By Douglas Guilfoyle

Professor- London University

Series of measures have been taken by the international community to suppress piracy off the Somali coast. It's time to analyze these anti-piracy measures and see the impact on the pirates and piracy operations.

Pirate attacks off the coast of Somalia are now endemic. In the early 1990s such attacks were limited and conducted relatively close to shore and were largely the work of fishermen displaced by civil war and foreign fishing in Somalia’s waters.

Pirate attacks now have escalated to hostage-taking for ransom with vessels being indiscriminately seized far outside Somali waters and the terror of piracy jeopardizing trade and fishing as far away as the Seychelles.

Piracy has outgrown its displaced-fishermen origins and is now a serious, organized criminal activity. While it targets foreign ships, it affects trade throughout the region. Piracy on the high seas is a crime under international law and seizing control of a ship illegally and taking hostages are also offences under international treaty law.

International Community’s Response 

Various national and multinational counter-piracy missions now patrol the Gulf of Aden.

This note sets out, briefly, their activities, mandate and likely effectiveness. Multinational counter-piracy operations effectively commenced in August 2008, when the US-led Coalition of the Willing Combined Taskforce 150 (CTF-150) assumed a counter-piracy mandate in addition to activities associated with Operation Enduring Freedom in Afghanistan.

In January 2009, the Coalition established Combined Taskforce 151 (CTF-151), with an exclusive counter-piracy mandate. Also in August 2008 the Coalition established a Maritime Security Patrol Area (‘MPSA’) off the Somali coast.

The MPSA is a defined area within the Gulf of Aden, providing a common system of reference which allows the different naval forces in the Gulf to ‘de-conflict’ their activities. Running through the MPSA is an internationally recognized and militarily patrolled transit corridor (the ‘IRTC’), established in August 2008 by the United Kingdom Maritime Trade Organization. 

As of Feb. 1, 2009, information for mariners using the IRTC is available through a secure website administered by the Maritime Security Centre (Horn of Africa), as a part of the EU counter-piracy mission "Operation Atalanta".

Operation Atalanta is the EU first joint naval operation, conducted by the new EU Naval Force (EUNAVFOR), established in December 2008. NATO also has a counter-piracy mission in the region called Operation Allied Protector.

In addition, many individual States have sent naval assets to the Gulf of Aden, including Russia, India, China, Australia and others. On average, there are 20 or more warships patrolling the MPSA at any time.

The US, UK, Denmark, and the EU have all concluded agreements for the transfer of captured pirates to Kenya for trial. The UK also has such an agreement with the Seychelles. NATO has no institutional legal mandate to arrest pirates, nor any mechanism to transfer them to a third party for trial.

If a NATO vessel seizes suspect pirates, the vessel returns to national command and the question of what to do with them becomes one for the seizing warship’s national State.

Legal powers

Under Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS), piracy is:

(1)"any illegal acts of violence or detention, or any act of depredation";

(2) committed for private ends;

(3) on the high seas (being all seas beyond 12 nautical miles from shore, including for this purpose 200 nm Exclusive Economic Zones); and

(4) committed by the crew of a private craft against another vessel or persons or property aboard. 

Under international law, any warship may search a vessel on the high seas suspected of piracy. Where evidence of piracy is found, the vessel and persons aboard may be seized and sent before the courts of the seizing warship. 

International law, however, provides all States with jurisdiction over piracy and over pirates subsequently found in their territory. It also does not prohibit transfers of pirates or provide any hierarchy of jurisdiction.

All States have an equal claim to prosecute pirates, and prosecution does not require the permission of a pirate’s State of nationality or the flag State of the attacked ship. In practice, it will be for the capturing warship to find somewhere to send pirates to face trial or to release them.

Acts similar to piracy committed in a territorial sea are called 'armed robbery against ships'. With the consent of the Somali Transitional Federal Government, the UN Security Council has passed resolutions allowing States cooperating with the TFG to exercise powers similar to those permitted on the high-seas in the Somali territorial sea on a strictly temporary basis.

Other Security Council resolutions (especially resolution 1851) encourage high-seas law-enforcement cooperation, the use of existing international law powers to suppress piracy and the prosecution of pirates. Resolution 1851 also allows warships to dispose at sea of weapons and vessels suspected of being intended for use in piracy. 

Law Enforcement in Practice

Despite the conduct of prosecutions in Kenya and other States (including Somalia, the Netherlands, France, Yemen, and the US), about half of all suspect pirates warships detain are released. The reasons for this vary.

(1) No evidence. Navies don’t chose who to prosecute, independent national prosecutors do. Prosecutors will seldom run a case based solely on circumstantial evidence. If intercepted pirates dump their boarding ladders and rocket propelled grenades into the sea, it will be difficult to prove beyond reasonable doubt in a court room thousands of miles away that these were not just fishermen or Somali asylum-seekers bound for Yemen. 

(2) No national law and nowhere to send them. Many States have no national piracy, though many are now remedying this. In the interim, no national law means no prosecution: few court systems will allow a prosecution based on international law alone. As for sending them elsewhere, UNCLOS provides no express duty for a port State to receive suspects.

Security Council Resolutions 1846 and 1851 have suggested the Suppression of Unlawful Acts (SUA) against the Safety of Maritime Navigation Convention. SUA is drafted broadly enough to cover acts of violent/hostage-taking piracy and provides a mechanism for putting suspects off in port. While likely correct, States and the EU have preferred to conclude bilateral transfer agreements (often with Kenya) rather than asserting SUA rights.

(3) No mandate. The EU has a transfer agreement with Kenya covering suspected pirates, NATO does not. NATO as an organization has no law-enforcement mandate, so while it can ‘deter and disrupt’ pirate attacks, if a NATO warship actually catches pirates any prosecution relies on the capturing member State.

Further, many navies have – despite their clear international law powers – no authority in national law to arrest piracy suspects. Again, no national law will mean no arrests. 

(4) Diversion of resources. Particularly in early counter-piracy operations the calculation was often made that it would take so long to run pirates into port for prosecution that the loss of mission-time (and thus protection of other vessels) was not worth it. Suspect pirates were thus disarmed and left with enough food and fuel to make landfall.

The question that is frequently asked is whether pirates are simply being "dumped" in Kenya. Kenya has received assistance and funds from the UN Office on Drugs and Crime to support prosecutions, carry out court-room refurbishment and improve prison conditions.

Future UNODC projects include rebuilding and staffing prisons within Somalia, in Somaliland and Puntland, to which convicted pirates could perhaps be transferred in the future. Further, on 10 September 2009 the Contact Group on Piracy off Somalia (CGPS) established an international trust fund to support prosecutions in regional States.

More could be done to assist regional States and it is to be hoped the international community will be generous in supporting the CGPS trust fund once it is operational.

While it is sometimes suggested the capturing warships' States should take responsibility for trial, this would be expensive, difficult, remove convicted pirates from any hope of family contract and overlooks the very real and high cost of protecting shipping in the region using naval assets. The best result must be for the international community to properly support regional trials.

Stabilizing Somalia Is very Important

The only solution to piracy in Somalia lies within the territory of Somalia. Given the potential rewards, and the large pool of unemployed young men in Somalia, counter-piracy patrols and prosecutions are unlikely to curb piracy in the short or medium term.

Nonetheless, even if piracy patrols are only responding to a symptom, they are a necessary response. Somali pirates use considerable violence and a small number of their hostages have died while being held for as long as, or longer, than six months. Armed robbery and hostage taking are serious crimes and the victims are not wealthy western States or corporations but the seafarers themselves.

Hostages often leave captivity in poor condition, traumatized by their experiences and unable to return to the sea and their livelihoods. It is therefore right that pirates be caught and punished.

The effort to counter piracy should not and cannot be allowed to distract the bigger and more important task of stabilizing Somalia and assisting the region to develop its own coast guards and navies so foreign support is no longer needed.

On the latter, a regional training centre is to be established in Djibouti and Japan has already approved US $15 million in aid towards implementing the Djibouti Code of Conduct, a new agreement to promote counter-piracy among regional States.

Dr Douglas Guilfoyle is a lecturer at the Faculty of Laws, University College London where he teaches international law of the sea and international criminal law. At present, he regularly speaks to academic forums, NGOs, think-tanks and intergovernmental meetings on high-seas piracy. His book on high-seas law enforcement, Shipping Interdiction and the Law of the Sea, has just been published with Cambridge University Press. 

Source: Islam Online, ‎Nov 25, 2009

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