Denver Journal of International Law and Policy

Maritime piracy off the coast of Somalia continues to spiral into an increasingly threatening international crisis, with attacks in the Gulf of Aden increasing during the first half of 2011. While more states have been prosecuting pirates in their national courts during the last year, United Nations officials have indicated that as many as 90% of pirates captured by national navies are subsequently released due to complicated legal and financial burdens associated with prosecution. In the search for solutions to the current maritime piracy problem, international legal initiatives addressing civil aviation security may offer insight

A global trend of airline hijackings beginning in the late 1960s and culminating in the terrorist attacks of September 11, 2001, catalyzed various initiatives that have improved the efficacy of aviation security. The international legal regime governing civil aviation security developed through various international treaties, conventions, agreements, and declarations and resolutions from important international institutions. In particular, international agreements embodying the legal maxim aut dedere aut judicare—the obligation of states to prosecute or extradite the accused—are an important component of the international aviation security regime. The United States, as the world’s largest aviation market, has also contributed to the international civil aviation security regime through its domestic legislation. At various times in the modern era, the United States has used economic leverage to propel compliance with its domestic security standards monitored by Federal Aviation Administration security audits by barring non-complying states from access to its airports.

This broad legal framework offers a valuable example of cooperation and collaboration between various stakeholders to address a trend in international crime. While there are limitations that must be considered in drawing an analogy between airline hijackings and maritime piracy due to contextual and legal distinctions, there are significant similarities conducive to legal comparison.

Borrowing from Civil Aviation

In particular, the elimination of safe havens for airline hijackers appears to be an effective deterring factor that may inform initiatives relevant to maritime piracy. In aviation security, prosecute-or-extradite approaches have made a discernible impact on deterring hijackings. For example, much of the airline hijacking crisis in the United States during the 1960s and 1970s was driven by Cold War-era motivations involving Cuban political refugees seeking a safe haven in the United States or Cuba (depending on their political orientation). In 1973, the United States and Cuba exchanged diplomatic notes constituting a Memorandum of Understanding that neither country would serve as a safe haven for hijackers. Following this agreement, the number of attempted hijackings of aircraft in the United States dropped significantly from 25 hijackings per year prior to the agreement to only one the following year. This remarkable change suggests that the existence of a sanctuary nation for hijackers enabled the Cuban hijacking problem.

Similar extradite-or-prosecute provisions exist in the international legal regime governing maritime piracy, yet these provisions have not been matched with international compliance. Being unable to rely on Somalia to prosecute pirates within its borders, the international community must, at least temporarily, seek to deter and eliminate safe havens through prosecution outside the current Somali judicial system. The enforcement of international agreements with provisions obliging states to prosecute piracy suspects or extradite them to another state willing to prosecute is a vital part of the solution. To ensure compliance, the international community or the United States should consider coercive mechanisms such as those used in civil aviation security to drive compliance with these important international agreements.

Initiatives that mirror airport security measures designed to deter infiltration of the security infrastructure at airports may also offer anti-piracy solutions. While increased port security may be less effective than its airport counterpart, ports may serve as checkpoints to determine whether ships are outfitted to implement piracy-deterring strategies, such as internationally recognized Best Management Practices (BMPs). Currently, it is believed that shipping companies do not always employ BMPs as suggested by maritime security experts. As ships remain vulnerable to piratical acts and attacks continue to be successful, the piracy problem is perpetuated.

Economic sanctions that have been used to fight airline terrorism may also being used to target financers of piracy crimes. Such measures have already be implemented to some degree on the domestic level through the United States Department of Treasury Office of Foreign Assets Control, which administers and enforces economic and trade sanctions based on foreign policy and national security goals. An Executive Order issued by President Obama on April 12, 2010, authorized sanctions on “those who engage in or support acts of piracy off Somalia’s coast, including those who provide weapons, communication devices, or small boats and other equipment to pirates.” While this approach is encouraging, sanctions may have limited effect because pirates often operate with liquid assets.

Communication between various stakeholders affected by the piracy crisis may also be informed by the international airline security regime. Some commentators have suggested that the International Civil Aviation Organization (ICAO) and its role in air transportation could serve as a model for security cooperation that could translate in the maritime commons through existing bodies such as the International Maritime Organization. In particular, ICAO’s success may serve as a model for an international agency to support an enhanced global framework for international maritime situational awareness and security cooperation.

Any solution to effectively address the maritime piracy crises off the coast of Somalia must be comprehensive. While port security to ensure compliance with BMPs, economic sanctions targeted at piracy financers, and enhanced communication among stakeholders are important considerations, the problem of piracy is unlikely to be eradicated while national navies continue to catch and release piracy suspects. Civil aviation security law provides an applicable example of the international community’s capacity to enforce prosecution or extradition of terrorists and hijackers. Anti-piracy stakeholders, including national governments, the shipping industry, and international organizations tasked with ensuring international peace and security, should consider these successes in limiting airline hijackings through legal accountability as they work together to reign in piracy in the Gulf of Aden.

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This post was adapted from the Oceans Beyond Piracy working paper entitled “Borrowing from Civil Aviation: Does International Law Governing Airline Hijacking Offer Solutions to the Modern Maritime Piracy Epidemic off the Coast of Somalia?” Please contact Richard L. Kilpatrick, Jr. with comments or questions at rkilpatr@tulane.edu.

Somali Piracy

The surge of piracy attacks worldwide and their increasing threat to international shipping are indeed alarming.  The Piracy Reporting Center of the International Maritime Bureau (IMB), an independent arm of the International Chamber of Commerce, reports that incidents of piracy and robbery at sea reached 445 in 2010, compared with 400 in 2009, while there were 293 attacks in 2008, and 263 and 239 for the years 2007 and 2006, respectively.  In the first five months of 2011 there have been 273 such incidents — almost 50 percent more than in 2010.  92 percent of all hijackings in 2010 were off the coast of Somalia.

The global economic cost of maritime piracy is estimated at between $7-12 billion per year, according to a December 2010 report by the One Earth Future Foundation.  The report found that the ransoms paid to Somali pirates had increased from an average of $150,000 in 2005 to $5.4 million in 2010.  Pirates have killed several hostages when ransoms were not paid.

The international community has responded to this growing threat of piracy, especially in the Gulf of Aden and off the Somali coast, by undertaking naval operations, coordinated by NATO, the EU, and a coalition led by the United States, in addition to several countries operating on their own.  It has been suggested to arm crew members, but this has not won favor from the shipping companies; perhaps it is more feasible to use private security companies, as is being done in some cases.  Notwithstanding all these efforts, the scourge of piracy continues to be a major challenge to the international community.  The major reason is that Somalia is a failed state, it has Africa’s longest coastline, spanning 3,025 miles, and its geographical location lies next to key shipping routes connecting the Red Sea and Indian Ocean.

Piracy constitutes a violation of international law, a crime that is considered a threat to all nations navigating the open seas.  In an 1820 US Supreme Court case, US v. Smith, Justice Story, writing for the Court, declared that “there is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature.”  Consequently the principle of universal jurisdiction applies to acts of piracy.  Under this principle, any nation may prosecute acts of piracy in its domestic court, no matter where these acts occurred and no matter who the perpetrator is.  Accordingly, a nation could rely on this principle to seize and prosecute Somali pirates engaged in piracy on the high seas.  However, most countries have routinely released the pirates after capturing them because of the problems associated with trying them in their own national courts — expense, lack of adequate evidence, and the feared claim of asylum on the pirates’ part.

Some national courts have begun prosecuting pirates.  Kenya has entered into several agreements with the European Union, the United States, the United Kingdom, China, and several other countries, to take custody of and prosecute pirates in its courts.  Seychelles has also been prosecuting suspected pirates in its national court.  Also, in late November 2010, the Virginia Federal District Court convicted five Somali pirates on federal piracy charges.  Some European courts, too, have considered trying Somali pirates.  Among these courts, the Dutch have taken the lead.

In addition to customary international law, two treaties are pertinent, under which a state could arrest and prosecute pirates in their national courts.  The conventions are the United Nations Law of the Sea Convention (UNCLOS) and the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA).  UNCLOS calls upon all states to combat piracy by cooperating to the fullest extent in repressing this crime on the high seas or any other place outside the jurisdiction of any state, although only warships, military ships, or other crafts of government service are permitted to seize them.

The 1992 SUA currently has 150 state parties and is aimed at addressing concerns about violence and terrorism on the high seas.  Although it does not expressly outlaw piracy, an offense under SUA is committed if a person willingly takes part in seizing control of a ship by force or intimidation, uses violence against an individual on a ship affecting the safety of a ship, or damages a ship in such a way that it affects the ship’s safe navigation.  Attempts at these piratical actions, aiding or abetting a pirate, or threatening to commit piratical acts are also included.  The SUA Convention provides for extradition of offenders to ensure that a criminal is prosecuted even though the state in whose territory the offender is located is unwilling or unable to prosecute.  In addition, the International Tribunal for the Law of the Sea may also provide a remedy as a forum for a piracy trial.

The United Nations Security Council, acting under Chapter VII, has adopted several resolutions since 2008 to counter piracy and armed robbery at sea.  It has authorized member states to take action against pirates even in Somalia’s territorial waters and has called upon states and regional organizations to deploy naval vessels, arms and military aircraft and seize and dispose of vessels and equipment used in the commission of these crimes.  It has also called on states to criminalize piracy under their domestic laws, and to favorably consider prosecuting and imprisoning suspected pirates.

There is currently no possibility of a Somali court sitting in Somalia or in the territory of another regional state applying Somali law.  Could a regional tribunal or an international tribunal established by the Security Council under Chapter VII of the UN Charter be feasible?  The challenges of creating such an international judicial body are enormous, but it is worthwhile seriously considering this possibility.

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Ved Nanda is the John Evans Distinguished University Professor, University of Denver; Thompson G. Marsh Professor of Law and Director, International Legal Studies Program, University of Denver Sturm College of Law

The Human Cost of Piracy

Seafarers face increasing violence as they transit the Gulf of Aden, the Arabian Sea, and the Indian Ocean, but they have limited legal protection or recourse from the crimes committed against them at sea. Since the resurgence of maritime piracy off the Horn of Africa in 2007, hundreds of vessels have been hijacked and thousands of seafarers taken hostage by Somalis seeking to secure lucrative ransom payments. In our analysis of the human cost of Somali piracy, we found that violence against seafarers by Somali pirates is escalating, but little is being done to openly measure and document these crimes.

Oceans are used by multiple stakeholders with divergent and sometimes conflicting interests. Crimes committed aboard or against vessels are subject to the laws of the flag state, however some flag states may not have the capacity or the political will to fully protect seafarers through prosecution and law enforcement. Furthermore, activities occurring on the high seas fall outside the jurisdiction of any single nation; legal protection for the oceans and those who work on them therefore require a legitimate international legal framework accompanied by domestic implementation of international obligations.

International maritime law exists under the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), both of which are broadly ratified. Under UNCLOS, states have a duty to cooperate through active measures against piracy, and SUA requires parties to extradite or submit offenders to their competent authorities for prosecution. In combination, these conventions appear to require states to prosecute pirates. Despite this ostensibly robust legal regime for prosecuting pirates, few nations have actually done so. As a result, there is no effective legal deterrence to piracy, leaving pirates free to commit crimes at sea with little to no risk of detention.
In order to understand the full extent of the crimes committed by Somali pirates and the cost of those actions to seafarers, we quantified the total number of seafarers attacked or taken hostage. Our study’s findings indicate that during the course of 2010:

• 4,185 seafarers were attacked with firearms and rocket propelled grenades
• 342 seafarers took refuge in a reinforced security room (“citadel”) when pirates boarded, from which they were rescued by naval forces
• 1,090 seafarers were taken hostage and held captive for an average of five months
• 516 seafarers were used as human shields
• As many as 488 seafarers were subjected to abuse or torture

The cost of piracy is high for seafarers. Even in the case of an “unsuccessful” attack where pirates are not able to hijack the vessel, seafarers are still exposed to weapon fire and explosives aimed directly at their place of work. If pirates board a vessel, the crew may be able to take shelter in a citadel; however, this, too, is a dangerous and traumatic experience in which the crew awaits rescue for anywhere from hours to days while pirates try to violently force their way inside. If pirates successfully capture a ship, seafarers are held against their will for months on end during which time they face physical and psychological violence from the pirates, limited access to food and water, uncertainty about their fate, and risk of death.

As Andrew Shapiro, US Assistant Secretary of State, made clear in a speech in March of 2011, “the attacks are more ruthless, more violent, and wider ranging. Hostages have been tortured and used as human shields.” However, official data is only available on the initial incident, whether it is an attack, boarding, or hijacking. This limited categorization of pirate activities undervalues the dangers and trauma faced by seafarers by limiting the description of their ordeal to “hijacking.”

One obstacle that restricts the protection of seafarers is the lack of a single, reliable source to inform seafarers and others of how seafarers are treated during captivity, and how widespread abusive tactics are amongst the various pirate gangs. Seafarers deserve to know the full extent of the risks they face when transiting pirated waters. In the words of a seafarer from the MV UBT Ocean, which was held by pirates for more than four months, during which time crewmembers were reportedly tortured and abused, “all the seafarers must be fully aware of this danger and risk in crossing the Indian Ocean.” While open source news stories and interviews provided enough information to determine the approximate number of seafarers abused or used as human shields, there is no way to independently verify if these figures represent the true extent of the abuse. Our study makes clear that the abuse is alarmingly common, but the lack of more comprehensive reporting prevents the true cost from being understood.

Developing reliable compliance with international agreements and increased protection for the victims of piracy is especially difficult because the maritime industry is fragmented by nationality at every level. Ship owner, ship manager, flag state, cargo owner, and crewmembers may all come from different countries. For example, seafarers taken hostage in 2010 came from at least 30 different countries, the majority of which were developing nations. As a result of this great diversity wherein many different actors and stakeholders bear responsibility for monitoring and protecting seafarers, no single country or group is held accountable. The end result is that seafarers as a whole do not have a central, reliable organization to turn to for legal protection.