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.

Tanzania Invites UN help with Piracy

In his speech yesterday to the UN General Assembly, Tanzanian President Kikwete invited the assistance of the international community in combating piracy:

The problems of piracy still lingers on and is expanding. We are now witnessing more and more attacks taking place as far South from Somalia to as far as Tanzania, Mozambique and Madagascar. Since last year, when piracy activity moved south into our territorial waters 13 ships have been attacked 5 of them were hijacked. These attacks have caused an increase in the cost of shipping. If we don’t succeed in stopping these attacks they may disrupt shipping services and impact negatively or our economy. We need the support of the international community to help build capacity to fight piracy. We welcome your readiness to assist us improve our courts and prisons to try and punish the pirates. If simply a gesture was extended to build capacity to prevent attacks there would be less pirates to bother us.

This follows the report of the UN Secretary General in June 2011 in which the Tanzanian government signaled its willingness to host a Somali extra-territorial court for piracy if certain conditions were met. Those conditions included the provision or lease of a new naval vessel to Tanzania to fight piracy off its coast and assistance to four or five detention facilities to house pirate suspects in various parts of the country (to reduce security concerns).

Tanzania – a case study

One of the goals of this blog has been to evaluate strategies for prosecuting Somali pirates.  A major strategy by the international community has been to transfer pirates who are captured by EUNAVFOR to regional countries, mainly Kenya and the Seychelles, to tackle prosecution. This strategy was undermined when a Kenyan Court ruled that it did not have jurisdiction to try piracy on the high seas. Nonetheless, there are a number of other regional States that are developing the capacity to prosecute piracy. This is the first in a series of posts examining how piracy affects other coastal nations in Africa and attempts by those States to increase capacity.

In Tanzania, examples of pirate activity are commonplace. But the following report provides some context. Pirates have been captured on the traditional tourist hot-spot of Mafia Island:

They were caught with various weapons, including a magazine laden with 21 rounds of ammunition, and SMG and SAR guns, police said. Anglers operating along the Indian Ocean shores saw the suspected pirates and tipped off the law enforcers, who arrested them at around 7pm at Kirongwe Village in Mafia District on Thursday.

Reports say the suspects landed at Kifinge Village at Baleni Ward at around 2pm on Wednesday aboard a fibre boat powered by an engine.

They reportedly looked hungry and tired, gesturing to the villagers as they asked for food in their mother language.

The villagers first took all the six suspects to a dispensary at the Kirongwe Village township where good Samaritans provided them with first aid and porridge before calling in the law enforcers.

Mr Mwakyoma said the interrogations were constrained by language hitches, as the suspects could neither speak Kiswahili nor English.

The suspects explained after an interrogation that they were 11 aboard two fibre boats, but the boat carrying some of their colleagues capsized and they were not aware of their whereabouts.

These Somalis were clearly far from home, not speaking the local languages and suffering from hunger and thirst.  But this has not stopped them from initiating attacks in Tanzania’s waters.

With the expansion of piracy east and south of Somalia, there have been attacks both within Tanzania’s territorial waters and within its exclusive economic zone. The ports of Mombasa, Kenya and Dar Es Salaam, Tanzania are high-traffic areas for commercial ships. Therefore, the shipping lanes through Tanzanian waters are ripe ground for pirate attacks.  Due to the increase of pirate attacks, the East African reported on 28 February 2011 (print edition only, updated article here) that Andy Linington, a top official of the UK union Nautilus said:

We could well have a situation this year where the leading seafarer nations, including the Filipinos, will refuse to crew ships which are sailing near the Gulf of Aden, the Somali coast or to the East African ports of Mombasa or Dar es Salaam.”

Such action would obviously deal a crushing blow to the economies of East Africa. Tanzania has a significant economic interest to protect as well as its reputation. Tanzania People’s Defence Forces have indicated it intends to protect commercial and private ships within its exclusive economic zone. But until recently it did not have a legal basis to prosecute piracy on the high seas.

However, in May 2010, Tanzania amended its Penal Code, adding a Section 6, which gives the Courts of Tanzania jurisdiction for “offences committed by any person on the high seas,”  where “high seas” is defined as “the open seas of the world outside the jurisdiction of any state.”

The law defines piracy as (a) “any act of violence or detention or any act of degradation, committed for private ends;” (b) participation in the operation of a ship with knowledge that the ship was intended was has been used in acts of piracy; or (c) incitement or intentional facilitation of either (a) or (b). Section 66(1)(c) appears aimed at financiers and pirate bosses, permitting prosecution of individuals who never step foot aboard a pirate ship. Whereas Section 66(1)(b) is interesting in that it permits prosecution of individuals who are not engaged in an attack of a vessel, so long as it can be proven that the ship in which they are traveling was intended to be used for pirate acts. Proof of intent might be a tricky business. Certainly, possession of guns, RPGs and ladders might be circumstantial evidence, but such evidence is routinely tossed overboard by pirates on the verge of capture.

Nonetheless, to date 11 pirates have been tried and sentenced in Tanzanian courts, presumably since the new law was enacted in May 2010.

Two other interesting provisions of the piracy law show that Tanzania is aware of the significant resources that might be involved in pursuing pirate prosecutions. Section 66(3) provides that unless a pirate ship is registered in Tanzania, “no prosecution shall be commenced unless there is a special arrangement between the arresting state or agency and Tanzania.” Likewise, pursuant to Section 66(4), the Director of Public Prosecutions must consent to any prosecution for piracy. Tanzania does not want to become the dumping ground for every pirate captured on the high seas.

To this end, EU anti-piracy task force officials have asked Tanzania to consider taking over the prosecutions as part of joint efforts to combat piracy in the region. Tanzanian Attorney General Frederick Werema confirmed that a special committee had been set up to consider the request. Tanzania, like other States, will undoubtedly request financial backing from Western powers to pursue the prosecution of pirates.