Putting political convenience aside, pirates are simply not terrorists

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project in Boulder, Colorado (though all of his views are his own), and he has experience in United States piracy trials. He just got on Twitter. Cross-posted at The View from Above.

Pirates of Terrorists? Either way PCASPs are on board

While running through my piracy news roundup yesterday morning, I came across this piece by Robert Young Pelton of Somalia Report. In it, Pelton criticizes a report by Australia’s Lowy Institute that deals with the use of privately contracted armed security personnel (PCASP).

I took particular interest in a small tangent within Pelton’s piece that reflects an incorrect sentiment that I have seen repeated many times by non-attorneys (and even by some attorneys): that modern pirates should be considered terrorists.

As Pelton’s Somalia Report piece primarily concerns PCASP, the terrorism issue is only mentioned in a passing parenthetical:

“Pirates are criminals, (never terrorists because that would prevent the payment of ransoms) so it makes sense that a direct response by putting armed guards on ships was the most logical and so far, the most effective response to the pirate attacks.”

From this statement, I gather that Mr. Pelton is of the view that a key reason that the global anti-terrorism network has not been brought to bear against Somali pirates is that such an arrangement would force states to “negotiate with terrorists” once the pirates have seized the vessel and taken hostages. He appears to lament this fact. A similar view has been expressed by former U.S. Ambassador to the United Nations John Bolton and others who argue that relaxed rules concerning due process and state sovereignty as they are applied to terrorists would make the piracy fight a much easier one to win.

The oft-expressed desire to equate pirates with terrorists likely stems from several superficial similarities between the two groups. First, as Ambassador Bolton points out, “the same crippling evidentiary and procedural constraints” apply to both terrorists and pirates. Also, both groups consist of non-state actors operating in a truly international fashion to the detriment of the broader international community. Finally, both groups tend to base their operations in the Middle East/North Africa region.

Yet international law is clear as to the respective motives necessary to make one a terrorist or a pirate, and the facts on the ground suggest that, no matter how convenient it may be from a policy standpoint, pirates are not terrorists.

Judge Antonio Cassese, presiding over the Appeals Chamber at Special Tribunal for Lebanon, announced last year that a definition of terrorism has emerged under customary international law. Included in this definition is the requirement that the terrorist has “the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it.”

Conversely, it is well-documented that, although piratical intent is not limited to the desire to rob, for an act to be considered piratical, it must be committed for private ends. This requirement is explicitly laid out in UNCLOS art. 101, as well as its predecessor, 1958 Geneva Convention on the High Seas.

A terrorist’s intent must be to incite mass fear or coerce a government, both purely political motives; a pirate’s motive is strictly limited to making money.

In a smart piece here on piracy-law.com couching this definitional issue in terms of a potential defense available to alleged pirates, Roger Phillips rightly notes that, although in theory it is possible to have both political and pecuniary motives, the political motive appears absent in Somali pirates, who choose not to attack well-protected ships or kill hostages simply because it would be less profitable to do so. It seems like a stretch to argue that the pirates’ modus operandi of attacking a privately-owned ship in the middle of the ocean is somehow carried out in order to coerce a government or frighten the public at large by placing them in danger.

Though Roger covered it thoroughly, this definitional point bears repeating because the terrorist theme has gained so much traction in non-legal commentary on the issue of maritime piracy. As tempting as it is to “talk tough” about pirates and the international community’s response to piracy by evoking the specter of terrorism, there is very little merit to the claim that the two terms can, at least presently, be used interchangeably to describe Somali pirates or their West African counterparts.

Respect for the rule of law – apart from being perennial advice given by developed countries to countries like Somalia – requires taking the law as it is written (or trying to change it through legitimate processes) rather than molding it to fit one’s immediate policy preferences. Unless evidence of pirates taking a less profitable course in favor of a strategy with large political payoff emerges – or the definitions of piracy and/or terrorism change – the “pirates as terrorists” slogan will continue to be just that – a slogan.

The Oil Continues to Spill: Transmaritime Criminality in West Africa

This time last year, we dedicated a few posts to the rise of piracy and other criminal activities in the Gulf of Guinea.  In particular, we discussed how much of these activities was a by-product of internal insurgencies and economic discontent in Nigeria and how the country’s attempted crackdown had the unintended consequence of pushing these criminal activities to nearby countries where lack of enforcement powers allowed them to thrive.

The situation has since continued to worsen. While there is currently a lull in piracy activities in Somalia and the Gulf of Aden, armed robberies and pirate attacks are sharply on the rise in West Africa. Reported incidents in the territorial waters of Nigeria, as well as Togo and Ghana, or in the international waters adjacent thereto, are now almost a daily occurrence. In the most recent of such attacks, the MT Energy Centurion, a Greek-owned oil tanker was hijacked and its 24 member crew kidnapped off the coast of Togo.

Historic Map of West Africa dated 1829 by Sidney Hall – Garwood & Voigt

The region is traditionally considered as a cornucopia of natural resources. West Africa is rich in oil and other hydrocarbons, but also fish, cocoa and timber, for instance. Nigeria is currently the biggest African oil producer, with an output of about 3 million barrels a day, most of which is exported to Europe and the US. Ghana, Liberia and Sierra Leone are the next countries to enter the oil production and export business, with new deposits discovered in their national waters in recent years. Such discoveries have the potential to bring economic development to some of the poorest countries in the world, in a region often forgotten even when plaugued by years of ruthless civil wars and rampant mismanagement. Development, however, needs to be matched by strong governance capabilities. Due to its social and geographical features, the Gulf of Guinea is not only suitable for commercial transportation but is also a potential hotspot for criminal activities, particularly exacerbated by unemployment, corruption and  lack of governance. Oil bunkering, piracy, illegal waste dumping, poaching, drugs and migrant smuggling are only the most visible tip of a larger array of criminal activities. Autonomous movements also have increasingly resorted to violence, with terrorism often inexorably spurring into ties with criminality. These activities are often, but not exclusively, perpetrated by organized criminal cartels. Smaller criminal gangs, however, also operate some activities. Their common medium, often or exclusively, is the sea, which provides direct opportunities for criminal acts as well as the means to perpetrate such acts. Oil platforms in international waters are increasingly the targets of pirates and robbers, while subsidized petrol is smuggled from Nigeria into neighboring countries in overnight trips just a few miles off their coasts. Transmaritime criminality consists of the composite interaction of various forms of organized criminal activities, including criminal cartels, oil, drugs, arms and human trafficking, the deeply rooted social causes at their basis as well as their economic and environmental impact. Transmaritime Criminality thrives on the high seas as well as in coastal developing countries due to limited law enforcement and rule of law capabilities.

Despite its apparent similarities with pirate activities in Somalia, the situation in West Africa is potentially more complex. Attacks are often reckless, and more violent. Rarely do these entail long lasting hijackings and kidnapping for ransom. Presumably due to the lack of capabilities to hold a ship  and its crew hostage for long periods, criminals often resort to stealing the ship’s cargo and releasing it after a few days. This was the case, for instance, in the hijacking of the MT Energy Centurion, which was quickly released in Nigerian waters with its crew after its valuable cargo was siphoned off. The oil will then likely be sold through the black market in face of the complacency, or powerlessness, of local authorities.

Subsidized Nigerian Oil is Smuggled Overnight to Togo and Picked up Directly Ashore to be Sold in the Local Black Market – Photo Daniel Hayduk – BBC

This criminal surge in West Africa did not go unnoticed at both the international and regional level. The UN Security Council has already dedicated various meetings and resolutions to the situation in the Gulf of Guinea. The US, but also France and China, among others, have stepped forward to provide assistance, in the form of training or equipment, to countries in the region. These, in turn, have engaged in coordination and dialogue, launching joint policing operations. The past spiraling of piracy in Somalia has obviously provided an indicator of the potential gravity of piracy thriving in lawless environments. It also developed a set of best practices in combatting piracy and its root causes. No internationally-sponsored naval patrolling mission akin to those launched by the EU or NATO in the Indian Ocean is foreseen in West Africa. The envisaged solution is that of a funneling these best practices through regional coordination, encompassing strategies of short and long term period, rather than direct international intervention. These strategies include the strengthening of enforcement powers and ad-hoc legislation. Typically, several affected countries have found their penal codes to be lacking the full criminalization of piracy and terrorism. A UN-sponsored regional conference aiming to put this phenomenon high on the agenda has been long envisaged, but yet failed to materialize. Against this background, it is worth reiterating the need to avoid the immediate risk of resource fragmentation, with already a plethora of UN and regional agencies and organizations involved as stakeholders. The fight against transmaritime criminality in West Africa has also the potential risk of becoming another lucrative self-feeding business, with military contracts already allegedly awarded to contractors of dubious background.

Somalia Monitoring Group Report Now Available

The latest Report of the UN Monitoring Group on Somalia is now publicly available. The Monitoring Group is tasked to focus on the ongoing violations of the embargo imposed on Somalia since 1992 by the Security Council. The Group prepares reports of its activities, which are then submitted to the UN Security Council and its subsidiary Sanctions Committee on Somalia. The Sanctions Committee concerning Somalia was intially established to oversee the arms embargo and its violations. The mandate  of the Committee was then amended and modified by subsequent Security Council resolutions relevant to Somalia. In parallel, the Committee also oversees a sanction regime imposed on Eritrea. For further information, see here.

The Report, of over 300 pages in length, can be downloaded here. A previous unofficial dissemination of the Report generated a debate on the ongoing situation in Somalia, particularly concerning allegations of widespread corruption and collusion of government officials. Several aspects of the Report are also dedicated to the issue of piracy off the coast of Somalia. (See paras 38-50 and Annex 4). Interestingly, the Monitoring Group has found no evidence that would suggest a structural or organizational link between Al-Shabaab as an organization and Somali pirate networks.

“Somali-based piracy threatens not only the peace, the security and the stability of Somalia, but regional and international security as well. Although pirates have been more active than ever in 2011, the adoption of best management practices by the shipping industry, more effective international counter-piracy naval operations and the increasing use of private maritime security companies have substantially lowered the number of vessels successfully hijacked. As a result, pirates have to adapt and diversify, engaging in kidnap for ransom on land, and marketing their services as “counter-piracy” experts and “consultants” in ransom negotiations. This evolution of the piracy business model is being driven largely by members of the Somali diaspora, whose foreign language skills, passports and bank accounts are all valuable assets. But the Monitoring Group has also been able to confirm the collusion of senior Transitional Federal Government officials in shielding a notorious pirate kingpin from prosecution, providing him with a diplomatic passport and describing him as a “counter-piracy” envoy.”

According to the Monitoring Group, the situation appears particularly concerning in the autonomous Puntland region (see Annex 4.1). In particular, the Report discussed the much rumored Puntland Maritime Police Force, in connection with the use of private security companies operating on the ground in the region (See Annex 5.3).

The Report is also critical of the role of the international community, calling for a more robust commitment to investigate Somali piracy from a law enforcement perspective and to prosecute identifying key individuals who organize, finance or benefit from it, also singlying out a somewhat ambivalent role played by the UK in twarthing piracy.

“The UK Government’s ambivalent posture with respect to Somali piracy is illustrative of a more general international reluctance to tackle Somali piracy as a form of international organized crime, rather than as a sui generis product of Somali statelessness requiring custom-made military and custodial responses. Unless and until this attitude changes, international counter piracy efforts will continue to treat the symptoms of Somali piracy rather than the cause.”

Finally, the Report also discusses the role of private maritime security companies (See paras 72-74 and Annex 5.4) and the risk of some of these representing a potential new channel for the flow of arms into Somalia. In this regard, the Report expresses concern for the increasing use of “floating armouries” to store arms and ammunitions at sea.

“The Monitoring Group recommends that:

(a) The Committee should proceed without further delay to designate known pirates and their associates identified by the Monitoring Group or Member States for targeted measures;

(b) The Security Council should consider the possibility of establishing a specialized investigative group of experts with a mandate to collect information, gather evidence and record testimonies relating to acts of Somali piracy, including and especially the identification of pirate leaders, financiers, negotiators, facilitators, support networks and beneficiaries;

(c) The Security Council should consider making explicit reference, in its next resolutions on Somalia and piracy, to the Monitoring Group’s responsibility of investigating and identifying key individuals responsible for acts of piracy off the coast of Somalia, as well as the movement and investment of piracy proceeds, and call upon Governments, international organizations and national law enforcement agencies to exchange evidence and information with a view to the arrest and the prosecution of senior pirate leaders and their associates, or to their designation for targeted measures;

(d) The Security Council should consider options for the establishment of an international regulatory authority that regulates, monitors and inspects the activities of private maritime security companies operating floating armouries and providing armed protection to vessels in international waters.”

Incitement to Hunt al-Shabaab

Ahmed Abdi aw-Mohamed, founder of al-Shabaab

Last month, the U.S. State Department announced that it was offering rewards of $3-7 million for information that would lead to the senior leaders of al-Shabaab. See also, here. As Somali pirates continue to meet considerable resistance at sea, and successful pirate attacks see a precipitous drop, they are seeking new sources of income. This raises the possibility that they will seek to provide information about the whereabouts of al-Shabaab leaders pursuant to the State Department Rewards for Justice program. But there are potential legal obstacles to paying for information from pirates.

As some background, there continues to be debate as to whether members of al-Shabaab and Somali pirates are colluding with one-another. For example, in a recent trial in Italy, the prosecutors asserted that pirates had connections to al-Shabaab and planned on using the ransom proceeds to finance terrorist activities. Likewise, Kenya justified its initial incursions into Somalia based upon the assertion that recent kidnappings of tourists and aid workers in Kenya were the work of al-Shabaab (though some of these attacks were likely perpetrated by pirates with no political objective). There have also been assertions that the port of Kismayo, al-Shabaab’s most important source of income, was being shared by pirates. Kenyan Prime Minister Raila Odinga has requested assistance from the EU naval mission to help to take Kismayo, but the EU has been reluctant because it considers the port to be an al-Shabaab stronghold and not a stronghold of pirates.

Readers of this blog will recall that in 2010, President Obama issued executive order 13536 imposing economic sanctions on suspected financiers of Somali piracy. Although this same executive order imposed sanctions on the organization of al-Shabaab, the preface specifically declared a national emergency to deal with “the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia.” Terrorism and al-Qaida were not mentioned, suggesting the economic sanctions were being targeted at pirates.

This brings us to the Rewards for Justice program and the list of seven senior leaders of al-Shabaab. Of this list, it appears that three individuals also appeared in the President’s executive order 13536 annex. Perhaps the economic sanctions had always contained a list of both pirates and al-Shabaab. Another possibility is that former pirates have joined the forces of al-Shabaab. Whatever the case, the State Department is prohibited by executive order 13536 from paying for information from the individuals named in the order. Considering the past confusion as to potential links between al-Shabaab and pirates, it will prove a challenging task to verify that a particular individual providing information is not affiliated with one of the individuals named in the executive order or with al-Shabaab. Even if information does not come from individuals specifically named in the executive order, the State Department will have to consider the possibility that reward money will go to finance pirate operations. In the end, it may be a case of the enemy of my enemy is my friend (at least for today). Regardless, the possibility that pirates could provide information as to the whereabouts of al-Shabaab’s senior leaders might be enough to prevent any future alliance between the two organizations.

The Enrica Lexie and Unintentional Terrorism

GUEST POST BY: Jon Bellish cross-posted at The View From Above.

An interesting exchange took place at the Kerala High Court on Friday between presiding Justice PS Gopinathan and VJ Matthew, counsel for the owner of the Enrica Lexie. Regardless of the level of significance one attributes to Justice Gopinathan’s remarks, the dialogue sheds light on the tension and deep mistrust surrounding the events of February 15th.

Mr. Matthews, representing Dolphin Tankers argued that the Italian marines had to be classified as terrorists in order for the India’s statute implementing the IMO’s SUA Convention (SUA Act)[1] to apply. In response, Justice Gopinathan said, “[t]he firing on Indian fishermen by two Italian marines- Massimiliano Latorre and Salvatore Girone-off the Kerala coast was an act of terrorism…As far as victims are concerned, their relatives are concerned, as far as Indians are concerned [the alleged shooting was] a terrorist act.”

To be fair, Justice Gopinathan did not declare the Italian marines terrorists as a matter of law. He merely stated that that is how the general public viewed them. It is nonetheless disturbing for an officer of an Indian High Court to give voice to his private opinion about the facts of a case before him, especially when that opinion deviates so far from reality.

Where Mr. Matthew’s claims are concerned, it is far from certain that the marines must be classified as terrorists for the SUA Act to apply. Although the SUA Convention was passed with the goal of suppressing international terrorism in mind,[2] the Convention seeks to achieve its aim by proscribing acts, not classes of people. Article 3 of the SUA Convention lists the crimes punishable under the Convention, stating that if “any person” “performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship,” that person has committed “an offense” under the Convention. Similarly, the SUA Act states that “whoever unlawfully and intentionally” commits an act of violence against a person on board a ship has violated the Act and is subject to punishment for that act under Indian law.[3]

The words “terror,” “terrorist,” or “terrorism” do not appear at all in the operative clauses of the SUA Convention, nor do they appear in any portion of India’s SUA Act. Thus Mr. Matthew’s argument that legal classification as a terrorist is a prerequisite to be charged under the SUA Act appears at odds with the text of the SUA Act itself and the Convention upon which it is based.

But Justice Gopinathan’s response to Mr. Matthew’s good faith legal claim was far more dubious than the claim itself. Rather than satisfying himself by pointing out that an individual need not be legally classified as a terrorist for the SUA Act to apply, Justice Gopinathan declared by fiat, and counter to all reason, that the Italian marines had indeed committed “an act of terrorism.”

Though some argue that there is simply no internationally recognized definition of terrorism,[4] Judge Antonio Cassese, presiding over the Appeals Chamber at Special Tribunal for Lebanon, announced last year that a definition of terrorism “has gradually emerged” in customary international law.[5] According to the STL, terrorism is defined under customary international law as consisting of the following three elements:

(i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.

Of the three enumerated elements, only the third, that the act must involve a transnational element, is clearly present. As for the second, there is no way to argue that the Italian marines fired upon the Indian vessel to spread fear among the Indian population or coerce the Indian government. They were acting as agents of the Italian government charged with the protection of a merchant vessel from the real and credible threat of maritime piracy. The unfortunate deaths of two fishermen do not change the character of the marines’ actions. Finally, it is presently impossible to know whether the Italians’ acts could be considered “murder” under the first prong. That determination can only be made once a competent tribunal establishes that the Italians were in fact the ones who shot the Indians and entertains any affirmative claim of self-defense made by the marines.

Furthermore, the alleged acts of the marines fails to satisfy even the minimal, “core definition” of terrorism proposed by Professor Marcello Di Filippo in the European Journal of International Law.[6] After surveying relevant international and domestic laws and sloughing aside any contested definitional aspect of terrorism, Professor Di Filippo concludes that an act of terrorism requires, at the very least: (i) an act of violence; (ii) when that act is targeted at civilians.[7] According to Di Filippo, this core definition is the absolute minimum standard under which an act could be properly considered terrorism.

Implicit in Di Filippo’s core definition is the requirement that the actor must at least believe that the targets are civilians, and one could even argue that the actor must intend to target the victims because they are civilians. Thus unless the Indian authorities can prove, at minimum, that the Italians knew that the Indians were unarmed before firing upon them, the acts of the marines do not rise to the level of terrorism. Justice Gopinathan’s statement that the marines committed a “terrorist act” accuses the Italians of a crime that does not exist – negligent or reckless terrorism.

An oral pronouncement by a Justice with no legal ramifications is hardly a groundbreaking development in what will surely be an interesting case. It does illustrate the depth of mistrust between the Italians and Indians in this particular instance, with the Italians accusing the Indians of a vast conspiracy involving fabricated evidence and the Indians accusing the Italians of murder and now, apparently, terrorism. We are therefore back where we started: waiting for the results of the ballistics report and hoping, perhaps against the available evidence, that cooler heads will prevail and due process will be afforded to all.


[1] Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002

[2] The Preamble of the SUA Convention notes that the state parties are “DEEPLY CONCERNED about the world-wide escalation of acts of terrorism in all its forms.”

[3] The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 Act No. 69 of 2002, art. 3(1)(a) (Dec. 20, 2002).

[4] Jean-Marc Sorel, Some Questions About Terrorism and the Fight Against its Financing, 14 Eur. J Int’l L. 365, 368 (2003) (describing the “confused mix” of definitions).

[5] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, at para. 83 (Feb. 16, 2011), available at http://www.stl-tsl.org/x/file/TheRegistry/Library/CaseFiles/chambers/20110216_STL-11-01_R176bis_F0010_AC_Interlocutory_Decision_Filed_EN.pdf

[6] Marcello Di Filippo, Terrorist Crimes and International Co-Operation: Critical Remarks on the Definition of Terrorism in the Category of International Crimes, 19 Eur. J. Int’l L. 533 (2008).

[7] Id. at 558-61.