Chatham House Report on Piracy

January 19, 2012 by 4 Comments

Dear Readers, we have a new contributor to CHO, Shannon Torrens. Ms. Torrens has served as legal adviser for the Marshall Islands Permanent Mission to the UN  and negotiated the LOS and Fisheries resolutions for the country. She has also been involved with the International Tribunal for the Law of the Sea. We’re very excited to benefit from her expertise and look forward to her contributions to the site.

Traditional notions of piracy as an essentially negative enterprise are being increasingly challenged. Whilst Somali piracy off the East coast of Africa has undoubtedly resulted in the loss of lives, the infiltration of violence and fear to coastal communities and ocean dwellers, in addition to the squandering of billions of dollars in ransoms and depleted tourism, it remains relevant that some sectors of the community do benefit from piracy. This raises questions as to what strategies can be put in place to alleviate the root causes of piracy so that the economic incentive is not longer as valuable.

Source: EUNAVFOR

An alternative argument to the belief that piracy ransom money is invested in foreign goods or channelled into neighbouring countries such as Kenya appears in a report released by development economist Dr. Anja Shortland from Brunel University on behalf of the London-based think-tank Chatham House. Perhaps controversially, the report notes that piracy has provided stability to Somalia and structure for the troubled country’s governance. As part of the research for “Treasure Mapped: using Satellite Imagery to Track the Developmental Effects of Somali Piracy“, the report aimed to investigate and analyse the on-land impacts of piracy and specifically where the proceeds from piracy are invested. In doing so, the report looked at both day and night aerial photos and high resolution satellite images of Somalia and at economic data, to establish where the beneficiaries were located.

Conventional economic data on Somalia is lacking, therefore, the report utilised data collected by internationally funded NGOs who monitor commodity prices, which when combined with the aerial shots, provided evidence that a significant percentage of pirate ransoms, are converted into local Somali Shillings, benefitting casual labourers and pastoralists in the Puntland region. Furthermore, the aerial images showed that inland communities such as Garowe and Bosasso in Puntland, from where pirates are said to generally originate, had increased in wealth in line with the rise of piracy activities. Those communities showed more lights on at night (i.e. electricity) and increased construction projects taking place, all of which occurred during the same period as the explosion of pirate ransoms.

Interestingly, coastal communities or “Pirate capitals” such as Eyl and Hobyo which actually host the pirates throughout their off-shore operations did not show similar evidence of having benefitted through additional investments into the community. While the report does not suggest piracy as a method for developing underprivileged regions, it does suggest that piracy clearly benefits some sectors of the Somali community and that if piracy were to stop, there would be sections of the underprivileged in Somalia who would be deeply impacted, which would in turn undermine local security and development. Furthermore, due to the alleged benefits piracy funding has had on the local economy in these inland communities and in provincial Somali capitals, the report suggests that political elites would be unlikely to act decisively against piracy.

The alleged ransom distribution in Puntland is part of what the report points to as a “deep- rooted culture of sharing” whereby wealthy Somalis combine their resources within their social-clan and in doing so aspire to increase their financial standing cooperatively. This is part of a cultural obligation to assist others in one’s community through traditional economic survival patterns, which in this instance involves considerable financial redistribution and investment in inland areas. This reality combined with large local groups who have a vested-interest in the continuation of piracy for development purposes is said by the report to render the off-shore momentum of piracy difficult to stop and is also why the report suggests an on-shore, rather than off shore solution to piracy.

The “Treasure Mapped” report has been subject to a degree of negative commentary from some quarters, for its allegedly weak data, gaps and errors of information that some commentators believe affect the implementation and accuracy of suggestions. Further criticisms have been based on allegations that the report unfairly targets the reputation of the people in Puntland specifically, Somalia more generally and the counter-piracy initiatives of the Somali Government. In doing so, they argue that the report links Puntland and the government to piracy activities, when these areas and institutions have actually taken extensive steps to combat piracy, rather than participating in or facilitating it.

As part of its conclusions, the report suggests finding alternative economic stimulus to the Somali economy, as without such alternative job prospects, Somalis will continue to search out extra legal means of employment, which includes piracy. While controversially for counter-piracy initiatives, the report suggests that a “military crack-down… would deprive one of the world’s poorest nations of an important source of income and aggravate poverty,” the report concludes that despite the fact that a large number of people benefit from the proceeds of piracy, this should not stop the international community from acting to find land-based solutions which would ideally focus on attempts to replace piracy as a source of income in these communities.

Filed under Somalia Tagged with ,

UK House of Commons Issues Piracy Report, Eyes Private Security Guards on Board, Local Prosecutions in East Africa (Part I)

January 17, 2012 by 1 Comment

The Foreign Affairs Committee of the UK House of Commons recently released an interesting report on piracy off the coast of Somalia.  For those who are not conversant with its work, here is some background.

The Report was originally commissioned in June 2011 in response to the growing concerns from piracy and armed robberies activities in recent years, particularly off the coast of Somalia, and on their effect on the UK’s economy and security:

“Piracy off the coast of Somalia has escalated over the last four years and is a major concern for the UK. The threat is not primarily to UK ships as very few have been captured. Rather, the threat is to the UK’s economy and security. Piracy affects the UK’s banking, insurance and shipping industries, and threatens the large volume of goods which are transported to the UK by sea.” (para. 20)

More particularly, the Committee examined the role of the Foreign Commonwealth Office (FCO) in support of UK and international efforts to combat piracy, including the adequacy of international and domestic anti-piracy legislation, the support for anti-piracy projects on the ground in Somalia (including coordination at the international level, particularly with the United Nations), as well as UK naval involvement with NATO and EU anti-piracy operations. As part of this inquiry, the Committee received evidence from shipping and insurance industries, EUNAVFOR and the Ministry of Defence, in addition to experts on piracy and Somalia. Paul and Rachel Chandler, whose yacht was hijacked by Somali pirates in October 2009 and who were held captive for over a year also provided testimony.

The Report contains a set of wide ranging conclusions, the most important of which is a call for the UK, as a state “whose strengths and vulnerabilities are distinctly maritime”, to “play a leading role in the international response to piracy.” However, while its publication has been promptly noted by an authoritative legal source and welcomed by experts in the shipping, naval and security fields, the Report is yet to receive an in-depth legal analysis, at least with regard to some of its main recommendations. It is hoped that the UK Government response to the Report will help generate more discussion on the UK policies (as well as those of the international community) towards piracy in Somalia. As noted in the Report, the UK is also soon to host an high-profile international conference on piracy, to be held in February 2012.

The Committee’s final recommendations touch upon several relevant issues. These include the UK’s overall response to piracy and the need for the FCO to increase its support to victims and families as well as the continuation of the UK contribution to the naval task forces patrolling the Gulf of Aden. The Report also commended the positive efforts made by the shipping industry to ensure safety and exercise self-defence and discussed the appropriateness of the payment of ransoms to pirates to rescue hijacked boats and kidnapped seafarers as well as the need to improve the financial tracking of the monetary flows connected with piracy. In addition, the Report called for  more coordination in the international response and local solutions on the ground to tackle the social and economic root causes of piracy in Somalia. Finally, the Report addressed the deployment of armed security guards on board of vessels and local efforts to prosecute and enforce penalties against pirates. These two last points appear of particular momentum and interest, thus warranting a more focused comment.

Private Armed Security Guards (paras 26-43)

The use of private armed security guards (PASG) in post-war settings is not a novelty. Most recently, governments have increasingly resorted to outsource their security functions while private security companies have notoriously rushed to provide relief to military intervention forces in places such as Iraq and Afghanistan. It is therefore not surprising that, also considering the high costs associated with episodes of piracy and armed robberies off the Somali coast, the sector of private armed security on board of shipping and cruise vessels is booming. A simple internet search reveals a plethora of security companies offering services to the maritime industry. One cannot but agree with the Report when it cautions a “‘gold rush’ of new private maritime security firms.” As discussed in a recent post, the unprecedented launch of a fleet of fully fledged private armed ships appears imminent. As suprising as this might sound, worthy of note is that private security contractor Blackwater Worldwide appears to have previously attempted to provide similar security services. See also a comprehensive jurisdictional analysis on the use of PASG here, particularly noting how the underlying legal issue is mainly one of the exercise, and limits, of self-defence.

The Report notes and supports the recent UK Government about-face by now permitting the deployment of PASG on board of UK-flagged vessels:

“the evidence in support of using private armed security guards is compelling and, within legal limits and according to guidance, shipowners should be allowed to protect their ships and crew by employing private armed security guards if they wish to do so.”

This recommendation certainly marks a shift in favor of the deterrent effect and towards empowering and calling for shipowners, as well as insurers, to bear some of the responsibilities and costs associated with providing security along the main shipping routes. However, regulation and accountability mechanisms have not kept pace with the surging growth of the private security sector. The Report addresses the various risks of using PASG on board (particularly using lethal force), and calls for further formal and practical guidelines to better regulate their operation. However, it falls short of emphasising any concrete direction on what force can be used and when. The International Maritime Organization (IMO) has also issued interim guidelines on the use of private security guards as well as several aspects of their activities. The IMO previously clarified that these guidelines are not intended to institutionalise the use of armed and privately contracted security guards on ships and that they do not address all the legal issues that could be linked to their use. India and the U.S. have also issued guidances.

Calls for further and uniform clarifications have already been raised and, together with an assessment of the need for a permanent legislative framework that substitutes the current interim guidelines, should be on top of the agenda for the Government response to the report. In addition, with other States having opposed the use of such armed guards, the risk of fragmentation between flag, port and coastal states is of particular concern.  This leaves PASGs in the awkward position of being permitted by a flag-state to bear weapons on board and ship and tossing those weapons overboard before calling to port in a jurisdiction that may not permit armed personnel aboard commercial ships

In addition to the security of commercial ships, any holistic solution will encompass mechanisms for the prosecution, transfer and imprisonment of pirates. The solutions suggested by the Report in this regard will be discussed in a forthcoming separate posting.

Filed under Somalia Tagged with , , ,

India Advocates UN-led Anti-Piracy Force

January 14, 2012 by Leave a comment

This past Wednesday, the UN Security Council received a briefing on the current situation in Somalia.  The main focus of the meeting was the increase in size of the African Union Mission in Somalia (AMISOM), which may be coordinating its efforts against al Shabaab with Ethiopian and Kenyan forces.  The meeting also addressed the continuing problem of piracy. In this regard, the Indian ambassador to the UN stated that the UN needs to adopt a comprehensive counter-piracy strategy and that part of this strategy should include a “UN-led anti-piracy force to conduct naval operations.” At present, naval operations in the Gulf of Guinea are fragmented, with several navies operating independently, others working under the auspices of NATO or EUNAVFOR, and soon, a private company operating a fleet of armed ships.  This fragmentation is complicated with the increasing use of armed private security contractors aboard ships which some have suggested should also be replaced with UN forces. The proper mix of international military forces and private security forces will continue to be a point of debate.  But with so many different forces operating in the same seas, a coordinated strategy is desperately needed.

Filed under Somalia Tagged with ,

Iran’s Piracy Problem

January 8, 2012 by Leave a comment

If you haven’t heard by now, the American Navy has rescued a group of Iranian fishermen whose boat had been hijacked by Somali pirates. The pirates used the fishing dhow al Molai as a mother ship to stage attacks on other higher-value targets. Iran’s Foreign Ministry was initially silent, but has since commended the American rescue as a humanitarian gesture.

U.S. Navy Sailor greets crew member of the Iranian-flagged fishing dhow Al Molai

For the moment, the rescue is a public relations coup for the United States as tensions escalate over strengthened economic sanctions against Iran and competing shows of naval force through the Strait of Hormuz, the only waterway connecting Persian Gulf oil resources with Asia and the West. This incident is an embarrassment to Iran and highlights the indiscriminating nature of Somali piracy.

Just like other sea-faring nations, Iran has struggled to combat piracy off the coast of Somalia. There are currently about 14 ships and 254 hostages in the hands of Somali Pirates. Although EUNAVFOR estimates 7 ships and 194 hostages, not including dhows and smaller vessels. Most non-officer seafarers come from developing countries and particularly, the Philippines, India, and increasingly China.  Therefore, these countries have the highest proportion of hostages being held. However, Iran has also suffered with 10 Iranians taken hostage aboard the Sinan in 2011 and another 45 taken hostage in 2008 and 2009.

Likewise, some of its ships have been targeted, with al Molai the most obvious example, but also including the Delight and the Iran Deyanat, not to mention other vessels with Iran as a destination.

In response to these attacks, Iran has sent naval vessels to the Gulf of Aden to protect Iranian ships from pirates.  It appears to be maintaining two destroyers on mission in the Gulf of Aden, although increasing tensions in the Strait of Hormuz may require Iran’s navy to reallocate resources.  See also here. It is unclear to what extent Iranian war ships have interacted or cooperated with other navies while on mission in the Gulf of Aden and Indian Ocean. However, Iran participates in the 19-member grouping of the Indian Ocean RIM – Association for Regional Cooperation (IOR-ARC) which also includes India, Yemen, Australia, Bangladesh, Indonesia, Kenya, Madagascar, Malaysia, Mauritius, Mozambique, Oman, Singapore, South Africa, Sri Lanka, Tanzania, Thailand, the UAE and Seychelles. The IOR-ARC issued the Bangalore Declaration last November, agreeing to share information, experiences and best practices in the fight against maritime piracy.

Although a momentary boost to the United States, this incident will be quickly overshadowed by the tension in the Strait of Hormuz. As tensions between the United States and other countries (to the extent that they are also imposing economic sanctions on Iran) continue to increase, any naval interaction with Iran will be potentially risky.  Iran’s presence in the Gulf of Aden is no exception. However, with EUNAVFOR, NATO, and the United States-led international naval coalition of 25 nations all operating in the area, Iran is vastly outnumbered in that area and will be reticent to engage offensively there.

It is also worth noting that Iranian’s most valuable asset, its oil tankers, are not seriously at risk to Somali pirates. Transit through the Gulf of Aden, when tankers are most susceptible to attack by Somali pirates, is only necessary to transport oil to Western countries. Although 18 percent of Iran’s crude oil exports went to the EU in the first 6 months of 2011, that percentage will likely drop considerably as a result of new economic sanctions. The remainder of Iran’s exports go to Asia, notably Japan, India, China and South Korea which do not transit the areas most susceptible to pirate attacks. Al Molai fishing dhow was attacked much closer to Iran, but attacks in that region are exceptional.

But what of these particular Somalis?  Will they be prosecuted and where? After the incident, the pirates were in American custody. The New York Times reports that the rescue occurred 210 miles off the coast of Iran, presumably in international waters.  If that is the case, the United States as the seizing nation, has jurisdiction to prosecute, decide on penalties, and determine the action to be taken with regard to ships or property “subject to the rights of third parties acting in good faith.” (Article 105, UNCLOS). Iran, as a third party whose nationals were victims of the attacks, also has an interest in prosecuting the pirates. In this case, it is likely that Iran will defer to the U.S. to prosecute the pirates.

There are also some problems of proof, as the pirates apparently threw their arms overboard and claimed to be joy-riding on the seas. Therefore, prosecution will be based upon video and testimony obtained by the navy helicopters and ships that performed surveillance on the ship and the testimony of the victims.

The problem of prosecuting in United States courts is that testimony must be in person due to the confrontation clause (and the U.S. Supreme Court decision in Crawford). This is where U.S. prosecution presents significant hurdles as U.S. servicemen may not be available to testify in court and it is unclear whether video-link testimony would be constitutionally permissible. In the case of the Iranian victims, there are even more serious practical concerns, as they would have to be given permission by the Iranian government to travel to the US to testify. For these Iranians there may be a temptation to seek asylum while in the U.S. just as witnesses at the ICC have done after reaching the Hague from Africa, notably from the DRC and the CAR.

Hypothetically, the pirates could be prosecuted in Iran. Iran is a signatory to UNCLOS without any reservations as to the definition of piracy contained therein. However, Iran has not ratified the Convention and it is unclear whether Iran has particular legislation that criminalizes piracy directly. Insofar as Islamic law applies in Iran, Islam considers piracy to be forbidden and may be punishable by death.  In a related context, the Iranian Foreign Ministry has called Israel’s attack of an humanitarian aid flotilla to the Gaza strip to recall, “acts of sea piracy in the past centuries, which are clear example of maritime terrorism.”  In 2009, Iran also acceded to the UN Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) which defines maritime terrorism (the U.S. is also a state party). If Iran and Somalia were to request extradition of the pirates to Iran, the SUA convention requires the U.S. to pay due regard to Iran’s rights as the flag state of the victim ship(s). (Article 11(5) of SUA). Nonetheless, the U.S. would likely consider it difficult for the pirates to receive a fair trial in Iran and could deny extradition to Iran on that basis. (Article 11(6) of SUA Convention).

A more practical solution would be to identify the home community of the pirates in Somalia, be it Puntland, Galmadug, or Somaliland, etc. for prosecution in their home jurisdiction. The UN Office for Drugs and Crime has established programs to strengthen the prosecutorial capacity of some of these regions. However, there continue to be concerns of corruption and judge-intimidation that undermine confidence of a just outcome in these judicial systems. Likewise, the penalties imposed for piracy may be significantly less than in the U.S. where life-imprisonment has been the norm for recent prosecutions of Somali pirates.

Some difficult decisions will have to be made by the American authorities in this regard. Although policy will likely have been made with regard to which pirates to transfer to other authorities and which to prosecute state-side, the enhanced exposure of this particular case might require a re-examination of this calculus.

At the end of the day, piracy is perhaps the only area where the U.S. and Iran share common interests. For both countries, prosecution of pirates remains a problem without any easy solutions.

UPDATE: I just found a summary Iran submitted to the UN of Iranian law applicable to maritime piracy.  The summary asserts that piracy is punishable by a sentence of 3 to 15 years imprisonment. It also states, “It should be mentioned that “moharebeh” in accordance with “Sharia Law” is resorting to arms in order to frighten people; and “mohareb” [which includes pirates] is a person convicted of “moharebeh”.  The punishmen (sic) of “moharebeh” is “exile” or “death penalty”.” The summary does not state to what extent Shariah law is applied in Iran.

Filed under Somalia Tagged with , , , ,

The Mekong Pirates

December 30, 2011 by 1 Comment

The recent murder of 13 Chinese sailors on South-East Asia’s Mekong river triggered unprecedented joint international naval patrols by China, Laos, Myanmar and Thailand to provide security along parts of the estimated 4900 Km long river.

After crossing the Tibetan plateau and leaving China’s Yunnan Province, the Mekong flows southwest and forms the border between Myanmar and Laos for about 100 kilometers. It then turns southeast to form briefly the border of Laos with Thailand, then flows east and south into Laos for some 400 kilometers and defines the Laos-Thailand border again for some 850 kilometers as it flows east. It then reaches Cambodia, providing significantly for the country’s fishing and rice farming economy. Finally the Mekong empties into the South China Sea and upon entering Vietnam, subdivides into the Mekong Delta. The Mekong flows at the hearth of the so-called “Golden Triangle”, an area overlapping the mountains of Myanmar, Vietnam, Laos, and Thailand which has long since been one of the most extensive opium and heroin-producing areas of Asia and of the world. More recently, the drug production and trade has shifted to methamphetamines.

According to initial reports, the sailors were attacked in October when sailing aboard two ships in the Golden Triangle area. Some of the sailors had been found in the river with their hands tied behind their backs, some were blindfolded and some had been shot. The ships were recovered by Thai river police after a gunfight. Some 900,000 methamphetamine tablets worth more than $3m were found aboard, hence drug smugglers were initially suspected of the attack. In response, China suspended all shipping activities on the Mekong and urged Thai authorities to arrest those responsible. Later reports suggest the involvement of 9 Thai soldiers attached to an anti-drug task force who surrendered shortly after the attack and are now facing prosecution.

While the motives of the attack appear closely linked with drug trafficking, the economic and political interests of the Mekong’s numerous riparian States give an international dimension to the incident. Seasonal variations in water flow and the presence of waterfalls have historically made navigation of the river difficult, thus dividing, rather than uniting, the people of the Mekong. In 1995, following the UN mediation, Laos, Thailand, Cambodia and Vietnam established the Mekong River Commission to assist in the management and coordinated use of the Mekong’s resources. In 1996, China and Myanmar became “dialogue partners” of the Commission and the six countries now work together within a cooperative framework. Recently, each of these countries have been notoriously engaged in lengthy discussions regarding a Chinese-sponsored hydroelectric dam construction project – currently suspended – and its overall impact on the region.

The patrols mark a significant shift in China’s long standing policy of non interference in other States internal affairs. The patrols are said to be the first instance of Chinese police being deployed outside their territory without a UN mandate. It is thus not surprising that China is taking a leading role in the operations. The patrols are headquartered in China with stations in each of the other countries. At a meeting in Beijing, ministers from all four countries agreed on the new measures. China contributed with the deployment of 200 police officers and 11 ships. The plan also involves police departments in the four countries setting up a coordination team to explore further security measures. Finally, China will also help train and equip police in Laos and Myanmar for the patrols.

It is problematic to fully assess the legal framework in which the patrols could be deemed to operate as well as their relation with anti-piracy and armed robbery efforts. Interestingly, a cursory review of the history of piracy reveals limited reported instances of so called “river piracy”, mainly consisting of fluvial criminal activities in the 18th century within the USA. However, lacking its most fundamental element, namely the occurrence of the attack in the high seas, the Mekong incident squarely falls outside the relevant provisions of the Convention on the Law of the Sea (UNCLOS) relevant to piracy. Yet again, there appears to be a situation where the current applicable specialized international legal framework is not directly applicable to contemporary criminal activities or is capable to address their underlying root causes and overall impact, particularly in areas of flourishing economic development. States (including signatories to UNCLOS) are free to adopt broader definitions of piracy applicable to internal waters. However, the current trend is to legislate the definition in Article 101 of UNCLOS. Armed robbery at sea pertains to piratical acts within the territorial sea, but criminal acts within internal waters (even if such waters have an international character) remain unaddressed. The most important upshot to the situation at hand is that the principles which could resolve competing claims of police and judicial jurisdiction over criminal activity along the Mekong are not codified.

Recourse to the current, yet scarce and developing, legal framework attaching to international rivers might therefore provide for more focused analysis. Rivers are ordinarily considered as part of a country’s internal waters. However, rivers are also often used to demarcate borders. More importantly, lengthy rivers could cross several countries, reflecting a wide range of political, geographic, economic and cultural circumstances. The Mekong, the world’s 10th longest, is one such international river. These are also referred to as shared or transboundary rivers, as well as international watercourses.

Riparian states, namely states through which a transboundary river flows or form part of its borders, developed riparian rights and obligations normally confined over the use of the river for livelihood or sustainability purposes. Riparian States traditionally resorted to specific watercourse agreements or treaties to regulate the use of a shared river. Much of these rights and obligations are defined by the UN Convention of Non-Navigational Use of International Watercourses, which has yet to enter into force. Among its key guiding principles, contained in Articles 5 and 7, are the “equitable and reasonable utilization” and the obligation “not to cause significant harm” to other riparian states.

Literature on sharing international rivers define these as both catalyst for cooperation or conflict but also points to several important benefits from a structured cooperation among riparian states, including environmental, direct economic, political, and indirect economic benefits. Instances of state cooperation, however, seldom refer directly to issues relevant to the security of the watercourses, with the exception of risks deriving from pollution or excessive exploitation. Notably, Articles 7 and 8 of the UN Watercourses Convention requires States to “take all appropriate measures” to prevent or mitigate significant harm to other States as well as a general obligation to cooperate among riparian states.

Control of international rivers is inextricably linked with economic opportunity, national security, society and culture. It is within this general framework that the agreed cooperation over patrolling the Mekong and ensuring the safety of its navigation, in essence an international basin or watercourse agreement, should be seen. Such cooperation could cut individual States security costs and further their overall benefits from the use of the river, addressing issues of policing, extradition and prosecution as well as solidifying channels of communication between riparian states to address a potentially volatile situation. In other words, better security over the river will promote unity and integration among the riparian States and more possibility for each of them to manage the development and use of the river.

Filed under International Rivers, South East Asia Tagged with , , ,

← Older posts

Newer posts →