60M in 2012;

  • In addition to the well-known feature of piracy “mother ships” from which fast-going skiffs can radiate, a new trend of floating armoury vessels supplying anti-piracy entities with weapons out in international waters is observed.

The Gulf of Guinea differs from the western Indian Ocean, although the overall number of attacks carried out is of a smaller scale:

  • The number of attacks show no sign of decreasing;

  • Attacks in the high seas have increased, while attacks in ports are on the decrease;

  • The types of attacks have gone from low-intensity towards more violent acts;

  • The Financial losses to the national economies for countries with ports in the Gulf of Guinea are considerable. This has forced certain countries to take military action that has proven successful.

The findings confirm the already well-known trends in modern day piracy in these areas.

Several organisations collect and analyse data relevant to piracy. While there have been major improvements in information-sharing, this is yet another area in the fight against piracy which suffered from fragmentation of approaches and consequently from dispersion of resources. The report thus provide for a number of recommendations for standardisation and possible better coordination.

Notably, the report advocates for the creation of a “severity index” to better differentiate the gravity in the use of violence during reported incidents in future data collection and analysis. The report indeed remarks how for close to half of reported piracy incidents no threat of violence has been reported. A similar index is used by the ReCAAP in monitoring piracy incidents in South East Asia.

The report also highlights how the distance from the coasts from which the pirate carry out their attacks is correlated to the pirates’ technical and operational capabilities and could thus function as an early predictor of an escalation in the attacks.

New Captain(s) of the Ship

CHO_circle_300dpiJanuary marks the third anniversary of Communis Hostis Omnium. This blog originated with an idea to examine the legal issues arising from the growth of maritime piracy, in particular off the coast of Somalia that had reached its peak in 2010. It has been a labor of love for both Matteo and I, representing many nights and weekends of work. And its growth has been not inconsiderable from a modest blog with a readership of one into an important source of legal analysis in a field that continues to harbor lacunae and unresolved political issues. Unfortunately, our other professional responsibilities have not permitted us to maintain the consistent and thorough analysis that we would have liked and it appears time to move on.

Fortuitously, two highly qualified lawyers have stepped forward and agreed to take the helm. From 1 January 2014, Milena Sterio and Michael Scharf will be the new Editors-in-Chief of Communis Hostis Omnium. They bring to this project a strong knowledge of the law of piracy and practical experience in the field. Milena is a Professor at the Cleveland-Marshall College of Law.  She has published widely on international law topics, including piracy. Michael is the Acting Dean of Case Western University Law School and is a recognized expert in international criminal law. Both Milena and Michael have participated in UN Contact Group on Piracy meetings and have assisted in fact-finding missions in Seychelles. Our hope is that they will be able to continue to grow this site’s readership and depth of coverage. We welcome them both aboard!

Matteo and I will continue to post on Communis Hostis Omnium as contributing authors periodically and when time allows. But for the moment, we sign off and wish Milena and Michael the best of luck on this new endeavor!

Negotiator Not a Pirate, Hung-jury on Hostage Taking Charges

Ali Mohamed Ali

Ali Mohamed Ali

There have been further developments in the case of Ali Mohamed Ali which we have followed here, here, and here. Two weeks ago a jury acquitted Ali of the piracy charges. Of course, juries aren’t compelled to give the reasons for their decisions, but the competing narratives indicate that the crucial issue was one of mens rea, whether Ali intended to personally profit from the negotiation or whether he instead was attempting to help free the captives. The jury was having trouble reaching a verdict on the separate hostage-taking charges and has now indicated that it could not reach unanimity, thereby rendering a mistrial. The prosecution will likely indicate next week whether it intends to retry the latter charges. But double jeopardy prevents a retrial on the piracy charges.

As an aside, an interesting point of law developed prior to the jury verdict regarding the legal requirement that piracy be perpetrated on the high seas. In this decision, the US district court found, based on the continuing offence doctrine, that “so long as the illegal acts of violence, detention, or depredation for private ends continue, the offense of piracy continues even after the perpetrators leave the high seas.” There will be no appeal of this decision since Ali was acquitted of the piracy charge.

 

New Article on Aiding and Abetting Piracy

piracy renaissance table of contents

My article on intentional facilitation and incitement to piracy has at long last been published in the Florida Journal for International Law. It argues that general principles of law as discerned from the jurisprudence of international criminal tribunals may serve as the basis for the application of appropriate modes of responsibility for piracy. Ultimately, as applied to two piracy cases in the U.S. it concludes that aiding and abetting piracy may be perpetrated on Somali territory or territorial waters and still be subject to jurisdiction within the U.S. In view of the time-lapse between initial submission and publication (as is often the case in law review publishing), the editors graciously allowed me to append a postscript, updating the progress of two appeals in separate circuit courts which agreed in large part with my conclusions.

Reprinted with permission from the Florida Journal of International Law. 

The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force – An Update

A guest post by David Hammond. For a background, see also our previous post on the publication of the 100 Series Rules. 

David Hammond is the Head of Maritime Practice at 9 Bedford Row International Chambers London, author of the 100 Series Rules, a former frontline Royal Marines’ Officer and former head maritime lawyer to the United Kingdom’s Chief of Joint Operations for counter-piracy matters. He is an Associate Research Fellow of the Greenwich Maritime Institute and international speaker on maritime Rules for the Use of Force. The comments within this post comprise the personal opinion of the author and do not constitute any measure of formal legal advice whatsoever and howsoever read. Formal legal advice may be obtained on instruction.

Also posted at All About Shipping and the Bridge.

Background

Over the past two years, the 100 Series Rules (“the Rules”) have been conceived, researched, drafted and finally published in soft-copy form as of May 3, 2013 as a first edition. They are a first for the commercial maritime industry and go one step further than simple guidance for the drafting Rules for the Use of Force (RUF) and guidance as to where responsibility lies for producing RUF as an inclusive part of a commercial contract. At the time of writing, the 100 Series Rules have been short-listed in support of one of the five finalists for the Lloyds List Global Awards 2013 Maritime Lawyer of the Year.

At the very least, the Rules provide a lawful core set of principles and RUF for use by emerging companies. At best, they provide a point of reference that can be relied upon as a robust legal interpretation for the lawful use of force by international organisations and State entities, enabling auditing, standardisation and accountability in any chain of events where force is lawfully used at sea in self-defence.

The Rules have been developed for the benefit and use of the entire maritime industry, intended to be referred to without the imposition of State or geographical boundaries, overly restrictive interpretations, interference from commercial entities seeking commercial advantage or State authorities seeking State advantage.  In short, the previous lacuna in provision to the international community of an actual model set of rules has been filled and is now being further developed alongside the registered “Supporting Entities”, as highlighted on the website.

The Law

The law that underpins the Rules is that of individual self-defence; itself a universal concept that can be found to outdate modern legislative interpretations going back to the Bible, Koran and other main religious texts by way of example. It is the individual right of all persons in every region, in every country and that includes indigenous seafarers, merchant sailors, as well as Privately Contracted Armed Security Personnel (PCASP), to be able to lawfully defend themselves against criminal acts of violence.

The Rules themselves are concise in terms of their core principles. They are concise in their outline of graduated defensive response measures that individuals may be required to undertake to protect themselves and those immediately around them. This, of course, includes the use of lethal/deadly force as a last resort, in self-defence.

The drafters of the Rules have researched significant numbers of individual State’s legislation covering the issue of self-defence (presentations containing this research may be found open-source on the website). They have subsequently identified the international objective law test of what is “reasonable and necessary” within the Rules, while accounting for proportionality in the use of any force as against an identified treat. The objective test stands as a higher standard as against which actions may be measured than that necessarily found in some State’s legislation at the individual national subjective level. In some cases, individual State’s legislation may well exceed that laid down in the Rules.

The 100 Series Rules will not, however, provide any form of indemnity or immunity whatsoever against civil or criminal liability when force has been used unlawfully.

International Supporting Entities

The Rules are currently supported in their conception and use by over 40 international entities. These currently include a main flag State, ISO, Lloyds Register, BIMCO, UNICRI, SAMI as well as international maritime associations representing the world’s shipowners and ship managers, international PMSCs, insurance and maritime intelligence providers and leading international law firms specialising in piracy matters. In short, this is an international effort driven by leading commercial entities based upon practical and pragmatic real-time experiences, combined with the general call for clarity of rules, transparency in their use and accountability for the lawful use of force at sea.

IMO and ISO

In support of ISO PAS 28007-2012, the Rules were first submitted to ISO in October 2012. They were accepted a work item and are undergoing a final review at the time of writing.

 In June 2013, the Rules passed through the IMO at Maritime Safety Committee 92 as an INF paper sponsored by the Republic of the Marshall Islands, ISO, BIMCO and the International Chamber of Shipping. They were subsequently noted by the IMO and unchallenged for the detail of their contents following the session.

American Standards

There appears to be a dual-track approach to this issue of standardisation as between the US-based ASIS organisation and the European International Organisation for Standardisation (ISO). This article will not debate the pros and cons of the two initiatives, noting only that up to the point of the release of the 100 Series Rules, there was no other reference to an international model standard freely made available to the maritime industry.  Further, without competition, in what is an otherwise commercially focused arena, lone imposed standards may fall foul of anti-competition rules and legislations.

The maritime environment is of course is an entirely different environment to that of both established and emerging land-based operations, often undertaken with the backing of a UN mandate following a period of war-fighting as part of an international, non-international or internal armed conflict, often involving NATO forces and where the Law of Armed Conflict may have been invoked.  In stark comparison and as most readers will know, piracy, armed robbery and hijacking are criminal acts that require a constabulary response and hence the restriction in the maritime environment, (outside of armed conflict) for the need for recognised RUF, as opposed to offensive Rules of Engagement (ROE).

In tandem with the text of the American National Standard PSC 1-2012 ‘Management System for Quality of Private Security Company Operations – Requirements with Guidance’ and reassuringly so, the 100 Series Rules includes the same consideration and understanding for the need of the requirement for human rights at a State, commercial and individual level. The essence and intent of the American and European Human Rights Conventions, as well as the UN Universal Declaration of Human Rights and supporting texts have been rightly integrated as part of the comprehensive approach to the issue of maritime RUF.

Furthermore, 9 Bedford Row International (9BRi) Chambers’ Maritime Practice, will shortly be releasing the first international model guideline document “Model Guiding Principles and Best Practice for Human Rights Considerations in the Maritime Industry” ©Copyright 2013 9BRi. It will be available through http://www.100seriesrules.com/Human_Rights. This will be for the reference and use by the maritime (including the maritime security) industry and interested third parties. It will be based upon current international conventions and decided international case law, backed by a comprehensive legal advice.

Summary

Currently, there stands a lawful international model for maritime RUF that works, is internationally supported, widely socialised and rapidly growing so.  As a model set of actual rules, the 100 Series addresses the commercial requirements of the international maritime industry in greater depth than any other currently available RUF guidance and there are no cogent reasons why the established 100 Series cannot complement emerging land standards.

As seen with the development of Best Management Practice (BMP), the 100 Series Rules will remain at the disposal and for the use of the international maritime industry. It will be an iterative document that will develop over time, but most importantly, it should not be undermined by entities seeking commercial advantage at the expense of supporting and protecting seafarers in undertaking often difficult and dangerous roles at sea.