Somalian Piracy – Bane or Boon?

Piracy at sea has always evoked feelings of romanticism and mystique amongst the land lubbers. It is a realm where fact and fiction mingles effortlessly. The likes of Barbarossa, Henry Morgan, Edward Teach a k a Blackbeard, Francis Drake and Jean Lafitte are as much a part of history as they are the stuff of legends. The piratical cast of Stevenson’s Treasure Island, Long John Silver, Blind Pew, Ben Gunn et al as well as that of the ‘Pirates of the Caribbean’ inspires glamour rather than repulsion. The pirates’ bloodthirsty nature has been sidelined in the public imagination, courtesy of the kindness which history has presumably bestowed on them.

The prominent pirates of yore were technically privateers, having received a lettre de marque from one state or another, whose maritime opponents they were free to loot and plunder. As an example, more than 400 letters of marque were issued during the American War of Independence, with the privateers’ brazen attacks on British shipping virtually crippling that country’s trade. As with Barbarossa, Robert Surcouf, Francis Drake and Jean Lafitte, one nation’s hero was another one’s villain.

Fast forward from the ‘golden age of piracy’ to the present. Piracy off Somalia rules the roost these days, if only for the large sums of money the pirates manage to extort as ransom. In Pakistan, the subject hogged the limelight for a short while during the reported hijacking of a Pakistani-flagged fishing vessel MV Shahbaig a few months earlier. Piracy in fact has become so synonymous with Somalia that it is difficult to tell the two apart. One would be hard-pressed to recall that it wasn’t too long ago that the Malacca strait and its adjoining archipelagos was considered the major trouble spot for this type of activity.

What then was the driving force that caused the Somalian theatre to take centre stage. At the heart of it all was a deep sense of injustice and resentment at acts of which the developed world is in denial and the developing world blissfully unaware. From an historical perspective, the ensuing instability following the ouster of the Said Barre regime in 1991, caused a large number of foreign commercial vessels to flock to Somali waters, so rich in tuna, shrimp, sharks and lobsters.

The initial acts of piracy were thus directed against such large scale illegal fishing practises and undertaken by desperate Somali fishermen incensed at the loss of their traditional fishing areas, with ransom being demanded as compensation for ‘lost revenue’ The foreign fishing vessels found it convenient to resort to bribery for obtaining so-called ‘fishing licenses’ from the local warlords, which in itself became a lucrative enterprise for all involved.

What made this already-chaotic situation even worse was the widespread dumping of toxic waste off Somalia by European international companies. Such

rampant dumping of hazardous waste, coupled with the illegal and destructive fishing methods being employed by the foreign fishermen, is thought to have irretrievably damaged Somalia’s coral ecosystem and marine resources. For the profiteers, all this is of scant concern, as they continue to rake in fabulous amounts of money from their illegal activities.

The Islamic Courts Union (ICU) on assuming power in 2006 reasserted some sort of control over Somali waters, with both foreign incursions as well as piracy showing a declining trend. This presumably did not go down well with some vested interests who some think engineered an Ethiopian invasion to restore the status quo ante.

Piracy off Somalia and its countermeasures has been like a cat and mouse game. When the International Maritime Bureau urged shipping to stay beyond 50 nautical miles off the Somalian coast, the pirates resorted to the use of ‘motherships’ to increase their range. When the presence of foreign warships increased in the Gulf of Aden, piracy incidents off the eastern coast of Somalia fronting the Indian Ocean multiplied. When some ships started rerouting around the Cape of Good Hope and adhering to fresh warnings to stay at least 200 nautical miles off the coast, pirates resorted to the use of captured fishing vessels both to deceive the warships by mingling with the sea traffic and to conduct attacks far out to sea. The capture of the Saudi-owned super-tanker MV Sirius Star carrying $100M worth of oil, about 450 nautical miles off the coast of Kenya, took most observers by surprise.

How do they do it so effortlessly? Easy. Having chosen an area with an abundance of high value targets, all they need to do is to avoid the warships and utilise the elements of speed and surprise to overpower their prospective victims, with AK 47s / RPGs to intimidate and grapnels to clamber over the side. What further works in their favour is that the merchantmen being targetted are generally not armed.

Can something be done about it? Yes and No. There are many instances of merchant vessels having shaken off their attackers, either through outrunning them or using a sonic cannon to deafen and disorientate the attackers or in one novel case, a tugboat putting itself into a high-speed spin to outlast the pirates’ patience. In another first, the crew’s counter-attack managed to reclaim their ship and win the day. The presence of warships do have a certain deterrent value despite the vastness of the so-called “pirate attack zones”. The window of opportunity for them, i.e from the time they detect the onset of an attack to the time the operation is completed, by which time it becomes a fait accompli, is however, rather limited. There are again examples of pirates having been killed or captured after taking captives and at times even after obtaining ransoms.

In order to appreciate the near complete range of measures, countermeasures and limitations on display in the waters off Somalia, a few case studies, which vividly illustrate the issues discussed earlier, would be instructive.

Case 1 (November 2005)

Pirates in two speedboats, operating out of a mothership, attacked a luxury cruise ship, the Seabourne Spirit, about 100 nautical miles off the Somali coast, with RPGs and assault rifles. The Captain tried to outrun and outmanoeuvre the pirate boats and even to ram them, with not much success. What saved the day was a sonic cannon (fitted on board the ship), which generates a directional deafening noise, that finally persuaded the pirates to give up the chase.

Case 2 (January 2006)

Somali pirates hijacked an Indian dhow off Mogadishu and began using it as a staging platform for acts of piracy against other merchant ships. On receiving reports of such an attempt, the USS Winston S Churchill (DDG81), which was nearby, challenged the craft, but after failing to establish radio communications, the destroyer tried to get the suspicious vessel to stop through aggressive posturing. The firing of warning shots finally compelled the pirates to surrender. The 16 Indian crew members were released, while the 10 captured Somali pirates were handed over to Kenya for trial.

Case 3 (November 2006)

Pirates captured a UAE-registered vessel, the Veesham One, and demanded a million dollar ransom for its release. Militia from the Union of Islamic courts, which was in power in Mogadishu at the time, stormed the vessel and captured the six pirates, including two who had been severely wounded in the ensuing gun battle. The ship’s 14 man crew was released unharmed.

Case 4 (October 2007)

Pirates seized the North Korean vessel MV Dai Hong Dan around 70 nautical miles off Mogadishu. While the pirates took over the bridge, the Koreans retained control of both the steering gear and the engines. Reassured by the presence of the USS James E. Williams (DDG 95) which was shadowing the vessel, the crew members, taking advantage of the distraction this was providing to the pirates, counter-attacked them on the bridge, leaving two of them dead, and captured five others.

Case 5 (April 2008)

Around 12 Somali pirates hijacked a 160 ft private super yacht Le Ponnant in the Gulf of Aden. They then sailed the vessel to the Somali coast, mooring it near the town of Eyl. After the crew had been released on payment of ransom by the owners of the yacht, French commandos swung into action. Six of the pirates were captured as they were attempting to flee in a car and brought to the French Naval Helicopter Carrier off the Somalian coast. The pirates were subsequently tried in a French court and convicted.

Case 6 (August 2008)

A Singaporean cargo ship Gem of Kilokarai, on coming under attack from pirates aboard two skiffs, sent out a distress call. The USS Peleliu (LHA5), which was only 10 miles away at the time, responded by launching three helicopters which successfully drove away the pirates.

Case 7 (November 2008)

Somali pirates captured a Thai fishing trawler, the Ekawat Nava 5, and began using it for acts of piracy. An Indian Navy Ship, the INS Tabar, on anti-piracy patrol in the Gulf of Aden sighted what seemed like a pirate ‘mothership’ with two speedboats in tow. The vessel was subsequently sunk by the warship in what was claimed to be retaliatory fire after the pirate-held ship refused to submit itself to search. The pirates apparently managed to escape in the speedboats while all the original crew members who were reported to be tied up under the deck, perished, except for one solitary survivor, who was picked up at sea after six days by a passing ship. The Captain of the Indian warship apparently failed to appreciate that what he took to be a pirate mothership was a little more than that: a captured fishing craft with its captured crew members aboard. Had he sensed the presence of hostages on board, it is possible that he may have been a little less rash in blowing up the craft. The only way in which such an attack on the high seas could have been legally justified was on the basis of self-defense, which plea was taken.

Case 8 (April 2009)

After an abortive attack on a petroleum tanker, the Handytanker’s Magic, the pirates were tracked by a Dutch Frigate De Zeven Provincien back to their “mothership” from where they were captured. The pirates were however released by the Dutch warship on the advice of the legal advisor on board. Their weapons were however seized and the 20 Yemeni fishermen, who had been forced to sail the pirate’s mothership, freed. Though the US Secretary of State publicly criticized the freeing of the pirates, this was actually done on the basis of a technicality. The Dutch warship happened to be part of a NATO exercise (as opposed to an EU anti-piracy mission), and since NATO neither had a detainment policy nor any agreement with a regional state like Kenya, the warship was obliged to follow its own national law, which did not permit arrest as the victims were not from the Netherlands. Five Somali pirates were however detained a few months earlier under similar circumstances, but this was because the hijacked ship was sailing under the flag of the Dutch Antilles. These suspects were later tried in Rotterdam under a 17th century law against “sea robbery”.

Case 9 (April 2009)

Four Somali pirates attacked the MV Maersk Alabama, a 1700 ton cargo ship, and captured the ship’s captain, Richard Phillips, who had offered himself as a hostage while advising his crewmen to lock themselves in cabins. The pirates fled with their captive in the ship’s lifeboat which was closely shadowed by US warships and helicopters. One of the pirates, seeking medical attention, gave himself up when a boat from the USS Bainbridge (DDG 96) was delivering food and water to the pirates on their request. After a few days, the pirates, their fuel gone, agreed to accept a tow from the US destroyer, with the towline being shortened to 100 ft as the shadows darkened and the sea state worsened. The US Navy SEALs struck down the remaining pirates as soon as three of them had a clear shot at all their individually designated targets. President Obama’s conditionality to the use of force only if the Captain’s life was in danger was technically complied with, as one of the hijackers was seen holding an AK47 at the Captain’s head. The solitary captive was tried and convicted in a New York court.

Case 10 (December 2009)

A Pakistani-flagged fishing vessel MV Shahbaig with a crew of 29 on board, was seized by the pirates in the open sea, hundreds of miles east of the Horn of Africa. The vessel was found abandoned after a few days way to the south of it’s captured location after being used for many acts of piracy at sea, notably the hijacking of MV Asian Glory.The MV Shahbaig crew was provided medical attention, water, food and fuel to facilitate their return journey to Pakistan.

The main issue that maritime powers have still not exactly come to grips with is the legal one of what to do with the so-called “persons under control” (PUCs). Part of the problem stems from the UNCLOS’ 82 definition of piracy itself, according to which it can only be treated as piracy if committed on the high seas. As far as territorial waters are concerned, they fall squarely under the jurisdiction of the coastal state which can either treat such incidents as ‘armed robbery’ or legislate suitable national laws to define them as acts of piracy. Realizing that there is no stable governance in Somalia, some countries, the US and UK in particular, have signed bilateral agreements with its neighbour to the south, Kenya, enabling prosecution of captured pirates to be carried out in that country.

UN Security Council, recognising the inadequacies of Somalian governance and the need to combat piracy there, authorized naval warships to pursue pirates into Somalia’s territorial waters and even permitted operations on Somalia’s land territory. This made the job of capturing pirates a whole lot easier, though their subsequent disposal was still governed by the national laws of the concerned country. About a year back, a Dutch warship had to let the captured pirates go, as according to its own national laws, action was only permissible if the victims were from the Netherlands. Five Somali pirates captured a few months earlier were however prosecuted in Rotterdam for ‘sea robbery’ since the hijacked ship was sailing under the flag of the Dutch Antilles. Though German warships are presently operating as part of an EU anti-piracy mission, their presence is apparently for the purpose of deterrence alone, as German basic law dictates that all crime-fighting is the exclusive preserve of the police.

Warships of around 20 countries are presently in the vicinity, either acting independently or as a part of the EUs anti-piracy maritime forces or with the Combined Maritime Task Force. Can they however adopt a more pro-active stance as far as deterring or combating piracy is concerned? Yes, they can, but within the context of a complex maritime legal code. Within a state’s territorial waters, the sole jurisdiction for policing and prosecution falls primarily on the coastal state. With Somalian governance in a bit of a flux, the UNSC resolutions referred to earlier do provide some room for manoeuvre for foreign warships.

On the high seas, although the state whose flag a vessel is flying exercises full sovereignty over it, warships of other countries may avail their inherent right of approach and visit on suspicion of piracy. The right of search however depends on whether the visit confirms the suspicion. To get around subsequent legal claims of loss, damage or delay, consent of the flag state or even of the master of the vessel in some circumstances, is advisable. The practical problem still remains; suspected pirates operating in their own skiffs can’t be held simply on the basis of a likely crime. On the other hand, warships have to be a bit cautious in dealing with pirates already in control of a captured vessel or hostages or both, for fear of endangering their safety. Pirates attacking another ship on the high seas or resisting a warship’s legal right of visit and search is fair game.

UNCLOS’ 82 makes amply clear the illegality of piracy and the rights of all states to seize and prosecute the pirates, the only chink being that instead of laying down any penal standards, it empowers individual states to make it the subject of their national laws. It is thus apparent that the fate of captured pirates is not dependent on any standard international regime but on the existence or vicissitudes of the seizing or territorial state’s national legislation. In pursuance of their own national laws , a Dutch warship had let 7 Somali pirates go scot free since, the victims not being from the same country, their arrest was not considered permissible, while the Danish Navy likewise released 10 pirates for fear that they might not be successfully prosecuted back home. Countries like USA and France have however successfully convicted Somali pirates in their home courts, while the former country has even handed over a large number of pirates to a regional country (Kenya) for trial under a bilateral agreement.

It however seems obvious that the likelihood of any acceptable solution is remote, without the revival of some measure of state authority in Somalia and without increased regional and international cooperation. What bedevils the mind however is the ease with which the international community continues to fork out well over 30 billion dollars annually on makeshift and reactionary measures like warships patrol, ships rerouting, higher insurance rates, crews danger money, ransom payments etc without bothering to seek out a viable solution. Radicals continue to agitate for a Julius Caesar style solution, which will just not do. It is said that the famous military commander, having been captured by the pirates in 74/75 BC, had scoffed at their ransom demand of merely 20 talents, and promised them severe retribution for their impudence.

Having secured his release by paying well over double the pirate’s demand, he personally supervised their capture and their subsequent crucifixion.

Under the current circumstances, a just and humane approach is the most promising. It has long been recognised that the piracy movement sprang from the fishing communities of the autonomous Puntland region to the north east and of the central Mudug region, where the various clans, seeing their traditional source of livelihood all but destroyed by extensive poaching and pollution, had no option but to fall back on piracy. If the international community recognises the problem for what it is, and spends a tiny fraction of the amount it is currently spending on piracy deterrence and piracy suppression, on the prevention of violations of Somali waters by foreign commercial vessels illegally engaged in destructive fishing and toxic dumping, the result would be a whole lot different. Investing just a wee bit more on the basic needs of the inhabitants of the poverty-stricken region could bring them into the fold of the law-abiding comity of nations. Isn’t this a creditable goal worth striving for?

Note: This article was published in the July 2010 issue of Newsline Magazine under the heading ‘New Port of Piracy’.

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