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British and American ships conducting anti-piracy training in the Gulf of Aden.
By James Kraska and Brian Wilson
The seizure by Somali pirates on September 25, 2008, of the Faina, a Ukrainian-flagged vessel transporting 33 Russian tanks and depleted uranium ammunition to Kenya for consignment delivery to the Sudan People’s Liberation Army was startling in its audacity and haul. Even more alarming, however, was the November hijacking of the 1,000- foot supertanker Sirius Star. The Liberian- flagged vessel, owned by Saudi Arabia’s Aramco, was carrying more than $100 mil- lion in oil to the United States when pirates seized the ship and its 25 crew members some 400 miles out to sea, then motored for the Somali coast and dropped anchor. Admiral Michael Mullen, chairman of the Joint Chiefs of Staff, was stunned by the capture, which sent shocks through global energy markets. The seizure of a supertanker was unprecedented, and the daring attack so far from shore suggested the pirates were using the shipping industry’s open-access automatic identification system to intercept merchant ships. Merchant ships on international voyages are required to transmitlocational data, but criminal gangs at sea operating commercial equipment can receive these signals as easily as do naval forces and maritime law enforcement—and use it to target ships. Since January, more than 97 ships have been hijacked in the dangerous waters off Somalia and Yemen, and the ransom for some vessels can fetch into the millions of dollars.
Maritime piracy is experiencing a renaissance not seen since the period of the Barbary pirates. Instability from maritime piracy in the Gulf of Aden is sending rip- ples throughout the global supply chain, which is already reeling from the collapse of shipping rates brought on by the worldwide economic slowdown. The Baltic Dry Index, which measures the cost of shipping most commodities other than oil, has plummeted to its lowest level in six years and has fallen 93 percent from its peak in May 2008. In- deed, the surge in piracy is coming at the worst time for the shipping industry. More problematic, the resurgence is occurring along critical sea lanes: 20,000 ships pass through the Gulf of Aden adjacent to the Indian Ocean each year, transporting cargo that includes 12 percent of the world’s daily oil supply.
While it is impossible to eradicate maritime piracy completely, the threat can be greatly reduced if we broaden efforts to work with international partners. Significantly reducing criminal acts at sea in an area that stretches the distance from Miami to Maine, however, poses significant logistical, operational, and political challenges which require us to work smarter, not harder. This means that although there have been greater calls for expanded naval patrols in the western Indian Ocean, these efforts will not be effective until we change the way we address the problem. What is needed now is a network of shipping states, regional partners, and major maritime powers that can collaborate on how to respond to piracy attacks.
Out of Control
Piracy in the Gulf of Aden is “out of control,” reports Captain Pottengal Mukundan, director of the International Maritime Bureau. The area is the unfortunate home to the highest risk of maritime piracy in the world. To counter the threat, nations for the first time have begun to employ maritime power in the Horn of Africa. Warships from NATO and the European Union have deployed to the Gulf of Aden to conduct patrols or participate in the multinational Combined Task Force 150. Naval forces from the United Kingdom, Canada, Turkey, Germany, Denmark, the Netherlands, France, Pakistan, India, Iran, Russia, and other countries have also deployed to the area. Furthermore, the private military security contractor Blackwater has made avail- able to commercial shippers in the Gulf of Aden the services of a security escort ship that includes a helicopter, as an organic naval aviation capability is essential for ships to conduct effective maritime security operations. Although the vessel will not be armed, it will carry armed security person- nel who can operate from rigid hull inflatable boats.
These patrols have had limited success. In November, Russia, Britain, and India separately thwarted multiple piracy attacks. During the summer and fall of 2008, the U.S. Fifth Fleet and an associated coalition task force repelled two dozen pirate attacks. But for every success there are many attacks that go undeterred, and the pirates have only become bolder. Because of the vast geo- graphic swath—2.5 million square miles— naval forces are simply unable to prevent most attacks. Moreover, once pirates success- fully board and hijack a ship, they take the crew hostage and threaten to sink the vessel, limiting options by on-scene warships to rescue the crew and free the boat. Incredibly, nearly 600 seafarers were taken hostage in 2008 and 250 of them and dozens of ships are still being held for ransom by pi- rates in the area of Harardhere, Somalia. The situation is reminiscent of the Barbary pirates who terrorized the Mediterranean Sea from the seventeenth to the nineteenth centuries, seizing vessels, cargo, and hostages from European and American ships, and ex- acting ransom and tribute from governments and private individuals. Vice Admiral William E. Gortney, commander of the U.S. Fifth Fleet which plies the waters of the Arabian Gulf and Horn of Africa, notes that coalition warships patrolling the Gulf of Aden have been so frustrated by piracy at- tacks against merchant shipping that commercial vessels will have to assume that, if attacked, they are on their own. After Sirius Star was seized, Odfjell, a leading Norwegian shipping group, suspended transits through the area due to concerns over safety. Danish shipper Maersk, one of the world’s largest, is considering forgoing the Suez Canal and routing ships around the Cape of Good Hope in order to avoid piracy-prone Somalia. In either case, the cost of shipping and the time of transit—an additional two weeks at sea—would increase greatly.
In 2006, the British Parliament concluded that the growth in piracy over the past decade represents an “appalling amount of violence against the maritime community.” Maritime piracy, which includes hostage-taking or kidnapping, even murder, imposes human and economic costs on shippers which deter legitimate marine commerce upon which our economies so deeply depend. In the Indian and Pacific Oceans, maritime piracy costs shipping companies some $13–$15 billion annually in losses. In recent months, insurance rates have soared. Premiums for a single transit through the Gulf of Aden, for example, have risen from $500 to as much as $20,000. Beyond the immediate threat to crews, property, and ships, maritime piracy endangers sea lines of communication, interferes with freedom of navigation and the free flow of commerce, and undermines regional stability. Piracy also is corrosive to political and social development in Africa, interrupting capital formation and economic development, abetting corruption, and empowering private armies. Left unchecked, the cumulative effect of piracy eventually can lead to the decline of vibrant commercial centers. In the late sixteenth century, for example, piracy from Algerian and Tunisian corsairs triggered an irreversible decline in the viability of Venice as a trading city state. Today, burgeoning piracy off the coast of East Africa is imperiling mariners, weakening the global shipping industry, and has the potential to disrupt the flow of oil to the world economy.
The American Experience
Since its founding, the United States has fought maritime piracy and championed the freedom of the seas. Piracy prompted President George Washington to launch the U.S. Navy by building six frigates to operate against the corsairs that preyed on Western shipping in the Mediterranean. Many of the most important federal court cases in the nineteenth century involved piracy. Throughout this period, U.S. and European warships and privateers were successful in arresting piracy. These efforts re- lied on a robust application of the law of prize, in which pirate vessels and cargo could be seized and forfeited. During the first half of the twentieth century, large naval forces in Europe kept a check on piracy and protected the sea lanes. Throughout the Cold War, the superpowers and their associated client states had large navies that contained the threat.
After a long decline, piracy returned as a concern only during the last two decades. In the 1990s, piracy soared in East Asia, and in particular, in the Straits of Malacca and Singapore. In 2005, Lloyd’s of London designated the straits a “war-risk zone” due to piracy, causing insurance rates for transit to increase. In response, the littoral states of Singapore, Indonesia, and Malaysia embarked on a program of coordinated air and sea patrols that dramatically reduced marine piracy throughout the straits.
Just as the incidence of piracy in South- east Asia began to decline, Somali pirates increased their presence off the east coast of Somalia and more recently, in the Gulf of Aden. In 2006, an American warship, the USS Winston S. Churchill thwarted an attack off the Somali coast, detaining ten pirates. After the attempt on the Churchill, Navy lawyers in the Pentagon conducted a review of maritime and international law and proposed a national policy to articulate American interests in combating maritime piracy.
The result was the development of a comprehensive and sweeping policy governing diplomatic and legal action to fight piracy, which President George W. Bush signed in the summer of 2007. The president signaled its importance by adding it to the broader maritime security strategy released two years earlier. The piracy policy established a framework for warships that encounter or interrupt acts of maritime piracy and armed robbery at sea, as well as for agencies charged with facilitating the prosecution of perpetrators and the repatriation of victims and witnesses. The document sets forth several national goals, including prevention of piracy, deterrence through maritime presence, working with industry and port facilities to reduce vulnerability to attack by pirates, ensuring that persons who commit piracy are prosecuted in court, preservation of freedom of the seas, protection of sea lines of communication, and a commitment to broaden international efforts to combat piracy. Perhaps most important, the policy emphasizes collaborative strategies by states and the maritime industry to prevent pirate attacks and other criminal acts of violence against U.S. vessels, persons, and interests. To fulfill the goals of the policy, President Barack Obama could accelerate efforts to partner with shipping states, regional coastal states, and major port states to create a more effective international legal and enforcement network.
The U.S. experience suggests that articulation of a succinct and consolidated government policy pertaining solely to piracy refines interagency coordination and clarifies important goals. The process of developing a national piracy policy further focused the interagency community on reaching agreement on defining the problem and creating a common set of goals and objectives and the means to achieve them. These mile- stones help prevent piracy attacks by integrating a coherent national response to piracy that includes foreign training and capacity building, naval operations, and maritime law enforcement and judicial action.
A number of related U.S. efforts support piracy suppression. One with great potential to expand international cooperation and engagement is the Global Maritime Partner- ship (GMP). The concept embraces a figurative “1,000-ship navy,” representing the idea that no nation can go it alone. The goal of the GMP is to leverage the benefits of working together, capitalizing on international law to facilitate closer collaboration among states. Admirals from Ghana, India, Indonesia, Japan, the Netherlands, and Norway, among others, have recognized the potential value of the concept of increasing effective international cooperation in maritime security by facilitating coordination and interoperability across naval services. Recently, Admiral Gary Roughead, the chief of U.S. naval operations, reemphasized the importance of international collaboration in his 2009 guidance, noting that piracy is a fertile area for increased cooperation. As the Navy chief observed, “dominance is not just about combat power; it is also our ability to work with other nations to pro- vide global maritime security and prevent conflict.”
The Prison Problem
A tremendously difficult problem naval powers face with piracy is not a lack of operational resources to counter the threat, but what to do with the perpetrators once caught. Once pirates are detained and become “persons under control,” there are currently no good options. What does the dog do when it catches the car? Determining which state should prosecute pirates seized at sea is particularly vexing. It is typical of the vessels attacked by Somali pirates that the ship may be registered in one nation, such as Greece, owned by a corporation located in another nation, such as South Korea, and operated by a crew com- prised of nationals of several additional countries, such as the Philippines and Pakistan. Furthermore, the vessel is likely to be transporting either containerized cargo or bulk commodities owned by companies in another country, and the piracy attack may have been interrupted by a warship from yet another nation.
Although any country may assert jurisdiction in the case of a universal crime, each has a special interest in the outcome of the prosecution. On the high seas—or in any other place outside the jurisdiction of an individual country, such as a poorly governed area like Somalia’s territorial seas—any na- tion may take action against piracy. Pirated ships may be boarded, pirates detained, and the property on board the vessel seized and submitted to admiralty and criminal courts. Only warships, military aircraft, or vessels in government service, however, may exercise this authority.
The Prison Problem
A tremendously difficult problem naval powers face with piracy is not a lack of operational resources to counter the threat, but what to do with the perpetrators once caught. Once pirates are detained and become “persons under control,” there are currently no good options. What does the dog do when it catches the car? Determin- ing which state should prosecute pirates seized at sea is particularly vexing. It is typical of the vessels attacked by Somali pirates that the ship may be registered in one nation, such as Greece, owned by a cor- poration located in another nation, such as South Korea, and operated by a crew com- prised of nationals of several additional countries, such as the Philippines and Pakistan. Furthermore, the vessel is likely to be transporting either containerized cargo or bulk commodities owned by companies in another country, and the piracy attack may have been interrupted by a warship from yet another nation.
Although any country may assert juris- diction in the case of a universal crime, each has a special interest in the outcome of the prosecution. On the high seas—or in any other place outside the jurisdiction of an in-
Boarding hijacked vessels or pirate ships may be conducted under a variety of legal rationales. First, the flag state in which the vessel is registered may authorize a boarding by its own authorities or another state. Sec- ond, since piracy, along with slavery, is a universal crime, every nation may seize a pi- rated ship. In such cases, naval forces may exercise the right of visit if there are reason- able grounds to believe a ship is engaged in piracy. Third, all nations are entitled to ex- ercise the inherent right of individual and collective self-defense, as set forth in the UN Charter. Typically, international law would permit several nations to act against piracy, including the state of registry or flag of the attacked vessel, the nationality of any of the crew members, and in some cases, coastal and port states in the region.
But none of these are great options be- cause it takes awhile to sort out the logistical and legal issues. Captured pirates cannot be turned over to local authorities in Somalia—because, in many cases, there are no responsible local authorities in that failed state. Moreover, some tribal regions might either let the pirates go or impose excessive, disproportionate punishments under tribal justice or Islamic law. Likewise, the great expense and logistical and legal burdens of transporting the pirates to a Western country for prosecution are daunting.
Any long-term solution to the region’s piracy threat requires addressing lawlessness in Somalia. Of course, the very best option would be to have a stable, responsible, and moderate government in Mogadishu that could rein in the maritime pirate gangs operating along the coast. Somalia was thrown into chaos in 1992, and except for a brief rule by an Islamic government in 2006, the country has teetered on anarchy. The Transitional Federal Government (TFG) is the most significant authority in the country, but it is composed of a few leaders presiding over a state apparatus that is an empty shell feckless, ineffective, and lacking in the core capabilities necessary to run a state. The ability to deal successfully with Somalia’s maritime pirates would improve if the country is stabilized under a responsible government. But even then, international collaboration would be critical to resolving the problem because the drama includes ships, people, cargoes, and crews from around the world. Thus, taking the fight to the pirates demands a collaborative legal and operational approach.
The state that ships are registered under, known as “flag states,” are often countries with open registries but few judicial and logistical resources. Panama or Liberia, for instance, may have limited capacities to prosecute. In 2006, these difficulties required the United States to provide temporary custody for Somali pirates on board U.S. warships. One example: after the United States declined to prosecute suspect- ed pirates who had fired on a U.S. Navy warship on March 18, 2006, it took several months to repatriate completely all 12 Somalis, some of whom had significant in- juries and required considerable medical treatment. The suspected pirates resided, for the most part, on U.S. warships during the period from capture to repatriation. But warships no longer have functional brig facilities, so keeping pirates on board naval vessels presents security challenges within the ship. These difficulties with captured pirates are the reason several countries have returned them to the beach without taking any legal action. The British Foreign Ministry has told the Royal Navy that pirates brought into the country for prosecution could be granted political asylum. In September 2008, the Danish Navy released ten captured pirates on the beach because jurisdiction in the case was unclear and Somalia lacked the capacity to take them to court. This approach has been criticized as “catch and release.” That said, France has twice in 2008 successfully interdicted Somali pirates and brought them to Paris to stand trial, and Kenya has stepped forward to prosecute pirates captured by British and American forces.
Although it is always preferable to work through regional nations to conduct piracy prosecutions, the countries on Africa’s east coast have nascent legal systems and are notoriously lacking in resources for law enforcement and the judiciary. Thus, while piracy is a universal crime, states that lack vessels and aircraft to patrol their coastal zone or the legal infrastructure to bring pirates to justice are not able to play a constructive role in solving the crisis.
Effective action against piracy requires immediate action to develop policy frame- works and legal capacity of these states. The USS Churchill incident is a useful case in point. In January 2006, an Indian dhow, the Delta Ranger, was overtaken in international waters by Somali pirates armed with rocket- propelled grenades and AK-47 assault rifles. The Churchill was in the vicinity; it seized control of the vessel and detained the pirates. After desperately trying to find a nation willing to assert jurisdiction over the pirates, Kenya finally stepped forward. The pirates were tried in a court in Mombasa and later convicted and sentenced to prison for seven years. This was a noteworthy example of effective police and legal action. Replicating this success should be the international community’s focus. Currently, however, each case is ad- dressed in ad hoc fashion. There is no mechanism to untangle the diplomatic and logistical knot.
All Together Now
Coordination, not kinetic action aimed at sinking pirate mother ships and destroying coastal havens, will solve the piracy problem. In other words, piracy will not fade until effective deterrents—namely prosecution and punishment—are in place. And with Somalia un- able to provide such deterrents, it falls to the international community to make progress in this area. Maritime piracy is a violation of international law and a universal crime that imposes a duty on all states to take action. The United Nations Convention on the Law of the Sea, the constitution for the world’s oceans, defines maritime piracy as an illegal act of violence or detention committed for private ends. This is distinguished from maritime terrorism, which is committed for political ends. While any country may lawfully act to suppress maritime piracy, only major maritime powers that operate “blue water” fleets with naval aviation have the capability to patrol sea lanes for long periods.
Developing the modern legal capacity and frameworks in international law necessary to defeat piracy begins at the International Maritime Organization (IMO) in London. The IMO is the specialized UN agency for maritime matters and has 167 member states. Because the organization is technical rather than political, and operates under consensus decision-making rules, it has served as an effective, no-nonsense venue for making shipping safer and more secure. In 2005, the IMO adopted a resolution that strongly urged nations to take legislative, judicial, and law enforcement action to receive and prosecute or extradite pirates arrested by warships or other government vessels and to continue consultations by which technical assistance can be brought to regional states to enhance their capacity for repressing piracy. Addressing the problem of piracy off the coast of Somalia, in November 2007 the IMO adopted another resolution that called on regional states in East Africa to conclude an international agreement to prevent, deter, and suppress piracy. This resolution provides valuable momentum for the effort within the capitals of East Africa and among the major shipping registry nations such as Malta and Liberia, all states which generally avoid getting out in front of global politics.
Last summer, at the prompting of the IMO, the UN Security Council turned its attention toward combating piracy, calling on flag, port, and coastal states of the victims and perpetrators of piracy to cooperate extensively in counter-piracy actions off the Somali coast. In particular, the resolution suggested nations should cooperate in deter- mining jurisdictional issues, and work together in the investigation and prosecution of pirates. It is especially important that, once a piracy attack is disrupted at sea, states coordinate to provide real-time disposition and logistics assistance with respect to the suspected pirates, victims, and wit- nesses. The Security Council resolution does not compel a state to accept suspected pi- rates, victims, or witnesses from a warship, but it provides an umbrella of political legitimacy that should make it easier to participate in collective action.
The Security Council emphasized the importance of cooperation in repressing piracy through routine patrols to deter the crime, as well as collaborative action—after the pirates are caught—to bring them to justice. In the past, coordination on disposition and logistics issues associated with detainees unfolded haphazardly, but that could change with the resolution from the Security Council that strengthens multilateral expectations. Disposition and logistics assistance includes provision of medical care to those injured, conducting investigation of the incident, providing a venue for detention and prosecution of suspects, and ar- ranging lodging and repatriation of crew members who invariably hail from disparate regions.
The Security Council resolution also solved one of the most vexing issues associated with piracy—that of Somali pirates capitalizing on the lack of government control over territorial waters by grabbing ships and hostages in international waters and then fleeing inside territorial boundaries to evade capture. Now, warships have a mechanism under the auspices of the Security Council to cooperate with the Transitional Federal Government of Somalia and conduct “hot pursuit” of pirates that seek sanctuary and refuge in Somalia’s territorial sea. The resolution is a starting point for deterring piracy by increasing the risk associated with the crime. Once a vessel is seized, invariably it is taken to anchorage near the shore to await payment of ransom by the shipping company that owns the vessel. Under the Security Council resolution, pirates can no longer be certain that a rescue attempt will not be made during this time. Indeed, in the case of the Golden Nori, a Panamanian- flagged chemical tanker seized in 2007, the vessel was taken into Somalia’s territorial waters. But British and U.S warships prevented the pirates from re-supplying the vessel, helping to force a peaceful resolution six weeks later.
Recent collaboration to develop international laws suppressing maritime piracy has exceeded the most optimistic predictions of even a few years ago, laying the groundwork for new authorities and partnerships. Collaboration is particularly vital because most of the ocean’s surface is not under national jurisdiction, and no single nation has the naval capability to patrol effectively the enormous area impacted by piracy. Although the UN and the IMO have taken steps to broaden international legal authority available to suppress maritime piracy, much more can be done. The fight against piracy should be recalibrated to be- come even more effective. The next step re- quires a smarter approach to counter-piracy operations, logistics, and the legal endgame by developing agreements among the major shipping nations and regional states to en- able real-time coordination for dealing with detainees, sorting out where they will be temporarily detained and the venue for prosecution. Successful models already exist.
Models for Success
In the United States, the interagency community resolves difficult national-level maritime issues under a threat response plan that facilitates rapid and real-time communication among the Departments of State and Defense, the Coast Guard, and other agencies. Each agency is required to operate continuously a tactical watch center that can make agency decisions arising from time- sensitive maritime diplomatic issues on short notice. In the U.S. government, the maritime operational threat response process is used to form quickly all administration positions and courses of action on the full range of maritime threats, including inter- diction of foreign drug trafficking fast boats, interception of migrants at sea, and detainees captured during counter-piracy operations in the western Indian Ocean. In the area of proliferation security, for example, if intelligence agencies receive information that a suspicious vessel is inbound to a U.S. port, the maritime operational threat response plan is triggered. Under the plan, officials in the White House, the Pentagon, and the Department of State and other agencies use video conferencing to share information, and to develop and carry out a response. Each department or agency thus has the opportunity to present their perspective and a recommended solution. Typically, the plan will require action from more than one agency, with the Department of State working the diplomatic piece, the Department of Defense conducting the operational component, and the Department of Justice taking the lead for any possible investigation and prosecution. By exercising this process, the National Security Council is able to make well-coordinated decisions concerning maritime emergencies at any time of day or night.
Internationally, the problem of detained pirates can be solved through development of an international version of the maritime operational threat response plan. Just like its domestic analogue, an international threat response plan would designate 24- hour points of contact in shipping states and regional partners for the national police, coast guard or naval forces, foreign ministries and departments of justice who can quickly make decisions on behalf of the concerned government. This would overcome the greatest impediment to international maritime security—inertia and the inability of affected nations to communicate quickly.
Other models for achieving greater international collaboration in maritime security operations already exist. For more than a decade, the United States has worked with countries throughout the Caribbean and South America under maritime narco-trafficking agreements. There are nearly 30 such pacts, which commit nations to expedite communication on legal and jurisdictional issues associated with emergent counternarcotic operations at sea.
The Proliferation Security Initiative is another successful international project that continues to yield improvements in the operational capabilities and legal infrastructure of partner nations. Speaking in Krakow, Poland, in 2003, President Bush unveiled the initiative as a partnership activity to counter proliferation of weapons of mass de- struction (WMD), particularly at sea. The in- formal initiative represents a new channel for cooperation in interdiction outside mul- tilateral export control regimes. Under the Proliferation Security Initiative, states com- mit to share information and disrupt the transfer or transport of weapons of mass de- struction in accordance with a set of inter- diction principles. States participating in the initiative agree to review and work to strengthen relevant national legal authori- ties and to develop international law to fa- cilitate those commitments. Originally, 11 core members joined the initiative, and now more than 90 states adhere to the Proliferation Security Initiative’s “Statement of In- terdiction Principles.” These include some of the nations with the largest shipping reg- istries in the world, including Panama, Liberia, and Malta. Nine flag states have signed ship-boarding agreements with the United States. Reciprocal ship-boarding agreements facilitate real-time collaboration, requiring parties to make quick and binding decisions on questions of interdiction, diver- sion, and boarding of vessels flying those flags.
Although many of the counternarcotic and proliferation security agreements are bi- lateral, the IMO has been instrumental in bringing states together in multilateral maritime agreements that aid rapid collaboration. In 1985, four heavily armed terrorists from the Palestine Liberation Organization hijacked the Italian cruise ship Achille Lauro and murdered a disabled American passenger, pushing his wheelchair into the sea. At the time states lacked adequate criminal statutes and jurisdiction to prosecute vessel hijacking, which impeded maritime security cooperation. In response to the attack, the IMO brought together member states to develop a maritime criminal law treaty, and the Convention for the Suppression of Un- lawful Acts against the Safety of Maritime Navigation was signed three years later. The treaty entered into force in 1992. The convention requires state parties to criminalize acts that endanger the safe navigation of ships.
In 2005, a diplomatic conference at the IMO headquarters in London adopted proto- cols to the treaty that created a legal frame- work for combating the proliferation of weapons of mass destruction and their delivery systems on board vessels and fixed plat- forms, such as oil platforms. The protocols are an important step forward, providing a framework for criminalizing the maritime transport of terrorists or weapons of mass destruction at sea, but have not yet entered into force. More than three years after they were drafted, only Comoros, Cook Islands, Estonia, Fiji, Spain, Switzerland, the Republic of the Marshall Islands, and Vanuatu have ratified the protocols, but many countries intend to do so. In the United States, for example, the protocols were endorsed by the Senate. But completion of implementing legislation, which is now under development, is required before the United States can join. In that same direction, some states are working to develop and tighten domes- tic counter-proliferation laws before they sign. Once 12 nations have ratified the protocols, they enter into force, and which point they may begin to eclipse the Proliferation Security Initiative. For the first time, there potentially exists an explicit multilateral regime for conducting boarding of suspect vessels coupled with a mandate for states to prosecute or extradite suspects. President Barack Obama has an opportunity to lead the way in implementing the convention by advocating for cooperation that goes beyond nations just independently patrolling an area and toward institutionalizing collective decision-making about interdiction and prosecution of maritime terrorism and piracy.
The kind of partnering envisioned here is exactly the type that landed the Delta Ranger pirates in a Kenyan jail. By preparing agreements and obtaining commitments for rapid decision-making before an incident develops, states will be able to resolve questions quickly about management, prosecution, and legal claims with- out waiting for an emergency to begin thinking through these challenges. Agreements also should identify available regional medical facilities so that states do not have to search indiscriminately for available care for sick and injured persons—crewmen or pirates alike.
The IMO has conducted an anti-piracy project consisting of a number of regional workshops, with participants coming largely from piracy-infested areas of the world including Indonesia, Singapore, Ecuador and Ghana. The IMO also hosted regional meetings in Sana’a, Yemen in April 2005 and Oman in January 2006, for nations in the Gulf of Aden and Red Sea areas. These efforts are focused on opening up the possibility of regional international agreements to implement anti-piracy measures.
In Tanzania, the IMO initiated negotiations among East African states to finalize an international agreement to facilitate cooperation on boarding and disposition of pirate cases. The major maritime trading nations of Europe, Asia, and North America should support the effort, making legal capacity-building in the area a priority. If nations in East Africa develop the legal architecture to deal with piracy, including adequate lawyers, courtrooms, and confinement facilities, they will be more willing and better able to enforce the maritime rule of law in the neighborhood.
Abaft the Regions
Regional cooperation, coupling states with greater capacity with those who are still developing capacity is a simple, but effective, tool in anti-piracy policy. A regional approach to piracy in the Straits of Malacca and Singapore has led to significant reductions in the incident of maritime piracy. An even broader initiative has helped to reduce piracy throughout Asia. Under Japan’s leadership in 2004, 16 nations signed the Regional Agreement on Combating Piracy and Armed Robbery against ships in Asia—the first treaty dedicated solely to combating piracy. The pact, which entered into force in 2006, established the Information Sharing Centre in Singapore to share piracy-related information among member states. Seeking to replicate this success, the IMO sponsored meetings in Tanzania and Djibouti to reach agreement among the regional states of the Horn of Africa for developing a treaty against piracy in the western Indian Ocean.
On the other side of Africa, the IMO also has been instrumental in helping the 25- nation Maritime Organization of West and Central Africa more effectively cooperate to improve maritime security. Since its launch in 1975, this group has served as a forum for achieving limited objectives in the maritime domain, such as port management. In July 2008, the organization established a Sub-regional Coast Guard Network for the West and Central African region. The comprehensive agreement creates an institutional framework for close cooperation on suppression of piracy and armed robbery at sea; countering terrorism at sea; illegal, unreported, and unregulated fishing; drug trafficking; fuel theft and smuggling; pipeline security and maritime accident response. The agreement also provides guidelines for coastal surveillance, maintaining presence in the exclusive economic zone, and enforcement of international treaties, especially the UN Law of the Sea. Naval powers, however, must take the rudder and forge ahead with a more collaborative approach to maritime security. The Indian navy is one of the largest and most capable on the planet, and many of the victims of piracy are Indian-flagged vessels or operated by Indian nationals. The 2006 Indo-U.S. maritime security frame- work should focus on countering piracy in the western Indian Ocean as its first substantive activity.
But Washington can do more. President Obama could propose the creation of an international maritime operational threat response plan to serve as a communications network connecting shipping states, region- al partners, and major maritime powers. States should be able to coordinate issues more quickly regarding on-scene interdiction of vessels hijacked by pirates or the seizure of pirates themselves, hostage rescue, as well as more deliberative questions re- garding the disposition and logistics related to victims and witnesses, as well as the de- tention and prosecution of suspected pirates. Flag states of hijacked vessels, nearby coastal states and regional naval powers, the port state to which the vessel is bound, and the states of nationality of the crew all should be able to collaborate through telephone and video conference to develop and execute courses of action.
A Daunting Task
We face an ocean of problems. Naval air and sea operations by even the most capable maritime powers have been unable to slow Somali piracy because they cannot prosecute the endgame. Piracy thus flourishes at the seams of globalization because jurisdiction is unclear and pirates exploit the inherent isolation of individual vessels and nations. Somalia, the very definition of a failed state, is certainly a major problem. The lack of a cohesive government and security sector means that often pirates are simply more powerful (and wealthier) than the state. Regional powers can do little; with under- developed law enforcement and judicial systems they suffer from a severe lack of resources. Not only do Somalia’s neighbors in the Horn of Africa have insufficient numbers of lawyers, judges, and confinement facilities, but they also lack essential items and equipment such as communications systems, computers, and printers, even basic office supplies.
In this setting, international law is more important than adding another warship to the equation—it has become the most effective force multiplier for developing and maintaining maritime security. A truly international process would create a network of interested states that could begin to co- ordinate in real time, working effectively across legal and jurisdictional lines of demarcation to bring collective action against this threat. Long-term maritime security capacity building will make the coordination even more effective. Only greater collaboration and the rule of law will calm the dangerous waters off the Horn of Africa. In the words of Tony Blair: “Our ultimate weapon is not our guns, but our beliefs.” History tells us that piracy along the Somali coast will ultimately subside. Returning to these placid waters, however, requires adaptability, partnering, innovation, and leadership.
James Kraska is a member of the faculty of the International Law Department at the Naval War College and previously served as oceans policy adviser for the Joint Chiefs of Staff. Brian Wilson is a senior Navy lawyer in Washington, DC, and previously served as oceans policy adviser in the Office of the Under Secretary of Defense for Policy.
Photo from Flickr via Defence Images.
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