February 1, 2009  

Fighting piracy

International coordination is key to countering modern-day freebooters

Maritime piracy is experiencing a renaissance not seen since the period of the Barbary pirates. Last year, 111 ships were attacked off the dangerous waters of Somalia: 42 were hijacked, 815 mariners were taken hostage and the ransom paid for the release of some vessels fetched several million dollars. In response, a combination of coalition naval power and statecraft is creating new international authorities to address piracy, but after the talking is over, concrete steps must be taken to implement and sustain the new initiatives.

A banner year for maritime piracy, the number of attacks in the waters off the Horn of Africa doubled in 2008 compared with 2007. Instability from Somali piracy is reverberating throughout the global supply chain, which already was reeling from the worldwide economic slowdown. The resurgence is occurring along critical sea lines of communication. Each year, 20,000 ships pass through the Gulf of Aden, a vital shipping route for international trade that connects the Middle East to Europe and North and South America. In response to the threat to shipping, warships from the United Kingdom, Denmark, the Netherlands, France, Pakistan, India, Iran, Russia and other countries operate in the area. The European Union (EU) deployed naval forces to the Gulf of Aden under Operation Atalanta to conduct counterpiracy patrols, the first EU operational naval deployment outside Europe. China sent two destroyers and a supply ship 4,000 miles to fight Somali piracy, the first operational out-of-area deployment in the history of the PLA Navy. New Zealand and Australia also have joined the effort, South Korea is on the cusp of doing so and during the last week of January, Tokyo approved a deployment by the Japanese Maritime Self-Defense Force (JMSDF) as a “police action” to patrol as early as March.

On Jan. 8, the Combined Maritime Forces (CMF) in Bahrain created Combined Task Force 151, a multinational counterpiracy naval force of more than 20 nations. Previously, coalition efforts against piracy included ships and aircraft from CTF-150, which was established at the outset of Operation Enduring Freedom to conduct of Maritime Security Operations (MSO) in the Gulf of Aden, the Gulf of Oman, the Arabian Sea, Red Sea and the Indian Ocean.

“Some navies in [CTF-150] did not have the authority to conduct counter-piracy missions,” CMF commander Vice Adm. William Gortney said. “The establishment of CTF-151 will allow those nations to operate under the auspices of CTF-150, while allowing other nations to join CTF-151 to support our goal of deterring, disrupting and eventually bringing to justice the maritime criminals involved in piracy events.”

These patrols have had some success. During the fall of 2008 the U.S., Russia, Britain and India separately thwarted multiple piracy attacks. On Christmas day, the German frigate FDS Karlsruhe, one of the four vessels patrolling with the EU, assisted a 65,000-ton Egyptian bulk carrier in fighting off a pirate attack. In January, EU naval forces intercepted an attempted pirate attack against the Greek-flagged crude oil tanker Kriti as it was sailing in the Gulf of Aden, and on Jan. 13, a helicopter from a Russian frigate disrupted an attempted piracy hijacking of the container ship Nedlloyd Barentsz. The Russian helicopter opened fire on the pirates as the container ship fled. The pace of piracy attacks slowed in January, but that may be due more to the onset of the monsoon season that restricts pirates to the shores than the increasing naval presence.

Merchant shipping firms are taking additional steps to protect vessels and crews. Many slower vessels with lower freeboard, such as heavily laden tankers, are avoiding the area altogether, choosing instead to make the longer trip around the Cape of Good Hope. After the supertanker Sirius Star was seized in November, Denmark’s A.P. Moller-Maersk decided to divert some of its 50 oil tankers around the cape instead of using the more convenient route through the Suez Canal in order to steer clear of the Gulf of Aden. Norway’s Frontline, which carries much of the oil from the Middle East to world markets, is considering doing the same, and the additional cost amounts to $1 million per transit. Diverting vessels around South Africa may not make them safer, and the trip increases both the cost of shipping and the time of transit, driving up the price of manufactured goods and commodities. The global shipping industry is especially vulnerable now, dealing with the attacks at the same time that it faces volatile fuel costs, plummeting freight rates, containership surpluses and increased insurance premiums for transits through the pirate-infested western Indian Ocean.

Some vessels, such as retail banks, are increasing passive and nonlethal security measures to foil armed robberies. Instead of using dye packs and silent alarms, ships are ringing lifelines with concertina wire, employing fire hoses to repel boarders, running underway with bright lights to increase visibility and spot trouble earlier, and they are entering convoy protection, when it is available. One nonlethal system, the Long-Range Acoustic Device (LRAD), already is on board some commercial vessels. The system can clearly broadcast at uncomfortably high levels of volume prerecorded warnings in Somali or Arabic, and a new model of LRAD contains laser dazzlers to temporarily confuse attackers. Another system, known as the Active Denial System (ADS) or “pain ray,” emits a directional high-powered, 6-foot wide millimeter-wave beam of energy that creates an unbearable sensation of burning on the skin. Vessels are employing navigational tactics as well, including, for higher-speed vessels, evasive rudder steering to throw up a larger wake in the path of inbound piracy speedboats. Mariners and some naval officials express some concern that a more robust defense or greater resistance on the part of merchant ships might lead to more aggressive tactics by pirates. Private defense contractor Blackwater has deployed a security escort ship that includes a helicopter to the Gulf of Aden. The primary benefit of such an asset, however, is using the helicopter for over-the-horizon scouting to avoid trouble, not to pick a firefight.

But more than one-third of attempted ship hijackings in the Gulf of Aden are successful, illustrating that passive defense and patrols by naval forces have been unable to deter or disrupt many attacks. Moreover, once pirates successfully board and hijack a ship, they take the crew hostage and threaten to sink the vessel, limiting options by on-scene warship commanders to rescue the crew and free the ship. Incredibly, 300 seafarers and dozens of ships still are being held for ransom by pirates in the area of Harardhere, Somalia, a situation reminiscent of an earlier era. Confronting criminal acts at sea in an area that stretches 2,000 miles, however, poses significant logistical, operational and political challenges that require us to work smarter, not harder. This means that although there have been calls for expanded naval patrols in the western Indian Ocean, these efforts only will be effective if we change the way we address the problem.

Partnership and action

The key to solving contemporary Somali piracy builds on the efforts of the U.S., partner nations and international institutions to make the seas safer. In January 2006, the destroyer USS Winston S. Churchill thwarted an attack against the bulk carrier M/V Delta Ranger, which was fired on off the coast of Somalia by pirates wielding AK47s and rocket-propelled grenade launchers. Disrupting the attack, the warship took 10 pirates and freed 16 Indian captives. Eventually, the pirates were transferred to Mombasa, Kenya, and later convicted in court and sentenced to seven years’ confinement. This was a noteworthy example of effective maritime constabulary action, and it was the first major anti-piracy operation by the U.S. Navy in 150 years. After the Churchill interdiction, Navy lawyers in the Pentagon conducted a review of maritime and international law and policy, and proposed drafting a new national policy to articulate U.S. interests in combating maritime piracy. The result was a comprehensive policy governing diplomatic and legal action to fight piracy that was signed by the president in summer 2007. The top national goals in the policy include deterrence of piracy through maritime force presence, merchant ship vulnerability assessments, holding pirates accountable through criminal prosecution, preservation of freedom of the seas and a renewed commitment to work with other nations. Perhaps most importantly, the policy emphasized collaborative strategies by maritime and regional states, working in conjunction with the civil maritime sector, to prevent piracy attacks. Annexed to the National Strategy for Maritime Security (NSMS), the policy was used as a basis for the December 2008 National Security Council (NSC) strategy on combating piracy off the Horn of Africa, which sets forth three goals. First, the U.S. seeks to prevent pirate attacks by encouraging merchant ships to update their ship security plans and use the established Maritime Security Patrol Area (MPSA) set up by CMF. Second, the U.S. supports creation of a regional counterpiracy coordination center, an objective that is near fruition. Finally, the U.S. seeks to ensure those who commit acts of piracy are held accountable through negotiation of agreements to formalize custody, extradition and prosecution.

In addition to testing the nation’s resolve in dealing with transnational maritime criminal organizations, the U.S. effort against piracy is the first real test of the Cooperative Strategy for 21st Century Seapower, released by the sea services more than one year ago. The strategy emphasizes that no single country can secure the maritime domain, and it places a premium on multilateral action. The goal of the new maritime strategy is to leverage the benefits of working together and capitalize on international law and institutions to facilitate closer collaboration among states. The Global Maritime Partnership, or figurative “1,000-ship navy,” embodies these principles in an interagency application, bringing the Coast Guard and the Department of State into the effort. Admirals from Ghana, India, Indonesia, Japan, the Netherlands and Norway, among others, have recognized the potential value of the concept for increasing effective international cooperation. Recently, U.S. Chief of Naval Operations Adm. Gary Roughead re-emphasized the importance of international collaboration in his 2009 guidance, and piracy repression is a fertile area for increased collaboration. So far, however, international cooperation for counterpiracy has unfolded in an ad hoc fashion. New bilateral and regional treaties and a global mandate from the U.N. Security Council are untangling the diplomatic and logistical knots. The essential element for multilateral cooperation is ensuring all the players agree upon a common rule set, which is why international law and law of the sea have become the principal force multipliers in the new fight against piracy.

The problem of PUCs

The main problem maritime powers now face with piracy is not a lack of operational resources to counter the threat, but what to do with the perpetrators when they are caught. Once pirates are detained and become so-called “persons under control” (PUCs), there are few good options. Additionally, what should be done with victims and witnesses, some of whom may be injured? Determining which state should prosecute pirates detained at sea is particularly vexing. It is typical of the vessels attacked by Somali pirates that the ship is registered in one state, such as Malta, owned by a corporation located in another state, such as the United Arab Emirates, and operated by a crew composed of nationals of several additional states, such as the Philippines and Pakistan. Furthermore, the vessel is likely to be transporting either containerized cargo or bulk commodities owned by companies in yet another country, such as the Sirius Star, which was registered in Liberia but owned by Aramco, a Saudi corporation. Moreover, a piracy attack may have been interrupted by a warship from yet another state, all of which have different tactics and distinct rules of engagement. On the high seas or in any other place outside the jurisdiction of a state, such as Somalia’s ungoverned territorial seas, any nation’s warship may take action against piracy. Pirated ships may be boarded, the pirates can be detained and the property on board the vessel can be seized and submitted to admiralty and criminal courts. The registry or “flag” of the attacked vessel, the state of nationality of any of the victims or crew, the nationality of the on-scene warship, and, in some cases, coastal and port states, all have a valid basis for asserting jurisdiction. But it can take weeks or months to sort out these logistics and legal issues, and international agreements can standardize and speed up the process.

Depending on the circumstances, there are a variety of legal rationales that could support a compliant or noncompliant boarding of a hijacked vessel or pirate ship. During armed conflict, merchant vessels may be boarded under the belligerent right of visit and search to determine the neutral character of the goods on board, but that rule of naval warfare does not apply to maritime piracy. In peacetime, boarding a vessel by the naval forces of a state other than the state of registry may be conducted with the consent of the flag state under articles 92 and 94 of the Law of the Sea Convention. The U.S. recognizes that the master of the vessel also may provide consent to a boarding of his vessel. Under article 51 of the U.N. charter and customary international law, all nations may exercise of the right of individual or collective self-defense against a vessel committing a hostile act or demonstrating hostile intent. Naval forces also may board merchant vessels under the right of approach and visit pursuant to article 110 of the Law of the Sea if there are reasonable grounds to suspect the vessel is engaged in piracy. In some cases, the extension of port state control measures may be used by the port state authorities to board a vessel that has declared a nearby port. The Security Council may authorize all states to take action against piracy under chapter VII of the U.N. charter, providing yet another potential authority for boarding pirate vessels.

Collaboration, not kinetics

Collaboration and regional partnering, not armed force, is the long-term solution to piracy. Maritime piracy is a violation of international law and a universal crime that imposes a duty on all states to take action. The Law of the Sea Convention, the constitution for the world’s oceans, is the essential framework for peacetime maritime security cooperation, and it defines piracy as an illegal act of violence or detention committed for private ends. Maritime piracy is distinguished from maritime terrorism, which is committed for political ends, and efforts to combine the two are not productive. Developing the international law and domestic legal capacities necessary to defeat piracy begins at the International Maritime Organization (IMO) in London. Situated on the Thames, the IMO is the specialized U.N. agency for maritime matters and has 167 member states. Because the organization is a technical rather than a political body, and since it operates under consensus decision-making rules, the IMO has served as an effective, no-nonsense venue for making shipping safer and more secure.

Addressing the problem of piracy off the coast of Somalia in November 2007, the IMO adopted Resolution A.1002(25), which called on regional states in east Africa to conclude a treaty to prevent, deter and suppress piracy. Also at the prompting of the secretary-general of the IMO, in 2008 the Security Council turned its attention toward combating piracy and adopted four key resolutions under chapter VII of the U.N. charter, authorizing “all necessary measures.” The Security Council resolutions promote enhanced counterpiracy collaboration among nations, strengthening operational capabilities, removal of piracy sanctuaries in Somalia and support for increased criminal prosecution. Beginning with Resolution 1816 on June 2, the Security Council faced the issue of defeating piracy emanating from a fragile or failed state. For years, pirates in the Horn of Africa eluded capture at sea by fleeing into the jurisdictional protection of Somalia’s 12-nautical mile territorial sea. Resolution 1816 authorized naval forces entry into Somali’s territorial waters to pursue pirates. Since its adoption, the resolution has been extended to permit operations on the land territory of Somalia. The resolution also emphasized cooperation for logistics and prosecution by calling on states to collectively determine jurisdiction in the investigation and prosecution of persons committing acts of piracy off the coast of Somalia. Finally, the resolution also encouraged states to increase and coordinate their efforts to deter acts of piracy in conjunction with the Transitional Federal Government of Somalia, a ruling authority inside the fractured state. Since Somalia has no maritime law enforcement capability, the resolution also called on states, the IMO and other international organizations to build a partnership to develop coastal security forces.

Next, the Security Council adopted Resolution 1838, expressing its grave concern over the proliferation of acts of piracy and armed robbery at sea against vessels off the coast of Somalia, and the threat it poses to the delivery of World Food Program shipments to Somalia. The resolution called upon states to take part in actively fighting piracy by deploying naval vessels and aircraft to the Gulf of Aden and surrounding water. The Security Council also reaffirmed that the Law of the Sea Convention embodies the rules applicable to countering piracy and armed robbery at sea. Security Council Resolution 1846 of Dec. 2 broadened the international political support and legal capabilities to combat piracy off the Somali coast. The resolution suggests states consider application of the 1988 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) to facilitate the extradition and prosecution of pirates. The SUA Convention arose from the 1985 hijacking of the Achille Lauro cruise ship by four heavily armed terrorists from the Palestinian Liberation Organization. After seizing control of the Italian-flagged vessel, the terrorists murdered a disabled American passenger, pushing his wheelchair into the sea. At the time, most states lacked adequate criminal statutes to prosecute vessel hijacking. To fill this void, the IMO brought together member states to develop a maritime criminal law treaty, and SUA emerged from the process. The treaty entered into force in 1992 and has 149 state parties. States that seek to prosecute maritime piracy but do not have current national laws proscribing the crime, such as Japan and Spain, still might be able to prosecute some crimes such as ship hijacking, under legislation implementing SUA. Denmark, Oman and other states have suggested that developing standard rules for arrest, detention and criminal prosecution of pirates is the most pressing issue for suppressing piracy. In most cases, Resolution 1846 and SUA provide a firm legal basis for doing so, and states should ensure their domestic authorities are consistent with the resolution and treaty.

Two weeks later, the Security Council adopted Resolution 1851, authorizing states to take action against piracy safe havens on the shore in Somalia. The authority is likely to be cautiously implemented, however, since major land operations in the country could be perilous. The resolution also invited the states with maritime forces in the area and the regional states to conclude “shiprider” agreements or arrangements so that local law enforcement officials could embark on board foreign warships patrolling the area. The regional countries are particularly important in this regard because they are ideally situated to conclude the endgame — conducting a criminal investigations and criminal trials.

In addition to the four Security Council resolutions, there are three additional breakthroughs in maritime diplomacy that have set the stage for more effectively addressing the threat of Somali piracy. First, the U.K. signed a counterpiracy cooperation agreement with Kenya in December, agreeing to transfer captured pirates to Mombasa for prosecution. The U.S. and Kenya concluded a similar arrangement on Jan. 29. These agreements will facilitate the handling of PUCs and will benefit the naval forces patrolling the area by ensuring that pirates obtained during counterpiracy operations are quickly removed from warships, freeing the vessel for follow-on tasking. Second, Resolution 1851 encouraged establishment of a multinational Contact Group on Somali Piracy (CGSP), and the inaugural meeting for the group was held at the U.N. on Jan.14. More than 20 countries, as well as observers from the EU, NATO and the African Union, participated in the discussions. The CGSP formed several working groups to develop collective action against different aspects of the effort against Somali piracy. These groups divided functional lines, with the U.K. leading a group focused on naval operations and information-sharing; another group led by Denmark reviewed the judicial framework and issues associated with PUCs; the U.S. led discussion on strengthening industry awareness and capabilities; and a final group led by Egypt focused on strategic communications and public information. Most importantly, many representatives at the CGSP acknowledged the need for an east African counterpiracy coordination center (CPCC), and Yemen, Djibouti and Kenya each offered to host the center. Third, at an IMO-sponsored meeting in Djibouti on Jan. 29, agreement was reached on a regional arrangement to fight piracy. Based on text that was developed at a previous IMO meeting in Dar Es Salaam, Tanzania, eight coastal states situated on the Gulf of Aden, the Red Sea and the western Indian Ocean, plus Ethiopia, concluded the Djibouti code of conduct to combat acts of piracy against ships, fulfilling the request made by the IMO assembly in 1002(25). The agreement is based on the 16-nation counterpiracy treaty, Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), which has been remarkably successful in reducing the number of piracy attacks in East Asia. Just as ReCAAP was the first Asian agreement dedicated to counterpiracy, the Djibouti code of conduct is the first regional agreement between Arab and African countries to address maritime piracy.

The momentum from these global, regional and bilateral diplomatic successes should be maintained. Each development is complementary and promising, but more can be done. Now that there is agreement to share actionable information, cooperate to dismantle maritime criminal gangs and bring their members to criminal trial, the maritime and regional states and largest shipping nations such as Panama and Liberia should ratify the agreements and take the next steps to implement them.

First, the CPCC should be designed to serve as a fusion point for real-time coordination for dealing with PUCs. In the U.S., the interagency community resolves difficult national-level maritime issues pursuant to a maritime operational threat response (MOTR) plan that facilitates rapid and real-time communication among the State and Defense departments and the Coast Guard. Each agency is required to operate continuously a tactical watch center that can make agency decisions arising from time-sensitive maritime diplomatic issues. The MOTR process is used to quickly form administration positions and courses of action on the full range of maritime exigencies, including interdiction of foreign drug trafficking fast boats and interception of migrants at sea. We need an international MOTR that maintains 24-hour communications among the maritime states patrolling offshore, the major flag states and the regional states so that partner nations may quickly coordinate issues regarding on-scene interdiction of vessels hijacked by pirates and pirate “mother ships,” and resolve more deliberative questions regarding PUC disposition and logistics.

Second, the maritime states should increase efforts for maritime security capacity-building in the states of the Horn of Africa in order to forge tighter maritime security partnerships with strong regional partners. The states of east Africa are in desperate need of capacity-building assistance to actually implement the Security Council resolutions and new treaties. For example, Kenya has stepped out on many occasions to prosecute PUCs, but it requires greater support. The recently concluded counterpiracy arrangements with the U.K. and U.S. can serve as models for similar bilateral agreements with other maritime states patrolling the area. But the states in the Horn of Africa require development assistance to be able to more effectively implement their new commitments. Not only do the states in the region lack resources for building naval and coast guard force structure and training maritime law enforcement officers, but they also are in need of greater assistance for developing a mature judicial criminal justice system. The states have insufficient numbers of lawyers and judges, and they sometimes lack essential equipment such as computers and printers.

The Global Train and Equip program under section 1206 of the U.S. National Defense Authorization Act of 2006 is used by the State and Defense departments to methodically assess how to increase the capability of partner nations to solve local problems before they require outside intervention. The program leverages Defense Department funds to train and equip regional forces, mitigating the risk that small problems such as piracy will grow into larger security issues.

One way for the U.S. to develop greater maritime security capacity throughout the Horn of Africa would be to broaden and fully fund Global Train and Equip. About one-third of the program focuses on strengthening maritime security support to regional countries and includes development of coastal surveillance infrastructure, patrol boats and maritime interdiction capabilities. In 2007, for example, Djibouti was awarded $8 million for such purposes. Last year, there were $800 million in requirements, but only $300 million of these were funded. Much like the G-8 has pooled resources to fund Cooperative Threat Reduction for nonproliferation, the major maritime powers should develop and fund a shared and coherent program of maritime security capacity building based upon the Global Train and Equip model. Contributions toward this endeavor can pay off for everyone. In Asia, for example, ReCAAP operates a technologically advanced Information Sharing Center (ISC) in Singapore that serves as secure communications center to coordinate effective multinational operational responses to maritime piracy among member states. But the ISC would not have been possible without generous sponsorship support provided by Japan, and a CPCC for east Africa will not be possible without support from outside the region.

Third, following Kenya’s example, regional states should make a greater commitment to accepting PUCs, either temporarily or permanently, and to prosecuting pirates in criminal court. In the past, some pirates were captured, only to be released for lack of a regional country willing to prosecute them. Such action undermines the credibility of the international community and encourages more piracy. For example, the Danish warship on patrol has successfully disrupted numerous piracy attacks, but the media has tended to focus on the one instance they had to release 10 captured suspects because of an inability to prosecute. Toward this end, regional states should conduct a national review of their counterpiracy laws and policies to ensure they can serve a constructive role in the region. Furthermore, the states of east Africa have an opportunity to capitalize on the establishment of a CPCC to broadly develop a more effective maritime security cooperation network in the region. Regional states will be more willing and capable of enforcing the maritime rule of law in their neighborhood if they develop the legal architecture and operational capabilities to deal with piracy — patrol craft and communications systems are needed, as are more lawyers, courtrooms and confinement facilities.

International law has become the most effective force multiplier for developing maritime security, and nowhere is this more evident than in the waters off the Horn of Africa. Naval air and sea operational missions conducted by the world’s most capable maritime powers have been unable to arrest Somali piracy because they cannot prosecute the endgame. Piracy flourishes at the seams of globalization because legal jurisdiction is unclear, the costs and time for states to conduct diplomatic transactions are too great, and pirates are able to exploit the inherent isolation of individual vessels and nations. Somalia is a failed state, and the pirates are more powerful than the ruling government. Regional governments have underdeveloped maritime security forces and judicial systems, and suffer from a severe lack of operational, logistical and administrative resources. We need to better connect the capabilities and sea power of the maritime states with the regional expertise, local networks and self-interest of the east African states. In this setting, international law is more important than adding another warship to the equation. In order to “operationalize” the U.N. mandates and international agreements, the CGSP should agree to establish a CPCC at their next meeting in March. The CPCC can serve as the hub for a comprehensive network of states that includes an international MOTR process; command, control and communications for linking major maritime powers, flag states and regional partners; and to coordinate requirements for assistance from outside the region. An international MOTR process would create a network of interested states that could begin to coordinate in real time, working effectively across legal and jurisdictional lines of demarcation to bring collective action against this threat. These initiatives will enhance the capabilities of the states in east Africa to exercise maritime constabulary authority in their own neighborhood, and with that, we will all be better off.

Cmdr. James Kraska is a member of the faculty of the International Law Department at the Naval War College and a guest investigator at the Marine Policy Center, Woods Hole Oceanographic Institution. He previ¬ously served as oceans policy adviser for the director of strategic plans and policy, Joint Chiefs of Staff. Capt. Brian Wilson is the commanding officer of the Region Legal Service Office, Naval District Washington, and is an MIT Seminar XXI Fellow. He previously served as oceans policy adviser in the Office of the Under Secretary of Defense for Policy. The views expressed are the authors’ own and do not reflect the official policy or position of the Navy or the Defense Department.