Changing Landscape of Gulf of Guinea Piracy as UN Takes a Secondary Role

Despite recent efforts to increase naval patrols, pirate attacks and incidents of armed robbery at sea have continued throughout the Gulf of Guinea and in particular in the Niger Delta region of Nigeria and off the coast of Benin. The region is extremely resource-rich, with oil, cocoa, and various minerals filling tankers and bulk carriers. Since the beginning of 2012, there have been numerous attacks on such vessels in the Gulf of Guinea.  Such attacks tend to be more violent than those in the Indian Ocean. For example, in one recent attack, pirates killed the captain and chief engineer of a cargo ship off the coast of Lagos, Nigeria. A number of recent developments in the dynamics of this criminality and the international community’s efforts at addressing it are worth surveying here.

Piracy and Terrorism in the Gulf of Guinea

It has been suggested that increased militancy in the Niger Delta region is the root cause of the rise of piracy in the Gulf of Guinea. For example, in another recent attack, the captain and chief engineer of a Dutch ship were kidnapped and a crew-member injured.  MEND, the Movement for the Emancipation of the Niger Delta, whose mission is to fight for a fairer distribution of Nigerian oil revenue, has been accused of involvement in the recent pirate attack. But MEND has specifically disclaimed responsibility and refused to mediate between the pirates and hostage negotiators. Nonetheless, MEND continues to operate in the Niger Delta despite a widespread amnesty last year aimed at disarming the movement and claims to be responsible for the recent killing of Nigerian police at a marine checkpoint. Nigerian security forces deny this claim. What can be said is that just as with Somali piracy, there has been a tendency to conflate terrorism and piracy in the Gulf of Guinea without a thorough factual analysis. That said, other types of transmaritime criminality clearly interact with and will have an effect upon piracy in the Gulf of Guinea.

Fuel Subsidies and Smuggling

Nigeria President Goodluck Jonathan’s recent move to decrease the fuel-subsidy in his country, hugely unpopular at home, may have an impact on pirate operations. It has been reported that land-based smugglers of cheap Nigerian-subsidized fuel to neighbouring countries are having trouble turning a profit. One smuggler explained:

The removal of subsidy has choked our business. It is no longer lucrative as the price of fuel in Cameroon is between N160 and N180 per litre; by the time you bribe some officials of the two countries at the border, what you get after selling the fuel is not encouraging at all.

Although the reduced fuel subsidies will have the effect of reducing cross-border fuel smuggling, these criminals will be looking for other sources of revenue and could look to piracy as a new source of income. The situation is further complicated by the presence of a more expansive variety of transmaritime criminality in the region, including drug trafficking, illicit fishing, illicit dumping of toxic waste, and illegal or clandestine immigration or migration. For example, The United Nations estimates that $1 billion worth of cocaine, destined for Europe from Latin America, passed through West Africa in 2008. Much of this criminality is perpetrated in and through maritime jurisdictions and will often be associated with pirates. A comprehensive solution must take all transmaritime criminality into account.

General Features of Piracy off the Gulf Guinea

In the face of this volatile situation, the UN undertook an assessment mission and issued two important documents regarding the Gulf of Guinea situation. A recent report of the Secretary General sheds some light of the general features of West African piracy and how the international community plans to address it.

The UN Secretary General reported on 19 January 2012 (only recently released) that piracy in the Gulf of Guinea since the late 1990s has focused on high-value assets, particularly oil shipments.  Shell executive vice president Ian Craig has noted that as much as 150,000 barrels of crude a day is being stolen by oil thieves in the Niger Delta. But since Nigeria has responded robustly to the growth of piracy, attacks have migrated to the Benin port of Cotounou (19 nautical miles to the west). Recent attacks are generally targeted at oil and chemical ships at a distance of over 40 nautical miles from shore (i.e. on the high seas). Pirates generally steal cargo and sell it on the black market – as opposed to holding the goods or crewmen for ransom (as in Somalia).

These attacks have had a significant impact on the economies of West Africa. There are 70 percent fewer ships entering the Cotounou port. This port is the entry point for goods to in-land countries such as Niger, Mali, and Burkina Faso who will also suffer from increased costs due to scarcity of goods and increased insurance rates on all maritime shipments. In contrast, attacks off the Central African coast mainly target oil drilling platforms and ships in order to steal money and goods from crew. The combined effect of these types of piracy is an estimated annual loss of $2 billion to the West African subregional economy.

However, West African countries have had somewhat more success than their East African counterparts in mobilizing regional resources and coordinating efforts to prevent and punish pirates. Of particular note is the cooperation between Nigeria and Benin in conducting joint patrols (albeit with some international contributions). Their relative success may be partly attributable to a more limited geographic area of recent attacks (as compared with Somali pirates who have perpetrated attacks over 1000 nautical miles from the coast of Somalia). More importantly this is attributable to the fact that there are robust state institutions in the areas targeted by pirates. That said, more must be done to increase state capacity, and, in particular naval capacity. Furthermore, pirates are bound to find where governance structures are the weakest and to take advantage of those failures (e.g. by launching attacks from states lacking effective naval or coast guard patrols).

The UN’s Secondary Role and Upcoming Regional Conference

As a result of this organic cooperation, the UN and the international community have taken a secondary role in the fight against piracy in the Gulf of Guinea. The UN, both in the UNSG’s report and in its Security Council Resolution, lauds the current littoral state cooperation and encourages the Gulf of Guinea states to strengthen this cooperation, while promising to provide international financial assistance where required. It is clear from the statements of a number of representatives after the 27 February 2012 briefing on the UNSG report that a number of states would prefer to leave West and Central African states to take the lead in enhancing regional security against piracy and armed robbery in the Gulf of Guinea. The U.S., for one, has responded to this call by committing about $35 million for the training of naval personnel in Nigeria and other countries within the Gulf of Guinea on how to combat piracy and other maritime crimes. It is not suggested that the international community should create a joint naval force, such as EUNAVFOR, to combat pirates. This may encourage a reliance on PMSCs in the Gulf of Guinea where shippers lack confidence in littoral state navies.

Following on the recent report, the UNSC adopted a resolution 2039 on 29 February 2012 encouraging littoral states of the Gulf of Guinea to adopt the recommendations in the report. In particular, it encourages Benin and Nigeria to continue joint naval patrols and to work independently to secure their territorial waters. In addition, it suggests that the international community provide all possible assistance. Finally, it advocates a regional conference including Gulf of Guinea states, in collaboration with the African Union, in order to elaborate a regional strategy to fight piracy. As stated in UNSC 2018, the purpose of the conference would be the following:

to consider a comprehensive response in the region and [for] the States of the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission (GGC) to develop a comprehensive strategy, including through: (a) the development of domestic laws and regulations, where these are not in place, criminalizing piracy and armed robbery at sea; (b) the development of a regional framework to counter piracy and armed robbery at sea, including information-sharing and operational coordination mechanisms in the region; and (c) the development and strengthening of domestic laws and regulations, as appropriate, to implement relevant international agreements addressing the safety and security of navigation, in accordance with international law.

The planned conference (a “joint regional summit of Heads of State of the three regional organizations”) is to take place as soon as possible in 2012, but has not yet been assigned a specific date or location. As this conference approaches, regional organisations would do well to consider that further developing regional coordination will be key to formulating a comprehensive counter-piracy strategy in face of the resource fragmentation that currently exists in this sector.

The Oil Spill: Nigeria’s Counter-Piracy Measures and their Effect on Neighboring Countries

The menace of piracy in present-day Nigeria derives from its coastal reserves, rich of oil and natural gas, particularly in the Niger Delta region. Environmental pollution and lack of local access to profits generated by the exploitation of natural resources rapidly added to the Niger Delta’s long struggle for greater autonomy. The Movement for the Emancipation of the Niger Delta became an umbrella for locally-based militant groups taking up arms for social, economic and political independence.

From 2006, rebels increasingly attacked vessels and oil platforms in and around the Niger Delta, kidnapping foreign staff as well as stealing oil and damaging properties. The attacks quickly became a source of financial revenues. Over time, it became almost impossible to establish whether a piracy incident was politically or criminally motivated as the perpetrators often operated interchangeably.

Faced with the prospect of significant financial losses and local instability, the Nigerian Federal Government swiftly stepped up its response against pirate attacks, launching “Operation Restore Hope” and creating a military Joint Task Force to take strong, at times ruthless, action against piracy and maritime security threats. The government has also attempted to address the root causes behind piracy attacks, namely corruption and a lack of local economic development. For instance, the Economic and Financial Crimes Commission  was tasked to address the motives behind recourse to piracy in the Niger Delta crisis, investigating and auditing state governors’ assets throughout Nigeria to combat government corruption.

Nigeria is today the largest African oil producer, with the current crisis in Libya requiring Nigeria to increase its output and revenues. Against this background, it is thus not surprising that this year marked increase in the number of piracy and armed robberies at sea attacks, witnessed an increased leadership and intervention by Nigerian naval authority with the support of important oil consumers, such as the US and France.

While not immediately characterized by political motives, the attacks are attributable to independent criminal gangs composed mainly of, and certainly led by, Nigerians. The amnesty granted in 2009 to the Niger Delta benefited the leadership rather than the middle or lower ranks insurgents and ensured a ready pool of potential recruits for criminal enterprises. Former Rebels have expressed discontent with the disarmament process and have threatened to take up arms again.

Nigeria is now largely in control of the security situation within its own maritime borders, having intensified its coastal navy patrols and counter intelligence. The main outcome of this security clampdown is, however, the worsening of piracy attacks in neighboring countries. This is particularly serious in Benin, which depends on its port in Cotonou for some 40 per cent of state revenues. The country has so far seen at least 20 piracy-related incidents compared to none last year, prompting a call for the UN to consider sending an international force to help police the Gulf of Guinea. During his address to the recent UN General Assembly, Benin’s Foreign Minister described his country’s own counter-piracy resources as “laughable.”

Nigeria and Benin therefore recently started joint naval patrols in an effort to curb soaring piracy attacks. The naval patrols, tagged “Operation Prosperity”, would last six months, involving Nigerian Navy ships and vessels from Benin, as well as resources from the Nigerian Maritime Administration and Safety Agency.

Concerns, however, are rising that the pirate gangs could once again adapt and move their criminal activities further west. Togo and Ghana are already attempting to boost maritime security to address the threat. Are these countries next in seeing a spike in piracy and maritime robbery activities?

Drones v. Pirates

 

In today’s Wall Street Journal, it is reported that the U.S. is deploying armed drones to the island nation of the Seychelles in order to strike militant targets and, if and when necessary, Somali pirates:

A senior defense official said the U.S. hasn’t yet used the Reapers deployed the Seychelles to conduct armed reconnaissance on pirate ships, but the option is open to use the drones to strike at pirates who have mounted attacks.

“If there was a piracy situation gone wrong, the Seychelles are a good place from which to put something overhead,” said the senior defense official.

The U.S. stationed Reaper drones in the Seychelles from September 2009 until this past spring, when they were withdrawn. Those aircraft weren’t armed and were used only for surveillance. Officials said at the time that those drones were to be used to monitor pirates.

With terrorists and pirates living in such close quarters, it is easy to mistake them as one and the same. Consequently pirates become legitimate targets for pre-emptive attack. But even if pirates are considered to be terrorists (a very big “if”), there are limits as to how they may be engaged. The Deputy National Security Advisor John Brennan recently signaled that the U.S. continues to reserve the right to take unilateral action against individuals who are a threat to the United States. Nonetheless, he recognized: “International legal principles, including respect for a state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on the way in which we can use force—in foreign territories.” Even members of al-Qaida are entitled to basic protections afforded by the Geneva Conventions (See Hamdan v. U.S.).

On the other hand, if pirates are treated as criminals, destroying a pirate skiff by a drone-fired missile prior to an attack or even after an attack would constitute summary justice. As I have mentioned before, this does not prevent seafarers from protecting themselves in the face of an attack. But if an attack has occurred and pirates are racing off with their booty or if pirates are discovered at sea with the tell-tale signs of planning an attack (e.g. rifles, ladders), they must be arrested and not scuttled by an unmanned drone.

Although the Prime Minister of Somalia’s Transitional Federal Government (TFG) has no problem with the U.S. targeting members of al-Shabaab within Somalia’s territorial borders, he would not accept similar treatment of pirates. Without the consent of the TFG, drones will likely be restricted to a surveillance role regarding pirates within Somali’s territory and territorial waters. The same is likely true of pirates in international waters, absent extraordinary circumstances.

From the Gulf of Aden Back to the Gulf of Guinea: Piracy Reports in West Africa on the Rise

Dear Readers, Let me introduce you to today’s guest blogger, Matteo Crippa. Mr. Crippa has substantial experience in West Africa and in international criminal law, having served as a legal officer at the Special Court for Sierra Leone from its inception. He brings a fresh perspective and insight to today’s topic. I would like to express my appreciation for his contribution and hope that it is the first of many to come.

The UN Security Council recently expressed concerns over reports of increased piracy, armed robbery and hostage taking in the Gulf of Guinea and their adverse impact on security and economic activities in West Africa. It is calling for the UN Offices for West and Central Africa to work with the UN Office on Drugs and Crime and the International Maritime Organization, all concerned countries and regional organizations. The UN Secretary General further indicated its intention to deploy an assessment mission to explore possible options for UN support.

While today’s counter-piracy attention shifted to the Gulf of Aden, with more than half the global piracy attacks being ascribed to Somali pirates, the Gulf of Guinea has long been a high risk area. With the increase of maritime commercial traffic, discovery of oil off the coasts of countries other than Nigeria, installation of additional offshore extracting infrastructure and on-going instability in various coastal areas, acts of piracy are on the rise. In 2009, the number of attacks fell short of those in the South-East Asia region. But, there are an increasing number of attacks in Togo, Nigeria and Benin.

Albeit sharing similar criminal goals and root causes, the nature of the attacks appears to differ with those off the Somali coast, encompassing an equal amount of armed robberies or hijackings and hostage takings. In addition to the immediate financial effect on oil and natural resource exploration and exploitation, the increased piracy activity appears to have a substantial impact on a set of traditional economic activities, such as commercial trade, regional travel and fishing.

Notwithstanding this difference, one unique feature of West Africa piracy is its limited territorial and regional purview (at least for now). Particularly in the Gulf of Guinea, piracy is mainly a by-product of the Niger Delta crisis. Acts of piracy and related criminal activities are still largely, if not exclusively, confined to territorial waters, and pirates do not yet possess the logistics and organizational capabilities of those operating in Somalia. Piracy per se can only be committed beyond the territorial sea, with all the equivalent acts occurring within territorial and internal waters being a matter for a coastal state’s criminal jurisdiction under the label of armed robbery at sea. All other conditions being met, doubts arise whether the present situation conforms to the customary legal definition of piracy and warrants the import of international-level mechanisms of deterrence and repression.

In the light of these considerations, the UN intervention in the matter at this stage appears to derive principally from the absence of any locally coordinated resources and the need to engage regional cooperation. West African countries, much like East African countries, lack adequate legislative frameworks and enforcement capabilities, as well as logistics and know-how, to address piracy. In addition, they face the increasing threat of becoming a major route for narcotics and drug smuggling. It should be noted that local efforts are underway to counter piracy, including the creation of a piracy task force in Nigeria, coastline patrols in Nigeria and Benin and plans to convene an ad hoc summit to discuss a regional response

The UN counter-piracy strategy in West Africa is thus still at an embryonic stage. An initial point of concern is the immediate risk of resource fragmentation, with already a plethora of UN and regional agencies and organizations involved as possible stakeholders. Building upon the most recent Somali experience and the joint international efforts to tackle piracy, the UN seeks to preemptively mobilize leadership and coordinate resources to avoid the situation in the Gulf of Guinea spiraling further. This perhaps signals a shift from a traditional counter-piracy strategy to a more piracy-prevention oriented approach. Its success will very much depend upon its capacity to include and assess the broader social, political and economic causes feeding piracy.

A War on Piracy? (Part 1)

“The only way to fight piracy is to hang the pirates.” “The only language they understand is force.” “This is war.” So says, a veteran of Norway’s shipping industry, Jacob Stolt-Nielsen. He acknowledges that his company is arming guards on board their vessels and suggests that the pirates should be executed on the spot.

US NAVY: Suspected pirate skiffs burn from weapons fire from the guided-missile destroyer USS Momsen (Feb. 2011)

To be sure, if a commercial ship is under hostile attack by Somali pirates on the High Seas, the ship may exercise the right of individual or collective self-defense under Article 51 of the U.N. Charter. But it is a great extension of this principle to say that it permits preemptive action against suspected pirates who are not in the midst of an attack.

The so-called War on Terrorism provides a useful analogy here. In the wake of the 9/11 attacks, the second Bush Administration outlined its goals in the war on Terror in the National Security Strategy. That document provided:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.

We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning.

The targets of these attacks are our military forces and our civilian population, in direct violation of one of the principal norms of the law of warfare. As was demonstrated by the losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction.

The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.

One might argue that Somali Pirates, armed with Rocket-propelled grenades and AK-47s pose an imminent threat to ships in the Indian Ocean, thereby justifying preemptive attack on pirate skiffs.  Such an analogy is flawed in several ways.

First, who are the parties to such a “War on Piracy?” According to the UN Special Adviser for Piracy’s report, there are around 1,500 Somali pirates and about 10 commanders. These are multiple enterprises; there is no single “Somali Pirate” outfit akin to Al Qaida. Second, against whom did Somali pirates declare war by attacking commercial ships, owned by companies in Norway, South Korea, India, and Malaysia, flagged in Malta and Liberia, and whose seafarers are nationals of the Philipines, India, and Kenya (to name but a few interested States)?

Second, the threat posed by piracy is largely financial. According to one estimate, the cost of Somali piracy to the world economy is between $7-12 billion per year. In addition, a large number of vessels and hostages remain captive. The International Chamber of Commerce reports that there are currently 33 Vessels and 712 Hostages being held by Somali pirates. But there are few reported incidents of civilian casualties. And certainly, the use of more destructive weaponry would be counterproductive for pirates as they can only ransom goods and hostages that remain intact.

Finally, this is not a battle of ideology as pirates and their victims are pursuing the same goal – that is to enrich themselves.  The difference is that pirates seek to enrich themselves illegally.

In short, even if one were to accept that a war on terrorism is a legitimate legal construct, the rationale does not extend to Somali piracy. For (1) there is no logical coherence to a war between disparate groups of pirates and the rest of the shipping world; and (2) piracy poses an economic threat, not a threat to the safety and security of the nations of the world.

This is not war; this is organized crime. And the scourge will only be eradicated when crime bosses are apprehended and prosecuted.