by Jay Bahadur
And while sailing via the Cape of Good Hope virtually eliminates the chance of running into pirates, the marine navigation hazards are amplified. “If you go around South Africa, you’re facing a much more exposed sea route,” explained Smith. Thus, while shippers could save money on war risk insurance—which often subsumes acts of piracy—they would face increased premiums on hull insurance, which covers loss due to marine perils, such as running aground and hazardous weather.
The fact is, piracy just is not enough of a bother to cause most shipowners to change their plans. As we saw in Chapter 3, in 2008 the average vessel passing through the Gulf of Aden faced only a 0.17 per cent, or 1 in 550, chance of being hijacked. In the unlikely event that a ship is captured, the owner (or, as is more likely, the owner’s insurance provider) is forced to pay a ransom generally not exceeding 2–5 per cent of the worth of the vessel and her cargo—an annoyance, to be sure, but not a particularly uneconomical one. Most owners, in the end, are content to string up some barbed wire, buy an insurance policy, and pray.
* * *
One defensive option that was considered in the early days of Somali piracy was the long-range acoustic device, or LRAD, a non-lethal sonic weapon described as a “bullhorn on steroids” that is capable of inflicting excruciating pain on its targets. Alas, the arguments for the LRAD turned out to be nothing more than a lot of noise. On November 28, 2008, the chemical tanker Biscaglia—equipped with an LRAD operated by three unarmed guards provided by the British private security firm Anti-Piracy Maritime Security Solutions (APMSS)—was assaulted by six pirates wielding the standard AK-47s and RPGs. After forty minutes of ineffectual resistance using the LRAD and high-pressure water cannons, the guards abandoned their posts and jumped overboard.
It is hard to fault the Biscaglia’s guards for choosing to save their own lives rather than dying in a senseless last stand—they were, after all, involved in a gunfight armed with nothing more than a glorified bullhorn. LRADs, it turns out, are far more suited to crowd control than repelling armed sea bandits; they have an effective range of less than three hundred metres—inferior to that of an AK-47—and the fact that they can be trained on only one target at a time is a serious limitation when the standard pirate attack pattern involves a two-skiff team. Luckily, the three guards were eventually rescued by a German naval helicopter. The crew of the Biscaglia were not so fortunate; they spent the next two months in the company of their Somali captors.
The Biscaglia spelled the death of the LRAD as a valid counter-piracy defence, as Lloyd’s List, the world’s forefront maritime trade journal, published an article blasting the device’s effectiveness.8 It was also the end for APMSS; after the embarrassing incident, owner Nick Davis dissolved the company.
* * *
Individual crews have occasionally come up with their own creative methods of dealing with pirate attacks. When seven pirates armed with heavy machine guns and RPGs boarded the Chinese fishing ship Zhenhua 4 on December 17, 2008, they probably thought that the difficult part was over. Instead, the Zhenhua’s thirty-member crew unleashed a ragtag assault, blasting the invaders with water cannons, improvised Molotov cocktails, and even beer bottles.9 After half an hour, the cowed pirates signalled for a ceasefire, barely making it back to their skiffs before a Malaysian warship appeared on the scene and opened fire. No members of the Zhenhua’s crew were injured during the battle.
The Zhenhua’s crew were likely aware that only their own reckless courage would save their ship from becoming the latest addition to the pirates’ fleet of motherships, and themselves from indentured servitude or worse. Most shipping companies, however, would expressly forbid their sailors to escalate the situation through active resistance. Passive measures, on the other hand, such as barbed wire, electric fences, blocking stairwells, and barring windows, have all been employed at various times, with differing degrees of success. But two defensive techniques have stood out above these others, owing to their relatively low cost, simplicity, and high degree of effectiveness.
The first is merely the stationing of extra watches on deck. On most commercial vessels, it is standard to have the officer of the watch on the bridge, and perhaps one additional lookout to assist the watchkeeper. This status quo puts crews transiting through pirateinfested waters at unacceptable risk, according to Andrew Linington, a UK spokesman for the international maritime union Nautilus. Due to the intense cost competitiveness of the international maritime shipping industry, he says, crew sizes have been significantly reduced over the last thirty years; in the 1970s, medium to large container ships commonly had crews of twenty-five or more, but recent years have seen many vessels reduced to running on skeleton crews of eleven to fifteen. “Manning levels have been reduced so much, and workloads have been increased so much, that people struggle to do their jobs as it is,” he told me. “One of the biggest problems we have at sea today is simply fatigue.”
Linington was adamant that early detection is the single best method of deterring pirate attacks. “Talk to any naval officer,” he said, “and they will all tell you the same thing: the ships that are most successful at resisting attacks are the ones who spot the pirates coming early … Often if the pirates recognize that they’ve been detected early on, and they see the ship taking evasive action, they will not even bother to attack. And the key to early detection, we believe, is having enough people on board the ship. All the best management practices recommend an increase in watches and patrols, but the shipping companies don’t add any additional crew members to carry out those duties.”
The second successful measure is a tactic that I call the “turtle defence,” which involves the crew barricading themselves in a secure area of the vessel—typically the engine room—in the event that pirates manage to get on board. With foreign warships bearing down on their position, pirate boarding groups often have only a short window to seize control of the ship (and more importantly, the crew). With the crew safely out of the line of fire, international forces would be free to retake the vessel with less risk of civilian casualties. Deprived of access to their human shields, most pirates would flee back to their skiffs before the cavalry arrives.
The turtle defence has been successful on multiple occasions. In February 2010 the Danish warship Absalon became the first vessel to stop a hijacking once it was already in progress, its appearance causing such a panic in one automatic-weapon-wielding pirate on the deck of the MV Ariella (an Antigua and Barbuda–flagged cargo ship) that he jumped into the sea. A more noteworthy incident occurred two months later, when Dutch marines abseiled onto the German cargo ship Taipan and arrested ten pirates, whom they subsequently extradited to Germany to face trial.
The turtle defence, according to International Maritime Bureau manager Cyrus Mody, is not without its drawbacks. First, the threatened vessel must be in prior contact with a warship with the resources to launch a commando assault—a capability that many in the international fleet do not possess. “If a crew in the middle of the Indian Ocean broadcasts that they’re going into lockdown,” Mody told me, “and there is no naval asset in a hundred-mile-or-so radius—which is basically VHF [high-frequency radio] range—then no one’s going to hear them.”
Second, if help does not arrive soon, the pirates may try their hand at cracking the safe room using the only tools they have available. “There was an incident some time back in which there was a crew in lockdown and the pirates started firing, and a couple of bullets went through the bulkhead and injured a few crew members,” said Mody. “That is one scenario; the other scenario is that the shooting causes a fire to break out. What happens then? There has to be an escape route for the crew.”
In spite of these potential risks, the turtle method has been effective even when a warship was not in the immediate vicinity. In a May 2010 incident, the Russian destroyer Marshal Shaposhnikov was over twelve hours away from the oil tanker Moscow University when her crew went into lockdown. For unknown reasons, the pirates remained aboard for
an entire day as the Shaposhnikov bore down on their position, then engaged the Russian special forces in a suicidal shootout while the crew was still safely out of harm’s way. Whether stubborn or reckless, the pirates paid for their error in judgment; after killing one pirate during the rescue operation, the Russian commandos probably summarily executed the remaining hijackers, later concocting a story that they had perished at sea.10
* * *
With $1–$1.5 billion per year being spent to clamp down on a piracy “industry” worth not more than $90 million, it is hard to argue that the international naval armada has provided a good return on investment. When hijackings fail (60–70 per cent of the time), it is usually because of early detection, increased speed, and evasive measures—not because of warships or navy helicopters saving the day. In 2009, fewer than one in six unsuccessful pirate attacks were stopped by the direct intervention of coalition forces, with only two of these rescues occurring in the Indian Ocean (out of fifty-three failed attacks).11 All told, in 2009 the coalition probably saved the world something in the range of $80–$100 million in potential ransoms—less than one-tenth its operating budget.12
But to judge the effectiveness of the naval forces based solely on the number of attacks prevented is not entirely fair, as the statistics do not reflect the coalition’s multifaceted deterrent effect. First, the forces indirectly prevent attacks (for instance, pirates breaking off pursuit because they fear a response from a warship). Second, they reduce the overall number of attacks by maintaining the Gulf of Aden safety corridor, by interdicting pirate groups before they have a chance to carry out hijackings, or by simply discouraging potential pirate recruits from taking up the trade in the first place. But the failure of the coalition forces to react to actual attacks in progress is disappointing. Though their numbers have mounted steadily since 2008, the warships are still spread far too thin—particularly in the vast Indian Ocean—to consistently respond in a timely manner.
Despite hundreds of millions of dollars in annual net operating losses, the international fleet is unlikely to sail away anytime soon. The naval presence is a classic exercise in defence theatre; for political and humanitarian reasons, home governments must demonstrate that they are making an effort to protect their own nationals, as well as to safeguard international commerce. The optics, in short, are more important than the results. Meanwhile, the vast majority of masters and crews charting the boundless reaches of the Indian Ocean will remain on their own, with only their own vigilance and courage to save them from becoming the latest victims of the Somali pirates.
10
The Law of the Sea
TO DATE, CAPTURING PIRATES HAS PROVED FAR EASIER THAN deciding what to do with them afterwards. The laws of foreign nations have treated Somali pirates as another group of “boat people,” that is to say, illegal migrants. The largely Western countries that patrol the Gulf of Aden and the Indian Ocean understandably desire to avoid the costs associated with transporting captured offenders and processing them in domestic courts. In some nations, such as the United Kingdom, arrested pirates would even be within their rights to claim asylum (the UK Foreign Office has voiced concerns that the pirates may face the Islamic punishments of beheading or amputation should they be returned to Somalia).1 Although in rare instances national pride has prevailed over fiscal sense—Boyah’s six unfortunate compatriots, for instance, as well as five pirates turned over to Dutch courts by the Danish navy in January 2009—prosecuting pirates through Western institutions is not a feasible long-term solution.
So labyrinthine is the legal maze that many foreign navies have opted simply to release suspects after confiscating their weapons and destroying their ships, thereby drawing attacks from media outlets. Such criticism is not entirely fair. Pirates operating out of a failed state are unprecedented in modern times, and the existing international legal machinery is simply not suited to handle them. International law, fortunately, is continually being reinvented as needs dictate, and in no case is this fact better demonstrated than in the legal dilemma posed by the Somali pirates.
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Since ancient Rome, pirates have been labelled as hostis humani generis—“enemies of all mankind”—and piracy has been considered a crime of universal jurisdiction, giving states the right to arrest and prosecute suspected offenders outside national boundaries, such as the high seas. Two principal instruments of modern international law define the procedures for exercising this jurisdiction: the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention). Of the two, the SUA Convention is considered to be the more robust, as it contains a broader definition of piracy and includes explicit instructions for extraditions amongst its signatories. In practice, this permits the master of a ship to deliver captured pirates to another state party, thereby theoretically allowing nearby acceding countries like Kenya, Djibouti, Yemen, and Tanzania to prosecute offenders.
However, the SUA Convention is unsuited to the Somali pirate situation for two reasons. First, the terms of the convention permit only the arresting state party—or another state with a demonstrable interest in the offence (for example, if its own citizens are the victims)—to assume jurisdiction over the accused. As a result, the home government of a given warship should usually be stuck with the responsibility of prosecuting. In theory, this obstacle could be overcome through the use of “shipriders,” officials from a third state brought on board a foreign warship in order to conduct the arrest and subsequent judicial process under the laws of their own country. This arrangement, which would legally authorize neighbouring countries (such as Kenya) to step in as the prosecuting authority, has yet to be put into practice.
Second, as an international treaty the SUA Convention applies only to the high seas and has no effect in the territorial waters of a state, which extend twelve nautical miles from its base shoreline.2 Somalia has no functioning government to administer justice in its seas, but the state remains a legal entity, and its phantom rights persist; by entering Somali waters, foreign navies are technically in breach of international law. In an effort to address this problem, in June 2008 the UN Security Council passed Resolution 1816, a stopgap attempt to use the moral stature of the United Nations to patch the obvious cracks in the existing legal structure. The resolution decreed that states authorized by Somalia’s figurehead Transitional Federal Government (TFG)—a collection of former warlords and self-styled moderate Islamists controlling a few checkpoints in Mogadishu—would be allowed, for a period of six months, to enter the territorial waters of Somalia and use “all necessary means” to repress acts of piracy and armed robbery at sea.3 The token permission of the TFG was allegedly granted through a letter delivered to the Security Council by the UN permanent representative to Somalia, Ahmedou Ould-Abdullah, though this mysterious document was never made public.4 In reality, Resolution 1816 merely legitimized the status quo, wherein foreign navies routinely violated Somali waters when necessity demanded (on occasion, states have sought the TFG’s explicit permission, as when French forces pursued Boyah’s gang inland following the Le Ponant hijacking). Six months later, Resolution 1851 went as far as to authorize the use of ground forces on Somali soil; not surprisingly, no country has volunteered its troops.
In a world without failed states, any Somali caught in the act of piracy—whether in international or Somali national waters—would be handed over to the government of Somalia for prosecution. As noted in earlier chapters, many piracy suspects are turned over to the government of Puntland, and occasionally that of Somaliland. Yet, for just cause, international actors doubt the will and capacity of these makeshift governments to seriously prosecute the offenders; furthermore, there is the problem of what to do with suspects originating from southern Somalia, who would undoubtedly go free if returned home.
Since late 2008, the long-term solution has been, in effect, to “rent out” the Kenyan j
ustice system in order to process the backlog of pirate detainees captured by Western warships. In December 2008, Kenya signed a memorandum of understanding (MOU) with the United Kingdom to receive and prosecute pirate suspects apprehended on the high seas, and it entered into a similar agreement with the European Union in March.5 In the same month, American forces handed over seven pirate suspects to the Kenyan authorities, inaugurating a bilateral pact signed two months earlier.6 In essence, these agreements amounted to extradition treaties where there existed no legal reason why the capturing states could not prosecute offenders in their own court systems.
With one of the most overcrowded prison systems in the world and institutional problems ranging from underpaid personnel and staff attrition to a lack of cooperation between the police and prosecutors, Kenya’s legal system may seem a strange choice to assume the complicated burden posed by Somali piracy.7 However, following the refusal of Mauritius to lend its soil to an EU-funded prison, as well as the hostility of Somalia’s other neighbours to the concept of local trials, Kenya, in the words of E. J. Hogendoorn, the International Crisis Group’s Horn of Africa director, was “the last country standing.”8 Nonetheless, Kenyan minister of foreign affairs Moses Wetangula made it clear in a statement that the MOU was not “an open door for dumping pirates onto Kenya [sic] soil because it will not be acceptable.”9
The problem was that it was not clear whether Kenyan law allowed the country’s courts to try non-nationals for crimes committed extraterritorially, and pirates’ attorneys were quick to argue that it did not. A test case had occurred in 2006, when ten suspected pirates were arrested by the US Navy three hundred kilometres off the coast of Somalia and turned over to Kenyan authorities. In the country’s first piracy trial, a Mombasa court convicted the accused of hijacking the Indian trading dhow Safina Al Bisaraat on the high seas, and each was sentenced to seven years in prison. Subsequent to this ruling, the pirates’ defence lawyer filed an appeal, which was ultimately rejected, arguing that Kenyan courts had no jurisdiction over crimes committed by non-nationals on the high seas.10
