Drones in Seychelles on Hold

Setbacks to US Drone Program in Seychelles

Setbacks to US Drone Program in Seychelles

Last year, it was reported that the United States was sending drones to the Seychelles for use against militants and pirates.  It appears the drone program in the Seychelles has suffered serious setbacks including crash landings attributed to pilot error.  As a result, drones have been grounded in the Seychelles since April 2012. Apparently, drones have not been gathering information about pirates for much of 2012 – at least not those drones originating from the Seychelles.  Check out the video from the Washington Post by clicking the photo.

Weekly Piracy Review: United Nations Involvement

Romanian boarding team brings suspected pirates and their skiff back to the ROS Regele Ferdinand

Wednesday morning (November 21) a Swedish air patrol reported the presence of a suspicious skiff off the coast of Somalia. Romanian and Turkish warships approached the skiff, and the suspected pirates attempted to evade capture for about an hour. The warships were assisted in their pursuit by a Luxembourg helicopter, which easily kept track of the skiff. Finally, the Turkish team was able to search the boat while the nine suspected pirates were detained onboard the Romanian warship. The skiff  had been sighted earlier in known pirate waters, and no fishing supplies were found. Despite the strong suspicion that this was a pirate boat, the EU team determined that there was not sufficient evidence to build a case and prosecute these men, as they were not caught actually committing any crimes. The suspects were released onto a Somali beach on Thursday. After releasing the men EU naval forces sunk the skiff, causing these suspected pirates to lose their fuel, transportation, and ladders; and hopefully ensuring that these pirates will not be able to return to the seas in the near future. Rear Adm. Duncan Potts, the force’s operation commander, stated: “My message to the pirates is clear — we are watching you and we plan to capture you if you put to sea.”

Vietnamese boarding team re-captured hijacked Malaysian chemical tanker; arrested 11 suspected pirates

On November 17, a Malaysian-owned chemical tanker was hijacked in the South China Sea by a group of Indonesian pirates and taken to Vietnamese waters. After the International Maritime Bureau sent out an alert, Vietnamese authorities re-captured the vessel (which had been repainted and reflagged) and arrested the eleven suspected pirates on November 22. The nine crew members who were on board the hijacked tanker were forced into a life raft and released at sea on Wednesday. They were all rescued by local fishermen. This attack, the hijacking of a laden tanker, is said to be the first of its kind in the region in several years.

As previously reported here and here, Indian Ambassador Hardeep Singh Puri holds the UN Security Council presidency this month, and convened the first Security Council debate on the general threat to world peace and security posed by maritime piracy. Puri stated that forty-three Indian citizens are currently being held hostage by pirates, and it is estimated that piracy costs the maritime industry at least $6.6 billion annually for security. U.N. Deputy Secretary-General Jan Eliasson said that countries who are involved in counter-piracy operations need better communication with each other, and called for an agreement on the rules regulating the placement of private armed guards on merchant ships. U.S. Ambassador Susan Rice asserted that no ship carrying armed guards has been successfully hijacked, but the merits are controversial. Russian and Italian private guards have inadvertently fired on and killed fishermen off the coast of Somalia, mistakenly believing they were pirates approaching with the intent to board. French Ambassador Gerard Araud emphasized the greater deterrent effect that government-posted naval patrols have in warding off attacks. He also stressed the fact that about 80% of those arrested on suspicion of piracy are released without facing any prosecution, and that there is a need for a more efficient system of justice. More than twenty different nations have apprehended pirates off the coast of Somalia, and without a system in place to handle those arrested, many have simply been released back to Somalia. Though piracy is down this year, it is widely accepted that there must continue to be a strong focus on counter-piracy measures, or attacks will increase again.

Hardeep Singh Puri, Indian Ambassador to the UN, called for Security Council debate on piracy

The following day, the Security Council renewed authorizations put in place in 2008, which were developed to allow international cooperation in the fight against piracy. The Council emphasized the role Somalia is expected to play in these efforts and requested that the nation pass a complete set of anti-piracy laws. It also called on all member states to fully criminalize acts of piracy and assist Somalia in its implementation of more effective policies to combat the problem. The development of specialized anti-piracy courts in Somalia and other similarly affected states was termed a priority. South Africa’s representative, while agreeing that the adoption of these measures is an important step, emphasized that as a whole the efforts ought to include measures to combat the root causes of piracy in order to stop it before it starts.

The International Maritime Bureau reports that as of November 20, there have been 261 total attacks worldwide and twenty-six hijackings worldwide so far this year. Of those numbers, Somalia accounts for seventy-one incidents and thirteen hijackings, with 212 total hostages. Currently, Somali pirates hold nine vessels and 154 hostages.

Weekly Piracy Review: Land-Based Counter Measures

Three vessels from Russia’s Pacific fleet are en route to replace Russia’s current deployment in the Arabian sea and take over their counter-piracy patrols in the area. This flotilla is the eighth sent from Russia since they joined the international anti-piracy operations three years ago. During this time the Russian Navy has escorted more than 130 commercial and aid ships through the Red Sea and other pirate-infested shipping lanes off Africa.

NATO’s counter-piracy ships in the Indian Ocean are focusing this week on patrolling waters along the shore of Somalia. Teams have employed smaller rigid-hull inflatable boats to approach the skiffs and fishing boats run by Somalis to exchange information with them regarding the continued presence of patrolling warships in the area. This campaign is undertaken with the intent of discouraging would-be pirates from beginning the enterprise at all, before they launch their boats. Though the increased presence of patrol ships and better communication between merchant vessels has made it increasingly difficult for pirate boats to remain unseen at sea for extended periods of time, the hope is that making the naval presence more well-known close to shore will discourage pirates from setting out to sea at all.

Speakers at the Maritime and Coastal Security Africa 2012 conference held in Cape Town last week discussed the variety of factors that have caused a recent drop in the number of pirate attacks carried out this year [from increased presence of warships and patrols to enhanced communication regarding pirate sightings and the placement of armed guards onboard merchant vessels]. Jason Marriott-Watson of the maritime security company ISPS Group asserted that the recent seizure of the Somali port city of Kismayo from al-Shabab militants was a major cause of this decline. Kismayo had been a stronghold for Somali pirates until control was taken from the group, which is linked to al Qaeda. Many of the al-Shabab militants were arrested by the African Union forces who wrested back control, which were led by Kenyan troops.

Worldwide, pirates have killed at least six crew and taken 448 seafarers hostage this year. The IMB reports that 125 vessels were boarded, 24 hijacked and 26 fired upon while there were 58 attempted attacks. These numbers are the lowest reported since 2009, when maritime piracy was at its height. They show the success of the effort undertaken by the international community to put pressure on those committing acts of piracy, but many organizations say the need for vigilance has not decreased and warn against complacency.

Weekly Piracy Review: Expanded Territory

Map of attempted (yellow) and successful (red) attacks in 2012

Recent trends indicate that piracy around Somalia and in the Gulf of Aiden is becoming less prevalent. Through September of this year Somali pirates have reportedly carried out 70 attacks, down from 199 in the same period of 2011. These attacks are becoming less successful as well – in 2011 about one in three attempted raids were successful, while now the figure is closer to about one in 20. Armed guards onboard ships, the presence of patrolling warships in the region, and onboard security measures such as barbed wire are among the efforts credited with this decrease in piracy. However, agencies such as the International Maritime Bureau continue to warn against complacency, pointing out that Somali pirates alone still hold 11 ships and 167 crew members hostage. More than 20 of those hostages have been under the control of their captors for over 30 months. The IMB also reports that it calculates the global cost of piracy was $12 billion in 2010, which is a clear indication that continued efforts to impede the ability of these criminals in carrying out acts of piracy is essential moving forward.

Along with this decrease in pirate activity off of East Africa, there is a growing threat in West Africa around the Gulf of Guinea. As the international community has put an increased effort into protecting merchant ships in other hot-spots, the threat of maritime piracy is spreading farther and affecting areas previously thought to be fairly safe. Specifically, reported attacks have more than doubled off of West Africa so far this year from those reported in 2011. Oil production is growing in countries such as Nigeria, and as a result shipping traffic is increasing, creating a new “market” for those seeking to hijack boats and seize cargo for profit. Since August at least three large tankers have been attacked, and about 10,000 tons of oil have been robbed from those ships. Up until recently it was considered relatively safe for large ships to anchor for days at a time and carry out ship-to-ship transfers near Ivory Coast, but recent attacks there indicate that the reach of maritime piracy is spreading quickly.Though prior attacks have often focused on holding a ship and its crew hostage for ransom, these goal in these recent incidents appears to be the appropriation of oil to be sold on the black market. The more widespread area in which attacks have occurred, and the fact that many have taken place much further out to sea than in the past, shows that these are sophisticated pirates with access to larger ships, greater resources, and information on ship movement.

Over the weekend the Nigerian Navy and the Nigerian Maritime Administration and Safety Agency (NIMASA) met to strengthen efforts under a memorandum signed a few years ago outlining the need for counter-piracy measures. The meeting was prompted after a presidential directive to end illegal activities (specifically maritime piracy and sea robbery) in Nigeria was handed down. The hope is to more effectively police the waters around Nigeria through increased cooperation and resource-sharing between the two agencies.

On Monday senior officials from the US, India, and Japan met for the third time to formally discuss strategies for combating piracy and bolstering maritime security. The three agreed to increase efforts in combating piracy through greater cooperation.

India took over the rotating Presidency of the United Nation Security Council (UNSC) this week. Hardeep Singh Puri, India’s Representative to the UNSC, has already indicated that India will use its post to seek a “comprehensive anti-piracy strategy to tackle the maritime menace.” Maritime piracy clearly presents a significant challenge to the international community and its effects are felt especially strongly in India and the surrounding region, so Puri intends to cultivate debate on the topic of how the UNSC will address piracy as an international crime.

Weekly Piracy Review

Somalis on Trial for Piracy in Rotterdam

Kenya’s Court of Appeals overturned a 2010 ruling (as we have noted here and here), which had mandated that Kenyan courts only try cases in which the offense occurred within its territorial waters. This impaired Kenya’s ability to assist in the international effort to punish those carrying out acts of piracy on the high seas. Judge David Maraga read the opinion of the court concluding that “piracy has negative effects on the country’s economy and any state, even if not directly affected by piracy must try and punish the offenders.” Though it appears some piracy prosecutions were continuing in Kenya despite the 2010 ruling, the international community will be relieved to know that the law in Kenya is now settled and that no obstacles remain to such prosecutions.

Dutch court convicted nine Somali pirates to four-and-a-half years imprisonment. These individuals were arrested on-board an Iranian fishing boat they had taken in April. Though they were convicted of piracy, the men were acquitted on charges of attempted murder, as it could not be determined which of the men actually fired at the Dutch marines who arrested them.

Last Friday the Greek-owned carrier ship, the MV Free Goddess, was finally released by the Somali pirates who held it since Feb. 7, 2012. All 21 members of the crew who were on board at the time the ship was attacked over eight months ago were also released and appear to be well. The pirates responsible initially sought a $9 million ransom, yet they finally settled for $2.3 million last week-though the figure has also been reported as $5.7 million. This figure was stated by a Somali pirate and has not been confirmed by the company owning the ship, Free Bulkers SA. The ransom was air-dropped onto the Free Goddess, which then headed toward Oman to refuel, get fresh water and change out the crew members. During the time the ship was held hostage it was apparently being held at Gara’ad, a haven in Puntland, Somalia often used by pirates in the area.

Suspected Nigerian pirates boarded a Panamax tanker in the Gulf of Guinea off the Ivory Coast during the night on Saturday, October 6. Fourteen pirates, armed with knives and AK-47s hijacked the ship and re-directed it to Nigerian waters. They held the ship for three days while siphoning off oil, and then released the ship as well as all crew members on October 9. This attack was particularly alarming as it is the first of its’ kind to be reported in these waters, and shows that the Nigerian pirates are becoming both more sophisticated and bold. The attack occurred further west and away from Nigerian waters than any other reported attack, in an area which until now was believed to be safe for anchoring and performing fairly time-consuming operations. These Nigerian pirates took advantage of the fact that this particular ship was only midway through a ship-to-ship operation at the time of the attack. Tanker operators may now have to reassess their practice of carrying out these operations in the waters of the Ivory Coast.

Private or Pirate Navy?

Puntland Marine Police Forces source:Somaliareport.com

The autonomous region of Puntland in Somalia has gotten a bad rap for being a hotbed for pirates. Though unrecognized as a state, there has been some international expectation that Puntland should take steps to prevent and punish acts of piracy, particularly those originating from within Puntland. In this regard, there have been efforts to create a Puntland coastguard or Navy (the “Puntland Maritime Police Force”), bankrolled by the United Arab Emirates and with training from private security firms. This is where the story of Sterling Corporate Services takes off. The New York Times reports:

Concerned about the impact of piracy on commercial shipping in the Middle East, the United Arab Emirates has sought to take the lead in battling Somali pirates, both overtly and in secret by bankrolling operations like Sterling’s.

[…]

A United Nations investigative group described the effort by a company based in Dubai called Sterling Corporate Services to create the force as a “brazen, large-scale and protracted violation” of the arms embargo in place on Somalia

[…]

Sterling has portrayed its operation as a bold private-sector attempt to battle the scourge of piracy where governments were failing.

Somalia Report notes that the UN effectively shut down the estimated $50 million per year program by threatening sanctions against UAE for violations of the Somalia arms embargo. In addition to the illegal shipments of arms, the program may have been a criminal pirate enterprise.

A Private Navy?

There is an argument that private navies are legally permissible under the law of the sea, particularly the legal regime governing anti-piracy operations on the high seas. Such navies are permissible if the navy is “on government service and authorized to that effect” pursuant to Article 107 of UNCLOS. The idea here is that a government may hire private companies to engage in police functions so long as it is made explicitly clear by markings and identification that the ship is controlled by the government and under a presumably military chain of command. It has been argued that ships on government service could not only provide self-defence to an escorted ship but could also engage in pirate hunting. Alternatively, if a private navy is not on government service but limits its actions to those justified by individual (as opposed to sovereign) self-defence, it may also be legally permissible. Here, aggressive acts would be strictly limited to those necessary to repel an attack, as is consistent with general principles of the law of self-defence. It would not include acts intended to prevent future attacks.

This is where the status of Puntland as an autonomous region becomes important. Though the international community has chosen to engage the Puntland government, it has chosen not to recognize Puntland’s sovereignty instead deferring to the project of solidifying the new Somali Federal Government in Mogadishu. Therefore, naval vessels patrolling the territorial waters of Somalia off of the coast of the autonomous region of Puntland are not “on government service” for purposes of Article 107 of UNCLOS.

Alternatively, there is some evidence that other states may have supported the Puntland Navy:

American officials have said publicly that they never endorsed the creation of the private army, but it is unclear if Sterling had tacit support from parts of the United States government. For instance, the investigative group reported in July that the counterpiracy force shared some of the same facilities as the Puntland Intelligence Service, a spy organization answering to Puntland’s president, Abdirahman Farole, that has been trained by C.I.A. officers and contractors for more than a decade.

Even if this is the case, the Puntland naval vessels are not “clearly marked and identifiable as being on government service” by a recognized sovereign such as the United States or the UAE. Therefore, seizing pirates on the high seas would not be justified pursuant to Article 107 of UNCLOS.

A Pirate Navy?

This raises the question of whether an act of violence by the Puntland Navy against another ship on the high seas constitutes piracy. Although there is some continuing debate as to the “private ends” requirements in Article 101 of UNCLOS, the better view is that it excludes from the definition of piracy, acts of violence by a sovereign. As Puntland is not a sovereign power, this exclusion from the definition of piracy does not apply. Therefore, acts of violence, detention or depredation committed by a Puntland Navy on the high seas (even if purportedly for the purpose of protecting the territory and people of Puntland) would constitute acts of piracy.

As noted above, the other possible justification for the seizure of pirate vessels on the high seas by the Puntland Navy is the doctrine of personal self-defence. This would justify acts strictly necessary to repel an ongoing attack. It would not justify acts of violence against suspected pirate vessels prior to an attack. Nor would it justify acts within the typical mandate of a sovereign navy or coast guard, including patrolling waters and interdicting ships.

The International community was displeased that Sterling was training these individuals because it was an apparent violation of the arms embargo imposed on Somalia. But, technically, Puntland’s Navy may have also been engaged in acts of piracy.

Territorial Waters

The Puntland Navy was also likely conducting operations within Somalia’s territorial waters which are part of the sovereign territory of the Somali Federal Government. The latter has the exclusive right to protect its territorial waters and to restrict traffic through this zone (See e.g. Article 25 UNCLOS “Rights of protection of the coastal State”), although a number of Security Council Resolutions have given foreign sovereigns some powers of interdiction in these waters as an exceptional measure. It is theoretically possible that the Somali Federal Government would attempt to delegate this coast guard function to an autonomous region’s forces such as the Puntland Navy. But it is unclear if this would be permissible pursuant to international law or whether Puntland would be willing to act on behalf of the Somali Federal Government, as opposed to under its own asserted authority as a sovereign.

Free Agents

The more practical question, now that the funding for Puntland’s Navy has disappeared, is what will happen to the individuals who were trained by Sterling. The New York Times reports:

With the South African trainers gone, the African Union has turned to a different security contractor, Bancroft Global Development, based in Washington, to assess whether the pirate hunters in Puntland can be assimilated into the stew of other security forces in Somalia sanctioned both by the United States and the African Union. Among those groups are a 10,000-man Somali national army and troops of Somalia’s National Security Agency, based in Mogadishu, which is closely allied with the C.I.A.

[…]

But with the antipiracy army now abandoned by its sponsors, the hundreds of half-trained and well-armed members of the Puntland Maritime Police Force have been left to fend for themselves at a desert camp carved out of the sand, perhaps to join up with the pirates or Qaeda-linked militants or to sell themselves to the highest bidder in Somalia’s clan wars — yet another dangerous element in the Somali mix.

Somalia’s New Constitution (what it does and doesn’t do for piracy)

Somalia’s Official Emblem adopted by the 2012 Provisional Constitution

On 1 August, delegates to the Somalia’s National Constituent Assembly adopted a provisional constitution. The document must still be approved by a majority vote of the electorate in a referendum. Nonetheless, the Provisional Constitution marks an important step towards the establishment of a representative federal government in Somalia. Further, it has significant ramifications for the prosecution of piracy.

Article 140 of the Provisional Constitution requires the Somali Federal Government to respect all prior treaty obligations. This includes UNCLOS which a preceding government signed in 1982 and ratified on 24 July 1989. Of course, UNCLOS sets forth the definition of the international crime of piracy, but in the event of any lacunae in that definition, Article 40 of the Provisional Constitution permits reference to Shariah Law, international law and decisions of courts in other countries as persuasive authority. Therefore, reference may be made to recent piracy judgements in Seychelles, Netherlands, France, and the U.S. among others.

In addition, the Provisional Constitution provides extensive individual rights for criminal defendants. These include a fundamental right to be brought before a capable court within 48 hours of arrest (see Article 35(5)). If pirates are arrested at sea it may be impracticable to bring them before a judge within that time frame. In such cases, some remedy, in the form of a reduced sentence (upon eventual conviction) or the dropping of charges (in extreme cases) will have to be considered. An alternative would be to perform an arraignment (first appearance) aboard the capturing vessel. But for this to be plausible, it might be necessary to bring a Somali judge onto the naval vessel. If the arraignment were performed by a judge from a foreign nation (e.g. a national of the naval power that captured the pirates), the judge would not have the power to put the Accused on notice of charges under Somali law.

Article 35 also incorporates the principle of nullum crimen sine lege (prohibition against ex post facto legislation). In the case of piracy, this should not prove controversial as Somalia ratified UNCLOS, which defines piracy, in 1989. However, the principle of nulla poena sine lege (no punishment without law) is also incorporated within this concept. Thus, without a specific sentencing regime in force for piracy, one could argue that an Accused did not have notice of the potential range of penalties available for those convicted of piracy thereby rendering any punishment impermissible. One might look to prior Somali legislation to fill this gap. But as Matteo has previously noted, Somalia’s prior anti-piracy legislation lacked a number of important provisions and was inconsistent with customary international law. The new Somali Federal Parliament will soon have an opportunity to remedy these problems as the Constitution sets forth a list of priority legislation to be enacted by the Federal Parliament and anti-piracy legislation appears 16th on this list. See Schedule One (d).