An Arms Race at Sea

The vulnerability of commercial ships to piracy and armed robbery at sea is caused in part by the weak capacity of East African navies and coast guards. The inability of the Kenyan police and the Kenyan Navy to prevent the kidnapping of a UK national off the island of Lamu brings this issue into relief.  In that incident, “The police sent a boat to Manda [near Lamu] to investigate, but soon returned to Lamu to gather reinforcements — which was not a simple task. Although Lamu’s police have three boats, each equipped with twin 115-horsepower outboard engines, two of the boats were out of commission that morning. Instead officers had to hire one 140-horsepower craft from a local captain and requisition another from the Kenya Wildlife Service.“  The Kenyan Navy also had trouble responding: “The Kenyan Navy had sent out a small boat to intercept the kidnappers, but it struck a coral reef and capsized.”

Failures such as these have resulted in two related developments. One, a call to build up naval and coast guard capabilities of states in regions affected by piracy and two, an increasing acceptance of armed guards on board commercial ships to fill the void of naval capacity.

First, there has been a call to build up naval capacity of littoral states. In his July 2011 report concerning the modalities for establishing courts to prosecute pirates, the UN Secretary General discussed the possibility of an extraterritorial Somali court based in Tanzania. He noted, “Tanzania wished to communicate to the international community its willingness to assist under the right conditions. Tanzania’s primary concerns were security and the need to reach international standards. He indicated that his Government had collected views from the judiciary, prisons authority and navy on what would be needed to achieve these elements. The prisons needed sufficient facilities and the navy needed a ship to defend the coast.”

Similarly, Tayé-Brook Zerihoun, Assistant Secretary-General for Political Affairs said the international community should consider ways of developing Somali capacity to deal with piracy on land and waters close to shore through the establishment of a coast guard.

The phenomenon is not limited to East Africa.  Both Ghana and Benin are in the process of acquiring naval boats to patrol their waters.  Ghana has ordered two 46 metre patrol vessels from China’s Poly Technologies Incorporated as part of a larger drive to modernise its navy. The vessels will be used to combat piracy and increase maritime security off Ghana’s coast once they are delivered before year-end. Likewise, China provided a grant of four million euros in September to Benin for the purchase of a patrol boat.

Without question, littoral states have the right pursuant to international law to protect their territorial waters. These states may also have rights to patrol in the exclusive economic zone (extending beyond territorial waters) if established pursuant to the UN Convention on the Law of the Sea. But the effects of building up navies and coast guards will be felt long after maritime piracy and armed robbery at sea have been neutralized. The common enemy of piracy has brought together strange bedfellows (for example, the joint naval operations in the Indian Ocean including China, the United States, and India). However, once the common enemy is vanquished old rifts will likely reappear. In the case of the Gulf of Guinea in particular, where the coastal and territorial waters are resource rich, the build up of navies may create post-piracy tension.

The second obvious trend, is the build up of small arms on ships.  The October 2011 Secretary General Report to the UN notes that a combination of new tactics have reduced the success rate of pirate attacks in the Gulf of Aden and Indian Ocean. He notes, ”As of early October 2011, 316 people and 15 vessels were being held hostage. This compares with 389 people and 18 vessels held in October 2010. The reduction was achieved through a combination of actions by naval forces and the improved implementation of the IMO guidance and industry-developed Best Management Practices for Protection against Somalia-Based Piracy. That included better application of self-protection measures and situational awareness by merchant ships. Naval forces reported that in the last year, 75 per cent of attacks were warded off by military intervention, while this  year, merchant ships achieved the same success rate by taking robust action, including through the use of fortified safe rooms.”

While the Secretary General downplays the effect of private security contractors, PMSCs have obviously had an impact on reducing the success rate of pirate attacks. As a result, the International Maritime Organization, and several states, including the UK, India and the US have become increasingly tolerant of private military contractors being hired to protect commercial ships transiting through high risk areas.

“The [IMO] guidance includes sections on risk assessment, selection criteria, insurance cover, command and control, management and use of weapons and ammunition at all times when on board and rules for the use of force as agreed between the shipowner, the private maritime security company and the Master. The interim recommendations for flag States recommend that flag States should have in place a policy on whether or not the use of [PMSC] will be authorized and, if so, under which conditions. A Flag State should take into account the possible escalation of violence which could result from the use of firearms and carriage of armed personnel on board ships when deciding on its policy.  The recommendations are not intended to endorse or institutionalize the use of [PMSCs] and do not address all the legal issues that might be associated with their use onboard ships.”

Likewise, following on India’s issuing of guidance to permit PMSCs on-board commercial ships, Prime Minister Cameron has said he wishes to legalise armed guards on ships passing through dangerous waters, such as the Red Sea and the Gulf of Aden. Although the United States has not gone so far as to create new laws in this area, it has started to privately encourage the use of PMSC’s for ships transiting the high-risk corridor.

The increased use of PMSCs was perhaps unavoidable in this area. But, as pirates become increasingly desperate to find available targets, and commercial shippers resort to armed escorts, an escalation in violence will ensue.  This will lead to increased risk to the lives of hostages and seafarers as well as the valuable cargo transiting these waters.

Kenyan Intervention in Somalia Will Have Minimal Effect on Piracy

Kenya has entered into Somali-territory and is making slow progress northward. As yet, it is not entirely clear what military objective Kenya seeks to obtain. At its outset, the Kenyan government justified the incursion based upon recent kidnappings of foreign tourists and aid-workers, asserting that they were all the work of al-Shabaab. However, It appears that only the latter attack on Spanish aid workers for the charity MSF can be attributed to al-Shabaab. While the other two attacks on tourists near Lamu were likely the work of pirates/armed bandits. More recently, sources in the Kenyan military have asserted:

Kenya’s military says it plans to remain in Somalia until the Shabab’s capacity is “reduced” and Somalia’s weak, American-backed transitional government is able to function.

The more immediate goal appears to be to take the port town of Kismayu, one of Somalia’s biggest towns and a major money-earner for the Shabab. The United States and France have joined in this fight, emboldened by the success of using air power to assist foreign ground troops in Libya. The Kenyan incursion into Somalia falls within the U.S.’s fight against the Shabaab which until now was limited to targeted drone strikes in the Shabaab controlled areas.

Although principally a military intervention against the Shabaab, this is also an opportunity for Kenya to root-out pirates based in the south of Somalia and to discourage any further attacks on tourist-areas on its coast. While the Shabaab was initially hostile to pirates, asserting piracy was contrary to Islam, it appears Shabaab has become more tolerant of pirate gangs in view of the revenue they can produce. They are not working together, but appear to have reached a détente.

It is possible that Kenya’s intervention will prevent further pirate attacks in its coastal tourist areas. However, the vast majority of pirate attacks at sea originate in the breakaway region of Puntland, far to the north of the Shabaab controlled areas. Therefore, Kenya’s incursion into Somalia, while perhaps limiting attacks on tourists in Lamu, will not have any meaningful impact on attacks in international waters which have so affected commercial shipping.

Sophisticated Planning Operations of Somali Pirates

A newly-released report by a UN agency (UNOSAT) statistically analysed 2005-2009 Somali piracy attacks and reached some surprising conclusions which contradict widely-held assumptions about the reactivity of pirates. It concludes:

• The dramatic expansion of piracy in the Indian Ocean was initiated during the spring of 2008 – predating major international naval patrols;
• Falling piracy success rates may be partially the result of a statistical bias due to changes in incident reporting over time, and may reflect a naturally occurring decline resulting from more aggressive pirate rules of engagement and a large influx of untrained pirate recruits;
• A significant majority of failed attacks on merchant vessels occurred without any direct international naval assistance;
• Counter-piracy training, technology and tactics of merchant vessels has likely had the greatest impact on improved maritime security levels and falling hijacking success rates in the Gulf of Aden

Many have assumed that the increasing use of international naval assistance (such as the EU NAVFOR Atalanta mission) have reduced the success-rate of pirate attacks. The UNOSAT report finds that pirate activity had moved away from the Gulf of Aden (formerly the primary targeted area) and into the Indian Ocean, before the international community created a safe-travel corridor and protected convoys in the Gulf. This suggests a level of sophistication and planning on the part of pirate organizations. Before the international community could react, Somali pirates were already picking their next targets.  As the report puts it:

The more convincing interpretation of the dramatic spread of piracy into the vast expanse of the Indian Ocean was that this was a deliberate strategy planned and initiated not in reaction to anti-piracy patrols in the Gulf, but as part of a hugely successful piracy expansion program – most visibly and successfully demonstrated at that time in the Gulf.

The report also points out that falling success rates do not necessarily mean success in the fight against piracy. For the actual number of successful pirate attacks increased from 2008 to 2009 despite a reduced rate of successful attacks. Faced with more difficult conditions, pirates simply initiated more attacks. The report suggests that the higher number of attacks required use of less-experienced recruits and this may partly account for the reduced rate of successful pirate attacks.

One final point identified by the report is the correlation between a lull in attacks with the seasonal monsoon from May/June through mid-September. It is possible that the recent attacks on land-based tourists in Kenya were an attempt to increase ransom-revenues during the monsoon – when attacks at sea were not possible. Always looking for new opportunities, tourists located less than 100km from the Somali border must have appeared easy targets, especially considering attacks have been attempted as far as 1600 nautical miles from the Somali coast.

Although this report is not fully up to date, the implications are that pirate criminal organizations have a sophisticated planning apparatus, in which shipping lanes, vulnerabilities, sea conditions, and potential ship defences are all taken into consideration. It also suggests that pirates are proactively seeking new targets. This explains why countries far to the south, such as Mozambique and South Africa, are considering the potential of attacks in their own waters.

Kenyan Ready to Start Hearing Piracy Cases Again?

In November 2010, the Kenyan High Court in Mombasa ruled that Kenyan courts did not have jurisdiction to try the crime of piracy. As I have previously noted, the case followed on the the Kenyan Foreign Minister’s assertion that, “We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.” The Kenyan Director of Public Prosecutions, is now appealing the High Court decision. Special Prosecutor Patrick Kiage asserts that Kenyan courts derive their jurisdiction from international law, which declares piracy an international crime and that “Under international law, suspected pirates can be charged in any country where they are captured.”

The timing of this appeal is striking as it follows two separate attacks on tourists near Kenya’s border with Somalia, potentially devastating Kenya’s tourist industry. The two recent attacks near Lamu, Kenya (see map) were committed on Kenyan territory. Therefore, even if the High Court’s ruling were to stand, the acts could be prosecuted as murder, kidnapping, armed robbery, assault, or other such crimes under Kenyan national law. Nonetheless, as attacks affect more than just commercial shipping interests (which are in any case insured) and start to affect economic interests closer to home, Kenya will have more of an incentive to advertise its diligence in prosecuting pirates, whether for attacks in its own territory or in international waters.

Kenya: No Jurisdiction to Try Piracy?

One important factor which played into Jack Lang’s recommendation to create piracy courts in Puntland, Somaliland and Tanzania, was Kenya’s apparent unwillingness to take the entire problem upon itself.  Until last year, the international community was relying on Kenya to prosecute suspected pirates in Mombasa based upon bilateral agreements. However, in April 2010, Kenyan Foreign Minister Moses Wetangula told reporters, “We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.” Subsequently, the Kenya High Court at Mombasa ruled that “the Local Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” Therefore, it did not have jurisdiction to prosecute Piracy on the High Seas (which lies outside of a State’s territorial seas). The specifics of that case provide an interesting case study into a piracy prosecution as well as the perils in amending legislation. In re Mohamud Mohamed Hashi et. al.

The facts of the case provide some colorful background. Mohamud Mohamed Hashi and eight other persons were charged with being armed with three AK 47 Rifles, one pistol, one RPG – 7 portable Rocket Launcher, one SAR 80 Rifle and one Carabire rifle, attacking the MV COURIER vessel and at the time of such act put in fear the lives of the crew men of the said vessel. They were in a skiff like the one pictured in the header of this blog. They were arrested on the High Seas of the Gulf of Aden in the Indian Ocean by the German Naval Vessel, the FGS Rhineland – PFALZ, with the help of its helicopters and a U.S. helicopter assigned to the USS – Monterey, who “accosted” them in their small boat and arrested them. The Commander and/or officers of the German Naval Vessel, brought the men to Mombasa Kenya and placed them in the custody of the Kenyan police ten days after being captured in the Gulf of Aden.

The legal issue boiled down to two competing statutory provisions addressing the jurisdiction of the Magistrate to consider piracy charges. The first relevant section of the Kenyan Penal Code provided: “5. The jurisdiction of the Courts of Kenya for the purpose of this Code extends to every place within Kenya, including territorial waters.” Whereas, the second section considered by the High Court provided: “69. (1) any person who in territorial waters or upon the high seas, commits any act of piracy jure gentium is guilty of the offence of Piracy.”

The High Court held that these two sections were inconsistent because Section 5 of the Penal Code limited the Court’s jurisdiction to territorial waters and Section 69 expanded the Court’s jurisdiction to include the High Seas.  The High Court concluded that Section 5 was juridically paramount because “It is the defining provision with regard to jurisdiction of the Kenyan Courts in so far as the [Penal] Code is concerned.”  The limiting provision in Section 5 prevailed and, he concluded, “the whole process was therefore null and void, ab initio.  A nullity from the word go.”

What of universal jurisdiction you ask? Doesn’t it permit any State to prosecute any act of Piracy on the High Seas? Universal Jurisdiction permits a State to prosecute a suspect for piracy. However, the the substantive provisions must be supplied by that State’s penal code.  Jose Luis Jesus, the President of the International Tribunal for the Law of the Sea explains:

The international legal regime on piracy, as codified in articles 100 to 107 of UNCLOS, is, as already mentioned, a jurisdictional regime and, as such, only allows States to arrest pirates, seize their ships and cargo, and bring them to trial in the State’s domestic judicial system. This legal regime is not predicated on the existence of an international criminal substantive law, nor does it contemplate any international judicial means or structure to try pirates.

As it stands now, there is no international court or tribunal that includes in its jurisdiction a mandate to try pirates. Once a State asserts its jurisdiction over pirates and their ship by arresting them, under the international piracy regime, that State is encouraged to try the pirates and dispose of the pirate ship and its cargo in accordance with its own national legislation and judicial system. This means that if the arresting State does not have penal legislation allowing for the punishment of pirates, or if the arresting State does not want to try them in its own territory for political or other convenience, then the legal regime as codified in UNCLOS is of little use.

In this case, the Kenya High Court appears to have determined that there were no substantive provisions of the Kenyan Penal Code which permitted it to prosecute the suspects. Although one might argue the court conflated the issues of jurisdiction and substantive penal law.

There also appeared to be a serious error in the manner of enacting the new piracy law. The High Court noted that during the prosecution of the defendants in this case, the statute under which they had been charged was repealed.  There was no sunset clause. In other words, when the Parliament repealed the old piracy law, it did not consider what would happen to persons who had already been arrested and charged under the old law.  Once the old law was repealed, defendants could not be convicted of an offence which ceased to exist. In addition, they could not be charged afresh with a violation of the new piracy statute for it would be an ex post facto violation. As nations in the region start the process of updating their piracy laws, this provides a cautionary tale.

The final kicker was the High Court decision to order the defendants released and request that the UNHCR repatriate them back to Somalia. The case in currently on appeal.