The International Response to Somali Piracy : Challenges and Opportunities [1 ed.] 9789004190030, 9789004183056

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The International Response to Somali Piracy

The International Response to Somali Piracy Challenges and Opportunities

Edited by

Bibi van Ginkel and Frans-Paul van der Putten Netherlands Institute of International Relations ‘Clingendael’

LEIDEN • BOSTON 2010

Cover photograph taken by Standard Nato Maritime Group 2; © Crown Copyright/MOD. Reproduced with the permission of the Controller of Her Majesty’s Stationery Office. This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data The international response to Somali piracy : challenges and opportunities / edited by Bibi van Ginkel and Frans-Paul van der Putten. p . cm. I ncludes index. ISBN 978-90-04-18305-6 (pbk. : alk. paper) 1. Maritime terrorism—Somalia. 2. Piracy—Somalia. 3. Hijacking of ships—Somalia. 4. Maritime terrorism—Somalia—Prevention. 5. Piracy—Somalia—Prevention. 6. Hijacking of ships—Somalia—Prevention. 7. World politics—21st century. I. Ginkel, Bibi van. II. Putten, Frans-Paul van der. III. Nederlands Instituut voor Internationale Betrekkingen “Clingendael” HV6433.786.S58I58 364.16’4—dc22

2010 2010038299

ISBN 978 90 04 18305 6 Netherlands nstitute of International Relations ‘Clingendael’ Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

Contents

Foreword by Ambassador Thomas Winkler ..................................vii About the Contributors ............................................................... xi Map 1. Somalia...........................................................................xv Map 2. Gulf of Aden ................................................................. xvii Map 3. Northwestern Indian Ocean ............................................xix 1.

1.1 1.2 2.

2.1 2.2 2.3 2.4 2.5 2.6 2.7 3.

3.1 3.2 3.3 3.4 3.5 3.6 3.7

Introduction: The International Response to Somali Piracy............................................................................... 1 Bibi van Ginkel and Frans-Paul van der Putten International Cooperation against Piracy ............................. 3 Approach ........................................................................... 8 More than Just Pirates: Closing the Space for Somali Pirates through a Comprehensive Approach .............. 13 Roger Middleton How it Works................................................................... 15 Does it matter? ................................................................. 19 Improving Naval Operations ............................................. 20 Winning the Public Relations Battle .................................. 23 Chasing the Money .......................................................... 25 Changing the Politics........................................................ 26 Conclusion and a Note of Caution on Interventions ........... 29 The Failed State and Regional Dimensions of Somali Piracy............................................................................. 31 J. Peter Pham The Political Context: State Collapse ................................ 32 The Emergence of Piracy .................................................. 41 Piracy Flourishes .............................................................. 46 Alternative Centres of Power: Allies in Counterpiracy? ....... 48 The Case for a ‘Bottom-Up’ Approach .............................. 53 International Policy toward the TFG and Other Somali Polities............................................................................. 55 Conclusion....................................................................... 59

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4.

4.1 4.2 4.3 4.4 4.5 4.6 4.7 5.

5.1 5.2 5.3 5.4 6. 6.1 6.2 6.3 7.

7.1 7.2 7.3 8. 8.1 8.2 8.3

Contents

Operational Challenges to Counterpiracy Operations off the Coast of Somalia ..................................................... 65 Kees Homan and Susanne Kamerling Local Conditions.............................................................. 68 International Counterpiracy Operations............................. 71 Modus Operandi in Maritime Counterpiracy Operations.... 83 The Pirates’ Response ...................................................... 89 Onshore Regional Capacity Building ................................. 91 Operational Challenges..................................................... 98 Conclusions ................................................................... 100 Coping with Piracy: The European Union and the Shipping Industry........................................................ 105 Per Gullestrup and May-Britt U. Stumbaum The European Union...................................................... 107 The Shipping Industry.................................................... 114 Cooperation between the EU and the Business Sector...... 120 Conclusions and Recommendations ................................ 122 The Legal Challenges in Fighting Piracy.................... 127 Douglas Guilfoyle Piracy under International Law ....................................... 127 Practicalities and Problems of National Law .................... 146 The Way Forward .......................................................... 148 The Interplay between Counterpiracy and Indian Ocean Geopolitics ................................................................... 153 James R. Holmes Beware of Going Ashore ................................................. 156 Geopolitical Setting ........................................................ 161 The Best Defence Is a Good Defence .............................. 174 Conclusion: Challenges and Opportunities................ 179 Bibi van Ginkel and Frans-Paul van der Putten The International Response ............................................ 179 Challenges and Opportunities Regarding the Fight against Piracy ............................................................................ 183 Topics for Further Exploration ....................................... 186

List of abbreviations ................................................................. 189 Index ..................................................................................... 193

Foreword

Ambassador Thomas Winkler

1

Piracy off the coast of Somalia is a very popular subject. During the past couple of years numerous meetings and conferences have been held all over the world on this subject. Many politicians, diplomats, naval officers and academics have clear views on how to deal with this menace. Many unfortunately fail to understand that it is a subject which comprises political, military, commercial and legal elements and that one has to include all these elements in one’s considerations in order to obtain a complete understanding of the threat, the challenges and the solutions. The international community has, however, lacked a presentation of all of these elements in one comprehensive publication. This book answers this need. The public perception of piracy may still be influenced by the image provided by Hollywood in, for example, Pirates of the Caribbean. There is, however, nothing romantic or glamorous about modern piracy off the coast of Somalia or anywhere else. Piracy is a serious crime which scars innocent seafarers and threatens international commercial shipping and thereby international trade. It is a tragedy for both the victims, the shipping companies and for the young Somali men who often have no choice but to resort to piracy to survive.

1

Chairman of the Legal Working Group of the Contact Group on Piracy off the Coast of Somalia, Under Secretary for Legal Affairs, Ministry of Foreign Affairs of Denmark. This preface is written in the author’s capacity as Chairman of the Legal Working Group and does not necessarily reflect the views of the Danish Ministry of Foreign Affairs or the Government of Denmark.

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Foreword

All counter-piracy experts know that the only long-term sustainable solution to piracy off the coast of Somalia is a secure and stable Somalia. The international community has stepped up its efforts to ensure this in the last twelve months but it will still take a long time and an even more intense international effort to attain the desired result. In the meantime the international community has a duty to counter piracy off the coast of Somalia so as to protect seafarers and ocean-going vessels. Cooperation and coordination is the only way forward. In this respect counter-piracy is no different from any other kind of international cooperation. The chosen form of cooperation and coordination is, however, unusual. The Contact Group on Piracy off the Coast of Somalia (CGPCS), which was established on 14 January 2009 pursuant to a call from the UN Security Council for improved international cooperation, is not a UN or an IMO body. It is voluntary cooperation among states and organizations engaged in or with an interest in countering piracy off the coast of Somalia. The participants thus share a clear common goal and the work of the CGPCS has therefore been characterized with much specific and practical progress in a very short period of time. At its first meeting the CGPCS established four working groups on operational matters and capacity building (WG1 – chaired by the United Kingdom), legal issues (WG2 – chaired by Denmark), cooperation with industry (WG3 – chaired by the USA) and communication (WG4 – chaired by Egypt). All four working groups have produced a range of specific results which have strengthened the international efforts ranging from the strengthened operational cooperation and capacity-building matrix of WG1, the Trust Fund Terms of Reference by WG2, which inter alia will ensure increased financing for counterpiracy projects, the Best Management Practice of industry in WG3 and the comprehensive strategy for communication and outreach elaborated by WG4. In my capacity as the Chairman of the legal working group (WG2), I can see how we are making progress, on a step-by-step

Foreword

ix

basis, in trying to find answers to some of the legal issues. WG2 is a gathering of legal experts from more than 40 states and organizations, including the UN, IMO, INTERPOL, NATO, the European Union and the African Union. One of the strengths of WG2 is the participation of legal experts from navies, ministries of defense, justice and foreign affairs as well as prosecutors. It is furthermore of great value that representatives of the shipping industry participate in the work of WG2. The legal experts in WG2 generally agree that international law already contains the necessary regulations for piracy and that the main challenge is therefore to ensure the national implementation of relevant international law. To address these needs and other more specific legal challenges the WG2 has developed a ‘legal tool box’. It has never been the ambition to negotiate new international law or other legal texts but to give states and organizations engaged in counter-piracy legally sound practical advice on all aspects of counter-piracy where legal challenges may occur. States and organizations may find this advice in the legal tool box. The tool box contains documents guiding states and Organizations on such issues as the use of force against pirates, evidence gathering, shiprider agreements and transfer arrangements. Ensuring the prosecution of suspected pirates has been a key focus of WG2. Today, suspected pirates are being prosecuted in a number of states, including the Netherlands, the USA, Germany, France, Yemen and – last but not least – in Kenya and the Seychelles. Both the WG2 and the CGPCS have discussed at length how to ensure the prosecution of a larger number of suspected pirates. There is broad agreement that the most feasible way ahead is the so-called dedicated piracy chamber – prosecution by national courts under national law in one or more states in the region with the support of the international community. Much progress has been made, including through the focused efforts of the UNODC, but more needs to be done. WG2 is thus expected to continue its work on a number of models which may ensure a larger number of prosecutions.

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Foreword

discussions in WG2 have demonstrated the need to establish legally sound and practically operational systems for the transfer of convicted pirates to imprisonment in states other than the prosecuting state, including in Somalia. This is going to be one of the main challenges for WG2 in the coming months, especially as a result of the recent interest shown by the Security Council in this issue. Other legal challenges remain. WG2 - and the CGPCS – still have to establish clear guidance on how to ensure that the human rights of suspected pirates are protected. Furthermore, it is expected that WG2 will have to undertake further work on the legal aspects of the financing of piracy. Finally, WG2 is expected to continue its dialogue with the shipping industry – both seafarers and shipowners as well as other relevant branches – to determine how they may assist in, for example, ensuring prosecution. As one of many who have spent considerable time and resources during these past two years trying to get to grips with this challenge I can only welcome this book, which you are about to read, and its ambition to deal with all of the elements relevant to the understanding of modern piracy. I am convinced that this book will be read by both those who actively undertake to counter modern piracy and those who have an interest in the developments off and in the Horn of Africa. This book will thus contribute to an even more efficient international effort to counter piracy off the coast of Somalia.

About the Contributors

Bibi van Ginkel is a senior research fellow at the Security and Conflict Programme of the Netherlands Institute of International Relations ‘Clingendael’. She holds a PhD in international law, on the role of the United Nations in combating terrorism from 1946-2008 and the questions of legality and legitimacy, from Utrecht University. She is a member of the Peace and Security Committee of the Advisory Council for International Affairs. She is also the general secretary of the Board of Governors of the Netherlands Helsinki Committee, and an editor of the Dutch Military Legal Journal (Militair Rechtelijk Tijdschrift). Douglas Guilfoyle is a lecturer at the Faculty of Laws, University College London. He teaches public international law, law of the sea and international criminal law. His main interests lie in high-seas law enforcement and the law of jurisdiction. He is the author of Shipping Interdiction and the Law of the Sea (2009) and numerous articles on legal issues surrounding piracy in the Gulf of Aden. Per Gullestrup is a partner in the Danish shipping company Clipper Group. He is President and CEO of Clipper Projects, the Group’s strategic business unit that focuses on the multipurpose/heavy lift market, and Chairman of two other Clipper companies, Nordic Ferrys Services A/S and Seatruck. Per Gullestrup was in charge of negotiations with Somali pirates, who on 7 November 2008 hijacked the vessel CEC Future in the Gulf of Aden. Crew and vessel were held hostage for 71 days. James Holmes is an associate professor of strategy at the Naval War College. He is the co-author of Indian Naval Strategy in the

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About the Contributors

21st Century (2010) and, most recently, of Red Star over the Pacific: China's Rise and the Challenge to U.S. Maritime Strategy (2010). Kees Homan (Major-General (ret), RNLMC) is adviser at the Security and Conflict Programme of the Netherlands Institute of International Relations ‘Clingendael’. His last position in the Armed Forces was Director of the Netherlands Defence College. Among his areas of interest are Afghanistan, Dutch, the European Union's, the United States’, British, Japanese and Chinese security and defence policies, climate change and security, civil-military relations, security sector reform, robots and warfare, and private military companies. Susanne Kamerling is a training and research fellow at the Security and Conflict Programme and at Clingendael Asia Studies at the Netherlands Institute of International Relations ‘Clingendael’. Her research interests include maritime security, piracy and international maritime cooperation, and the role of China and India in regional and international security. She is editor of the Dutch journal China Nu. Roger Middleton is a consultant researcher for the Africa Programme at Chatham House. His main areas of interest are the politics of the Horn of Africa, African Peace and Security Architecture, and EU-Africa relations. J. Peter Pham is senior fellow and Africa Project Director at the National Committee on American Foreign Policy in New York City and Associate Professor of Justice Studies, Political Science, and Africana Studies at James Madison University in Virginia (USA). He is also Vice President of the Association for the Study of the Middle East and Africa (ASMEA) and Editorin-Chief of The Journal of the Middle East and Africa. Dr Pham’s studies in international relations and strategic issues focus on US foreign and defence policy, African politics and security, terrorism and political violence, and religion and global

About the Contributors

xiii

affairs - topics on which he often advises the US and other governments as well as multinational corporations. Frans-Paul van der Putten is research fellow at the Security and Conflict Programme and at Clingendael Asia Studies at the Netherlands Institute of International Relations ‘Clingendael’. He holds a PhD in history from Leiden University. He is the editor-in-chief of Itinerario: Journal on the History of European Expansion and Global Interaction. He is also co-editor, with Chu Shulong, of China, Europe, and International Security (2010). May-Britt U. Stumbaum serves as senior research fellow and head of the EU - China Project at the Stockholm International Peace Research Institute (SIPRI). Previous engagements included the Weatherhead Center for International Relations (Harvard), the German Council on Germany (DGAP) and fellowships at renowned institutes in European countries and China. A graduate from the FU Berlin and the London School of Economics, May-Britt Stumbaum has published widely on EU-China security relations. She is a co-founder and former president of Women in International Security Deutschland (WIIS.de). Thomas Winkler is Chairman of the Legal Working Group of the Contact Group on Piracy off the Coast of Somalia, and Under Secretary for Legal Affairs, Ministry of Foreign Affairs of Denmark.

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Map 1. Somalia

Map by United Nations Cartographic Section (Somalia, no. 3690 Rev. 7 January 2007).

xvii

Map 2. Gulf of Aden

Based on a map by Norman Einstein. Source: http://en.wikipedia.org/wiki/File:Gulf_of_Aden_map.png. Reproduced under licence of Creative Commons.

Internationally Recommended Transit Corridor

xix

Map 3. Northwestern Indian Ocean

Map by Norman Einstein. Source: http://en.wikipedia.org/wiki/File:Arabian_Sea_map.png. Reproduced under licence of Creative Commons.

1. Introduction: The International Response to Somali Piracy

Bibi van Ginkel and Frans-Paul van der Putten

Piracy attacks on international shipping off the coast of Somalia attracted worldwide media attention from 2008 onwards. While piracy is far from being a recent phenomenon, the response to this particular instance of piracy is unprecedented in terms of the diversity of the actors involved. What is especially striking is the many different nationalities of the actors engaged in countering Somali piracy. The international aspect of the response to Somali piracy is the main theme of this book. The idea to publish a book on the response to Somali piracy was the outcome of an expert meeting on the same topic that was organised by the Netherlands Institute for International 1 Relations ‘Clingendael’ in July 2009. The chapters in this book, apart from the introductory and concluding chapters, were initially presented as papers at the expert meeting. This book aims to provide policy makers, military personnel, academics, and students with an overview of the international response to Somali piracy. In doing so, it also intends to indicate which challenges Somali piracy poses to maritime security and where possible opportunities may be found to increase maritime cooperation.

1

‘Pioneering for Solutions against Piracy: Geopolitical analysis, counterpiracy initiatives, and policy solutions’, international expert meeting, Clingendael Institute, 8 July 2009, organised by Jort Hemmer, Susanne Kamerling, Bibi van Ginkel and Frans-Paul van der Putten: http://www.clingendael.nl/cscp/events/20090708/.

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Bibi van Ginkel and Frans-Paul van der Putten

The term ‘Somali piracy’ refers to the activities of Somalia-based groups who aim to generate income by attacking ships at sea. In practice the intended victims are mostly foreign merchant vessels sailing in the Gulf of Aden or in the Western Indian Ocean. The attackers are not – or at least not formally – linked to government authorities in Somalia, but can rather be characterized as gangs of private marauders. In addition to the internationally recognized but largely ineffective Transitional Federal Government of the Republic of Somalia (TFG), there are three other major governing entities in Somalia. These are the Islamist insurgency group al Shabaab in South and Central Somalia, and the de facto autonomous regional governments of 2 Somaliland and Puntland in the north. The preferred method used by Somali pirates is to board ships, take the crews hostage, and to extract a ransom from the shipowner in return for the release of both the crew and the ship. The international response to Somali piracy ranges from media coverage throughout the world to donor conferences to generate financial sources to invest in state-building initiatives in Somalia, as well as the international naval presence and adjustments to the insurance rates for maritime shipping. The challenges are numerous, and some will be dealt with in this book. This book is concerned mainly with actions taken at the international level to remove the threat of piracy and to minimize the damage it is causing. The main emphasis in this volume is on initiatives by foreign (non-Somali) and international governmental actors – primarily initiatives at sea but also those on land and in the legal sphere that are closely related or complementary to what is taking place at sea. Of course Somali actors and foreign non-state actors – especially the international shipping industry – are important players as well, but we will approach these primarily in relation to actions taken by foreign governmental actors.

2

Somaliland strives to be recognized internationally as an independent state, whereas Puntland aims to maintain an autonomous status within Somalia.

Introduction: The International Response to Somali Piracy

3

Major foreign state actors include governments from countries that engage in naval counterpiracy missions off Somalia. The most prominent of these are the United States (US), China, Japan, Russia, India, South Korea, and many of the European member states of the European Union (EU) and the North Atlantic Treaty Organization (NATO). However, in the past few years various other countries have also sent warships to the region in response to Somali piracy. At the international level, apart from the EU and NATO, the United Nations (UN) are involved in various ways, for instance through the Security Council and the International Maritime Organization. National and international governmental bodies dealing with international law, or with criminal or financial issues also play an important role.

1.1

International Cooperation against Piracy

Piracy has long been referred to as an enemy of mankind (‘hostis humani generis’), and yet when it comes to counterpiracy activities at sea, mankind has never responded collectively. The current operations in the Gulf of Aden probably constitute the first time in history when all of the world’s major naval powers bring together significant naval assets in a specific region for a – to some extent - combined response to piracy. In the past, success against piracy was primarily achieved by hegemonic powers or a combined effort by global and regional powers. From the first century BC, the Roman Empire achieved some degree of success in fighting piracy in the Mediterranean.3 Britain, during its ascendance as the world’s dominant naval force and the leading colonial power, suppressed piracy of European origin in the Atlantic and 4 Indian Oceans. However, state power has only rarely been so

3 4

Angus Konstam, Piracy: The complete history. Oxford: Osprey Publishing, 2008, p.19. Ibid., p. 272.

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Bibi van Ginkel and Frans-Paul van der Putten

strong as to be able to subdue piracy at the international level more or less single-handedly. At the height of its power, Spain was unable to suppress pirate attacks on the shipping routes between Spain itself and its overseas possessions in the Americas 5 and Asia. It is also noteworthy that today’s leading maritime power, the United States, has so far been unable to end the threat of Somali piracy – in spite of the permanent presence of significant American naval forces in the Persian Gulf and the Indian Ocean. During past centuries, up to the early twentieth century, there were various instances of joint international approaches to combating piracy, often involving the British navy or other Western maritime powers. The scope of such cooperative ventures was limited in terms of the number of participating countries. In the 1660s and for some time thereafter, the Dutch East India Company cooperated with Chinese imperial forces to attack the ships and positions of the Taiwan-based maritime 6 warlord Zheng Jing on the South China coast. In the late nineteenth and early twentieth century, the British navy fought piracy off the Chinese coast and on China’s inland waterways, formally in cooperation with the Chinese authorities. In the second half of the nineteenth century, the British, Spanish, and Dutch colonial governments in Southeast Asia worked together 7 to eliminate piracy in the region. As an example of this joint approach, in 1861 an Anglo-Dutch naval force fought against 8 pirates off the coast of Borneo. Joint initiatives also occurred in other regions. From the mid-seventeenth century the British and the Dutch took maritime actions against North African pirates

5 6

7 8

Kris E. Lane, Pillaging the Empire: Piracy in the Americas, 1500-1750. Armonk: M.E. Sharpe, 1998. John E. Wills, Jr, ‘Ch’ing Relations with the Dutch, 1662-1690’, in: John K. Fairbank ed., The Chinese World Order. Cambridge MA: Harvard University Press, 1968. Adam J. Young, Contemporary Maritime Piracy in Southeast Asia: History, causes and remedies. Singapore: ISEAS Publishing, 2007, p.45. Angus Konstam, Piracy: The complete history. Oxford: Osprey Publishing, 2008, p.287.

Introduction: The International Response to Somali Piracy

5

(the so-called Barbary pirates), again sometimes in a coordinated way. In 1816 an Anglo-Dutch flotilla bombarded Algiers, which was then regarded as the capital of a pirate state. Also in the early nineteenth century, the combined – and apparently coordinated - efforts of the British and US navies and corresponding on-land policies by countries in the region led to the end of piracy in the Caribbean. The sea-based activities in this approach included the patrolling of major shipping lanes, the hunting down of pirate ships and attacks on 9 pirate bases. During the Cold War, piracy did not play a prominent role in maritime security, at least not at the international level. Piracy once again became regarded as a serious threat to international shipping in the 1990s, when the number of piracy attacks in the Strait of Malacca grew rapidly. International cooperation played an important role in the response to Southeast Asian – mostly Indonesian – piracy in the Strait of Malacca. Major maritime powers such as the United States and Japan, which have significant strategic interests in the Strait of Malacca, were eager to be involved in addressing Southeast Asian piracy. However, Indonesia, Malaysia, and Singapore, being concerned that their sovereign rights in the Strait could suffer as a result of the internationalization of the counterpiracy approach, were reluctant to assign a major role to external 10 actors. According to Adam J. Young, the most effective approach for countries outside the region involves technical assistance and funding, rather than military or security cooperation, which allows the regional states to retain the lead 11 in combating piracy. The regional states themselves initiated, in 2004, joint maritime patrols – the so-called MALSINDO patrols by Malaysia, Singapore and Indonesia. In 2006 the three countries

9 Ibid., p. 274-275. 10 Adam J. Young, Contemporary Maritime Piracy in Southeast Asia: History, causes and remedies. Singapore: ISEAS Publishing, 2007, p. 115. 11 Ibid., p. 117.

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signed an agreement to create a single framework for the 12 MALSINDO naval patrols and for air surveillance. It seems likely that this regional cooperative initiative was partly motivated by the aim to avert interventions by external powers. A broader cooperative initiative related to piracy in Southeast Asia is the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), that came into force in 2006 and that involves sixteen governments, mostly of Southeast Asian countries. An important outcome of this is the ReCAAP Information Sharing Centre in Singapore which aims at facilitating the sharing of 13 piracy-related information. Since the 1990s, the threat of piracy attacks against international shipping has increased in various parts of the world, including the South China Sea, the Bay of Bengal, West 14 Africa, and off the Brazilian coast. However, the most spectacular increase in recent years was off the Somali coast. Due to the weakness of the Somali state, the efforts by external actors rather than those of local authorities have so far played the most visible role in the response to piracy off the coast of

12 Rajeev Sawhney, ‘Redefining the Limits of the Straits: A composite Malacca Straits security system’, IDSS Commentaries, Singapore: RSIS, 2006: http://www.rsis.edu.sg/publications/Perspective/IDSS0372006.pdf 13 http://www.recaap.org/index_home.html 14 On the threat of contemporary piracy see John S. Burnett, Dangerous Waters: Modern piracy and terror on the high seas. New York: Plume, 2003. Much recent literature on piracy has approached the phenomenon in combination with maritime terrorism: Peter Chalk, The Maritime Dimension of International Security: Terrorism, piracy, and challenges for the United States. Santa Monica: RAND, 2008; Anthony M. Davis, Terrorism and the maritime transportation system: Are we on a collision course? Livermore: Wingspan Press, 2008; Jim Gray, Mark Monday, and Gary Stubblefield, Maritime Terror: Protecting yourself, your vessel, and your crew against piracy. Boulder: Sycamore Island Books, 1999; Michael Richardson, A Time Bomb for Global Trade: Maritime-related terrorism in an age of weapons of mass destruction. Singapore: ISEAS Publications, 2004. Indeed, the approach by the US navy against Somali piracy is derived from its anti-terrorism activities in the same region. Still, the relationship between Somali piracy and terrorism so far seems to be limited or non-existent.

Introduction: The International Response to Somali Piracy

7

Somalia. Another important difference with regard to the 1990s situation in the Malacca Strait is that the number of extraregional countries that are involved is far greater. As will be explored throughout this book, the international dimension in the response to Somali piracy is diverse and complex. This raises the question of how the many actors interact with each other, and to which extent a common approach has been found. In spite of the historical significance of the international response to Somali piracy, not many research data are yet available on this topic. The fact that there is an international 15 dimension to the response has been widely noted, and also that 16 a military response is in itself insufficient to end piracy. Moreover, it has been noted that the United Nations is as yet 17 incapable of effectively dealing with piracy. However, there has been little analysis with regard to the way in which the many international actors interact, both at sea and at other levels, and 18 which factors influence cooperation between them. This book will therefore make a first attempt at clarifying the different aspects that play a role in finding a solution to Somali piracy at the international level.

15 For instance, Rubick Biegon, ‘Somali Piracy and the International Response’, Foreign Policy in Focus, 29 Jan 2009, http://www.fpif. org/articles/somali_piracy_and_the_international_response. 16 Stockbruegger, ‘Somali Piracy and the International Response: Trends in 2009 and prospects for 2010’, Piracy Studies, 6 March 2010, http://piracystudies.org/?p=111. 17 Christopher Jasparro, ‘Somalia’s Piracy Offers Lessons in Global Governance’, YaleGlobal, 6 April 2009, http://yaleglobal.yale.edu/content/somalia%E2%80%99s-piracy-offerslessons-global-governance. 18 On the relationship between two of the actors, the EU and China, in the context of naval counterpiracy missions in the Gulf of Aden: Susanne Kamerling and Frans-Paul van der Putten, ‘Europe Sails East, China Sails West: Somali piracy and shifting geopolitical relations in the Indian Ocean’ in: Frans-Paul van der Putten and Chu Shulong eds, China, Europe and International Security: Interests, roles and prospects. London: Routledge, forthcoming in September 2010.

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1.2

Bibi van Ginkel and Frans-Paul van der Putten

Approach

This book addresses two primary questions. First, how do the many nationalities involved interact with one another? And second, what are the prospects for increased coordination at the international level in dealing with maritime piracy? The various contributions to this book will approach the response to Somali piracy from various perspectives. Together, the following six chapters provide an overview of the main actors and initiatives in countering Somali piracy since late 2008. Each contributor has done his or her best to provide the most recent and accurate data available at the time of writing. However, in some cases there are discrepancies between the various chapters regarding certain data. This is illustrative of the fact that the topic of this book is a new phenomenon on which not much verifiable data are yet available, and for which multiple standards of measurement exist. In chapter I, Roger Middleton provides an overview of the characteristics of Somali piracy. He points out that when put into perspective, one might wonder whether the immense financial costs of operating navy forces in the area are worth incurring when compared to the small possibility that commercial shipping is targeted. The real damage, he argues, takes place in Somalia. Nevertheless, international cooperation mainly focuses on naval presence, even though it is a wellknown fact that the naval presence by itself will never be able to eradicate the problem. One of the major challenges to be faced is to chase the money and to change the politics of the international community in their approach towards the authorities in Somalia. The latter, as long as it does not contain an intervention, might in the long run contribute to changing the politics within Somalia. In chapter II, J. Peter Pham describes the history and the cultural clan system of Somalia, and its influence on the political situation in Somalia. Pham explains how the failed state status, as well as the regional situation, are of influence on the emergence of piracy. A good understanding of these

Introduction: The International Response to Somali Piracy

9

backgrounds, Pham argues, is vital for finding a solution to Somali piracy. Like Middleton, Pham points to the importance of a bottom-up approach in engaging decentralized authorities in state-building kinds of activities to contribute to counterpiracy initiatives. In chapter III, Kees Homan and Susanne Kamerling provide a detailed overview of the variety of international naval actors, as well as the different mechanisms and instruments in place both at sea as well as on shore. They also discuss the much-debated possibility for the shipping industry to hire private security companies to provide the needed protection. Homan and Kamerling argue that the employment of the different instruments and mechanisms as well as the large naval presence have their impact on piracy activities in the region. The number of attacks in the Gulf of Aden itself has dropped, but the pirates have also changed their modus operandi, shifting their activities further into the Indian Ocean and possibly also to other criminal spheres. Homan and Kamerling point out that, in this sense, the methods used by pirates show similarities with the practice of asymmetric tactics in warfare. This poses a challenge to the operational thinking of the international naval actors in the region. Furthermore, the authors lay out the operational challenges in the area of communication and coordination. In chapter IV, Per Gullestrup and May-Britt U. Stumbaum join forces by bringing together the perspectives of the European Union and the shipping industry on fighting Somali piracy. Both actors are major players, and should serve the same purpose, namely to safeguard the maritime routes of the world’s biggest trading bloc and to guarantee noninterferece with trade and transportation while keeping the costs for shipping at a competitive level and to ensure a continued high flow of exports. However, as is natural, the interests of both actors are not completely identical. The authors point out that cooperation between the two actors has improved over time. Nevertheless, they highlight some areas with major challenges, such as communication and evidence gathering and the

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Bibi van Ginkel and Frans-Paul van der Putten

prosecution of pirates. Several recommendations are made at the end of the chapter to improve the cooperation between the EU and the shipping industry. In chapter V, Douglas Guilfoyle outlines the legal challenges of fighting piracy. He argues that the main problem for the international community in prosecuting piracy is not a matter of power, but rather a matter of duty. Guilfoyle is nevertheless not a supporter of the idea of developing an international tribunal to deal with piracy crimes, but rather advocates the strengthening of regional tribunals. In this context, he also points to the human rights challenges that particularly play a role with regard to the detention facilities, principles of fair trial and extradition requests. He also lays out the main rules concerning the use of force at sea. Guilfoyle emphasizes that the counter-piracy missions are police missions, and that the situation in which the naval actors operate do not qualify as situations of armed conflict. This is not only relevant for the rules of engagement of the naval actors, but is also of importance when considering the possibility of the use of violence by private security companies. In chapter VI, James R. Holmes asks why naval powers would provide international public goods to deal with a problem that, when looking at the numbers and when making a cost/benefit analysis, does not seem to legitimize the broad scope of the current response. He argues that especially the geopolitical interests of the main players are at stake in this context. It is also the fear of a diplomatic backlash if the counterpiracy efforts are mishandled, which would especially erode America’s strategic position in the Indian Ocean, where a strategic triangle is taking form among India, China, and the United States. Taking these arguments into account, Holmes then argues that for the United States, as the world’s leading maritime power, the best strategic choice would be to stay on the defensive side of the problem to match the magnitude and duration of the counterpiracy effort to its political ends. Contrary to Guilfoyle, he advocates a more prominent role for

Introduction: The International Response to Somali Piracy

11

armed private security companies in addition to the activities of the naval actors. Finally, in the concluding chapter the editors will use the insights provided by the various contributors to address the two main questions that are central to this volume and highlight the challenges and opportunities that lie ahead in the fight against Somali piracy.

2. More than Just Pirates: Closing the Space for Somali Pirates through a Comprehensive Approach

Roger Middleton

Piracy in Somalia is a symptom of state collapse in Somalia and a comprehensive solution needs to focus on roots causes. This will require significant political will within Somalia and a careful approach from without. Somalia currently provides a conducive environment for violent crime such as like piracy. Piracy clearly affects ship-owners who pay millions of dollars in ransom costs, while seafarers can be held captive for months awaiting ransom payment. It is also of international strategic importance because of the importance of the sea lanes off the Somali coast (roughly 30% of European energy needs, and manufactured goods from China and Asia pass through the Gulf of Aden). But there is a deeper and more pernicious impact from the crime on Somalia itself, piracy undermines government in Somalia and makes resolving the chronic humanitarian and security problems of the country harder. Over 3 million people in Somalia are reliant on food aid, most of which is delivered by sea. At times piracy has forced deliveries to stop, putting those lives at risk, and the foreign navies see their primary mission as 1 ensuring that food aid can reach Somalia. So the effect on individual Somali citizens is even more malevolent and long term than that on the international community, the knock on consequences of a relatively small enterprise (in terms of people

1

See ‘EU Naval Operation against Piracy http://www.eunavfor.eu/about-us/mission/

aims

and

mandate’,

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Roger Middleton

directly involved) can threaten the lives of many more people. Piracy may well have become one of the largest foreign currency 2 generators for Somalia; earning up to $100 million in 2009 and this gives pirates bosses huge influence on the politics of north east and north central Somalia. Local community leaders in Somalia have voiced their fears about the corrupting moral 3 influence of piracy and pirate money. Meanwhile some Somali politicians seem to have decided that blaming all their ills on piracy will encourage the international community to hand over large sums of money to fight the problem, and some politicians have been accused by the UN Monitoring Group on Somalia of 4 running election campaigns with pirate money. Piracy should not be seen in isolation. It is a problem arising from Somalia’s internal crisis. Far more lives are ruined 5 and lost by the weapons trade across the Gulf of Aden and people smuggling between Somalia and Yemen than by piracy. These deserve far more attention than they currently receive. At times it seems Somalia is either completely ignored by the rest of the world or made to bear the burden of ill-considered intervention. Somalia’s problems are usually ignored by the international community. The Failed interventions by the United Nations and United States in the 1990’s and international acceptance of the hugely unpopular Ethiopian intervention in 2008 are unusual. This has led many Somalis to take a sceptical view of the motivations of the rest of the international community and any attempts from outside to address piracy, or any other problems, in Somalia need to be

2 3 4 5

Author’s own estimation. See for example ‘Postcard from Somali pirate capital’ http://news.bbc.co.uk/1/hi/world/africa/8103585.stm ‘The report of the Monitoring Group on Somalia’, March 2010, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/246/89/PDF / N1024689.pdf?OpenElement UN Sanctions monitors on Somalia have been raising the issue of gun smuggling for many years see http://www.un.org/sc/committees/751/mongroup.shtml

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considered in this context. Piracy is irrefutably a negative phenomenon but it can perhaps be turned to some good if it is used to galvanise a more considered and nuanced international approach to Somalia. This chapter aims to offer some ideas in areas where action can be taken to close the space available for pirates. It recognises that ending piracy for good is likely to only be achievable with significant political changes in Somalia. But while such changes are awaited there are still measures that can be taken to make piracy a more difficult and a less attractive activity. The chapter begins with some brief observations on how piracy works in Somalia. It then seeks to come to a conclusion on the relative importance of piracy in the context of the multiple challenges facing Somalia; concluding that while this is an issue worthy of analysis and treatment it must also be seen in a broader context. The chapter then sets out ideas for reducing the space for piratical activity through naval, financial and political means and public relations. It concludes by offering some lessons learnt from the history of external interventions.

2.1

How it Works

6

In order to consider sensible responses to the problem of piracy in Somalia it is necessary to understand how pirates from Somalia operate and what about them differs from other forms of modern piracy. Somali piracy is based on hostage taking for ransom. This method of financial extraction is not limited to the maritime sphere in Somalia there is a much wider problem of hostage taking for ransom in the country that also affects aid workers, journalist and businesspeople. But pirates have taken the same principles of extortion and applied them to the ocean where it is possible to capture tens of hostages at a time and

6

For a more detailed explanation of the mechanics of Somali piracy see R. Middleton ‘Piracy in Somalia’, Chatham House Briefing Paper, Oct 2008.

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Roger Middleton

where returns are consequently much higher. Although ransoms are paid in the belief that hostages are at risk, this method is actually a safer option for the captured. This is because the pirates seem to be fully aware that harming their captives would undermine the chances of ransoms being paid and increase the likelihood of special forces being sent in. Although they encourage piracy, ransom payments are the most likely way of securing hostage release without loss of life. Somali pirates are not in the practice of executing people. This mode of operation is significantly different from piracy as it occurs in other parts of the world. It is not the brutal system that has been witnessed in South Asia or West Africa, where crews can be set adrift, stranded on islands or even murdered. In those cases the objective is theft - the crew’s possessions, the cargo of the ship or sometimes the ship itself. In Somalia the real prize is the crew. Somali piracy is essentially a low tech and opportunistic crime and pirates have been able to adapt to changing circumstances and take opportunities as they present themselves. Yet there is now a fairly well established model for piracy attacks. And while the pirates have shifted their area of operation and are operating at increasingly long distances from the coast of Somalia the basic pattern has remained the same. In the past, pirate crews had to stay close to the Somali coast, up to approximately 50 miles. Their range was limited by the amount of fuel they had and a lack of navigation equipment. By using ‘mother ships’, however, they have now been able to expand their range to over a 1000 miles7 from the shore. A mother ship is a fishing vessel or trading dhow that tows the pirates’ skiffs and is well stocked with petrol, water and food. These allow the pirates to spend much longer at sea and Global Positioning Systems mean the pirates can always find their way home. So rather than prowling the coastal areas pirates create

7

AFP, 20 April 2010, ‘Somali pirates seize Thai fishing vessels, 77 crew: EU force’, http://www.google.com/hostednews/afp/article/ALeqM5gyuAy OEOMOal2VAGd4-h3qG-SrVQ

More than Just Pirates

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movable areas of danger in the ocean basing themselves from a moving platform. When a target is identified they launch small plastic skiffs that are powered by outboard engines, a crew of four or five men armed with automatic weapons, sometimes rocket launchers, will use grappling hooks (or ladders adapted to hook over the side of a ship) to speed alongside a target and attempt to board. Mother ships do increase pirate’s range and time at sea but the choice of targets and the mechanics of capturing a vessel remain the same. The most vulnerable ships remain those that are slower, with lower freeboard and least well prepared. Yet however high their sides and fast their engines, all ships are potential targets. The Sirius Star, for instance is one of the largest ships afloat yet was captured by pirates. Clearly, so long as there exists the opportunity, there has so far been very little that has deterred Somali pirates. Once the pirates have managed to capture a vessel, which in most case means the moment they have managed to get an 8 armed man on board, they will generally demand that the crew take the ship to one of the favoured pirate ports - Eyl, Hobyo or Xarardheere - in north east Somalia where they are able to wait for considerable periods of time while negotiations take place over the price of releasing the vessel and crew. Contact is then made with the owners or managers of the vessel using either their own satellite phones or the ships communications equipment. An initial demand for ransom payment is made and there follows an often protracted period of bartering until a mutually agreed price is reached. Ransom payments have been rising over the last decade. In 2009, they reached an average of between $1,000,000 and $2,000,000. The first indications for 2010 point to an even

8

The increasing use of safe rooms, or citadels, where crew can hide while still controlling the ship has slightly changed this fact – but if crew members are confronted with an armed pirate then the ship is likely to be under the pirate’s control.

18

Roger Middleton 9

250

$2.000.000

200

$1.600.000

150

$1.200.000

100

$800.000

50

$400.000

0

$0 2004

2006

2007 Year

2008

2009

Est. Average Ransom Payment US$

No. of Attacks

higher average payment . Mapping ransom payments and total number of attacks seems to point to a strong correlation between rising payments and increased attacks. Some shipping companies have concluded that it is cheaper to pay a larger amount in ransom up front than to suffer the associated costs of a long negotiation period. For shipping companies ransoms are only a proportion of the total cost of a hijacking. Legal fees, negotiator fees, fees for delivery of ransom money, missed deadlines, crew pay and other costs can easily treble the upfront ransom cost. The financial benefits and humanitarian benefits for crew welfare of a quick resolution of a hijacking must be seen against the longer term problem of increasing ransom payments making piracy an ever more attractive activity.

Est. successful attacks Est. unsuccessful attacks Average ransom payment

Graph 1. Number of piracy attacks and estimated average ransom payments, 2004-2009.

9

These figures are based on the author’s discussions with insurance and industry representatives, they are an estimate since there are no publicly available verified figures for total ransoms paid.

More than Just Pirates

19

For a young man in Somalia the cost benefit analysis of becoming a pirate weighs heavily in favour of piracy against most alternative livelihoods. There are no shortage of young men in Somalia for whom the potential danger of death or imprisonment is far outweighed by the potential to earn many times an average annual income from just one successful operation. With GDP estimated to be around $600 per capita 10 and an individual pirate making up to $10,000 dollars per 11 successful operation the attraction is clear .

2.2

Does it matter?

Somali Piracy is an exciting topic for the media, but it is legitimate to question if the deployment of warships and many millions worth of legal and diplomatic expertise is justified. First, conservative estimates put total traffic through the Gulf of 12 Aden at 16,000 vessels a year. In 2009 there were over 200 attacks on shipping in Somali waters (including the Indian ocean with many thousand more transits). Even just using the Gulf of Aden figure for traffic, that means only 1.25% of shipping was attacked and of that less than half were 13 successfully captured. And if ships passing through the Indian Ocean are included in the calculation the percentage would drop considerably. Despite this small percentage the freedom to trade and traverse the seas is a vital element in the global economy and the

10 R. Middleton ‘Piracy in Somalia’, Chatham House Briefing Paper, Oct 2008. 11 ‘It’s a Pirates’ Life for Me’, http://news.bbc.co.uk/1/hi/world/africa/8010061.stm 12 The best source of statistics for piracy attacks is the International Maritime Bureau http://www.icc-ccs.org/ 13 This number a very rough estimate as it uses only a low estimate of total shipping passing through the Gulf of Aden and ignores Indian Ocean traffic.

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Roger Middleton

principle that sailors can cross the ocean in safety is an important one in and of itself. The sailors who are captured and whose lives are put at risk have a right to expect that their governments and the international community as a whole will take measures to protect their well being. It is a principle that surpasses a purely quantitative understanding of the piracy trade. More damaging still is the effect inside Somalia. The loss of $100 million dollars may not be crippling in a global context, but this money then flows unchecked into a country with already weak institutions and high levels of corruption, further 14 undermining governance structures. Puntland has been one of the success stories of Somalia over the last twenty years, but it remains extremely weak institutionally and if piracy continues to grow and becomes more profitable it could further compromise the structures of government in the area. Likewise Puntland’s security - already under threat from the south and at times from the west - could suffer if it must redirect its attention to fighting piracy. One result of a weakening of the Puntland administration could be the spread of the endemic fighting in South / Central Somalia to the more peaceful northern areas. This would have devastating humanitarian consequences as well as a potentially destabilising effect on Somaliland. The international community should take extremely seriously anything that has the potential to threaten the growth of stable and functioning government structures in Somalia.

2.3

Improving Naval Operations

The most obvious way to counter piracy is to place more naval ships in more places protecting more commercial shipping. However according to one senior naval officer it would require something in the region of 700 to 800 ships to secure the seas

14 UN Monitoring Group Report 2010.

More than Just Pirates

21

around Somalia from pirates. That is never going to be possible. To give some perspective the entire United States Navy numbers 286 ships, more than any other country but still too few to contain entirely the pirates of Somalia. But while a naval approach may not deliver a long term solution, there is a crucial role for navies to play in making the sea around Somalia a more difficult environment for pirates. A clear example of this is the striking relocation of piratical activity from the Gulf of Aden to the Indian Ocean due to the naval deployment in the Gulf. This occurred over 2009 and 2010, and suggests that existing levels of naval cooperation in the Gulf of Aden has already increased security in that stretch of ocean and made the pirates’ job significantly more challenging. It seems that the efficacy of the Internationally Recognised Transit Corridor (see chapter III) and the navies protecting it has made the Gulf of Aden a much less favourable area for pirate activity. This is despite the fact that the Gulf of Aden is far more attractive to pirates than the Indian Ocean. Because it is a narrow strip of ocean and is, at all points, fairly close to the Somali shore, shipping tends to travel on predictable routes. A pirate crew could then leave their home port with relatively few supplies and could realistically hope to have several chances to attack suitable shipping in a short period of time. The Indian Ocean on the other hand requires greater stocking up on supplies and does not have the advantage of concentrating shipping leaving the pirates having to hunt for longer periods over greater distances. The Indian Ocean is not amenable to the same naval tactics that have been successful in the Gulf of Aden. Setting up transit corridors in this area would entail much longer routes and many more of them if they were to be effective. But improvements that could be made include: • • •

improved security and preparedness of commercial shipping, better intelligence provided by increased air patrols, targeted action based on that intelligence.

22

Roger Middleton

The commercial shipping industry as represented by organizations like the International Chamber of Shipping, BIMCO and others has drawn up an industry best practice 15 guide for avoiding pirate attacks in Somali waters. It recognises that simply steering clear of the coastline is no longer of much use as attacks are taking place even 1000 miles off the coast. Approaches are designed to make boarding a ship more difficult – here, barbed wire and barrels can be used - maintaining full speed and taking evasive measures are also recommended. These have all proved effective for ships that have been 16 attacked. In the case of the MV Taipan, for example when attacked the crew barricaded themselves in a safe room that was equipped with supplies leaving the pirates unable to take control of their persons. This was, possibly, the safest and most sensible thing the crew could do; not to mention the most damaging to the pirates who gain the greatest value from holding on to the crew as opposed to the vessel. The end result was that it allowed Dutch special forces to retake the ship without putting the lives of the crew at risk. Although successful and practical procedures exist the challenge now remains to spread this knowledge further so that the number of ships and crews aware of what protective measures work is expanded. When covering an area as large as the Indian Ocean, the only realistic way to identify danger spots is the use of aerial surveillance. Operating so far offshore, the pirates are forced to base themselves on a mother ship. It is possible to track the voyage of mother ships using reported attacks to identify the area where a mother ship seems to be operating in, this can then be further refined with the use of aerial surveillance. This information should be passed to commercial shipping so that the area can be avoided or at least extra measures can be taken to make the pirates’ life harder. But the most effective use of this intelligence is for the targeting of those mother ships.

15 http://www.marisec.org/piracy-gulf-of-aden-indian-ocean-industry-bestmanagement-practice 16 http://www.haaretz.com/hasen/spages/1161626.html

More than Just Pirates

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Without well-stocked mother ships, pirates are unable to operate in the middle of the ocean. As the Spanish navy (as part 17 of EU NAVFOR) has shown, it is possible to identify where these boats are operating and to interdict them and prevent many attacks. This is the only efficient way to police an area as large as the Indian Ocean with the limited resources at the disposal of the various navies and taskforces operating in the area. Many, including the International Maritime Bureau, have been calling for this approach for some time and recent activities bear out its efficacy. While a transit system can work very effectively in the Gulf of Aden, the sheer size of the Indian Ocean and the number of different routes across it mean that only targeting the pirates’ mobile operating centres is likely to produce a reduction in their capacity.

2.4

Winning the Public Relations Battle

The idea that pirates might get a positive press, at first sounds incongruous, yet Somali pirates are not universally regarded as the ‘bad guys’. The frequent claims by pirates that they are defending Somalia’s seas from illegal fishing and toxic dumping are accepted by some who see Somalia as a victim of international disregard and abuse. The truth, however, is that despite legitimate concerns about both illegal fishing and toxic waste dumping, piracy is not a direct result of these activities. Pirates are motivated by money. While it is possible that some may have once been fishermen or come from fishing communities in which they were directly affected by illegal fishing and or toxic dumping, this is most likely not true of the majority of pirates. To date, efforts to convince coastal communities and the rest of Somalia that pirates are not being entirely honest about their motivations do not seem to have been very successful.

17 http://www.eunavfor.eu/2010/04/eu-navfor-spanish-warship-destroyspirate-mother-ship/

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Roger Middleton

Toxic dumping has proved to be a difficult issue to explore 18 and one journalist attempting to do so has been killed. Given experiences in other parts of the world it does seem entirely feasible that dumping has occurred to a lesser or greater extent. Likewise with illegal fishing it is a difficult issue to produce accurate figures. But as long as pirates are able to make claims that the rest of the world is plundering Somalia’s resources with impunity, they maintain a valuable public relations tool with which to justify their actions to their community in Somalia and to a lesser extent those outside the country. It would be very simple for the foreign countries whose fishing fleets traverse the world’s oceans looking for tuna to introduce regulations banning any fishing activity in Somalia’s Exclusive Economic Zone 19 (EEZ) regardless of permits or other documents. This blanket ban would undermine the case for piracy and might also have some positive ecological knock-on effects. Naval ships patrolling the area would only need to take photographs of offending vessels and records of location and time, and pass these to one of any number of ocean protection NGOs who would be happy to pursue prosecutions. There is no reason why the international community should leave itself open to accusations of double standards with such a simple and cheap solution at hand. Publicising successful prosecutions would be good for the image of the naval forces off the coast and may start slowly to repair the negative perceptions that prevail in Somalia when it comes to the motivations of outsiders.

18 For more on the story of Ilaria Alpi see Al Jazeera http://www.youtube.com/watch?v=ud1pQ7lGn48 19 Spain has had such a measure in place since 2006 but this is not widely known.

More than Just Pirates

2.5

25

Chasing the Money

It is essential that resources are dedicated to recovering the money that gets into the pirates’ hands. As with other types of criminal activity chasing the assets of those at the bottom of the chain is time consuming and has little effect on the overall operation. A more sensible use of resources would be to chase those in the upper echelons who accumulate a much larger share of each ransom. The added advantage of this is that many of these ‘bosses’ are likely to be involved in, and benefiting from, other undesirable and criminal activities. People who have received bribes or ‘taxes’ from pirates could also be targeted. 20 Although evidence remains sketchy and circumstantial it seems probable that pirate organisers are sending their money outside of Somalia to places like Nairobi and the Gulf States principally Dubai. The first problem that presents itself is disambiguating the financial flows out of Somalia. Much of the investment of Somalis in Nairobi for instance is based on perfectly legitimate business activities, but the lack of properly functioning authorities in Somalia mean that all money coming from Somalia is open to suspicion. States who are recipients of large sums of money from Somalia need to ensure they have the requisite legislation in place to monitor those flows and to take action against any suspicious activities. The same mechanisms that are established to chase pirate money, potentially even returning some of the ransoms paid to the victims of the crime, could probably be used very effectively to address some of the underlying problems of Somalia. Warlords and armed groups, corrupt politicians and smugglers have profited and continue to profit from the lawless state of much of Somalia. However as their homeland is hardly a stable investment climate, since the early 1990’s money has been

20 For example: ‘Kenyan Government Investigates Possible Pirate Ties to Real Estate Boom’, VOA News http://www1.voanews.com/english/news/africa/Kenyan-GovernmentInvestigates-Possible-Pirate-Ties-to-Real-Estate-Boom-94607164.html

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leaving Somalia. Much is from legitimate business activity but some is not. If the mechanisms established to hit the pockets of pirate bosses could also target these criminals then the present situation of impunity could begin to be challenged. This intervention does not require troops on the ground it just needs foreign governments to pay attention to where funds come from and to apply standards to the type of money they allow to be invested. Certainly on its own this is not a golden bullet but in the absence of fundamental political reform it can form one part of an holistic approach to making piracy, and other crimes, less attractive or at least no longer consequence free. Tracking money from Somalia, and establishing what is legitimate and what is not, will not be a simple task but states that receive that money do have a responsibility to ensure that they are not benefiting from illegal activity in Somalia.

2.6

Changing the Politics

While restricting the operational space available to pirates is an important short term strategy a more durable approach to the problem must recognise piracy as a result of the politics of Somalia. Instable and weak states are often spaces where criminal activity can prosper and Somalia is no different. Piracy has shown that Somalia’s political situation, which at times almost seems to have been regarded as a problem that can be contained or ignored, is not consequence-free for the rest of the world. Despite over a dozen efforts by the international community to create one Somalia has not had anything resembling an effective central national government since the ousting of dictator Siad Barre in 1991. The south of the country, and the capital Mogadishu in particular, have been in a state of almost constant conflict. Following the collapse of the central government warlords clashed across Somalia displacing populations and depriving many of their livelihoods, since 2000 Islamist groups have grown in strength and are now major

More than Just Pirates

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influences in South-Central Somalia. Most recent attention has 21 focused on the rise of al Shabaab as a major force; this radical Islamist group have been listed as a terrorist organization in the United States and are likely to be banned in the UK. The growth of al Shabaab has been at least partially fuelled by international involvement in Somalia. When the Islamic Courts Union (ICU), led by Sheikh Sharif, established an administration in Mogadishu they ushered in a brief period 22 of stability. The Ethiopian intervention to oust the ICU, supported at least in spirit by the United States and other western nations, in support of the TFG of President Yusuf led to a sustained and motivated armed opposition campaign. A proportion of that opposition was subsequently persuaded to sign up to the Djibouti accord and join the new TFG of President Sharif, but al Shabaab continue to oppose the internationally recognised government. It can be argued that foreign intervention was the lightning rod around which al Shabaab was able to build their current strong position. The story in south-central Somalia sets the tone for international perceptions of Somalia but it is not the whole story. In the north west Somaliland and in the north east Puntland have taken different paths and have important lessons for international approaches to Somalia. Somaliland has produced a remarkable level of security and stability, and Puntland to a lesser extent has done similar things. Piracy is a problem associated with the north east and central regions of Somalia not the south. For pirates, the south remains too volatile to make an effective base. There are too many factions to bribe and the chance of becoming embroiled in the conflict is too high to make business sense. Somaliland is too well run to make piracy a feasible option there, but Puntland and central Somalia offer just the right mix of weak government control over

21 ‘Somalia’s Divided Islamists’, May 2010, ICG Africa Briefing No 74. 22 Barnes and Hassan, 2007, ‘The Rise and fall of Mogadishu’s Islamic courts’, Chatham House Briefing Paper, http://www.chathamhouse.org.uk/research/africa/papers/view/-/id/458/

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the coast and just enough effectiveness to keep out of the worst of the fighting further south. A political approach to Somalia concerned only with Piracy would be wrong and likely counterproductive in the long term. However at times a realistic approach to Somali politics and concerns about piracy can complement each other. This is the case in somewhere like Puntland. If the international community, rather than focusing on the trappings of a national state and the hugely complex situation in Mogadishu, were to seek subtle ways to bolster those parts of Somalia that are working it may find that the interests of the wider world and local Somali communities would both be served. Focused support to Puntland to enable it to build up policing and judicial institutions would not only allow piracy to be tackled at source but could also leave a valuable legacy for Puntland. Spending money on Somali coastguards and navies is a more expensive way of catching pirates, and certainly in the future Somalia will need an effective coastguard, but in the short term arresting pirates in their homes is probably a cheaper and more effective remedy than chasing them on the ocean. The added advantage of an effective and accepted police force is that it bolsters the capacity of Puntland to prevent incursions from the south and tackle other land based causes of instability. If the war in the south is not resolved, and it shows no signs of this, the first objective of the international community ought to be to prevent the spread of that disorder further north into areas of Somalia that have in recent years offered relative stability and peace. This is not to discount the problems of doing business with somewhere like Puntland. Weak institutions and unresolved border disputes with Somaliland mean this is a region at risk, but it is at least in possession of a government and a territory. Likewise continued support to Somaliland is essential; a region that has held elections and provided a good degree of security deserves support from outside. Changing the politics of Somalia is not something that can be done successfully by outsiders. But the international community can think about its approach to Somalia in a more

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imaginative way that reflects the realities of Somalia. A move towards treating those entities that actually function as worthy partners might be a sensible and productive step for the international community.

2.7

Conclusion and a Note of Caution on Interventions

The history of international intervention in Somalia is not 23 good. The unintended consequences of action in Somalia are a serious challenge for foreign policy makers. The removal of an Islamic government in Mogadishu led to the strengthening of its most radical arm, al Shabaab, and the training of coastguards in the 1990s may well have provided just the skill set that was 24 needed for piracy to become a more serious business. The international community should think carefully before taking any action in Somalia. It is not that Somalia should be ignored, piracy shows us that this is not an option, but the kind of attention given must try above all else not to worsen the situation. Only Somalis themselves will be able to find lasting solutions to their country’s problems and only they will be able to decide how Somalia will relate to the rest of the world. Ideas and initiatives imposed from outside will find very hostile ground. The success of the international naval efforts in the Gulf of Aden shows that Piracy is a problem that can be tackled. But only political change in Somalia will offer the chance to put a stop to piracy and the other maritime-based crimes that plague Somalia and the wider Horn of Africa region. However, there is no reason why relatively simple adjustments to the international approach to the problem of piracy should not in the meantime

23 M. Bradbury and S. Healy, ‘Whose Peace Is it Anyway? Connecting Somali and International peacemaking’, Accord Issue 21, Conciliation Resources, 2010. 24 R. Middleton ‘Piracy in Somalia’, Chatham House Briefing Paper, Oct 2008.

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be used to increase the safety of the waters of the Horn of Africa. There are many ways to make piratical activity more difficult and less attractive; improving naval operations, hardening commercial ships, undermining the Pirates self justification, retrieving money paid to pirates, elsewhere in this volume the legal framework is discussed and that is also an important aspect of the fight against piracy (see Chapter V), finding alternative livelihoods for pirates also has a role to play. But all these efforts are likely to fail if the underlying political situation does not change. Effective and accepted government(s) in Somalia is the only long term solution to piracy originating there. There will be no long-term solution to Somali piracy without fundamental adjustments in the politics of Somalia itself. Only governments with control of their territory and legitimacy are likely to be able to stamp out criminal activity along these lines. Piracy is only one of the symptoms of Somalia’s problems, the death of hundreds of refugees fleeing the Horn of Africa and the smuggling of guns into the continent should also give great cause for concern. But examples of successful Somali initiatives to bring stability and peace to their country are likely to be where solutions to piracy and many of the other problems facing Somalia will be found. For the international community this presents problems. To date focus has been on resolving the war in the south of the country and establishing a functioning central government. It might however be the case that an approach that focuses on building on existing structures will have more chance of success than one that tries to create something new. In that case policy makers will need to learn to deal with entities and organizations that are not the Transitional Government, and they will need to develop the flexibility to deal with shifting realities on the ground. This is a different approach and perhaps a difficult one but the experience of twenty years suggests that a Mogadishu centric approach will continue to fail.

3. The Failed State and Regional Dimensions of Somali Piracy

J. Peter Pham

The continued burgeoning of piracy off the coast of Somalia, together with the increased geographical reach and enhanced operational capabilities which the pirates have recently manifested, underscores the urgency of resolving this challenge to global commerce and security. However, Somali piracy cannot be successfully countered unless the phenomenon is understood in its proper context. This involves the acknowledgment of three closely connected premises. First, like piracy anywhere else, Somali piracy is a crime of opportunity. It is an economically motivated activity by ‘rational actors’. As long as piracy remains a profitable business, it will continue to flourish. Second, the inherent structure of any piracy, including Somali piracy, renders futile any attempt to stop it merely by focusing on countering suspect pirate vessels at sea. Piracy has always been a land-based crime which happens to manifest itself at sea; pirates will always require a port to operate out of. Third, Somali piracy is linked closely to Somali politics - or rather, the failure of national politics in what was, until 1991, the Somali Democratic Republic. While state failure is neither a necessary nor sufficient cause for piracy, there is no denying that the explosion of pirate activity in the waters off the Horn of Africa since the mid-1990s has been facilitated by the lack of anything even resembling a functioning central government in Somalia for nearly two decades. Thus this chapter first examines the extent to which state failure has magnified factors favouring the rise of piracy,

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including geography, cultural acceptance, potential rewards, and political and legal opportunities. It will then proceed to look at the emergence of the pirates and their operations as they relate to political developments within Somalia since the fall of the dictatorship of Muhammad Siad Barre. The argument will be made that the bulk of piracy—like much of economic violence in the country—has been driven more by criminal elites exploiting social divisions and otherwise taking advantage of the lack of restraints, rather than representing a ‘bottom-up’ response to marginalization as is often cited in Western media reports. Also exacerbating the problem has been the linkages forged by pirates with regional leaders in areas like Puntland and extremist movements like the Islamist insurgency in southern and central Somalia as well as their ties with corrupt officials, if not governments, in neighbouring states. Finally, postulating that the challenge of piracy will only be resolved once some modicum of basic security and political stability has been restored, the chapter concludes by looking at the prospects for engagement with nascent structures for bringing this about which have emerged among the Somali people.

3.1

The Political Context: State Collapse

Somalia is often described as the example par excellence of a ‘failed state’. Certainly the collapse of the Somali state in 1991 and the subsequent failure of what, to date, has been no fewer than fourteen attempts to reconstitute a central government for Somalia emerge as the primary reasons why piracy has flourished along the coasts of the country. In order to appreciate both the role played by the state in Somali life and the consequences of state failure, it is necessary to understand traditional patterns of identity and social organization among the Somali. Somali identity is historically rooted in patrilineal descent (abtirsiinyo, ‘reckoning of ancestors’), which determines each individual’s exact place in society. At the apices of this structure are the clan-families.

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According to the usual reckoning, the clan-families are five in number: Darod, Dir, Hawiye, Isaq, and Digil/Rahanweyn who are also known as Digil Mirifle. The first four are reckoned to be ‘noble clans’, while the agro-pastoral Digil/Rahanweyn occupy a second tier in Somali society. A third tier also exists in Somali social hierarchy, consisting of minority clans whose members historically carried out occupations such as metalworking and tanning which, in the eyes of the nomadic ‘noble clans’, 1 rendered them ritually unclean. The foremost living authority on Somali history and culture, the British anthropologist I.M. Lewis, has noted that while ‘clan-family membership has political implications, in the traditional structure of society the clan-families never act as united corporate groups for they are too large and unwieldy and 2 their members too widely scattered’. Consequently, the clanfamilies are segmented agnatically by reference to an eponymous ancestor at the head of each clan lineage. Within the clan, the most clearly defined subsidiary group is an individual’s ‘primary lineage’, which also represents the limits of exogamy. Within the primary lineage, an individual’s primary identification is with what has been described as the ‘diya-paying group’ from the 3 Arabic diya, ‘blood-wealth’, the basic unit of Somali society. The members of a diya-paying group, who generally trace their descent from a common ancestor four to eight generations back, are united by a formal political contract (heer) in collective responsibility for one another with respect to exogenous actors. If a member of a diya-paying group kills or injures someone outside the group, the members of his group are jointly responsible for that action and will collectively see to making reparation. Conversely, if one of its members is injured or killed, the diya-paying group will either collectively seek vengeance or

1 2 3

See I.M. Lewis, A Pastoral Democracy, London: Oxford University Press, 1961. I.M. Lewis, Blood and Bone: The Call of Kinship in Somali Society, Princeton, NJ: Red Sea Press, 1994, p.20. Interestingly, most Somalis use the Arabic term diya, rather than the Somali word for blood-wealth, mag.

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share in whatever compensation may be forthcoming. As Bernhard Helander has succinctly noted: ‘The ‘standard Somali’ principle is that descent determines membership in a diya-paying group, and the mutual responsibility that members in such a group have served to strengthen further the descent 4 ties between them’. Of course, the nature of the clan system is itself very nuanced and, while rooted in blood relationships, is also historically a consequence of nomadic pastoral life, with its need to defend scarce resources, that results, over time, in an openness to the formation of new alliances and, even later, in 5 new identities. Thus the Somali proverb Tol waa tolane (‘clan is something joined together’) underscores the fluidity of identity 6 within the stable framework provided by blood ties. ‘Somalia’ itself, which historically had never been a unified political entity, was born out of a union between the British Protectorate of Somaliland, which became independent as the State of Somaliland on 26 June 1960, and the territory then administered by Italy as a United Nations trust and which had, before the Second World War, been an Italian colony. They later gained independence on 1 July 1960, and the two states, under the influence of the African nationalism which was fashionable during the period, entered into a union even though they - a common language and religion notwithstanding - had never developed a common sense of nationhood. Consequently, by the time Siad Barre seized power in October 1969, ‘it had become increasingly clear that Somali parliamentary democracy

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5

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Bernhard Helander, ‘Rahanweyn Sociability: A Model for Other Somalis?’ African Languages and Cultures, Supplement, no. 3: Voice and Power: The Culture of Language in North-East Africa. Essays in Honour of B.W. Andrzejewski, 1996, p.199. See Abdalla Omar Mansur, ‘The Nature of the Somali Clan System’, in The Invention of Somalia, Ali Jimale Ahmed ed., Lawrenceville, NJ: Red Sea Press, 1995, pp.107-122. See Maria H. Brons, Society, Security, Sovereignty and the State in Somalia: From Statelessness to Statelessness?, Utrecht: International Books, 2001, pp. 89-113.

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had become a travesty, an elaborate, rarefied game with little 7 relevance to the daily challenges facing the population’. A year after taking over, Siad Barre proclaimed the ‘Somali Democratic Republic’, an officially Marxist state, and tried to stamp out clan identity as an anachronistic barrier to progress that ought to be replaced by nationalism and ‘scientific socialism’. The non-kinship term jaalle meaning friend or comrade was introduced to replace the traditional term of polite address ina’adeer which means cousin. Traditional clan elders had their positions abolished or, at the very least, subsumed into the bureaucratic structure of the state. At the height of the campaign, it became a criminal offence to even refer to one’s 8 own or another’s clan identity. Given how deeply rooted the clan identity was, it was not surprising that jaalle Siad Barre failed in his efforts to efface the bonds. Moreover, the Marxist roots of the regime did not grow very deep, since Siad Barre evolved over time from a Soviet client into a United States ally after President Jimmy Carter broke with the Ethiopian regime of Mengistu Haile Mariam over the latter’s increasingly repressive 9 human rights record. Ultimately, it was the regime itself which simply dissolved when, in January 1991, Siad Barre, - caught between popular rebellions, namely the Isaq and Darod in the north as well as a Hawiye uprising in central Somalia, was ignominiously chased out of Mogadishu. By the time of the dictator’s flight Somalia had fallen apart into the traditional clan and lineage divisions which, in the absence of other forms of law and order, alone offered some degree of security. The general situation now vividly recalled the descriptions of Burton and other nineteenth

7 8 9

Terrence Lyons and Ahmed I. Samatar, Somalia: State Collapse, Multilateral Intervention, and Strategies for Political Reconstruction, Washington: Brookings Institution, 1995, p.14. See David D. Laitin, ‘The Political Economy of Military Rule in Somalia’, Journal of Modern African Studies, 14(3), 1976, pp.449-468. See Peter Woodward, U.S. Foreign Policy and the Horn of Africa, Aldershot, Hampshire: Ashgate, 2006, pp.22-27.

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century European explorers: a land of clan (and clan segment) republics where the would-be traveler needed to secure the 10 protection of each group whose territory he sought to traverse. When the Hawiye leaders, Muhammad Farah ‘Aideed and Ali Mahdi Muhammad, whose forces held sway over the abandoned capital, fell out with one another, the fighting and cutting off of food supplies brought about a humanitarian crisis which provoked global outrage. This led to no fewer than three successive international military interventions to secure more than ephemeral space for the flow of humanitarian assistance. These operations were subsequently the United Nations Operation in Somalia I (UNOSOM I, April-December 1992), the United States-led Unified Task Force (UNITAF, December 1992-May 1993), and the United Nations Operation in Somalia 11 II (UNOSOM II, March 1993-March 1995). Following the UN’s withdrawal, events in central and southern Somalia returned to the course they had been on before the brief interlude of international involvement with armed clan factions mobilized by powerful figures - referred to by Somalis with the traditional title formerly reserved for battle leaders, abbaanduule, and thus quickly dubbed ‘warlords’ by foreign journalists - and sustained by the spoils of conflict battling each other for control of territory and such economic assets as 12 existed, including bananas for export. Meanwhile, in the absence of effective political structures of any kind, Islamic authorities cropped up in response to problems of crime, shari’a being a common denominator around which different communities could organize themselves. As the Islamic legal authorities gradually assumed policing as

10 I.M. Lewis, A Modern History of the Somali, 4th ed., Oxford: James Currey, 2002, p.263. 11 See John L. Hirsh and Robert Oakley, Somalia and Operation Restore Hope: Reflections on Peacemaking and Peacekeeping, Washington: U.S. Institute of Peace, 1995. 12 See Virginia Luling, ‘Come Back Somalia? Questioning a Collapsed State’, Third World Quarterly, 18(2), 1997, pp.287-302.

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well as adjudicating functions, those authorities having greater external resources, they acquired greater influence. It should be noted that the Somali traditionally subscribe to Sunni Islam and follow the Shāfi‘ī school or mahdab of jurisprudence which, although conservative, is open to a variety of liberal views 13 regarding practice. Throughout history up to independence in 1960, while there were different movements within the Sunni Islam in Somalia, dominant among the populace were the Sufi brotherhoods (sing., tarīqa, pl. turuq), especially that of the Qadiriyya order. However, the Ahmadiyya order, introduced 14 into Somali lands in the 19th century, was also influential. While traditional Islamic schools and scholars, the ulamā, played a role as focal points for rudimentary political opposition to colonial rule in Italian Somalia, historically their role in the politics of the Somali clan structure was neither institutionalized nor particularly prominent. In part this is because, historically, shari’a was not especially entrenched in Somalia: being largely pastoralists, the Somali relied more on customary law (xeer) 15 than on religious prescriptions. Hence, Somali Islamism is largely a post-colonial movement which became active in the late 1980s. Absent the collapse of the state and the ensuing civil strife (and, some would add, the renewed United States’ interest in terrorist linkages in the aftermath of the 11 September 2001 attacks), it is doubtful that militant Islamism would be much 16 more than a marginal force in Somali politics. In the absence of statehood - Somaliland, discussed below, being a case apart—and amid the divisions of society, Islam came to be seen by some Somalis as an alternative to both the

13 Lewis, Blood and Bone, p. 167. 14 See I.M. Lewis, Saints and Somalis: Popular Islam in a Clan-Based Society, Lawrenceville, NJ: Red Sea Press, 1998. 15 See Michael van Notten, The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa, Spencer Heath MacCallum ed., Trenton, NJ: Red Sea Press, 2006. 16 See Roland Marchal, ‘Islamic Political Dynamics in the Somali Civil War: Before and After September 11’, in Islamism and its Enemies in the Horn of Africa, Alex de Waal ed., Addis Ababa: Shama Books, 2004, pp.114-145.

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traditional clan-based identities and the emergent criminal 17 syndicates led by so-called warlords. Religion’s increased influence has been largely a phenomenon of small towns and urban centres, although increased adherence to its normative precepts is a wider phenomenon. Islamic leaders have helped to organize security and other services. Businessmen in particular were supportive of the establishment of shari’a-based courts throughout the south, which was a precursor of the Islamic Courts Union established in Mogadishu in June 2006. Suffice it to say the Islamists attempted to fill certain voids left by state collapses. In doing so, they also made a bid to supplant clan and other identities, offering a pan-Islamist identity in lieu of other 18 allegiances. In this context, it might be useful to add a word about the often-repeated claim that when the Islamic Courts Union ruled Mogadishu, the Islamist regime actively fought piracy. There is only one instance where the Islamist forces did anything that could even remotely be characterized as a counter-piracy operation. On November 8, 2006, Islamic Courts Union militia stormed the United Arab Emirates-registered cargo ship MV Veesham I, which had been hijacked off Adale, north of Mogadishu on the Somali coast, and arrested its captors. The ship had been hauling a load of charcoal from El Maan, Somalia, to Dubai when it was attacked by pirates. The operation, however, had less to do with any principled opposition to piracy and more to do with the fact that the owner of the Veesham, an expatriate Somali businessman, was one of the key financial backers of the Islamist movement and that his

17 Abdurahman M. Abdullahi, ‘Recovering the Somali State: The Islamic Factor’, in Somalia: Diaspora and State Reconstitution in the Horn of Africa, A. Osman Farah, Mammo Muchie, and Joakim Gundel eds., London: Adonis & Abbey, 2007, pp.196-221. 18 See Shaul Shay, Somalia between Jihad and Restoration, New Brunswick, NJ: Transaction Publishers, 2007, pp.93-127; also see Kenneth J. Menkhaus, ‘Somalia and Somaliland: Terrorism, Political Islam, and State Collapse’, in Battling Terrorism in the Horn of Africa, Robert I. Rotberg ed.,Washington: Brookings Institution Press, 2005, pp.23-47; and ‘Risks and Opportunities in Somalia’, Survival, 49(2), 2007, pp.5-20.

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contribution to its coffers would be affected if he lost his vessel and cargo to the pirates. Given their earlier experiences with Somali Islamism, 19 especially al-Itihaad al-Islamiyya (AIAI, ‘Islamic Union’), it was not surprising that, after many of the same extremists emerged in positions of authority in the Islamic Courts Union, neighbouring Ethiopia took a dim view of the establishment of the Islamic Courts Union in Mogadishu. The Ethiopians finally intervened in late 2006 to support Somalia’s weak Transitional Federal Government (TFG), which had been established in October 2004 at a conference in Kenya promoted by the subregional Inter-Governmental Authority on Development 20 (IGAD). Unfortunately, while the intervention ended the rule of the Islamic Courts Union in the desolate former capital, it also provoked an insurgency spearheaded by the even more radical Harakat al-Shabaab al-Mujahideen or Movement of Warrior Youth, al-Shabaab. This group was subsequently referred to as ‘specially designated global terrorists’ by the U.S. 21 Secretary of State Condoleezza Rice in 2008, a ‘listed terrorist 22 organization’ by the Australian government the following year,

19 The AIAI was a group established in the early 1980s which sought the creation of an expansive ‘Islamic Republic of Greater Somalia’ and eventually a political union embracing all Muslims in the Horn of Africa. See Medhane Tadesse, Al-Ittihad: Political Islam and Black Economy in Somalia. Religion, Money, Clan and the Struggle for Supremacy over Somalia, Addis Ababa, 2002, pp.16-24. 20 See Ken Menkhaus, ‘The Crisis in Somalia: Tragedy in Five Acts’, African Affairs, 106(204), 2007, pp.357-390; also see Gerrie Swart, ‘Somalia: A Failed State Governed by a Failing Government?’, in Somalia at the Crossroads: Challenges and Perspectives on Reconstituting a Failed State, Abdulahi A. Osman and Issaka K. Souaré eds., London: Adonis & Abbey, 2007, pp.109-121. 21 U.S. Department of State, Office of the Coordinator for Counterterrorism, ‘Designation of al-Shabaab as a Specially Designated Global Terrorist (Public Notice 6137), 26 February 2008, http://www.state.gov/s/ct/rls/other/des/102448.htm (accessed 15 March 2010). 22 Commonwealth of Australia, Joint Media Release of Attorney-General Robert McClelland MP and Minister for Foreign Affairs Stephen Smith MP, ‘Listing of Al-Shabaab as a Terrorist Organization’, 21 August 2009,

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a ‘proscribed organization’ under the Terrorism Act by the 23 British government, and a ‘listed terrorist group’ by the 24 Canadian government. Even after Ethiopian troops withdrew in early 2009, the Shabaab-led insurgency against the TFG has continued, drawing the UN-authorized African Union Mission in Somalia (AMISOM) deployed to protect the transitional regime deeper into the conflict and causing them to suffer increasing casualties with terrorist attacks like the suicide bombing of 17 September 2009. In this attack seventeen peacekeepers were killed, including the deputy force commander, Brigadier General Juvenal Niyoyunguruza of Burundi, and more than forty others 25 were wounded. The second attack of 3 December 2009 killed three TFG ministers as well as sixteen other people attending a graduation ceremony within the small enclave of Mogadishu 26 thought to be still controlled by the beleaguered regime. As it enters its second year of existence in its current iteration under the former Islamic Courts Union leader Sheikh Sharif Sheikh Ahmed, the TFG is still ‘not a government by any common-sense definition of the term: it is entirely dependent on foreign troops…to protect its small enclave

23

24

25

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http://www.foreignminister.gov.au/releases/2009/fa-s090821.html (accessed 15 March 2010). The Terrorism Act 2000 (Proscribed Organizations) (Amendment) Order 2010, No. 611, 4 March 2010, http://www.opsi.gov.uk/si/si2010/uksi_20100611_en_1 (accessed 15 March 2010). Government of Canada, Ministry of Public Safety, News Release, ‘The Government of Canada Lists Al Shabaab as a Terrorist Organization’, 7 March 2010, http://www.publicsafety.gc.ca/media/nr/2010/nr20100307eng.aspx?rss=false (accessed 15 March 2010). See ‘21 Killed in Suicide Attack on African Union Base in Somalia’, CNN.com., 18 September 2009, http://edition.cnn.com/2009/WORLD/africa/09/18/somalia.suicide.attack/i ndex.html (accessed 15 March 2010). See Stephanie McCrummen, ‘Bombing Kills 19 in Somali Capital’, Washington Post, 4 December 2009, A19.

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in Mogadishu, but otherwise administers no territory; even within this restricted zone, it has shown no functional capacity to govern, 27 much less provide even minimal services to its citizens’. In fact, not only has the TFG ‘failed to generate a visible constituency of clan or business supporters in Mogadishu’, its very survival ‘now depends wholly on the presence of AMISOM 28 forces’.

3.2

The Emergence of Piracy

While state collapse is neither necessary nor sufficient to cause piracy, the spectacular failure of the Somali state has certainly facilitated the emergence of the phenomenon. In fact the first incident of piracy recorded off Somalia in modern times, the seizure of the Jeddah-bound MV Naviluck and the killing of three Filipino crew members by Somali assailants in three speed boats just off Raas Xaafuun, the easternmost point in Africa, occurred on 12 January 1991, just as the Siad Barre regime was 29 in its death throes. The final overthrow of the dictator and the failure of every subsequent effort to re-establish a central government for the territory of the erstwhile state made it all the more likely that factors which have historically encouraged piracy, many of which were already present in Somalia, would play a role in the emergence of piracy. Geography is the first condition required for the emergence of piracy. As naval analyst Martin Murphy has noted: ‘Piracy is sustainable in places that offer a combination of

27 J. Peter Pham, Testimony before the U.S. House of Representatives, Committee on Foreign Affairs, Subcommittee on Africa and Global Health, 25 June 2009, http://foreignaffairs.house.gov/111/pha062509.pdf (accessed 15 March 2010). 28 Bronwyn E. Bruton, ‘Somalia: A New Approach’, Council Special Report 52. New York/Washington: Council on Foreign Relations, 2010, p.10. 29 Alan Greenblatt, ‘Attacking Piracy: Can the Growing Global Threat be Stopped?’, CQ Global Researcher, 3(8), 2009, p.217.

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rewarding hunting grounds, acceptable levels of risk and 30 proximate safe havens’. Certainly the waters off Somalia meet this requirement: The Gulf of Aden is the main trade route between Europe, the Middle East, and Asia, with approximately 16,000 ships navigating this area each year. The maritime industry off the Somali coast has grown over the years, and today, the Gulf of Aden serves as host to 12 percent of global maritime trade and 30 percent of the world’s crude oil shipments. Despite the economic slowdown in 2008 and its repercussions for global trade, the Gulf of Aden remains a vital and busy international lane of commerce. Shippers have few alternatives to avoid this route, as the added cost of navigating around the Cape of Good Hope is quite substantial. Pirates thus have a wealth of potential 31 targets that they use to their advantage. In fact, of the 293 actual and attempted attacks on shipping reported worldwide by the International Maritime Bureau in 2008, nineteen were off the east coast of Somalia and ninety-two were in the Gulf of Aden. The 111 incidents represented an increase of almost 200 percent from the 32 preceding year. While favourable physical geography can be conducive to outbreaks of piracy, often overlooked is the need for a social and political geography that likewise encourages the marauders. This is especially true in a society like the Somali where it is well-nigh impossible to truly hide one’s business from one’s neighbours. As Lewis has had occasion to observe: ‘[I]n so many facets of

30 See Martin N. Murphy, Small Boats, Weak States, Dirty Money: Piracy and Maritime Terrorism in the Modern World, New York: Columbia University Press, 2009, p.30. 31 Shani Ross and Joshua Ben-David, ‘Somali Piracy: An Escalating Security Dilemma’, Harvard Africa Policy Journal, 5, 2009, p.58. 32 International Chamber of Commerce International Maritime Bureau, Piracy and Armed Robbery against Ships: Annual Report, 1 January-31 December 2008, January 2009.

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modern Somali life, there is much essential continuity between past and present’. The history of the looting of coastal shipwrecks along what is now the coast of Puntland, some of which was apparently induced by locals, represents ‘a significant element in the Majeerteen trading economy, organized by traditional leaders, and may even have contributed to centralizing tendencies in the power structures of the local 33 sultanates’. Beyond the historical antecedents, however, there is no denying the impetus to piracy given by the collapse of the Somali state, which took with it the last vestiges not only of any effective capability to impose a government’s writ on the Somali people, but also to assert their sovereignty over the longest coastline in Africa (some 3,025 kilometers) with rich fisheries in the adjacent territorial waters and exclusive economic zone. Since the early 1990s foreign fishing trawlers—including vessels from nearby Kenya, Saudi Arabia, and Yemen as well as those with far-off origins like France, Japan, North and South Korea, Spain, and Taiwan—have moved aggressively into Somalia’s 34 unguarded seas. Some apologists have made simplistic efforts to cast the story in Manichean terms of ‘justified’ response by poor artisanal fishing communities against poaching (and toxicwaste dumping) by ‘evil’ corporate interests abroad. However, these arguments simply do not hold water. Ken Menkhaus, the prolific analyst of Somalia, has noted: [W]hat began as a genuine grievance on the part of local fishermen quickly morphed into an enterprise by militia leaders, who saw an opportunity to earn easy cash by demanding fees from foreign fishing ships for ‘licenses’ to fish in waters near territory they controlled. Those who failed to pay the fees ran the risk of capture and kidnapping of the crew. The militia leaders overseeing

33 I.M. Lewis, Understanding Somalia and Somaliland: Culture, History, Society, New York: Columbia University Press, 2008, p.105. 34 See Clive Schofield, ‘The Other ‘Pirates’ of the Horn of Africa’, RSIS Commentaries, 2, 2009, pp.1-4.

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these ‘patrols’ were utterly unconcerned about the inhabitants of beleaguered fishing communities, who are generally treated as second-class citizens in Somalia. Nor were militia leaders especially aggrieved at the illegal foreign harvesting of Somalia’s fisheries. They were simply seizing upon an easy form of extra income, and were in some ways complicit in the foreign ransacking of Somali fisheries. The Robin Hood narrative of Somali piracy as a grassroots form of coastal patrol against rapacious foreign fishing vessels is thus only partly true, and at any rate has long since been overtaken by less noble motives. For scholars exploring war economies, Somali piracy is a textbook case of a shift in the 35 motives of an armed group from grievance to greed. No matter how contrived, the ‘defensive’ narrative has had the effect—in combination with more coercive means of persuasion—of creating a social climate in which the actions of the pirates is largely accepted by the populace and acquiesced to by local political authorities insofar as the latter exist at all. The confession of one notorious Somali pirate, Mohamed Abdi Hassan ‘Afweyne’, highlights the complex nexus of organized criminality and warlordism in fragmented Somalia: Security officials for the Transitional Federal Government (TFG) say that Afweyne led the group of pirates that hijacked the MV Rozen on 25 February 2007 and link[ed] him to a network importing arms from Eritrea for former warlord Hussein Mohamed Farah ‘Aideed’. Another Xaradheere-based pirate is warlord General Garaad Mohamud Mohamed, whom UN investigators link to the hijacking of the South Korean-flagged fishing vessels Mavuno I and Mavuno II. Garaad publicly admitted his role on Shabelle Radio.36

35 Ken Menkhaus, ‘Dangerous Waters’, Survival, 51(1), 2009, pp.22-23. 36 ‘Somalia: Pirates of the Horn’, Africa Confidential, 49(15), 2008, p.9.

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State failure also created a legal loophole for Somali pirates. The United Nations Convention on the Law of the Sea (UNCLOS) restricted piracy to the high seas, leaving actions within territorial waters within the criminal jurisdiction of individual states. The problem, of course, was that the Somali state had effectively ceased to exist in 1991. Only in June 2008, with the passage of UN Security Council Resolution 1816 (and its eventual successors), were some of the legal impediments to 37 more effective anti-piracy enforcement removed. Nonetheless, while Resolution 1851 in December 2008 - whose provisions were subsequently renewed for another twelve months by Resolution 1897 in December 2009 - permitted states and regional organizations involved in combating piracy to take action in Somalia with the advance consent of the TFG, to date no state has chosen to avail itself of this provision, leaving intact, as the latter resolution itself noted, ‘the primary role of the TFG in the fight against piracy and armed robbery at sea’. The juridical challenge quickly becomes a political issue when it admits the possibility of hauling captured pirates before the courts of a willing third-party state like Somalia’s southern neighbour, Kenya, which has signed Memoranda of Understanding with the United Kingdom, the United States, the European Union, and the People’s Republic of China to receive and prosecute suspected pirates. Unfortunately, this delays the reckoning. Kenya might serve as a convenient forum for adjudicating the occasional maritime brigandage such as the ten Somalis which the American guided missile destroyer USS Winston Churchill dropped off in 2006, all of whom were tried, 38 convicted, and sentenced to seven years in prison. However, the East African country’s judiciary is simply not capable of processing the large number of pirates being captured since the

37 See Douglas Guilfoyle, ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’, International and Comparative Law Quarterly, 57(3), 2008, pp.690-699. 38 See Michael Bahar, ‘Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations’, Vanderbilt Journal of Transnational Law, 40(3), 2007, pp.1-85.

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various international naval task forces began deploying in the region in late 2008. Even if the Kenyan courts were able to cope with all the new cases, the country has its own restive ethnic Somali and Muslim populations whose pre-existing sense of alienation from the rest of the body politic is hardly going to be assuaged by a seemingly endless parade of accused Somalis. And, trying large numbers of Somalis in the courts of a neighbouring country might well permit the pirate syndicates, who have shown themselves quite clever in their use of public relations, to wrap themselves up in the mantle of Somali nationalism and thus broaden their base of support beyond the thousands of individuals already benefiting, directly or indirectly, from the extensive economic networks which make up the piracy business.

3.3

Piracy Flourishes

All of the geographical, social, and political factors favouring piracy would still not produce the prodigious number of attacks which have occurred if the armed militias and criminal gangs which took up piracy in the aftermath of the UN’s retreat from Somalia had not found the activity highly remunerative. It started with a ransom of approximately $1 million, which was paid for the Taiwanese trawler MV Shen Kno II, seized in 1997 by the Somali Salvation Democratic Front (SSDF) militia of Darod warlord Abdullahi Yusuf Ahmed, who later became president of the TFG. Since then, the amounts which pirates could earn for the successful capture of a merchant vessel have spiralled upward to the $3.5 million paid in November 2009 for the Spanish tuna boat MV Alakrana.39 As one analyst has noted: ‘If Somalia provides the perfect environment for piracy, it is the

39 Abdi Guled, ‘Pirates Free Spanish Ship, Seize Chemical Tanker’, Reuters.com, 17 November 2009, http://www.reuters.com/article/idUSTRE5AG1NX20091117 (accessed 15 March 2010).

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payment of massive ransoms that provides the motivation’. In fact, given the dire state of affairs, especially in southern and central Somalia - including continued conflict, the lack of anything approximating a government, drought, and generally limited economic prospects - it is not hard to see how piracy would come to be an increasingly enticing option, especially when its illicit gains are distributed across a wide swathe of 41 society. In fact, Somali piracy may have brought in as much as $150 million in 2008, more than 50 percent more than the livestock exports which are officially the country’s biggest earner 42 of foreign exchange. Interestingly, state failure has both hindered and facilitated Somali piracy, channelling it along the evolutionary path that the phenomenon has taken to predominately kidnapping for ransom rather than the ship and cargo seizures common in other pirate-infested areas like Southeast Asia. The latter requires functioning ports to offload the stolen goods and the development of networks to ‘fence’ them. In Somalia, the political landscape - including the lack of law enforcement and the support of local clans and warlords who control the territory where the pirates base themselves - ‘encourages kidnappings for ransom that require time, while the economic landscape discourages operations that require the movement of goods or people on land or the use of commodities markets or 43 functioning port facilities, as ship/cargo seizures do’.

40 Roger Middleton, Piracy in Somalia: Threatening Global Trade, Feeding Local Wars, Chatham House Briefing Paper, October 2008, p.5. 41 See J. Peter Pham, ‘The Pirate Economy’, ForeignPolicy.com, 13 April 2009, http://www.foreignpolicy.com/story/cms.php?story_id=4817 (accessed 15 March 2010); also see Mohamed Ahmed, ‘Somali Gangs Lure Investors at Pirate Lair’, Reuters, 1 December 2009, http://www.reuters.com/article/idUSTRE5B01Z920091201?sp=true (accessed 15 March 2010). 42 ‘Pirates ‘Gained $150m This Year’,’ BBC News, 21 November 2008, http://news.bbc.co.uk/2/mobile/africa/7742761.stm (accessed 15 March 2010). 43 Justin V. Hastings, ‘Geographies of State Failure and Sophistication in Maritime Piracy Hijackings’, Political Geography, 28(4), 2009, p.219.

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Nonetheless, while the latter obstacles may limit the sophistication of the attacks, this inconvenience is made up for by the advantage of not having to be concerned about punitive measures which a functioning state might take. Instead, the marauders have the time and the political leeway to negotiate for ransoms, a luxury which their counterparts in weak states do not have. In fact, the figures for 2009 confirm this analysis, reporting as they do that at year’s end more than 200 vessels had been attacked by Somali pirates and 47 had been successfully seized, with 12 of those ships and nearly three hundred crew members 44 still held captive for ransom by the pirates. Moreover, all sorts of vessels have come under attack - including general cargo ships, bulk carriers, tankers, container ships, fishing vessels, yachts, and tugboats - and sometimes at distances of over 1,000 nautical miles from Mogadishu.

3.4

Alternative Centres of Power: Allies in Counterpiracy?

Non-specialist readers of most journalistic accounts of events in Somalia might be forgiven for thinking that all of Somalia was racked in endless conflict when the reality is that a failed state is an accurate description for only part of the country - the central and southern areas - while alternative centres of power and 45 stability have arisen in other regions. The existence of the latter, in fact, challenges a number of widely-held notions about how societies and economies operate, including ‘ideas about how politics operate in the absence of a government; how markets function without legal institutions and currencies; and how communities draw on customary forms of identity and

44 International Chamber of Commerce International Maritime Bureau, Piracy and Armed Robbery against Ships: Annual Report, 1 January-31 December 2009, January 2010. 45 See J. Peter Pham, ‘Peripheral Vision: A Model Solution for Somalia’, RUSI Journal, 154(5), 2009, pp.84-90.

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organization to tap markets and weather extraordinary levels of 46 instability’. More than a decade and a half have gone by since Somaliland (the north-western region of the former Somalia, bordering on Ethiopia and Djibouti) proclaimed the dissolution of its voluntary 1960 union with what was once the Somali Democratic Republic. However, the reasserted sovereignty has yet to be formally recognized by any other state. The modern political history of Somaliland begins with the establishment of the British Somaliland Protectorate in 1884 which, except for a brief Italian occupation during the Second World War, lasted until 26 June 1960, when the territory received its 47 independence. Notification of the independence was communicated to the United Nations and some thirty-five members duly accorded the new state diplomatic recognition. Several days later, the Italian-administered UN trust territory of Somalia received its independence. The two states then entered into a hasty union that a number of legal scholars have argued fell short of the minimal standards for legal validity, something 48 the Somalilanders quickly regretted. After the collapse of the Siad Barre regime in 1991, elders representing the various clans in Somaliland met in the ravaged city of Burao. They agreed to a resolution that annulled the northern territory’s merger with the former Italian colony (a number of international law scholars had long questioned the legal validity of the act of union) and declared that it would revert to the sovereign status it had enjoyed upon the achievement of independence from Great Britain. Unlike other parts of Somalia, conflict in the region was averted when the Somali National Movement (SNM), the principal opposition

46 Peter D. Little, Somalia: Economy without State, Oxford: James Currey, 2003, p.162. 47 See I.M. Lewis, The Modern History of Somaliland: From Nation to State, New York: Frederick A. Praeger, 1965. 48 See Anthony J. Carroll and B. Rajagopal, ‘The Case for an Independent Somaliland’, American University Journal of Law and Politics, 8(2-3), 1993, pp.653-662.

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group that had led the resistance against the Siad Barre dictatorship, and leaders of the predominant Isaq clan-family made a concerted effort to reach out to representatives of other clans in Somaliland, including the Darod/Harti, Gadabuursi, and Ise. While the apportionment of seats in the Burao assembly and a subsequent gathering at Boroma two years later was done along clan lines in a rough attempt to reflect the demographics of the territory, the actual decision making was done by 49 consensus. Subsequently, a constitution was drafted which was approved by 97 percent of the voters in a May 2001 referendum and provided for an executive branch of government, consisting of a directly elected president and vice president and appointed ministers. Additionally, it provided for a bicameral legislature consisting of an elected House of Representatives and an upper 50 chamber of elders, the guurti; and an independent judiciary. Although the report of a 2005 African Union fact-finding mission led by the then African Union (AU) Commission Deputy Chairperson Patrick Mazimhaka concluded that ‘the fact that the union between Somaliland and Somalia was never ratified and also malfunctioned when it went into action from 1960 to 1990, makes Somaliland’s search for recognition historically unique and self-justified in African political history’. The commission recommended that ‘the AU should find a 51 special method of dealing with this outstanding case’, since no country has yet recognized Somaliland’s independence. This apparent snub, while grating to Somalilanders, has not prevented them from building a vibrant polity with a strong civil society sector. While there have been recent contretemps relating to the repeated postponement of presidential and

49 See Mark Bradbury, Becoming Somaliland, Oxford: James Currey, 2008, pp.77-136. 50 See J. Peter Pham, ‘African Constitutionalism: Forging New Models for Multi-Ethnic Governance and Self-Determination’, in Africa: Mapping New Boundaries in International Law, Jeremy I. Levitt ed., Oxford: Hart Publishing, 2008, pp.191-194. 51 African Union Commission, Report of the AU Fact-Finding Mission to Somaliland (30 April to 4 May 2005).

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legislative elections due to technical difficulties with the registry, the disputes were ultimately solved through an internal compromise worked out by all three of the region’s political parties. Left to their own devices, the Somalilanders demobilized former fighters, and formed anational defence and security services. They, moreover, succeeded in the extraordinary resettlement of over one million refugees and internally displaced persons, which fostered the internal consolidation of their renascent polity. Meanwhile the establishment of independent newspapers, radio stations, and a host of local NGOs and other civic organizations reinforced the nationbuilding exercise. The stable environment thus created facilitated substantial investments by both local and diaspora 52 businessmen. To conclude, the government of Somaliland and its extremely modest coastguard have kept the region’s 740kilometer coastline largely free of pirate activity, even trying and 53 jailing captured pirates. The Darod territories in the north-eastern promontory of Somalia likewise have demonstrated the success of the buildingblock model for the country and the wisdom of working with the deeply ingrained clan identities among the Somalilanders. However, they do not have the unique historical, juridical, and political status that Somaliland can claim. In 1998, tired of being held back by the constant violence and overall lack of social and political progress in southern and central Somalia, traditional clan elders of the Darod clan-family’s Harti clan including its Dhulbahante, Majeerteen, and Warsangeli subgroups - when meeting in the town of Garowe decided to establish an autonomous administration for what they dubbed

52 See Iqbal Jhazbhay, Somaliland: An African Struggle for Nationhood and International Recognition, Johannesburg: South African Institute for International Affairs/Institute for Global Dialogue, 2009. 53 See Shashank Bengali, ‘At Former British Prison, Somali Pirates Tell Their Side’, McClatchy, 29 April 2009, http://www.mcclatchydc.com/227/story/67142.html (accessed 15 March 2010).

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‘Puntland State of Somalia’. After extensive consultations within the Darod/Harti clans and sub-clans, an interim charter was adopted which provided for a parliament whose members were chosen on a clan basis and who, in turn, elected a regional president, the first being Abdullahi Yusuf Ahmed who, in 2004, 54 went on to become president of the TFG. Following the departure of the region’s first president, Puntland legislators chose General Mohamud Muse Hersi or ‘Muse Adde’, as the new head of the regional administration. After serving one fouryear term of office, Muse Adde lost a bid for re-election to Abdirahman Mohamed Mohamud ‘Farole’, who was elected in January 2009 from a field of over a dozen candidates. Unlike Somaliland, which has opted to reassert its independence, Puntland’s constitution simultaneously supports the notion of a federal Somalia and asserts the region’s right to negotiate the terms of union with any eventual national government. It is clear that Puntlanders have their share of difficulties - many of which could be said to be of their own making - and their political institutions have not yet achieved the advanced level of those in Somaliland. However, engaging the region is nonetheless the condition sine qua non for achieving what should be the international community’s two primary strategic objectives in Somalia. The first objective should be the containing (and, gradually, weakening) of the radical Islamist threat to regional security and the second objective should be the minimizing (and, likewise, eventually suppressing) of the menace posed to merchant shipping by Somali pirates. After all, many of them have based themselves in the region. In this respect, it should be noted that, short of military invasion and occupation, their havens cannot be denied without the cooperation of the authorities in Puntland. It should also be clarified that, while the authorities in Puntland have been especially diligent in their efforts to root out religious

54 See Kinfe Abraham, Somalia Calling: The Crisis of Statehood and the Quest for Peace, Addis Ababa: Ethiopian International Institute for Peace and Development, 2002, pp.445-463.

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extremism in their midst, their commitment to the fight against piracy is less consistent. Eyl and Garaad in Puntland, together with Hobyo and Xarardheere in central Somalia, have emerged as the primary centres of pirate activity where ‘senior officials 55 are believed to be abetting piracy networks’. Some analysts go even further and worry that the region is ‘becoming the pirate 56 version of a narco-state’. Certainly the assassination of Sheikh Mohamed Abdi Aware, Puntland’s chief justice who was known to hand out tough sentences to pirates and Islamists, as he exited a mosque, was a setback for the rule of law in the 57 region.

3.5

The Case for a ‘Bottom-Up’ Approach

Be it as it may, a broad consensus is emerging among experts who have tracked Somalia for any amount of time that any workable solution to the crisis of state collapse in the country must embrace a ‘bottom-up’ or ‘building-block’ approach rather than the hitherto ‘top-down’ strategy. To be taken into account are the factors that underline this approach, namely the ripple effects of continuing lack of governance in the Somali lands, in addition to relations with whatever functional parts of the TFG there might be left in Mogadishu. It therefore makes more sense for the international community to work with effective authorities in Somaliland, Puntland, Gedo, and other areas as well as seeking to engage with traditional leaders, members of the vibrant business community, and civil society actors. These figures both enjoy legitimacy with the populace and have actual security and economic development agendas which address some of the root causes of piracy as well as complementing the

55 Raymond Gilpin, Counting the Costs of Somali Piracy, U.S. Institute of Peace Working Paper, 22 June 2009, p.2. 56 Menkhaus, ‘Dangerous Waters’, p.24. 57 ‘Gunmen Kill Somalia Pirate Judge’,’ BBC News, 12 November 2008, http://news.bbc.co.uk/2/hi/africa/8356228.stm (accessed 15 March 2010).

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outside world’s goal of containing the spread of the disorders, including piracy, in Somali territory. In the case of Puntland, one has to assume, though, that the political leadership clearly breaks from the complicity with piracy which even the United Nations reports have alleged. While the problem of Somali lawlessness at sea will only be definitively resolved when the international community summons up the political will to adequately address the underlying pathology of Somali statelessness onshore, the truth is that such a process is literally a generational undertaking. That does not mean that, fatalistically, nothing should be done; rather, what needs to be acknowledged is that while the broader project needs to be attended to, it cannot be expected to pay immediate dividends in terms of improved security along the Somali coastline, for which interim measures will be needed. One proposal is the establishment of coastguards along the littoral. This would both immediately lessen the current threat to merchant shipping in the region and contribute to ameliorating the security situation in support of building governance capabilities in the territory of the former Somali Democratic Republic. The idea is one which was commended by UN Secretary-General Ban Ki-moon when he advised the Security Council in March 2009 that: In the interests of a durable solution to piracy and armed robbery off the coast of Somalia, it is important that local coast guards in the region, where possible, are assisted in ways that will enable them to constructively play a role in anti-piracy efforts conducted off the coast of Somalia and the surrounding region. As part of a long-term strategy to promote the closure of pirates’ shore bases and effectively monitor the coastline, I therefore recommend that Member States consider strengthening the capacity of the coast guards both in Somalia and the region.58

58 United Nations Security Council, Report of the Secretary-General pursuant to Security Council Resolution 1846 (2008), 16 March 2009.

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Most interestingly, the Secretary-General added in this context that he ‘encourage[d] Member States to support the continued efforts by the United Nations and its partners to promote the development of local governance…in the relatively stable Somali regions of ‘Puntland’ and ‘Somaliland’’. A recent report by the Council on Foreign Relations in the United States suggests one possible direction that such engagement might take: Development agencies should also seek to create a partnership with Puntland’s legitimate business community—probably the only social segment currently strong enough to challenge the pirate networks. The international community could focus on organizing the professional community in Puntland into a professional association, providing capacity-building support and engaging the group in a discussion about what can be done to reduce piracy. A program that explicitly ties development incentives in the coastal zones to antipiracy efforts could effectively mobilize a population tiring of pirate promiscuity and excess.59

3.6

International Policy toward the TFG and Other Somali Polities

Insofar as there can be said to even be an international policy towards the TFG and other Somali polities, including the governments of the Republic of Somaliland and the ‘Puntland State of Somalia’, it might be characterized as one of carefully 60 balanced ambiguity. United States Secretary of State Hillary Rodham Clinton and other senior diplomatic officials have met with Sharif

59 Bruton, Somalia: A New Approach, pp.33-34. 60 See Mohamed Ali Samantar v. Bashe Abdi Yusuf, et al., Brief of Amici Curiae Academic Experts in Somali History and Current Affairs in Support of the Respondents, 27 January 2010, http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/081555_RespondentAmCuSomaliExperts.pdf (accessed 15 March 2010).

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Ahmed and other TFG officials, both in the United States and 61 abroad, publicly expressing support for the interim regime. While the United States never formally severed relations with Somalia after the collapse of the Somali state in 1991, neither has it officially recognized any of the fifteen transitional governments, including the current TFG. The State Department website merely states: ‘The United States maintains regular dialogue with the TFG and other key stakeholders in 62 Somalia through the U.S. Embassy in Nairobi, Kenya’. In fact, the lack of affirmative de jure recognition for the TFG is presumed by the introduction in October 2009 of a Congressional Resolution by the chairman of the Africa Subcommittee of the U.S. House of Representatives urging ‘the Obama Administration to recognize the TFG and allow the 63 opening of an official Somali Embassy in Washington’. The clear implication is that the United States Government accords the TFG something less than normal diplomatic recognition as a sovereign. In fact, this point was formally conceded in early 2010 by the Obama administration when, in a brief filed with the U.S. Supreme Court in a case involving Siad Barre’s defence minister, Mohamed Ali Samantar, the Solicitor-General of the United States and the Legal Advisor of the State Department acknowledged that ‘since the fall of that government, the United States has not recognized any entity as the government of 64 Somalia’.

61 Secretary of State Hillary Rodham Clinton, Remarks after Meeting with the President of Somalia Sheik Sharif Sheik Ahmed, 6 August 2009, http://www.state.gov/secretary/rm/2009a/08/126947.htm (accessed 15 March 2010). 62 U.S. Department of State, Background Note: Somalia, October 2009, http://www.state.gov/r/pa/ei/bgn/2863.htm#relations. 63 H.Res. 859, http://thomas.loc.gov/cgi-bin/query/z?c111:H.RES.859 (accessed 15 March 2010). 64 Mohamed Ali Samantar v. Bashe Abdi Yusuf, et al., Brief of the United States as Amicus Curiae Supporting Affirmance, January 2010, http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/081555_Affirmance AmCuUSA.pdf (accessed 15 March 2010).

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The approach taken by the United States is in line with that taken by other nations, including some in the region that, from time to time, have voiced support for the TFG. The British Foreign and Commonwealth Office’s website states: ‘Since the fall of the Siad Barre regime in 1991 there have been 65 no formal diplomatic links between the UK and Somalia’. And the TFG’s former foreign minister, Ismail Hurre Buba, and its defence minister, Yusuf Mohamed Siad, have been arrested in 66 recent months in Kenya and Uganda, respectively, demonstrating little deference to the TFG as the government of a neighbouring country. Policy towards the Republic of Somaliland is likewise ambiguous. While no state recognizes Somaliland’s claim to separate statehood, President Dahir Riyale Kahin, Foreign Minister Abdillahi Mohamed Duale and several other cabinet members have been received by senior officials in a number of African, Arab, and European capitals as well as in Washington. After an eight-day visit to the American capital in January 2008, a State Department spokesman declared: ‘This cordial and constructive visit demonstrated U.S. engagement with Somaliland in furtherance of our common interests in the areas of regional peace and security, economic development, and 67 democratic reform’. The Obama administration even returned detainees from Guantanamo to Somaliland in December 2009,

65 Foreign and Commonwealth Office, Country Profiles: Somalia, 21 May 2009, http://www.fco.gov.uk/en/travel-and-living-abroad/travel-advice-bycountry/country-profile/sub-saharan-africa/somalia?profile=intRelations (accessed 15 March 2010). 66 See ‘Kenya Charges Muslim Activist over Hate-Cleric Riot’, BBC News, 19 January 2010, http://news.bbc.co.uk/2/hi/africa/8468119.stm (accessed 15 March 2010); also ‘Somali Minister for Defense Arrested in Uganda’, CBS News, 7 October 2009, http://www.cbsnews.com/stories /2009/10/07/ ap/africa/main5368225.shtml (accessed 15 March 2010). 67 US Department of State, Press Statement, ‘Visit of the Somaliland Delegation’, 20 January 2008, http://2001-2009.state.gov/r/pa/prs/ps/ 2008/jan/99508.htm (accessed 15 March 2010).

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rather than risk sending them to the insecure conditions 68 presided over by the TFG in Mogadishu. Likewise, President Farole of Puntland spoke to the Africa 69 Subcommittee of the U.S. House of Representatives, even after unveiling a constitution that clearly put the region on a secessionist footing. The United States and a number of European governments have turned over captured pirates to the 70 Puntland government. One possible explanation for the seemingly contradictory approaches may be political pragmatism in the face of chronic state failure. Despite the miserable failure of repeated international efforts to rebuild the collapsed Somali state around a national government, by maintaining the juridical fiction that the TFG is a government, the United States and other governments can avail themselves of the legal authority granted by the United Nations Security Council resolutions against piracy, including Resolution 1816 and its follow-up resolutions. This invoked Chapter VII authority to authorize ‘States cooperating with the TFG’ to ‘enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law’ and to ‘use, within the territorial waters of Somalia…all necessary means to repress acts of piracy and armed robbery’. Nonetheless, by not affirmatively recognizing the TFG, the governments allow themselves some flexibility in

68 Jeremy Pelofsky, ‘U.S. Sends 12 Guantanamo Detainees to Home Countries’, Reuters.com, 20 December 2009, http://www.reuters.com/article/idUSTRE5BJ0YJ20091220 (accessed 15 March 2010). 69 See U.S. House of Representatives, Committee on Foreign Affairs, Subcommittee on Africa and Global Health, Hearing Notice, 25 June 2009, http://foreignaffairs.house.gov/hearing_notice.asp?id=1093 (accessed 15 March 2010). 70 Oliver Hawkins, ‘What to do with a Captured Pirate’, BBC News, 10 March 2009, http://news.bbc.co.uk/2/hi/7932205.stm (accessed 15 March 2010).

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dealing with the security challenges arising from the utter ineffectiveness of its claims to sovereignty.

3.7

Conclusion

Somalia and its piracy phenomenon represent major problems for the international community. The former is the very definition of a ‘failed state’ having defied more than fourteen concerted efforts of reconstitution. The latter is challenged by unprecedented naval deployment by virtually all of the world’s major maritime powers which has proven to be ineffective. Within the territory of the onetime Somali Democratic Republic, the pirates have proven themselves more resilient and, quite frankly, more effective than a whole succession of rather notional governments. Nor are the Somalis’ neighbours with their relatively underdeveloped legal and law-enforcement institutions - to say nothing of virtually non-existent naval 71 resources and often corrupt officials - able to do much, although the adoption in January 2009 by nine of them of the legally non-binding Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden (the Djibouti Code) opens 72 the door to a more effective framework of cooperation. In short, the crisis of Somali piracy is a crisis in national and regional governance capacity which will only be remedied by concerted and sustained effort, tempered with a healthy dose of patience. Ultimately, any policy adopted must, at the very least, do no harm. The most attractive course will be the one that proves

71 The Secretary-General’s March 2009 report specifically indicated that pirate ‘mother ships’ operated out of the Yemeni ports of Al Mukallah and Al Shishr. Presumably they did so with at least the tacit consent of the authorities. 72 See James Kraska and Brian Wilson, ‘Combating Pirates of the Gulf of Aden: The Djibouti Code and the Somali Coast Guard’, Ocean & Coastal Management. 52 (10), 2009, pp.516-520.

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best suited to buying Somalis themselves the time and space within which to make their own determinations about their future political arrangements. The policy should therefore adapt to the decentralized nature of Somali social reality and privilege the ‘bottom-up’ approach. At the same time, the policy should be flexible enough to allow the Somalis’ neighbours and the rest of the international community the ability to achieve their legitimate security objectives, including the curbing of piracy in the waters off the Horn of Africa.

The Failed State and Regional Dimensions of Somali Piracy

Timelines

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73

Somalia January 1991

March 1992 April 1992 December 1992

March 1993 October 1993

March 1994 March 1995 April 2000

October 2004

February 2006

73 By J. Peter Pham.

Siad Barre regime collapses, conflict erupts in Mogadishu between Hawiye warlords Muhammad Farah ‘Aideed and Ali Mahdi Muhammad Ceasefire signed between warlords UNOSOM I created to facilitate aid flows and monitor ceasefire United States-led UNITAF/Operation Restore Hope takes over with mandate to use ‘all means necessary’ to deliver humanitarian supplies UNOSOM II takes over Nineteen U.S. and one Malaysian killed in Battle of Mogadishu with militia loyal to ‘Aideed’ Last U.S. peacekeepers withdraw, other states begin withdrawing their personnel End of UNOSOM II Somali National Peace Conference convenes in Arta, Djibouti, to create ‘Transitional National Government’ (TNG) with Abdiqasim Salad Hassan as president ‘Transitional Federal Government’ (TFG) created at conference in Naivasha, Kenya, with Puntland leader Abdullahi Yusuf Ahmed as president TFG parliament finally meets in Somalia

62

June 2006 December 2006

February 2007

March 2007

September 2007

June 2008 August 2008

December 2008 January 2009

May 2009

June 2009 December 2009

February 2010

J. Peter Pham

Islamist forces takes control of Mogadishu and establish Islamic Courts Union (ICU) Ethiopian troops intervene in Somalia to defend the TFG against ICU advances, taking Mogadishu United Nations Security Council authorizes African Union Mission in Somalia (AMISOM) First Ugandan peacekeepers arrive amid heavy fighting between Ethiopian and TFG forces and Islamist insurgents New opposition Alliance for the ReLiberation of Somalia (ARS) formed in Asmara, Eritrea TFG signs ceasefire with part of ARS Hardline Islamists who reject the ceasefire capture Kismayo, Somalia’s third-largest city Abdullahi Yusuf resigns Ethiopia completes troop withdrawal while Sheikh Sharif Sheikh Ahmed is picked by conference in Djibouti as new TFG head Islamist insurgents launch offensive, seizing territory across southern and central Somalia TFG security minister killed by al-Shabaab suicide bomber in Beledweyne Suicide bomber kills three TFG ministers in attack inside government zone of Mogadishu Al-Shabaab formally declares an alliance with al-Qaeda and begins to gather forces for another major offensive

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Somaliland May 1991 May 1993

February 1997 May 2001 May 2002

April 2003 May 2005

September 2005 October 2008 July 1998

November 2001

October 2004 January 2005

Somaliland reasserts its independence Leaders representing the clans of Somaliland elect Mohamed Haji Ibrahim Egal as president Egal is re-elected president Permanent constitution approved by Somaliland voters in referendum Egal dies, Vice President Dahir Riyale Kahin succeeds to the presidency of Somaliland Kahin is elected president in his own right in close election African Union delegation led by AU Commission Deputy Chairperson Patrick Mazimhaka recommends finding “special method” for dealing with “historically unique” case of Somaliland Multi-party elections held for the House of Representatives Al-Shabaab suicide bombers attack targets in Somaliland capital of Hargeisa Puntland Darod clan elders meeting in Garowe stablish the autonomous “Puntland State of Somalia” with Abdullahi Yusuf Ahmed as President Jama Ali Jama is elected president by Puntland parliament, but Abdullahi Yusuf refuses to recognize the new government and seizes power again Abdullahi Yusuf is chosen to be president of the TFG Mohamud Muse Hersi (“Muse Adde”) elected president of Puntland by the region’s parliament

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October 2008

January 2009

May 2009

December 2009

J. Peter Pham

Al-Shabaab suicide bombers, including one Somali American, attack targets in Puntland city of Bosaso Abdirahman Mohamed Mohamud ‘Farole’ elected president of Puntland by the parliament New constitution unveiled which enhances the region’s power vis-à-vis any national government Puntland adopts new “national” symbols

4. Operational Challenges to Counterpiracy 1 Operations off the Coast of Somalia

Kees Homan and Susanne Kamerling

Piracy has a long history and is one of the oldest of all 2 professions. Currently maritime piracy is experiencing a renaissance and has regained a prominence not seen since the period of the Barbary pirates that ended almost two hundred years ago. But why should one be surprised that the twenty-first century still has common criminals and muggers? In fact, piracy is nothing but a high-seas equivalent of street crime. In ancient Greece, piracy was widespread and it was regarded as an entirely honourable way of making a living. Even during the Roman Empire parts of the Mediterranean were infested with pirates. This provoked several naval and amphibious campaigns to suppress them. With the fall of the Roman Empire the incidence of piracy rose again and continued throughout the European Middle Ages. Well into the early modern and modern period, states would occasionally find it advantageous to align themselves with pirates for raids against their respective adversaries. The distinctions between pirates as criminals and privateers enjoying some authorisation by recognised states were fuzzy, to say the least. Privateers or corsairs used similar

1

2

The authors would like to sincerely thank Commodore Pieter Bindt, Captain Ruud Raemakers, Commander Henk van Monderen, and Commander Rob Kramer for their comments on earlier versions of this chapter. The authors remain solely responsible for the information presented. Donald J. Puchala, ‘Of Pirates and Terrorists: What Experience and History Teach’, Contemporary Security Policy, 26(1), 2005, pp.1-24.

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methods to pirates, but acted while in possession of a commission or lettres de marque from a government or monarch authorizing the capture of merchant ships belonging to an enemy nation. During the ‘golden age’ of piracy in the early modern period, pirates were often provided with lettres de marque by European governments when they were at war with each other, in an attempt to damage the enemy’s maritime interests. This formally transformed them from pirates into privateers, although when the wars ended the privateers usually returned to being pirates. In England more than one pirate-turned-privateer was 3 knighted by the crown, most famously Sir Francis Drake. Drake captured the San Felipe on 18 June 1587. Laden with spices, silks, and ivory, it was one of the richest prizes ever seized. A well-known Dutch privateer was Admiral Piet Hein. In 1628 he sailed out to capture a Spanish treasure fleet loaded with silver from the American colonies and the Philippines. Sixteen Spanish ships were intercepted; one galleon was taken after a surprise encounter during the night, nine smaller merchant vessels were talked into surrendering, two small ships were taken at sea while attempting to flee, and four galleons were trapped on the Cuban coast in the Bay of Matanzas. After some musket volleys from Dutch sloops their crews also surrendered and Hein captured 11,509,524 guilders worth of booty in gold, silver and other expensive trade goods, such as indigo and cochineal, without any bloodshed. That is more than any Somali piracy hijack in the Gulf of Aden and Western Indian Ocean has yielded so far. Hein returned to the Netherlands in 1629, where he was hailed as a hero. An old Dutch verse memorialises him: Piet Hein, Piet Hein; Your name will always shine; In your little ships so neat; You beat the silver fleet; The mighty silver fleet from Spain. Although evidently the definition of what piracy is has changed, the comparison with Somalia can be easily made, as

3

Cindy Vallar, ‘The Spanish Galleons’, Pirates and Privateers – The History of Maritime Piracy, Keller, TX, 2003.

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from an operational perspective things have not changed so dramatically. The act of piracy remains the same and even the instruments with which pirates operate have not changed that much, apart from more modern means of communication and some newer weapons. But ladders and grappling hooks are still indispensable, and it is what distinguishes the pirates from everyday fisherman and regional traders who are also present in the operational area in large numbers. What makes Somali piracy different from both historical and more recent piracy manifestations are the local conditions and the broader geopolitical context. Typical for Somali piracy is also that kidnap-and-ransom activities have figured very prominently, although another form of piracy – the theft of petty cash or 4 cargo - also occurs in the same region. The aim of this chapter is to explore which operational challenges confront the international maritime actors that operate off the Somali coast. The chapter argues that Somali piracy is difficult to combat because of specific local conditions, on the one hand, and the geopolitical context on the other. Local factors that pose problems include the sheer size of the operational area, the characteristics that are specific to Somali piracy, and the lack of an (effective) Somali central government to deal with. At the same time, what is also important is that Somali piracy has become a pretext for various countries to become involved in the geopolitical power play that is currently manifesting itself in the Indian Ocean. As the title implies, in this chapter the operational, and to a lesser extent, the tactical challenges to counterpiracy operations off the Somali coast will be examined. ‘Operational’ refers to the level at which the maritime activities are planned and conducted, while ‘tactical’ entails the level at which those activities actually take place.

4

This does not however affect global interests and trade, and is underrepresented in the statistics.

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Local Conditions

Piracy is a crime that is defined by geography and requires the presence of other factors, such as legal and jurisdictional weakness, under-funded law enforcement that enhances inadequate security, a permissive political environment, cultural acceptability, and the opportunity for reward, in order to 5 flourish. In their absence, piracy would probably be unsustainable. Since the end of World War II such combinations have occurred in only relatively few places in the world, not only near Somalia but also elsewhere: around parts of Southeast Asia and in the Bay of Bengal; off East and West Africa; and in a few ports off some stretches of coastline around South America. Most of the factors that encourage and sustain piracy are enduring in these specific places. Mueller and Adler offer as their recipe for flourishing crime at sea: • • • • •

Take a maritime geography, which favours local outlaws and disfavours distant law enforcers Add the chance of enormous profit and little risk Mix it generously with strife, internal and external Avoid maritime law enforcement capacity, and do not add common law! 6 Corruption helps for spicing! Make it hot.

All these conditions are met off the Somali coast. But there are more specific local conditions that contribute to the existence of Somali piracy, and that constitute challenges in the operational sphere. The first and most important factor is the immense size of the operational area in which Somali piracy occurs, and of which the scope is still increasing. The Gulf of

5 6

Martin N. Murphy, ‘Contemporary Piracy and Maritime Terrorism’, Adelphi Paper 388, Abingdon: Routledge, July 2007, pp.12-19. Donald J. Puchala, ‘Of Pirates and Terrorists: What Experience and History Teach’, Contemporary Security Policy, 26(1), 2005, p.5.

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Aden alone is the size of France or the State of California in the United States. But combined with the Somali Basin and parts of the Western Indian Ocean in which piracy attacks also take place, the size of the area amounts to over 2 million square nautical miles (the size of Western Europe). From an operational perspective this is problematic to say the least. An illustrative example is the Greek-owned freighter, Navios Apollon, that was captured by Somalis on 28 December 2009, fully 200 nautical miles (nm) east of the Seychelles, which is more than 700 nm from Somalia. It means that the international maritime efforts cannot cover the whole operational area and have to be restricted to only parts of it. Pirates will always look for niches that remain uncovered, especially as long as no country or organization is willing (or able) to disrupt piracy activities ashore. Secondly, the distinction between fishermen, tradesmen, smugglers and pirates is a grey area. A patrolling navy vessel cannot easily distinguish between them: they all sail through the area by the same kind of skiff or dhow, they are all armed, and are generally (very) young men brought up during the past 20 years in an environment of lawlessness and violence. Only the possession of either fishing nets, on the one hand, or ladders and grappling hooks, on the other, distinguish the groups, which means that a patrolling helicopter, unmanned aerial vehicle (UAV) or vessel has to be very close to be able to tell if it is a pirate skiff one is dealing with or another vessel. Hiding between fishermen or smugglers and making use of ‘mother vessels’ from which pirates are able to operate further offshore complicates the operational picture, which is part of the modus operandi of the Somali pirates. Thirdly, the characteristics of the way in which piracy manifests itself off the coast of Somalia are different than piracy in other areas. Somali piracy has clearly transformed into professional high-level piracy. But although the piracy near Somalia is generally known to be less violent than other kinds of piracy like in the Strait of Malacca a few years ago where whole crews are known to have been killed or thrown overboard,

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Somali piracy is also far from being non-violent. Somali pirates are not afraid to use violence, are under the influence of qhat and are therefore generally less predictable, and have professional weapons like rocket-propelled grenades (RPGs) and machine guns (AK47s). The operational challenge of this type of piracy is that the risk of escalation into higher levels of violence is surely present and has to be taken into account by the missions in place. The fourth local factor is of a political nature and is related to the situation in onshore Somalia that is described in the contribution to this book by J. Peter Pham. From an operational perspective it suffices to say that the lack of possibilities for dealing with the authorities on land mainly hinders counterpiracy operations when dealing with the prosecution and further judicial processes of pirates who are captured. Local authorities in Puntland and Somaliland are proclaiming to be active in searching for, disrupting and prosecuting pirates in their territories. They have pleaded to the international community and naval actors in place to hand over captured pirates, but the EU, NATO and most other nations consider the human rights situation in these areas insufficient. Only France and Spain have occasionally handed over pirates to the Puntland 7 and Somaliland authorities and the TFG. However, international navies still mostly rely on other countries in the region or their home country for prosecution possibilities. In 2009 the EU, for example, concluded memoranda of understanding with Kenya and the Seychelles for the handing over of suspected pirates for prosecution. A fifth local hindrance is the use by pirates of the entire 3,000-kilometre Somali coast from which to initiate piracy activities. Somalia has the longest coastline of any African state. Pirates use several villages mostly in Puntland and Somaliland but also in south Somalia to host their activities, but they also make use of camps for logistics from the north of Puntland

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Interview by the authors with a senior naval commander with experience in the area, January 2010.

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down to the Kenyan border that are often temporary and replaceable. Maritime actors have a hard time anticipating the expected routes the pirates take from land into the Gulf of Aden, Somali Basin and Western Indian Ocean. This makes the fight against piracy more complex, as its bases are dispersed over a vast area of Somalia’s coastline. The last local element that differentiates Somali piracy from other areas is that the degree of organizational networks supporting piracy in the Gulf of Aden and Western Indian Ocean is very high. From sharing intelligence and other information between the clans and criminal elites that direct piracy acts to fine-tuning ransom negotiations and supposedly setting up a stock market for raising funds and investors with 8 regard to pirate activities. This increases the pressure on pirates at the executive level vis-à-vis their investors to succeed in bringing in large amounts of money out of their activities. The operational consequences and implications of these local social, political and geographical conditions of Somali piracy will be discussed later on. First, it is of importance to examine the international maritime presence in the area and to look into the ways in which they currently operate.

4.2

International Counterpiracy Operations

In July 2005, for the first time in the history of the UN World Food Programme (WFP) a ship carrying emergency relief for Somalia was hijacked. The ship was carrying food aid for 28,000 survivors of the December tsunami and the food would have fed them for two months. The UN World Food Programme suspended all shipments of humanitarian assistance to Somalia off Somali waters along Africa's east coast until security would improve. International counterpiracy operations therefore started with a naval escort system in November 2007, when

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ANP, ‘Piraten zetten “beurs” op’, 7 December 2009.

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France decided to send an individual mission to escort WFP ships, followed by missions by Denmark, Canada and the Netherlands. Since then not a single ship loaded with WFP food heading to a port in Somalia has been attacked. However, 2008 saw a surge in piracy attacks on commercial shipping, which prompted the UN to request the 9 international community to step up to this increased threat. Multilateral organizations including the EU and NATO are since then represented, while the US-led multinational Combined Maritime Forces (CMF) has set up the purposemade Combined Task Force 151 following Combined Task 10 Force 150 to specifically combat piracy. Moreover, countries from the Middle East region like Iran and Saudi Arabia have sent ships to the region, and a group of eleven Arab countries has also announced the establishment of an anti-piracy naval task force to prevent piracy from spreading into the Red Sea and 11 Suez Canal. The piracy problem in Somali waters has accelerated geopolitical developments, as the USA, China, Russia, India, South Korea, Singapore, Malaysia, Japan, and numerous European countries have all deployed warships to the western 12 Indian Ocean. Moreover, private security firms hired by shipowners and vessel protection detachments allocated by some governments complicate the operational picture even more.

9 UN resolutions 1814, 1816, 1836, 1848, 1851, all issued in 2008. 10 CTF-150 was originally set up to combat terrorism in the region, but some coalition members believed that fighting piracy was out of the mandate and distracted too much from this original goal of fighting terrorism. Especially the United States is a strong believer in the importance of fighting terrorism in the region and sees counterpiracy missions as secondary to this goal. 11 Bibi van Ginkel, Jort Hemmer, Susanne Kamerling, Frans-Paul van der Putten, ‘Pioneering for Solutions to Somali Piracy – Facing the Challenge, Seizing the Opportunity’, Clingendael Security and Conflict Policy Brief, 3 August 2009, p.2. 12 Ibid.

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4.2.1 EU: Operation Atalanta The European Union – under the presidency of France – launched the EU Naval Force Somalia – operation Atalanta (EUNAVFOR Atalanta) in December 2008 as a follow-up to the individual missions of countries to protect WFP ships. It was its first naval operation under the framework of the Common Security and Defence Policy (CSDP)13 that President Sarkozy of France was eager to advance under his presidency. Forces participating in Operation Atalanta have been tasked with providing vessels of the United Nations World Food Programme (WFP) and the African Union’s Military Mission in Somalia (AMISOM) - considered as vulnerable shipping - with protection as well as fishing and merchant vessels. They are authorized to ‘employ the necessary means, including the use of force, to deter, prevent and intervene in order to bring to an end acts of piracy and armed robbery which may be committed in the areas where they are present’.14 The European Council has extended the mandate for Operation Atalanta for one year from its original deadline in 2009 to December 2010. The Political and Security Committee (PSC) exercises the daily political control and strategic direction of the EU military operation, under the responsibility of the Council of the European Union. For its part, the European Union Military Committee (EUMC) monitors the correct execution of the operation conducted under the responsibility of the Operation Commander, who commands the operation from the Operational Headquarters (OHQ) at Northwood, United Kingdom. It is there that the operation – as directed by the authorities of the European Union – is planned and conducted at the operational level. From April 2010 onwards the Swedish Rear Admiral Jan Törnqvist presently commands the European

13 The European Security and Defence Policy (ESDP) has become the Common Security and Defence Policy (CDSP) under the Treaty of Lisbon. 14 European Union Council Secretariat, Fact Sheet: EU naval operations against piracy (EU NAVFOR Somalia – Operation ATALANTA), EU NAVFOR/04, March 2009.

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naval force from the Force Headquarters (FHQ), on board of HMS Carlskrona. The operational commander reports directly to the PSC. EUNAVFOR was the first to establish an online centre for transiting ships through the Gulf of Aden known as the Maritime Security Centre - Horn of Africa (MSC-HOA) that was a follow-up to an anti-piracy shipping coordination cell in Brussels (EUNAVCO). The MSC-HOA was set up for recording all movements, applications for assistance and receiving and issuing updated threat information and advice. MSC-HOA coordinates all requests for assistance that come in from shipping companies and for which the capacities of the Combined Task Force 151 (CTF151), EU and NATO are being used to assist merchant vessels through the Internationally Recommended Transit Corridor (IRTC). The IRTC was an initiative by the EU with the aim being ‘to deconflict commercial transit traffic with Yemeni fishermen, provide a measure of traffic separation, and allow maritime forces to conduct deterrent operations in the Gulf of Aden with a greater 15 degree of flexibility’. The IRTC has provided increased security for the vessels that pass through it, although hijacks have occurred occasionally within the IRTC since its inception. Since the monsoon season of 2009 there is relative safety within the corridor, the last vessel that was hijacked in the IRTC was the vessel Horizon 1 on 8 July 2009. According to EUNAVFOR liaison officer Commander Lintern, the ships that follow the advice of MSC-HOA are at considerably less risk of being attacked. Without the web-based information provided to ships that go through the Gulf of Aden a ship has a 1 in 14,000 chance of being attacked and captured, with the mission’s 16 advice this number drops to 1 in 70,000. MSC-HOA has over

15 US Department of Transportation, Maritime Administration Advisory # 2009-07, Gulf of Aden, Red Sea, and Indian Ocean Transit, 9 September 2009. 16 SDA Roundtable Report, ‘Re-thinking Europe’s naval power’, Brussels, 16 March 2009.

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6,000 registered users and has seen over 300,000 visits by185 17 countries since its establishment at the end of 2008. Similar services are provided by the UK Maritime Trade Operations (UKMTO) in Dubai and the US Navy’s Maritime Liaison Office (MARLO) in Bahrain, which currently redirect the majority of the applications to MSC-HOA. EUNAVFOR has also provided the necessary resources to protect ships aimed at sustaining the AMISOM or deploying its reinforcements. The EU and its member states also financially support AMISOM in terms of planning and capacity building in order to increase, in particular, the efficiency of the Somali police force and to combat the abuse and violation of human rights. Although the effectiveness of this mission and its very presence is widely debated, the EU (and the UN) has spoken out in favour of prolonging this mission. Among the EU member states which take part in EUNAVFOR are Greece, France, Spain, Germany, Belgium, the United Kingdom, Luxembourg, Sweden, Italy and the Netherlands. From the end of August 2009 until mid-January 2010, the non-EU member Norway has also participated with a frigate in Atalanta. Croatia and Montenegro have, moreover, been accepted by the PSC to join the EU-led maritime forces after vowing to respect the ‘human rights’ of pirates. Malta, Cyprus, Finland, Romania, Croatia and Switzerland have supplied staff officers. A proposal for medical aid from Switzerland did not pass Parliament. This is the first time such broad interest has been expressed by non-EU member states in 18 taking part in an EU mission. The European Union itself has also invited South Africa, Australia and New Zealand to become 19 involved in counterpiracy operations off the Somali coast.

17 Commodore Pieter Bindt, lecture on 17/02/2010, in The Hague, the Netherlands. 18 EU/ Somalia Bulletin Quotidien Europe, no. 10, 09/03/2010. 19 ‘Kamerbrief inzake verlenging van de Nederlandse bijdrage aan de EUoperatie Atalanta ter bestrijding van piraterij voor kust van Somalië’, 13 November 2009.

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The EU currently has an MoU for handing over suspected pirates with Kenya and the Seychelles, although this has not always led to satisfactory results. The Dutch frigate HNLMS Evertsen that took part in Atalanta was forced to release 13 suspected pirates in December 2009 because neither Kenya or the Seychelles nor any other countries in the region were willing to take them. Kenya moreover decided in April 2010 to denounce the agreement with the EU (for which it receives some 1.7 million euro under the Peace Facility in addition to 20 the development aid programme). Several European countries operating in Atalanta, like France, the United Kingdom, Denmark and the Netherlands, are able to prosecute pirates under their national legislation, but are hesitant to do so out of fear for possible asylum requests by (former) pirates once they are prosecuted in European 21 countries. However, in principle all countries have the possibility to prosecute pirates under the UNCLOS.

4.2.2

NATO: Operation Allied Protector and Operation Ocean Shield At the request of the UN Secretary-General Ban-Ki Moon the North Atlantic Treaty Organization (NATO) deployed Standing NATO Maritime Group 1 (SNMG1) to conduct anti-piracy operations in the Horn of Africa Region in late 2008. NATO provided escorts to UN World Food Programme (WFP) vessels transiting through the Gulf of Aden and the Horn of Africa (mostly from Mombassa to Mogadishu) under Operation Allied Provider. NATO ended Operation Allied Provider in December 2008 and transitioned WFP protection responsibilities to the EU Operation Atalanta.

20 Europe Diplomacy and Defence, 311, 20 April 2010. 21 ‘Somali pirates embrace capture as route to Europe’, The Telegraph, 19 May 2009; ‘Piraten keren nooit meer terug’, Algemeen Dagblad, 18 May 2009.

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However, NATO launched a new anti-piracy mission: Operation Allied Protector, under the command of SNMG1 in 22 March 2009. The forces participating in Operation Allied Protector acted to ‘deter, defend against and disrupt pirate activities’. On 17 August 2009, after the North Atlantic Council approved the mission, NATO replaced Operation Allied Protector with a new anti-piracy mission, Operation Ocean Shield, for which Standing NATO maritime Group 1 and 2 23 (SNMG1 & 2) was used. Like its predecessor missions, Operation Ocean Shield has a primary responsibility to deter and respond to piracy. Operation Shield comes under the overall responsibility of Joint Command Lisbon, Portugal, and the day-to-day operational control of the operation is under the Allied Maritime Component Command (CC-Mar), Northwood, United Kingdom. Both missions were initially not set up as counterpiracy missions. They were already planned out-of-area operations to Asia that were turned into counterpiracy missions for the occasion of being in the maritime theatre of the Gulf of Aden, at the instigation of the former Secretary General of NATO Jaap de Hoop Scheffer who stated that it is not acceptable that NATO is present in the region without doing anything to fight 24 piracy. NATO so far lacks any MoUs with countries in the region to hand over suspected pirates for prosecution. This has led to incidents where pirates who had been captured were brought back ashore because of a lack of prosecution capabilities; a practice indicated in the literature as the ‘catch

22 The forces participating in SNMG 1 are the United States, Canada, the United Kingdom, Germany, the Netherlands, Belgium, Denmark, Norway, Poland, Portugal and Spain. During the mission Allied Protector SNMG1 consisted of the United States, Canada, Spain, Portugal and the Netherlands. 23 Forces participating in SNMG 2 are the United States, the United Kingdom, Germany, Greece, Italy, the Netherlands, Spain, Turkey, and occasionally other NATO members. The Force Generation Conference did not yield any offers other than the use of the SNMGs. 24 Interview by one of the authors with NATO officials, Brussels, 18 February 2009.

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and let go’ principle. NATO is – in terms of operational convenience – less well off than the European Union that has designed its missions especially for the maritime theatre of Somalia. The EU, NATO and CMF release most of the pirates when there is insufficient proof of them being connected to an attack or hijack. However, in those cases the suspected pirates are disarmed, and skiffs, engines and communication equipment are confiscated.

4.2.3

Combined Maritime Forces (CMF): Combined Task Force 150 and 151 In January 2009 the United States Naval Forces Central Command (NAVCENT), which is subordinate to the United States Central Command, Tampa, Florida, United States, established Combined Task Force 151 (CTF-151) with its operational headquarters (OHQ) in Bahrain. Its sole mission is to conduct counterpiracy operations in the Gulf of Aden and the waters off the Somali coast in the Indian Ocean. That role had temporarily been filled by CTF-150, that was set up to fight terrorism and other maritime security operations in the region as it had since 2001-2002 as part of the Combined Maritime Force (CMF) of the US 5th Fleet. Counterpiracy missions were believed by some coalition members (especially the United States itself) to divert too much from its original goal of counterterrorism, which was the reason for setting up the separate task force CTF-151.25 The list of countries participating in CMF is fluid and consists of approximately two dozen ships and personnel from the United States, the United Kingdom, Canada, Australia, Denmark, France, Germany, Greece, Italy, the Netherlands, Pakistan, Saudi Arabia, Singapore, Spain, South Korea, Turkey and Yemen, among others. Furthermore, CTF-151 deploys between 2 and 5 ships for counterpiracy missions, while NATO

25 Interview by the authors with a senior naval commander with experience in the area, January 2010.

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and the EU generally have much larger deployments; between 3-7 and 3-14 respectively, excluding air capacity. CTF-151 does not have any memorandum of understanding (MoU) with countries in the region with regard to prosecuting pirates.

4.2.4

Other Naval Actors Involved in Counterpiracy Operations In addition to the established forces, other countries, most notably Russia, China, and India, have independently contributed to the international counterpiracy efforts by monitoring the operational theatre and conducting ‘national escort’ operations. The Indian and Chinese forces are best known as ‘green water’, or littoral forces that operate close to shore and do not routinely operate in a ‘blue water’ 26 environment on the high seas. Before, these two navies only left their regular operating areas to conduct humanitarian assistance, crisis response, escort missions, training exercises and routine port visits. This is India’s and China’s first extended transcontinental naval operational deployment and this consequently poses operational challenges. Conducting patrols on the high seas, away from shore-based aviation and communications, creates new logistic challenges, including navigation through the exclusive economic zone of coastal states; conducting visit, board, search and seizure operations in unfamiliar areas and maintaining the sustainability of the operation (ship, crew, logistics, etc). But also other Asian countries like Japan, South Korea, and Malaysia have contributed in one way or another. Several countries in the region, like Iran and Saudi Arabia, have occasionally deployed warships to the Western Indian Ocean and Red Sea in reaction to piracy activities in their direct neighbourhood. Moreover, a consortium of Arab countries (Saudi Arabia, Bahrain, Djibouti, Egypt, Jordan, Kuwait,

26 Brian Wilson and James Kraska, ‘Anti-Piracy Patrols Presage Rising Naval Powers’, YaleGlobal online, 13 January 2009, p.2.

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Oman, Qatar, Sudan, UAE and Yemen) have announced in June 2009 that they are to set up a anti-piracy naval force to prevent the spread of piracy from the Gulf of Aden to the Red Sea and Suez Canal. This potentially constructive initiative is, however, not yet operational. These multiple efforts by various countries – of which some are new players – have made the operational picture more complex than ever before.

4.2.5

Private Security Firms and Vessel Protection Detachments (VPDs) Another possibility for the shipping industry is to hire private security companies or to ask for vessel protection detachments (VPDs), military teams allocated by the government of the country in question for escorts through high-risk waters and other services. Fishing vessels of France and Spain, for example, operate private vessel protection detachments, for which they have an agreement with the Seychelles for weapon and ammunition handling. Parleying with pirates, and then paying the ransom, are tasks that shipowners also regularly contract out to private firms or ´risk consultants´. Private security firms – some with a reputation for being trigger-happy in Iraq – are joining the battle against pirates plaguing shipping lanes off the coast of Somalia. Business protecting ships off east Africa has tripled in the past year. Armed escort ships, offering protection for a price, are becoming a lot more common off East Africa.27 The growing interest among merchant fleets in hiring their own firepower is encouraged by the United States and represents a new and potentially lucrative market for security firms scaling back operations in Iraq. ‘This is a great trend’, said Lieutenant Nate Christensen, a spokesman for the Bahrainbased US 5th Fleet. ‘We would encourage shipping companies

27 ´Splashing, and clashing, in murky waters´, in: the Economist, 20 August 2009.

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to take proactive measures to help ensure their own safety’. As Admiral Mark P. Fitzgerald, Commander of U.S. naval forces in Europe and Africa and of NATO’s Allied Joint Task Force Command in Naples put it: ‘Because we cannot offer 100percent guarantees of protection as the ships go through, commercial ships should take appropriate protections and arm 29 themselves’. The stance of the United States in this matter is not shared by many European countries that are a lot more hesitant in encouraging shipping companies to hire private security firms. Most European countries are also rather reserved when it comes to equipping merchant vessels with VPDs. The private military security contractor Xe Services LLC (the former Blackwater Worldwide Company) has made available the services of a security escort ship to commercial shippers in the Gulf of Aden since mid-October 2008. The MV McArthur 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 personnel who can operate from rigid 30 hull inflatable boats. The services that these private companies provide to shipowners can be divided into: •

Shipboard security: small teams, usually three to six people, which are deployed to vessels for the duration of transits. Some board and disembark from Yemen ports, while others work longer transits, from Suez, Mombasa, Dar-es-Salaam, Durban, the UAE and Galle, Sri Lanka. This gives more time to become familiar with the ship, its crew and routines, and work out to secure it. It is however quite costly, the Gulf

28 ‘Security firms to fight Somali pirates’, The Associated Press, 26 October 2008 (http://www.msnbc.msn.com/id/27390087/print/1/displaymode/1098/). 29 Defence talk; global defence and military portal, ‘Admiral urges arming of vessels to combat piracy’, April 20, 2010. 30 James Kraska and Brian Wilson, ‘Fighting Pirates: The Pen and the Sword’, World Policy Journal, Winter 2008/09, p.42.

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of Aden Group Transits company charges 35,000 US$ for a transit merely through Yemen waters. Escorts through high-risk waters: Protection Vessels International Ltd has its own escort vessel, which is crewed by former Royal Marines. Maritime Asset Security & Training is a British-based company which advertises that it can charter ex-military patrol craft to escort super yachts. Information and advice: companies provide shipowners and masters with voyage risk assessments and intelligence updates, advice on route planning and onboard security, crew training, and 24-hour monitoring during transits. Drum Cussac, a British firm based in Jersey for instance, will monitor a ship’s progress and advise the master on changing 31 threat levels.

However, employing private firms may also be problematic, as the legality of some security operations may be questionable. For example, the state flags under which ships are registered differ over whether employing contractors on their vessels is permissible. Some states explicitly prohibit it, some say they do not support it, and others remain neutral. While private industry can in theory and sometimes in practice prove more cost32 effective, such efficiency is not guaranteed. Moreover, the force used by these private security companies is not investigated as the use of force of military units would be. An argument also put forward is that the presence of private armed teams on commercial ships can result in an escalation of violence. Anecdotal evidence suggests that often victims of violence by private actors are kept quiet. A ‘free for all’ attitude in international waters would surely make it a lawless place, which contradicts trying to increase security in certain areas like the Gulf of Aden, for example by combating piracy.

31 ‘Private firms may have anti-piracy role’, Oxford Analytica – Global Strategic Analysis, 4 December 2008. 32 Claude Berube, ‘Marine corps – Private security companies and Piracy’, Jane’s Intelligence Review, March 2009, p.36.

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Modus Operandi in Maritime Counterpiracy Operations

Since the international community has quite aptly responded to the appeal of the United Nations to deploy maritime units to the Gulf of Aden, various naval forces have initiated escorted convoys and group transits in the region. Initially, the coordination between the three multinational alliances of CMF, NATO, EUNAVFOR and the other naval actors present was limited. It was only in September 2008 that the EU OHQ introduced the Internationally Recommended Transit Corridor (IRTC), that was accepted in a SHADE meeting (Shared Awareness and Deconfliction, see the next section) and thereafter by the International Maritime Organization (IMO). It has since then been guarded by CMF, NATO and EUNAVFOR.

4.3.1

The Internationally Recommended Transit Corridor (IRTC) and Escorted Convoys The corridor, which runs parallel to the south coast of Yemen, has been established to improve the security of the vessels that go through it, and to optimize the use of available maritime assets present in the region. Group transits through the IRTC are self-organizing, as the corridor is permanently covered, and all ships can attach themselves to a group transit. Ships that apply for assistance at the MSC-HOA, and that meet certain criteria, will be provided with an assisted individual transit through this corridor. The IRTC is divided into a westbound and an eastbound lane separated by a 5-mile middle zone and divided into many boxes that are allocated to the CTF-151, NATO and EUNAVFOR Atalanta depending on unit capability, planning, the availability of other units and threat information. Six to eight naval vessels including air support permanently patrol each box and pass over group transits and vulnerable shipping to the next

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box. At an average speed of 15 knots it takes about 48 hours to go through the IRTC. Within the IRTC there are three possibilities for vessels to be assisted: i) one-on-one escorts for slow, vulnerable or high-risk vessels; ii) group transits that are designed to pass through the highest threat area during night time guarded by the box system, and iii) supported transits for vessels that are not vulnerable enough for one-on-one escorts but could not attach to a group transit. The supported transits are monitored and handed over from box to box. Units position themselves so that they can reach a vessel under attack within the required response time of 15-20 33 minutes. After applying at MSC-HOA, commercial ships receive advice on how they can pass through the corridor. Estimations are that 75-80% of commercial shipping actually apply to MSC-HOA. The criteria on which their assistance through the IRTC is decided upon are confidential, but at least the speed of the ship, its cargo, and the height of its board play a 34 role. Japan, South Korea and India also pass through the IRTC and have the advantage of the protection guaranteed in the boxes, but they sail through with their own national escorts. Countries like Russia and China carry out ‘escorted convoys’ approximately five nautical miles north and south of the IRTC. These convoys are primarily set up for vessels of their own national flag or for nationals sailing under a third flag state, but they are often also open to whoever applies for assistance. Naval vessels of the country in question assist the (group of) vessel(s) all the way through the Gulf of Aden. In the case of China it has

33 Interview by the authors with Commander Henk Monderen RNlN and Commander Rob Kramer RNlN, DOPS, Dutch Ministry of Defence, The Hague, 19 November 2009; interview by the authors with a senior naval commander with experience in the area, January 2010. 34 Ibid.

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been under discussion whether China will participate in the IRTC box system. As of yet, this has not been the case. Coordination of all these operational activities takes place at sea between the force commanders of all naval assets three to six weeks ahead in planning.

4.3.2 Shared Awareness and Deconfliction (SHADE) At the Shared Awareness and Deconfliction (SHADE) meetings in Bahrain all initiatives at sea are presented. It is a staff-level group of officers who meet regularly (approximately once every six weeks) to ensure that the naval forces conducting counterpiracy operations are effectively coordinating their 35 efforts. This activity involves multinational forces (EUNAVFOR, CMF, NATO) and the countries operating in the area, together with representatives from the UN, INTERPOL, UKMTO, MARLO, as well as representatives from the shipping world (Intertanko, Intercargo, BIMCO, IMB, IMO). At these meetings tactical and operational coordination is discussed and agreements are made for a certain period of time with regard to the division of tasks, optimizing the use of available assets and coordination of the geographic presence. Moreover, action plans are made on how to move forward and improve the coordination in the operational theatre. The terms of reference for SHADE were signed by every participating actor except China although the country actively participates in SHADE. SHADE has also approved a concrete product, namely the IRTC Coordination Guide that sets out the principles and concrete workings of coordination and cooperation in the IRTC. SHADE has moreover seen an increase in the naval authorities present at these coordination meetings, as naval officers from China, Russia, India, Japan, Saudi Arabia and

35 Massimo Annati, ‘Maritime Operations off the Horn of Africa: New and Permanent Task for our Navies?’, Naval Forces, IV, 2009, p.38.

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other countries (except Iran) have joined these meetings. China even expressed its wish to play a leading role in counterpiracy efforts – alongside the EU and the US – and has requested in November 2009 to (co-)chair the SHADE meetings in Bahrain. In this context China is likely to take the rotating chair to be filled by individual nations that (will) operate in the IRTC. The EU, CMF and NATO will likely be taking the non-rotating co-chairs. Here also, the piracy problem reveals that there are other interests at stake, to be found more on a geopolitical level. SHADE aims at keeping the meetings focussed on the tactical and operational level, and tries to keep 37 the more political-strategic spheres out of their scope. However, it is increasingly becoming a political forum.

4.3.3 Other Operations There are more naval assets present – currently about 30 vessels of different countries excluding air capacity – than just the ones guarding the IRTC or executing escorted convoys. For the navies present, there are several operations possible in the operational theatre. CMF, NATO and EUNAVFOR execute the following: • •

Escort, supported transits, group transits: in the operating area in general and the IRTC more specifically. Assistance: the assistance of WFP ships, AMISOM, ISAF, released hostages and other actors that can request 38 assistance outside the IRTC. The ships are assisted and – if

36 Interview by the authors with Captain Ruud Raemakers RNlN, Commanding officer of HNLMS Zeven Provinciën that took part in SNMG1 in the NATO mission Allied Protector, Den Helder, 16 November 2009. 37 Interview by the authors with Commander Henk Monderen RNlN and Commander Rob Kramer, RNlN, DOPS, Dutch Ministry of Defence, The Hague, 19 November 2009. 38 Interview by the authors with Captain Ruud Raemakers RNlN, Commanding officer of HNLMS Zeven Provinciën that took part in SNMG1 in the NATO mission Allied Protector, Den Helder, 16

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needed – handed over to AMISOM teams in Mogadishu, to the Somaliland Coast Guard in Berbera, to the Puntland Coast Guard in Boosaaso, or countries in the region. On some occasions there is a boarding team of the assisting navy on board of the ship that is being escorted. Baseline operations: the goal of these operations is to patrol the area, reassure the actors present, and to assist commercial shipping. This is mostly done in or near the IRTC. During these operations naval teams visit local fishermen at sea. By using Somali linguists they explain the aim of the naval operations in the area and the fishermen are given information on how to reach naval authorities. Focused operations: aimed at gaining intelligence and/or deterrence by showing a presence in areas where intelligence has provided information of an upcoming event. NATO calls 39 this a ‘layered defence approach’. The objective is to interdict the pirates before they get into a position to conduct an act of piracy. These operations are mostly executed in the Somali Basin or near the coastline.

4.3.4

Means of Communication and Maritime Situational Awareness (MSA) There are civilian as well as military systems through which commercial ships and the naval authorities currently communicate. Two civilian systems that are widely being used are the Automatic Identification System (AIS), and Global Maritime Distress System (GMDS), the latter being imposed on

November 2009 and interview by the authors with Commander Henk Monderen RNlN and Commander Rob Kramer RNlN, DOPS, Dutch Ministry of Defence, The Hague, 19 November 2009. 39 Depending on the broader operational picture, some maritime units stay close to the land to deter pirates from setting sail, while the remainder wait closer to the merchant shipping lanes in the hope of disrupting 39 attacks. Pirates are only arrested if they are caught attacking or attempting to board a ship. Special forces teams will simply dispose of their grappling ladders, weaponry and excess fuel.

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the shipping industry by the IMO. They are very high frequency (VHF)-based systems that while short in range, provide data on merchant ships, including identification, position, course, and speed. These systems are also used as a means to communicate with ships and receive and react to emergency calls. With the (civil) information of these systems the naval forces present in the region set up a recognised maritime picture (RMP) which enlarges the maritime situational awareness (MSA). This overall operational picture is disseminated via classified military systems (MCCIS, Link11, NSAWAN and CENTRIXS) and is accessible only to most countries participating in CMF, NATO, or EUNAVFOR plus Japan and South Korea (because of their cooperation with the United States). Mercury, an EU-introduced web-based system is used to communicate with all naval forces and relevant shore-based organizations that do not have access to a classified RMP of the established naval forces – like Russia, China, the Seychelles, India, and UKMTO. Navies and shore-based organizations have to apply and be admitted. Currently all naval actors except Iran have joined this forum with possibilities for chat, file 40 exchange and an unclassified RMP, to exchange information. Currently, work is in progress to implement a near real-time unclassified operational picture in Mercury. The CMF, NATO and EU are interoperable which makes the cooperation and coordination among the participating countries in these alliances much easier than with third forces of Russia, China and India to name but a few. The MSA of the Gulf of Aden is currently quite sophisticated because of the presence of naval forces in the

40 Interview by the authors with Captain Ruud Raemakers RNlN, Commanding officer of HNLMS Zeven Provinciën that took part in SNMG1 in the NATO mission Allied Protector, Den Helder, 16 November 2009, interview by the authors with Commander Henk Monderen RNlN and Commander Rob Kramer RNlN, DOPS, Dutch Ministry of Defence, The Hague, 19 November 2009 and interview by the authors with a senior naval commander with experience in the area, January 2010.

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IRTC and the escorted convoys. However, creating MSA in the Somali Basin and Western Indian Ocean is still a challenge because of the size of the area and the limited presence of naval ships and especially aircraft. Ideally, one common operational picture or MSA is created of the whole area where pirates are active; however, technical, operational as well as political obstacles are still in the way.

4.4

The Pirates’ Response

How do Somali pirates operate and respond to these international activities in the region? Piracy operations near Somalia unfold in seven phases: 1. reconnaissance and information gathering; 2. coordinated pursuit; 3. boarding and takeover; 4. steaming to a safe area; 5. negotiations; 6. ransom payment; and 41 7. disembarkation and safe passage. The pirates seem to know what they are doing and how to foil some of the best navies currently operating. The ‘focused operations’ or ‘joint patrols’ by NATO, the EU and individual nations on a bilateral basis have had some effect, but the pirates have responded by raising their game and adapting their tactics and operating area. The pirates are now working hundreds of miles out in the ocean – which is rather the west coast of India or off Madagascar than the east coast of Somalia – where they operate from mother ships with a wider operational reach, sometimes using wooden skiffs for reconnaissance patrols. Because they are wood, they give no response to tracking radar.

41 Raymond Gilpin, ‘Counting the Costs of Somali Piracy’, Center for Sustainable Economies, United States Institute of Peace, Washington DC, 22 June 2009, p.8.

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Pirates are moreover generally aware of the rules of engagement of the navies present, their locations and activities. They also have knowledge of all of the negotiations that take place and the level of the ransoms that are paid by the different 42 shipowners. The possibility exists that pirates will (temporarily) shift their activities to other criminal spheres where profits are high, like human trafficking, and arms and drugs smuggling. The international community will be less focussed on these kinds of activities as there are less direct 43 interests at stake. In this, they show one of the key elements of the practice of ‘asymmetric tactics’ in warfare. They are in some cases operating below the ‘threshold of sophistication’ of the bestequipped military forces. They work outside the scope of modern weapons systems. Surface-sweeping radars from ships, aircraft and satellites barely pick up the skiffs at a distance. If they do, it is almost impossible to differentiate them from the innocent fishery and commercial shipping. Navies of the world have to change their operational thinking to meet the piracy problem. Till suggests that presently naval planners face two conceptual naval tasks: the state-centred ‘modern’ and the system-centred ‘postmodern’ mentioned 44 earlier. The former reflects the preoccupation of navies with state-to-state conflict and balancing naval power. The latter is the more novel, postmodern set of naval tasks that derive from the necessity of defending the global sea-based trading system. One of the tasks of postmodern navies is maintaining good order at sea. The anti-piracy operations off the Somali coast reveal

42 See the chapter by Per Gullestrup and May-Britt Stumbaum; interview by the authors with Captain Ruud Raemakers RNlN, Commanding officer of HNLMS Zeven Provinciën that took part in SNMG1 in the NATO mission Allied Protector, Den Helder, 16 November 2009. 43 Interview by the authors with Commander Henk Monderen RNlN and Commander Rob Kramer RNlN, DOPS, Dutch Ministry of Defence, The Hague, 19 November 2009. 44 Geoffry Till, ‘Making waves, Naval power evolves for the 21st century’, Jane’s Inteligence Review, December 2009, p.29.

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many of the challenges that face maintaining good order at sea. Naval tasks should be directed more towards the necessity of defending the global sea-based trading system on which all else 45 depends rather than defending their nation state. The established navies will need to build fast patrol ships – advanced versions of the Second World War corvettes – and be further equipped with helicopters and small or inflatable boats for patrolling vulnerable choke points such as the Red Sea, Gulf of Aden, Strait of Malacca, Strait of Hormuz and even parts of the Mediterranean. These kinds of operations also require a structured and balanced sufficiency of frigates, light and relatively cheap corvettes, ocean and offshore patrol vessels, helicopters, unmanned aerial vehicles (UAVs) and even submarines to intercept targets and enforce jurisdiction. Navies should invest more in ships that could handle coastal operations. The US Navy, for example, has ordered new littoral combat vessels that – although capable of operating in robust warfare operations as well – are also effective in these kinds of ‘policing’ operations. India also has corvettes equipped with helicopters and inflatable boats that are suitable for constabulary tasks. The Dutch Navy has ordered ocean-going patrol ships. However, new naval actors in Asia like China and India are still predominantly focussed on capabilities that are less adequate in system-based operations – like counterpiracy missions – but are 46 rather focused on state-centred missions.

4.5

Onshore Regional Capacity Building

Not only offshore (military) counterpiracy missions are being undertaken. There are also several important initiatives to combat the piracy threat not only by sending warships, but also by working on more durable solutions that can build up capacity in the region so that counterpiracy missions will not be

45 Ibid. 46 Ibid.

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necessary in the future, or can be conducted by countries in the region itself.

4.5.1 The Contact Group on Piracy off the Coast of Somalia Resolution 1851 ‘encourages all States and regional organizations fighting piracy and armed robbery at sea off the coast of Somalia to establish an international cooperation mechanism to act as a common point of contact between and among states, regional and international Organizations on all aspects of combating piracy and armed robbery at sea off Somalia’s coast.’ Based on this resolution, the United States Bush Administration initiated the formation of a multilateral Contact Group on Piracy off the Coast of Somalia (CGPCS, Contact Group) that was established as an international cooperation mechanism to act as a common point of contact between and among states and regional and international 47 Organizations on all aspects of combating piracy. It was initially made up of 24 member governments and five regional and international Organizations, but by September 2009 the membership of the CGPSC had grown to 45 member 48 governments, seven regional Organizations, and two observers. The Contact Group held its inaugural meeting in January 2009 and identified six tasks: 1. improving operational and information support to counterpiracy operations; 2. establishing a counterpiracy coordination mechanism; 3. strengthening judicial frameworks for arrest, prosecution and detention of pirates; 4. strengthening commercial shipping self-awareness and other capabilities;

47 Report of the Secretary-General pursuant to Security Council resolution 1846 (2008), 13 November, 2009/590, p.2. 48 US State Department Bureau of Political-Military Affairs, ‘Contact Group on Piracy off the Coast of Somalia: List of Participants, Fourth Plenary Meeting’, New York, September 10, 2009.

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5. pursuing improved diplomatic and public information efforts; and 49 6. tracking financial flows related to piracy. Although very ambitious in their set-up, mainly the first four goals are actively pursued by means of working groups that come together once every few months. The second goal has largely been achieved through SHADE, and has therefore been broadened to the building up of regional capability, mainly focussing on the maritime aspect of capacity building. The last goal – tracking financial flows related to piracy – is, although important, not yet (openly) pursued. The United States is willing to investigate this issue, but not in the context of an 50 CGPCS working group. INTERPOL is also working on tracing money trails – in cooperation with the US and UK – by supporting law enforcement in the region, sharing information through the INTERPOL I-24/7 global secure communications network, and holding regional workshops for investigators that 51 can help create effective police networks. The Contact Group has sent two assessment missions to Somalia, and countries in the region, that will form the basis of all initiatives. The activities of the CGPSC will be funded by its own international trust fund that was set up to support all initiatives. Somalia itself is also participating in the CGPSC, but characteristically, with three delegations: one from the TFG (Transitional Federal Government) of Somalia, one from 52 Somaliland, and one from Puntland. The international community does not recognise the self-declared entities of

49 Statement of Contact Group on Piracy off the Coast of Somalia, New York, 14 January 2009. 50 Interview by the authors with Commander Henk Monderen RNlN and Commander Rob Kramer RNlN, DOPS, Dutch Ministry of Defence, The Hague, 19 November 2009. 51 Report of the Secretary-General pursuant to Security Council resolution 1846 (2008), 13 November, 2009/590, p. 11. 52 Interview by the authors with Commander Henk Monderen RNlN and Commander Rob Kramer RNlN, DOPS, Dutch Ministry of Defence, The Hague, 19 November 2009.

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Puntland and Somaliland as such, also because it does not want to encourage the breaking up of Somalia. Recently the TFG has signed an agreement with Puntland – the Gaalkacyo Agreement – in which in return for the support of Puntland for the TFG, it allows Puntland to enter into contact and agreements with the international community and the maritime missions in the 53 region. However, this situation still makes the cooperation with Somalia difficult, for, on the one hand, the international community does not formally recognise the different authorities of Somalia, but, on the other hand, to be somewhat effective in any initiative with regard to capacity building in the region it should work with all three sub-regional authorities – and not just the TFG.

4.5.2 The Djibouti Code of Conduct The International Maritime Organization (IMO) began sponsoring consultation meetings on piracy for the Horn of Africa region in 2005, which finally led to the development of a draft cooperative framework in early 2008. Representatives of 17 regional governments met at an IMO-sponsored meeting in Djibouti in January 2009, and adopted this ‘Code of Conduct concerning the Repression of Piracy and Armed Robbery against ships in the Western Indian Ocean and the Gulf of Aden’. Nine countries agreed to cooperate on anti-piracy security and capability development and signed the Code: Djibouti, Ethiopia, Kenya, Madagascar, the Maldives, the Seychelles, Somalia, Tanzania and Yemen. Egypt signed on 1 October 2009, more signatures by regional countries – 21 possible signatories in total – are expected. This Code of Conduct is a central instrument in the development of onshore regional capacity building for the purpose of combating piracy

53 The importance, impact and status of the Gaalkayo Agreement are as yet unclear.

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in the region. A training and information centre has been established in Djibouti, where the French armed forces are training Somali security forces. Djibouti itself agreed to train 200 members of Somalia’s coastguard, who will go on to teach their colleagues. IMO will also assist in the creation of a national Somali coastguard. IMO will also set up a project cell for the implementation of the Action Plan that has been agreed upon, and already a multi-donor trust fund has been established to collect money for these efforts. Japan is one of the largest donors to this fund. Short and longer-term projects will be funded from this, supported by the international community, and coordinated by the IMO. Piracy information exchange is agreed to be coordinated and communicated from national focal points in the region, to be situated in the maritime rescue coordination centre in Mombassa, Kenya and the sub-regional coordination centre in Dar-es-Salaam, Tanzania respectively. A centre in Yemen will be established in the regional maritime information 55 centre in Sana’a. Especially the latter may be somewhat ambitious at this stage.

4.5.3 Other Multinational Initiatives As the roots of Somali piracy are on land, everyone agrees that naval power is not enough and that also land-based initiatives should be taken. The EU and NATO are currently developing a more comprehensive approach to counterpiracy efforts. A new component of the missions is participation in capacity building efforts with regional governments. For NATO for example, under ‘Operation Patch’, Cornwall, as NATO’s lead vessel, has been working with the authorities in the semi-autonomous

54 Report of the Secretary-General pursuant to Security Council resolution 1846 (2008), 13 November, 2009/590. 55 Record of the meeting that took place in Djibouti from 26-29 January 2009, and in which the Code of Conduct was adopted, p. 10.

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Somali region of Puntland – home of the worst pirate dens. Cornwall’s leadership is investigating the potential for helping to train the 600-strong Puntland Coastguard. Staff officers of both the EU and NATO have conducted frequent meetings, interviews and initial low-level cooperation with both the Puntland and Somaliland Coast Guard and fishery authorities. The information and intelligence flows that are established with these authorities have been of practical operational benefit to the EU, NATO and also CMF. Contact with the TFG has 56 paradoxically proved more difficult. Sorties along the coast have advanced more quickly thanks to information from the ministers, who have also given the EU and NATO valuable intelligence on pirate camps that would otherwise have remained undiscovered. The EU and NATO are hopeful that the men who helped them so far, and with whom they have built up productive relationships, will remain in power long enough to continue the process, according to the media liaison officer, 57 Lieutenant Commander Graham Bennet. EU governments agreed, on 17 November 2009, on a crisis management concept for a possible Common Security and 58 Defence Policy mission to contribute to the training of security forces for the transitional federal government (TFG) of Somalia. The mission would be part of an overall EU approach to addressing the problem of lawlessness in the area. The crisis management concept will be developed into a more specific operational plan. There are expected to be between 100 and 200 EU trainers. France is already training around 1000 Somali soldiers in a military base in Djibouti, northwest of Somalia. However, other European countries like the Netherlands are hesitant to train Somali security forces because of the lack of an institutionalised security sector. There is no guarantee that

56 Interview by the authors with a senior naval commander with experience in the area, January 2010. 57 Report of the Secretary-General pursuant to Security Council resolution 1846 (2008), 13 November, 2009/590, p. 24 58 The European Security and Defence Policy was renamed the Common Security and Defence Policy under the Treaty of Lisbon.

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trained forces will remain loyal to the TFG and the counterpiracy cause. The United Nations already had a multitude of initiatives in place before the conception of the Contact Group that are also aimed at improving the situation in onshore Somalia. The Somalia Monitoring Group watches weapon deliveries to Somalia, the UN Office on Drugs and Crime provides technical support to Somalia, the United Nations Development Programme (UNDP) is working – among other things – to improve the prison system (also in Kenya and the Seychelles), the UN Joint Programme on Local Governance and Decentralized Service Delivery and the Somalia Reconstruction and Development Programme are focussed on decentralized service delivery and contributing to the Millennium Development Goals in Puntland, Somaliland, south and central Somalia, and the UN Support Office is supporting AMISOM. The UN country team has developed a transition plan for all UN agencies, funds and programmes in Somalia for 2008-2010, in which a strong role is laid down for strengthening the federal institutions of Somaliland and Puntland. An Integrated Task Force for Somalia finally has the aim of bringing together all UN entities – including IMO and INTERPOL – and coordinating the approach of the various counterpiracy 59 initiatives in Somalia and the region. Overlap and duplication is quite likely in this jungle of initiatives of the UN, NATO, and the EU, not to mention all the initiatives taken bilaterally or by nations individually. Especially because not all necessary information is shared completely and in good time, and the initiatives are not geared toward another.

59 Report of the Secretary-General pursuant to Security Council resolution 1846 (2008), 13 November, 2009/590.

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Operational Challenges

Multinational maritime operations are generally not problematic, and ships of many different navies both within and outside the EU, NATO and CMF have worked together successfully for many years. Language is not a problem, provided key personnel in a ship’s company can speak English, the common language of the sea. There are familiar international rules and Organizations, like the United Nations Convention on the Law of the Sea (UNCLOS), and the International Maritime Organization (IMO). Nevertheless, the operational consequences of these specific circumstances in which Somali piracy flourishes and international navies operate are multiple. Various local conditions such as the immense size of the operational area, the lack of a complete maritime situational awareness, the long coast line from which piracy activities are initiated, the highlevel professionalism of Somali piracy, the modus operandi of the Somali pirates, and the unstable political situation on land and therefore the lack of an (effective) authority to deal with have proven to be major operational challenges to say the least. This should have consequences for the Organizational structure, mandate, and maritime capabilities and assets of the missions in the operational theatre, but first and foremost it should have an impact on the ambitions that are being formulated by nation states as well as multinational forces. It is an illusion to think that even with all the efforts in place, piracy in such a large maritime theatre and with these specific local and regional characteristics can be completely eradicated as long as the politically unstable situation onshore remains the same. From an operational perspective, protecting WFP shipping aimed at emergency aid for Somalia and merchant shipping aimed at fuelling the global trade and economy (and of course with that the seafarers themselves) from attacks or hijacks by Somali pirates would be an achievement in itself. For the dire situation in Somalia this might not be enough, but greater ambitions are not feasible when considering this operational theatre. As

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Admiral Mark P. Fitzgerald, Commander of US naval forces in Europe and Africa and of NATO’s Allied Joint Task Force Command Naples put it: ‘We could put a World War II fleet of ships out there, and we still wouldn’t be able to cover the whole 60 ocean’. Next to the local conditions, the fact that so many actors – including private security firms – with sometimes different tasks and goals are operating in the Gulf of Aden, also creates many challenges. The main challenge is the successful coordination of all counterpiracy activities. There are several mechanisms for coordination in place, but political as well as technical obstacles remain in the way. These vary from building a common operational picture, intelligence sharing and data exchange to the deconfliction of tasks and different Rules of Engagement. The advantage of the presence of all these actors is that there is one common goal: fighting piracy. However, for some, counterpiracy may only prove to be a pretext to be present in the strategically vital area of the Indian Ocean and gain experience, information and intelligence on the other actors that are present in the area. This seems especially true for the United States and Iran, and newcomers China and India. Performing out-of-area operations is also an important aspect for the new naval powers China and India which by their counterpiracy efforts will gain experience in independent as well as coalition operations and coordination, including exercising communications as well as bridge-to-bridge radio, satellite telephone, internet, radar, sonar and electro-optical sensors. It is probable that the newly emerging naval powers will develop new doctrines, policies, tactics, techniques and procedures to master extended deployments, and those skills will transfer to future missions. New ship and weapon platforms may not be far behind either. The nations of China and India now join traditional maritime powers – the United States, the United Kingdom, France and Russia – as naval forces with possible

60 Defence talk; global defence and military portal, ‘Admiral urges arming of vessels to combat piracy’, April 20, 2010.

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future worldwide reach. Whether the expansion of blue water capability will be a positive force, and not a source of friction, largely depends on the ability of this diverse group to coordinate and share the increasingly crowded littorals. A final challenge in this context is ensuring effective communication on the high seas. Effective high seas missions require, among other things, robust communication capabilities, coordination among warships and an ability to identify, classify and, if necessary, respond to maritime threats. As more warships converge on the Horn of Africa, there is an increased imperative for all operating forces to have a common operational picture. Work is in progress to achieve just that, but information and intelligence sharing will in the end remain (politically) constrained.

4.7

Conclusions

Counterpiracy operations are in essence relatively simple ‘good order at sea’ operations. Somali piracy is difficult to fight because of specific local conditions, on the one hand, and the geopolitical context on the other. The presence of so many warships, maritime patrol aircraft, and private security firms operating either within multinational coalitions or under national command, creates several challenges, as we have seen. From a tactical and operational perspective, the most effective and efficient coordination and optimum utilisation of scarce resources would be that all ships in the maritime theatre are deployed under a unified command structure and centralised coordination, as for land-based UN peacekeeping operations. However, such an arrangement is politically not acceptable, as all actors that are presently deploying their naval ships off the coast of Somalia have their own interests and want to show their own flag. For example, from a political as well as a military perspective Operation Atalanta is very relevant for the EU. The warships taking part in this operation are deployed from

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Western European states which, by participating in NATO Standing Naval Forces for many years, are accustomed to naval frigate operations. Still, this is the first time the countries are integrating into a maritime force under EU command. Operation Atalanta demonstrates for member states of the EU and the rest of the world that Europe is capable of projecting unified power across vast distances. The strength, interoperability and adaptability of the EU maritime operation will persist beyond the piracy crisis, influencing how Europe approaches future global naval missions. Unified command would make the EU less visible as an independent actor. Moreover, newly emerging naval actors like China and India are hesitant to operate under a foreign, unified flag. There are coordination mechanisms and shared communication systems for cooperation between all these actors in place, but further interoperability is not something many will aspire to. However, if the countries and Organizations involved in combating piracy off Somalia’s coast are able to manage the different operations involved somewhat effectively, naval diplomacy off the coast of Somalia could well prove to be an opportunity to peacefully incorporate rising (naval) powers in the international order. Getting to know each other at sea could boost multilateral cooperation in (military) operations in the future. From a purely operational perspective, however, geopolitics obscure (political) interoperability and effective command and control of the international naval assets in the operational theatre. One could then at least hope that such a large fleet should intimidate and sweep away any possible pirate, ensuring full command of the sea. The reality, however, is very different. The area affected by the criminal activities is so vast and the situation on land so dire and lawless that it is really impossible to ensure a constant coverage. Pirates in the area continue to adapt their techniques and procedures in order to achieve success in capturing vessels, both in the Gulf of Aden as well as in the Somali Basin and Western Indian Ocean. Naval vessels patrolling the area provide a measure of deterrence through

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their presence, but this is limited due to the vast area of the Gulf of Aden and is even less effective in the open waters east of Somalia. Given the high volume of shipping in the region, the safety of all ships cannot be guaranteed due to the often long 61 response times due to the considerable distances involved. Fully eliminating piracy is not possible and should not be the goal. Much like crime on land, the primary aim should be to reduce and contain piracy. Ensuring that there is good order at sea and that sea lanes are protected is an imperative in a just-intime based global economy. A sustained reduction in piracy will ultimately require persistent political and economic commitments, enhanced judicial capability as well as military assets and partnering in the region in question. Supporting offshore and onshore regional capacity building as is currently being undertaken by the Contact Group on Piracy off the Coast of Somalia and the International Maritime Organization under the Djibouti Code of Conduct is therefore also desirable from an operational perspective. ‘Antipiracy efforts’, as UN Secretary-General Ban Ki-Moon noted in December 2008, ‘must be placed within the context of a comprehensive approach which fosters an inclusive peace process in Somalia and assists the parties to rebuild security, governance capacity, address human-rights issues and harness 62 economic opportunities throughout the country’. On the international as well as regional and national level, many initiatives promoting comprehensive approaches have been taken, but the coordination is still very weak. There is a risk that all actors advocate an overall comprehensive approach, but in reality, stick to their own – internally focussed – comprehensive approach that is not nestled among the approaches of other actors.

61 US Department of Transportation Maritime Administration Advisory #: 2009-07, Gulf of Aden, Red Sea and Indian Ocean Transit, 9 September 2009. 62 Cited in ‘Combating piracy off Somalia, Swift naval response is only part of the solution’, Strategic Comments, 15(1), 2009.

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In short, counterpiracy operations are relatively simple to undertake and navies worldwide are happy to be able to display their relevance. However, merely conducting maritime operations does not tackle the root causes, as any naval commander in the Gulf of Aden will probably admit. Moreover, the presence of maritime operations and naval assets off the coast of Somalia is dependent on political will, in the end constrained in numbers as well as time and therefore not necessarily sustainable. Contributing to regional capacity building is therefore a precondition for a long-term solution. Let us hope that the Contact Group, the Djibouti Code of Conduct and the comprehensive approaches of the UN, NATO and the EU – through cooperation with the Somali authorities – will go a long way to achieving just that.

5. Coping with Piracy: The European 1 Union and the Shipping Industry

Per Gullestrup and May-Britt U. Stumbaum

Piracy attacks off the Somali coast pose a threat to international maritime trade and to the UN World Food Programme (WFP). In addressing Somali piracy, the European Union (EU) is one of the leading actors. It has a number of important interests at stake that warrant its efforts to keep open the sea lines of communication (SLOCs): promoting effective multilateralism with international cooperation in counterpiracy efforts; spurring experience gathering and collaboration within the framework of 2 the first naval Common Security and Defence Policy (CSDP) operation; and, finally, reaching out to emerging global players such as China and India as part of the EU’s approach of engaging those nascent great powers in a multipolar world. With 90 percent of European trade being seaborne, a primary interest of the world’s biggest trading block is to safeguard its maritime routes and guarantee non-interference in trade and transportation while keeping the costs for shipping at a competitive level to ensure a continued high flow of exports. The shipping industry is a key actor in international seaborne

1

2

The authors would like to thank Dan B. Termansen, Royal Danish Navy Commanding Officer of HDMS Absalon, for his highly appreciated advice on writing this article. We would also like to thank George Deswijzen from the Dutch Foreign Ministry of Affairs and Daniel M. Hartnett, formerly at the Center for Naval Analyses. Following the enactment of the Lisbon Treaty, the European Security and Defence Policy (ESDP) was turned into a Common Security and Defence Policy (CSDP).

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trade. It, too, has major interests at stake with regard to secure passage through the Gulf of Aden and the Western Indian Ocean. This chapter looks at the interests and initiatives taken by both the European Union and the shipping industry, how these relate to each other, and what can be done for both sides to strengthen their joint approach to deal with the piracy threat. Piracy is a major challenge for international collaboration and raises multiple questions about international legal issues of engagement and prosecution. It emerged in the Gulf of Aden when Somali fishermen started to board foreign fishing vessels and demand fines as a response to what they perceived as a threat to their own possibilities to make a living: poaching by foreign fishing vessels and the dumping of hazardous waste in their territorial waters by European nations. War-torn Somalia is haunted by extreme underdevelopment and the absence of governance, making ‘the risks associated with piracy [only] little 3 worse than those faced every day’. Increasing amounts of ransoms being paid by the shipping industry combined with an unclear legal situation that has kept prosecution difficult if not sometimes impossible, have increased the attractiveness of piracy and hence the volume of attacks. Attempts to keep a safe distance to the Somali coasts were met with the pirates’ usage of mother vessels with an extended operating range, reaching far into the Indian Ocean, the Gulf of Aden and down to the Seychelles. Attacks have continued despite the international community’s naval operations starting at the end of 2008, leading to a growing number of crews being taken hostage in 2009 and 2010, sky-rocketing insurances and other related negative impacts on seaborne trade. Contributing to this edited volume on the international response to Somali piracy, the authors of this chapter – a shipowner who recently had to negotiate himself the release of

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Roger Middleton, ‘Piracy Symptom of Bigger Problem’, BBC World News website, 15 April 2009, http://news.bbc.co.uk/2/hi/africa/8001183.stm (accessed: 15 Apr 10); for an overview of the situation ashore, see chapter II in this book.

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one of his ships, and a political analyst focusing on the security relations between the EU and the emerging actors such as China - decided to pioneer a new approach. By co-authoring this chapter, we aim to contribute to the debate by assessing how the position of the EU – a leading actor on the governmental side – relates to that of the shipping industry – a leading actor on the private side. It is our aim to combine a general analysis of the issue with hands-on experience in order to help find solutions to new challenges that require ‘thinking out of the box’ and that will benefit from a cross-discipline approach and strengthen the theory-praxis link. We will outline what is at stake from a European strategic point of view and from a business point of view, thereby providing insights into the following topics: the EU’s interests and initiatives; the interests and initiatives of the shipping industry; and the opportunities for cooperation between the EU and the industry. We will conclude with practical recommendations to both parties.

5.1

The European Union

Counterpiracy activities serve European maritime interests in several ways; the instruments available to promote these interests range from development aid and awareness-rising seminars to the EU’s first naval operation and cooperation with navies of third countries. European maritime interests in the region are threefold: a) keeping the sea lines of communication open for European transport; b) pushing CSDP by setting up successful cooperation within the first naval CSDP operation; and c) promoting effective multilateralism through international cooperation and establishing and fostering exchange with third countries such as China. The first interest is to keep the SLOCs open for trade. With a European Union that thrives on external trade, keeping the sea lines open and hence transport uninterrupted is at the

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core of European maritime interests. Almost 90% of the EU’s external freight trade is seaborne. Some 70% of global oil traffic and 50% of global container traffic runs through the Indian Ocean. Major choke points leading to the Indian Ocean include Bab El Mandeb at the Gulf of Aden, the Suez Canal, the Strait of Hormuz and the Strait of Malacca. Implications of a surge of piracy in the region and the interruption of trade would lead to additional costs for ransoms paid; for insurances and crews; for additional measures to be taken ranging from installing means such as barbed wire to placing armed guards on board; and finally, for rising costs due to ships being held, or respectively ships that have to take alternative routes around the Cape of Good Hope which adds voyage time and subsequently enlarges the CO2 footprint. A further interest is to push the Common Security and Defence Policy. While all CSDP missions have so far been landbased, Operation Atalanta by the EU Naval Force Somalia (EUNAVFOR) is the first maritime operation that is being conducted in the context of the Common Security and Defence Policy. The mission’s mandate includes protecting UN World Food Programme (WFP) vessels carrying humanitarian resources, and, in general, escorting and supporting merchant vessels transiting off the Somali coast. In the light of the increasing hazardous nature of CSDP Operations, i.e. in Afghanistan or Congo, Operation Atalanta offers an unique opportunity to increase cooperation (and gather experience) among EU member states and with major and future allies with a relatively low risk, high visibility and the possibility to inject fresh momentum into CSDP by a force that has been sidelined by post-Cold War warfare, the navies. Finally, a third interest is to promote effective multilateralism and to establish new contacts with emerging global actors. Effective multilateralism lies at the heart of the European Common Foreign and Security Policy (CFSP, of which the CSDP is a major part) as laid down in its 2003

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European Security Strategy (ESS) and reconfirmed in 2008. Supporting the fight against piracy in the Gulf of Aden on the basis of international collaboration in working groups (e.g. the Contact Group on Piracy) and in international operations at sea, within the framework of UN Security Council Resolution 1851, falls in line with this central endeavour of the CFSP. Moreover, the ESS sees emerging powers such as China and India as primary targets for strategic partnerships. Both countries have recently invested heavily in building up their respective maritime forces, both aiming to set up blue-water 5 navies. The EU’s first naval CSDP operation opens a unique window of opportunity to establish contact, exchange and trust with these navies, while learning more about the military developments and intentions of those emerging powers. The European Union has several instruments at hand to promote its maritime interests, namely preventive and capacitybuilding tools. These tools range from awareness-rising seminars to coordinating protected routes by websites, coordination meetings, information sharing, collaboration in international working groups and the operation of European navies at sea. Raising awareness is a major challenge, the importance of which is also pointed out by the shipping industry (see below). The European Commission’s Directorate General for Transport, for example, has offered seminars on measures to prevent, deter, protect and combat the piracy threat that brought together representatives from the EU side and from the 6 shipping industry . The EU has also set up a special three-level

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European Council, ‘A Secure Europe in a Better World: European Security Strategy’, Brussels, 12 December 2003; European Council, ‘Providing Security in a Changing World: Report on the Implementation of the European Security Strategy’, Brussels, 11/12 December 2008. See e.g. David Scott, ‘India’s Drive for a “Blue Water” Navy’, Journal of Military and Strategic Studies, 10/2, Winter 2007-2008; ‘China Shows off its Expanding, Modernizing Navy’, Reuters.com, 23 April 2009, http://www.reuters.com/article/idUSTRE53M36R20090423 (accessed: 6 Dec. 09). http://ec.europa.eu/transport/maritime/events/2009_01_21_piracy_en.htm (accessed: 9 April 2010).

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website of the Maritime Security Centre - Horn of Africa (MSC-HOA), which enables the sharing of intelligence and the fostering of cooperation. With varying access modalities to the three levels (general/members-only/military), the website offers general and security, non-classified information for recognised members of the shipping industry and participating countries such as the EU member states, NATO states, China, India, 7 Russia and others. Finally, the European Union with its expertise in development aid as well as in police cooperation and other post-conflict capacity-building tools could offer substantial assistance, should the international community decide to try to tackle the problem at its roots and aim to solve 8 the situation in Somalia ashore. To promote effective multilateralism, the EU actively participates in international working groups and meetings to contribute to the international efforts to combat piracy. The 9 European Union, as well as 14 of its member states, are members of the Contact Group on Piracy off the Coast of Somalia (Contact Group, CGPCS), that was created on 14 January 2009 pursuant to UNSC Resolution 1851. The Contact Group meets quarterly at the UN, while its four Working 10 Groups meet regularly around the world to develop, coordinate and develop political, military and other efforts to counter piracy, in a pioneering effort of bringing together

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For more information, see http://www.consilium.europa.eu/showPage.aspx?id=1518&lang=EN, http://www.navy.mil/search/display.asp?story_id=41687; http://www.mschoa.eu/. 8 See Peter Pham’s chapter in this book. 9 Austria, Belgium, Cyprus, the Czech Republic, Denmark, France, Germany, Greece, Italy, the Netherlands, Portugal, Spain, Sweden and the United Kingdom. 10 The Contact Group's four working groups are: WG1 - Military and Operational Coordination, Information Sharing, and Capacity Building (chaired by the United Kingdom); WG 2 - Judicial Issues (chaired by Denmark); WG 3 - Strengthening Shipping Self-Awareness and Other Capabilities (chaired by the United States); WG 4 - Public Information (chaired by Egypt); see http://www.state.gov/t/pm/ppa/piracy/ contactgroup/index.htm (accessed: 9 April 2010).

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governments and industry: besides 45 countries and 7 11 international Organizations , the Baltic and International Maritime Council (BIMCO) and the International Association of Independent Tanker Owners (INTERTANKO) take part as observers. The EU also actively contributes to the international efforts to execute UNSC 1851 with its first naval CSDP mission. Operations initially started with the French decision in 2007 to escort UN World Food Programme ships, after they had repeatedly come under fierce pirate attacks. The operation, bilaterally taken over by the Danish and subsequently the Dutch navy, evolved through a bottom-up approach and became the first EU naval operation under the CSDP framework, Atalanta. 12 On a UN request, NATO had set up Operation ‘Allied Provider’ in October 2008 to escort vessels of the UN World Food Programme. Two months later, the European Union took 13 over this mandate in December 2008 with Operation Atalanta. On 8 December 2009, the Council of the EU extended the 14 mandate for one more year until 12 December 2010. While the Political and Security Committee (PSC) of the EU exercises the political control and strategic direction, the EU Military Committee (EUMC) monitors the execution of the operation

11 The Organizations include the African Union, the League of Arab States, the European Union, INTERPOL, the International Maritime Organization, NATO, and the UN Secretariat. 12 UN Resolutions 1814, 1816, 1838, 1846 and 1851of 2008. 13 Since reaching its initial operational capability on 13 December 2008 (full operation capability in February 2009), Operation Atalanta supports UNSCR 1814 (2008), 1816 (2008), 1838 (2008) and 1846 (2008) by contributing to the protection of vessels of the World Food Programme delivering food aid to displaced persons in Somalia as well as the protection of vulnerable vessels cruising off the Somali coast, and the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast. Towards the end of 2008, the hijacking of the contraband arms-loaded Faina and the Saudi Arabian super tanker Sirius Star presented striking examples that piracy has spread far beyond the WFP ships. 14 http://www.consilium.europa.eu/uedocs/cms_data/docs/missionPress files/100407%20Factsheet%20EU%20NAVFOR%20Somalia%20%20version%2015_EN.pdf (accessed: 9 Apr. 2010).

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conducted under the responsibility of the Operation Commander. Despite the option to have recourse to NATO 15 assets under Berlin Plus, Atalanta is an EU-only operation. Yet, Operational Headquarters have been set up at Northwood, the UK (adjacent to the respective NATO command) under Operation Commander Rear Admiral Peter Hudson (UK). After Italy took over the lead from the Netherlands in December 2009, by April 2010 the operation is commanded in the field by Force Commander Rear Admiral Giovanni Gumiero (Italy). Beyond the capabilities of the EU proper, the European Union spurs the operational part of effective multilateralism by contributing to coordinate the different operations active in the Gulf of Aden and with European countries being active in several operations off the coast of Somalia besides Atalanta. For 16 example, Denmark, not being part of CSDP operations, continued to operate in the area as part of the US-led CTF 17 151, supporting further US engagement in the region. The

15 Berlin Plus: Where NATO as a whole is not engaged, the EU, in undertaking an operation, will choose whether or not to have recourse to NATO assets and capabilities, taking into account, in particular, the Alliance’s role, capacities, and involvement in the region in question. That process will be conducted through the ‘Berlin plus’ arrangements from March 2003. These arrangements cover three main elements that are directly connected to operations and which can be combined: EU access to NATO planning, NATO European command options and the use of NATO assets and capabilities. To date, the EU has conducted two operations with the support of NATO: EUFOR Concordia in the Former Yugoslav Republic of Macedonia (2003) and EUFOR Althea in Bosnia and Herzegovina (since 2004). See: http://www.consilium.europa.eu/showPage.aspx?id=282&lang=EN and http://www.consilium.europa.eu/uedocs/cmsUpload/78414%20-%20EUNATO%20Consultation,%20Planning%20and%20 Operations.pdf (accessed: 9 April 2010). 16 Denmark opted out of the European Security and Defence Policy in the Treaty of Amsterdam 1997. 17 Denmark initially operated within CTF 150. CTF 150, however, had no piracy mandate, a deficit that became a stumbling block when the German navy took over the lead as scheduled. CTF 151 was therefore set up with the explicit mandate of countering piracy. CTF 151 operates under the UNSC counter-piracy mandate in accordance with UNSCR 1838, 1846 and 1851. The task force operates under a mission-based

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NATO Operation ‘Allied Protector’, based on European navies, was followed by NATO Operation ‘Ocean Shield’ on 17 August 2009 and is currently being implemented by Standing NATO 18 Maritime Group 1 (SNMG1) and, following, SNMG2. The EU is one of the rotating chairs of the regular sessions of the Shared Awareness and Deconfliction (SHADE) meetings 19 in Bahrain, involving the US-led Combined Maritime Forces and, since January 2010, with explicit support by the EU, the 20 Chinese navy. In October 2009, there were 27 ships from 16 different nations deployed, including, besides the European and US navies, vessels from countries such as Russia, China, India, South Korea, Iran and Japan. Given the vast extent of the area, EU and NATO, together with other participating navies, offer the shipping industry

mandate to deter, disrupt and suppress piracy in order to provide security and freedom of navigation in GOA and off the Somali coast; for more information on the different operations, see Eva Strickmann, ‘EU and NATO Efforts to Counter Piracy off Somalia: A drop in the ocean?’, ISIS-Europe, October 2009; European Union, ‘EU Naval Operation against Piracy EU NAVFOR Somalia - Operation ATALANTA, Factsheet’, March 2009; Emiliano Alessandri, ‘Addressing the Resurgence of Sea Piracy: Legal, political and security aspects ‘, conference report, Instituto Affari Internazionali, June 2009; see also J. Peter Pham’s ‘Strategic Interest’ series in World Defense Review, e.g. ‘The Return of the Somali Pirates’, 12 November 2009, http://worlddefensereview.com/pham111209.shtml (accessed: 4 Dec. 09). 18 The participating navies are from Greece, Italy, Turkey, the United Kingdom, Portugal, Denmark, Canada and the United States. 19 The Combined Maritime Forces (CMF) consist of four principal task forces of the US 5th Fleet: CTF 150, CTF 151, CTF 152 and CTF IM. Participants include approximately three dozen ships from Australia, France, Germany, Italy, Pakistan, Canada, Denmark, the US and the UK, as well as other naval forces and personnel from several other nations. 20 China Daily, ‘Navies Agree on “set areas” for Somali Patrols, 30 Jan. 2010, http://www.chinadaily.com.cn/china/2010-01/30/content_9401589.htm; Mike Pflanz, ‘China Wants a Lead Role in the Fight against Somali Pirates’, The Telegraph, 13 November 2009, http://www.telegraph.co.uk/news/worldnews/piracy/6538997/Chinawants-a-lead-role-in-fight-against-Somali-pirates.html (accessed: 09 Apr. 2010).

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protected transit through an Internationally Recommended 21 Transit Corridor (IRTC) through the Gulf of Aden; a number of individual nations (e.g. Russia, China) also offer escorted convoys on a regular basis, primarily to their own national flags but also to others which wish to join. Some nations have also 22 offered to deploy nationals onboard third-country flag vessels. The transit system has increased the level of safety enormously; although numerous attacks have occurred, they have been repelled either by evasive manoeuvring by the vessel being attacked, or by naval and air support reaching the vessel in time.

5.2

The Shipping Industry

The EU’s major interest in securing safe maritime routes for the seaborne trade of the world’s biggest trading bloc meets with the shipping industry’s interest in avoiding substantial additional costs and potential risks for crew members. Every year, a total of 21,000 vessels carrying approximately 8 per cent of world trade, including 11 per cent of the total volume of oil transported at 23 sea, transit through the Gulf of Aden. Intercepting or redirecting this flow immediately results in rapidly increasing expenses and burdens on crew members and the environment. After having outlined the instruments the EU has at hand, the

21 The International Recommended Transit Corridor was established in September 2008 by the United Kingdom Maritime Trade Organization (UKMTO) with the input of the coalition headquarters in Bahrain. The corridor was established to improve security for vessels passing through the Gulf of Aden and to optimize the use of available maritime resources patrolling the region. The IRTC is now guarded by CTF 151, NATO, EUNAVFOR and other participating navies. As the original route conflicted with fishing areas, the IRTC was moved to a new position in February 2009. 22 Shipowners sign up vessels to a convoy in due time prior to the transit. Some nations only take a certain number of vessels in a convoy in order not to compromise convoy security. The final decision is based on an evaluation by the naval commander. 23 www.imo.org .

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following part focuses on the impact of piracy on the shipping industry and possible measures on the corporate side. 24 Through war risk insurances and further options, shipowners can effectively cover a large part of the risk and cost associated with hijacking. However, with a likeliness of about 25 0.8 per cent (in 2009) of actually being hijacked and the resulting additional, non-covered costs, e.g. the wear and tear on a vessel that is held idle in tropical waters, most insurance options come across as costly and hardly worthwhile. Within six months, from September 2008 until March 2009, the cost of war risk insurance for transiting the Gulf of Aden sky-rocketed: it increased more than tenfold. Conservative estimates assess that the extra war risk premiums shipowners have paid in 2009 26 will have exceeded USD 500nm. Keeping crews out of harm’s way is a major concern for shipowners. A piracy attack puts crew members under extreme psychological stress and personal hardship. Beyond the personal suffering, a number of crew members will be unable to go back to sea again, triggering costly replacement processes. Associated are expenses for additional sick leave, psychological treatment, etc. If the situation escalates into killings on board, this could trigger a ban by the International Trade Unions on vessels

24 There are different kinds of insurance on offer. War risk insurance typically covers the ransom payment, the costs associated with negotiating with the pirates (i.e. consultants), as well as the physical delivery of the ransom, potentially adding up to millions of dollars. Kidnap and Ransom insurances provide additional cover. Further insurances cover e.g. the loss of earnings while the vessel is idle. The insurance amount is measured as a percentage of the insured value. In September 2008, the premium stood at 0.04 per cent and it had increased to 0.18 per cent in October 2009. 25 The percentage is calculated by the number of attacks and the annual number of transits (21,000). Figures differ depending on which authoritative source is used: The US Office of Naval Intelligence states the following: for 2008 a total of 86 attacks, of which 44 resulted in a successful hijacking; for 2009 (data per 1 Dec.) a total of 169 attacks, of which 43 resulted in a successful hijacking. The IMO has counted 135 attacks and 44 hijackings in total for 2008; see http://www.imo.org/home.asp?topic_id=1178 (accessed: 6 Dec. 2009). 26 Industry data provided by the Clipper Group.

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transiting the area, equal to closing down the Suez Canal. Alternative transit routes lead via the Cape of Good Hope respectively through the Panama Canal, prolonging the voyage time by 2-3 weeks with grave effects on fuel prices, shipping 27 costs per unit, the shipping market in general and increasing CO2 emissions per voyage. Experience has so far shown that shipowners and the crew themselves can actively avert attacks by taking precautionary measures. These measures include the proper training of the crew so as to be aware of the danger, adequately equipping the ship and drawing on offers provided by the international community’s naval operations. Risk awareness and protection on board. Risk awareness still seems to differ among shipowners, despite the media hype about piracy since 2008, and reactions still vary from ignoring the problem to ad-hoc reactions if and when affected. However, simple measures can have a decisive effect, primarily for slow moving vessels with low freeboard, which are the core targets. As experience has shown, an awareness of the danger and properly training the crew to deal with hijacking attempts can give a substantial advantage in averting an attack by using evasive manoeuvring and using best management practices (BMP). It is estimated that currently about 70–75 per cent of 28 ships that transit through the Gulf of Aden apply BMP. Shipowners have started to equip ships with passive measures of protection, such as low tech/low cost options of securing the

27 For instance, by prolonging the voyage, carrying capacity is significantly reduced and it will put upward pressure on charter rates. From an owner’s perspective, this is actually a positive development. 28 BMP provides shipowners and crew with guidance on avoiding piracy attacks, deterring attacks and delaying successful attacks in the Gulf of Aden (GoA) and off the Coast of Somalia. They include e.g. planning prior to transit including the possibility of attack, reporting transit details to authorities in the region, establishing preventive measures. for example, fire hoses, barbed wire and more, preparing reactions in case of attack, preparing reactions in case the vessel is boarded by pirates. Estimate provided by the Clipper Group.

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vessel with razor-wire fencing along the perimeter of the vessel. Slowing down the pirates’ attempt to hijack the vessel provides time for the crew to receive military assistance to repel the attack. Additional activities by the crew include steering an opposite course once pirate skiffs are sighted, sounding alarms, and mustering the crew in a bulletproof area safe from pirates’ rocket-propelled grenades (RPG) and machine gun bullets. Far more controversial is the debate on whether to use armed guards and other private protection services on board. While opponents have warned of the possibility of an arms race between the guards on board and the pirates, leading to a blood escalation of the situation, proponents have pointed out the unlikeliness of this scenario – in their opinion, heavier arms would overtax the agile skiffs used for the hijackings. Critical remains the legal point of view: Which country’s law applies to the operating guard - the flag state’s, the shipowner’s, the crew members’ or the guard’s? Most crucially: international law compels a navy ship to protect fishermen on the high seas if they are mistakenly shot at by guards taking preventive action – obliging the navy ship to open fire on the armed guards. Yet, following the experiences of the Clipper Group and others, there seems to be a shared understanding among Somali pirates to follow a non-ideological business model that is based on local community support; avoiding any bloodshed or increased international counterpiracy initiatives is hence in the pirates’ self-interest. Information sharing. Information sharing amongst shipowners themselves has proven to be a major challenge: Secrecy on the side of the affected shipowners and the general lack of sharing and centralizing information gathering undermines efforts to contain the level of ransom paid from vessel to vessel. Information sharing between the various clans involved in piracy, given the Clipper Group experience, has however proven to be very efficient, providing the pirates with an intimate knowledge of multiple ongoing negotiations for the release of captured vessels at any given time. Drawing on personal

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experiences and exchanges with other affected owners, almost all hijackings seem to follow a common template in order to achieve the maximum ransom available: 1.) Ransom level: There is now a well-established 'market' for the level of ransom paid - the release of an 'average' vessel amounts to about USD 3 29 – 4 million. Increasing ransom levels provide new incentives for further attacks. 2.) Time Factor: During the tough negotiations, the clock runs for both sides: Within 7-14 days, an average vessel's provisions will have been depleted, and pirates will have to supply the hostages and guards alike from shore (amounting to approx. USD 4-5000 per day). The time that vessels are held captive ranges from a low of 7 days to well in 30 excess of 6 months. Accordingly, upfront investments for the pirates add up to an average of USD 200-300,000 for 60 days of captivity. 3.) Cultural Differences: Pirates have demonstrated that they are ‘savvy’ in exploiting cultural differences among owners: So far, it seems that European/Western owners rather tend to perceive hijackings as being commercially motivated and have therefore been comparably less easily intimidated by pirates.

29 The capture and release of the MV Faina and the MV Sirius Star are exceptional cases. Sea gangs have recently set up a cooperative in Haradheere to fund their hijackings offshore, a sort of stock exchange to get the upfront investments needed. About 72 ‘companies’ are listed of which 10 have so far been successful in hijacking. This shows that piracy is rather understood as a Robin Hood type of business activity than as a crime in the community. The gangs depend on this silent and active support for their activities. Ransoms have even increased in recent months from between USD2-3 million to USD 4 million because of the increased number of shareholders and the risks involved said a wealthy former pirate at the Haradheere ‘stock market’, see Mohamed Ahmed, ‘Somali Sea Gangs Lure Investors at Pirate Lair’, Reuters.com, 1 December 2009, http://af.reuters.com/article/oddlyEnoughNews/idAFTRE5B020A200912 01 (accessed: 5 Dec. 2009). 30 For example, the MT Stolt Strength was hijacked and held for more than five months at the high end and at the low end the Arena was hijacked for approximately one week; see www.lloydslist.com.

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Commercial interests in counterpiracy-related sectors. Competing interests in the blossoming business of counterpiracy are an additional factor in preventing a better sharing of information amongst the various parties involved, i.e. law firms, insurance companies, private security firms etc. Commercial interests lead to a preponderance of individually designed ad-hoc solutions despite recurrent patterns of hijackings, while experiences to draw from are still dispersed. On the side of the insurance company, benefiting from raising fee levels despite the ransoms to be paid, there is little incentive to offer financial encouragements to shipowners for taking precautionary measures, e.g. offering lesser premiums. Programmes for post-hijacking effects. Affected companies have developed a reception programme to support crews after a resolved hijacking in order to ensure a full physical and psychological recovery. Post-hijacking effects on the crew fall 31 into two categories: Physical and psychological traumas. In the case of the CEC Future, Clipper developed a threepronged approach that consisted of a) a reception phase including the medical examination and psychological screening of each crew member; b) the reunion phase with the crew member’s family including family interviews conducted by a psychologist; c) a recovery phase of two months, supported by the company and including professional assistance if required. The recovery programme was concluded by a ‘close of case’ interview to ensure that all had recovered and to identify

31 Physical effects consisting of typical reactions such as high blood pressure, headaches, stress symptoms expressed by skin abnormalities and other visual signs. Psychological effects very often encompass typical Posttraumatic Stress Disorder (PTSD) reactions such as sleeping disorders, a lack of concentration, increased emotional reactions such as anger and crying and emotional vulnerability.

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additional requirements. After the full recovery of the crew, the 32 entire crew are today back at sea with Clipper.

5.3

Cooperation between the EU and the Business Sector.

Cooperation between the EU and the maritime authorities operating in the region, on the one hand, and the shipping industry and their merchant vessels transiting through the region, on the other, has become better over time. Major challenges have been a lack of communication and deviating expectations. Exchange within the shipping industry itself is traditionally scarce; communication between all sides has been suboptimal. Differing expectations in relation to the group transit system further fuelled frustration: The navies’ idea of having protected areas of surveillance, for example, deviated from the expectations of many vessels to meet a naval vessel as soon as they enter the recommended corridor. Branch meetings hosted by naval forces at Northwood, collaboration e.g. in the UN Working Group and joint seminars as outlined above, the 33 MSC-HOA webpage to support owners and a more open posture have contributed to improved communication and information sharing between authorities and the shipping branch. Yet, still up to 25 per cent of vessels trading in the Gulf of Aden and Somali Basin regions are not reporting to UKMTO 34 35 Dubai, MARLO (Maritime Liaison Office) or MSC(HOA).

32 Based on feedback from its members, the Russian Union called the Clipper approach a benchmark programme for post-traumatic stress treatment that set a new standard for the post-hijacking behaviour of shipping companies. 33 All vessels transiting the Gulf of Aden are strongly advised to follow BMP and register with MSC-HOA and UKMTO; see also the Fourth Plenary Meeting of the Contract Group on Piracy Off the Coast of Somalia, communiqué, 10 September 2009, New York City. 34 The Maritime Liaison Office (MARLO) was established in 1987, during the Iran-Iraq ‘tanker wars,’ to promote cooperation between the US Navy and the commercial maritime community. At the time, petroleum and cargo vessels of neutral nations were being attacked in the

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Evidence Gathering and Dispersion for the Prosecution of Pirates. Another area for closer cooperation between the EU and the business sector is the challenge of bringing pirates to justice, including the gathering of evidence for subsequent prosecution. After the release of the Clipper’s CEC Future, evidence secured included cell phones used by the pirates, phone numbers called from the vessel’s satellite telephone, serial numbers on the ransom notes, DNA evidence, debriefings with the crew and even photos of the pirates. Yet there was no authority for this evidence to be handed over. Once Clipper handed over material to one nation’s intelligence service, it seemed that this evidence was rarely shared with international 36 bodies such as Interpol or made accessible to all the authorities involved in the prosecution process, but rather remained at the chosen national service. From the industry’s perspective, there is a lack of a single point of access, an agency that acts as a central platform for gathering and sharing evidence and that coordinates the use of evidence and drives the prosecution process. There is also a lack of training, respectively a best practice guide, for shipowners on how to collect evidence to ensure best usability for a subsequent prosecution. Finally, the

Arabian Gulf. The US Navy initiated a convoy system with escorts in order to protect those vessels, and created MARLO as a mechanism to communicate with and assist the commercial community. Today, MARLO remains part of the US Naval Force’s Central Command and provides information on navigational safety, threats to shipping, updates to marine regulation and other items of interest for commercial shipping. See: http://www.cusnc.navy.mil/marlo/index.htm (accessed: 15 April 2010). 35 See EU NAVFOR merchant navy liason officers commend MV BW LIONS actions, 10 November 2009, EUNAVOR Somalia, http://www.eunavfor.eu/2009/11/eu-navfor-merchant-navy-liason-officersmnlo-commend-mv-bw-lions-actions/ (accessed: 5 Dec. 2009). 36 Interpol is not a law enforcement agency and can only act if a case has been filed against a pirate, resulting in an arrest warrant. Interpol has been vocal is trying to gather support for a coordinated piracy effort and a task force has been established, but progress in this matter has been rather slow.

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fear of receiving negative publicity also turns shipowners against pressing charges. The major challenge, however, lies on the government 37 authorities’ side, i.e., in the still unclear legal situation, that spurs not only EU member states’ unwillingness to push for prosecution. Off the record, some government officials have stated that there is a fear that the pirates will finally be put in Western prisons where they might seek asylum after having 38 done their time.

5.4

Conclusions and Recommendations

Counterpiracy responses off the Somali coast have triggered a window of opportunity for progressing international cooperation by conducting comparably low-risk, high-visibility operations to keep the sea lines of communication open for maritime trade. These operations support European interests in four ways: First and foremost, they contribute to the safeguarding of maritime trade routes for European trade. Almost 90 per cent of the world’s biggest trading bloc’s external freight trade is seaborne; keeping the SLOCs open therefore serves not only the shipping

37 See the chapter by Douglas Guilfoyle in this book regarding the legal framework; also see Frederic Ischebeck-Baum, ‘Counter-piracy Operations: The legal regime in a nutshell’, NATO Defense College research paper 48, Aug. 2009; an International Maritime Court under the United Nations, comparable to the International Criminal Court, might be an idea to consider as it would solve the problem of national law systems; the related working groups at the United Nations are about to finish their reports. 38 The lack of interest in making these hijackings public was recently demonstrated once again when the Dutch navy caught a piracy vessel redhanded that had attacked a German-owned ship and had to release the pirates after no country, but also not the shipowner, wanted to press charges to avoid publicity. See http://www.eunavfor.eu/2009/12/eunavfor-netherlands-warship-evertson-heads-home/. Western countries are afraid that pirates brought to trial and convicted in their country will be attracted by the still better living conditions in Western prisons (and the possibility of seeking asylum afterwards) than the perspectives in warridden Somalia.

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industry’s interests, but the welfare of the EU as a whole. Second, within the EU’s Common Security and Defence Policy, cooperation between the EU member states’ navies pushes the new policy field in a promising, so far underexplored area; for a long time, naval cooperation has been in the shadows of the primarily land- and air-based operations in Afghanistan and other conflict areas. Third, with no territorial claims involved and a congruence of interests – to stop piracy – counter-piracy operations offer the opportunity for increasing cooperation between the EU and its strategic partners such as the United States and particularly with rising powers such as China. And finally, this in turn contributes to the EU’s capacity in influencing the shaping of a new multipolar world order and to promote effective multilateralism – the core of European foreign policy activities. The EU’s experiences within this international cooperation have in general been very good, with the European Union taking a leading role in the ‘Shared Awareness and Deconfliction Meeting (SHADE)’ in Bahrain, gaining increasing experience at sea by conducting the EU’s first naval operation and reaching out to third countries such as China. Challenges have been in the field of communication, coordination and cooperating with other actors, such as the business sector. This article aimed to shed some light on the perspective from the business side, underpinned by the experiences of the Clipper group with the hijacking of CEC Future in 2008. From our business perspective, the cooperation between the EU naval force in the Gulf of Aden and the shipping industry has developed very quickly, since the commencement of the operation in 2008. The communication and cooperation has become efficient and the implementation of the IRTC has been an encouraging success. Two aspects are most salient: Firstly, how to prepare better for the eventual case of being hijacked and, secondly, what the industry can contribute to promoting a successful prosecution of pirates. It is clear that in this approach we focus on curing symptoms; the genuine cause of the problem lies ashore where in a failed state with no professional

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perspectives pirates operate in a lawless space and piracy is perceived as a Robin Hood-kind of model, now even traded at a 39 piracy stock market at Haradheere. A solution on shore will require substantial and long-term investments – for which the EU with its military assets, development aid resources and further nation-building tools has all the necessary instruments. It remains questionable if the member states will have the political will and endurance as well. From the business perspective of the shipping industry, several hands-on recommendations can be made to assure that the shipping industry better protects itself while contributing to the counterpiracy efforts. A major goal is to bring pirates to justice and to learn about self-help measures to increase the safety of their ships. From the political side, a more active role for the insurance companies should be encouraged by setting the respective legal frameworks in order to provide pull and push for the business side to become involved, both cooperatively and actively. For these reasons, we recommend the EU and the shipping industry to work together to: • Establish a single point of access for shipowners: an agency that coordinates the gathering, the use of evidence and also drives the following prosecution process. A way forward might be the upgrading of an existing Organization that already covers part of the process and the required knowledge. • Establish a shared evidence database to which shipowners can submit the evidence gathered and are assured that the evidence is shared and used. • Set up a manual for ship owners on how to collect evidence to ensure best possible usage of the evidence. This best practice checklist could be drafted in a coordinated effort by the prosecution agencies and the shipping industry’s

39 See Daniel Wallis, ‘Somali Sea Gangs Lure Investors at Pirate Lair’, Reuters.com, 1 December 2009, http://www.reuters.com/article/idUSTRE5B01Z920091201 (accessed: 16 April 2010).

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association such as BIMCO or the IMO (International Maritime Organization). Raise further awareness of the importance of registering upfront with and report to UKMTO Dubai, MARLO and MSC-HOA and the application of best management practices (BMP) as recommended by the Contact Group on Piracy off the Coast of Somalia. Set the legal incentives to promote a more active role for insurance companies. These companies seem to be slowly coming in this direction by e.g. demanding BMP from their insurants in order to avoid the risk of losing coverage in a war-risk area (what the Gulf of Aden and the Somali coast have now been declared).

The European Union is treading a good path to make the collaboration with the business sector more efficient and fruitful. The major challenge however lies in garnering international support for international solutions, particularly in clarifying the still unclear legal foundations. From a strategic point of view, the European Union should push for increasing the EU’s role in the counter-piracy efforts – it ensures that the SLOCs remain open, pushes the evolvement of CSDP further and enhances the exchange with the emerging powers such as China and India. Moreover, the European Union is the only institution present that could provide a combined response by the military through CSDP and civilian parts, through its development aid policies and other policies such as trade preferential treatments, to tackle the issue at sea and land – as said before, at the end of the day a sustainable solution lies ashore.

6. The Legal Challenges in Fighting Piracy

Douglas Guilfoyle

The international law on piracy is straightforward and provides all the legal authority needed to combat pirate attacks off the coast of Somalia. The real difficulties arise in national legal systems’ implementation of that law and its application in individual cases. This chapter aims to sketch the legal framework and explain where problems may arise, and some of the steps that are being taken to address those problems, as well as to dispel some of the legal myths and misapprehensions that surround this field. It is primarily intended as an introduction to the topic that is accessible to non-lawyers, although specialised further reading for interested lawyers is outlined in the footnotes.

6.1

Piracy under International Law

Definitions Article 101 of the UN Convention on the Law of the Sea (UNCLOS) defines piracy as: 1. an act of violence, detention or theft; 2. on the high seas; 3. committed for private ends; and 4. by a private vessel against another vessel (‘the two vessel requirement’).

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This definition is accepted as customary international law (i.e. it applies to all states even without a treaty) and it also includes an offence of voluntary participation in a vessel intended for future 1 pirate use (‘cruising with piratical intent’, as it were). It contains three obvious inherent limitations. First, piracy 2 according to international law can only occur on the high seas. The high seas are all waters outside any territorial sea, meaning that piracy can also be committed in states’ 200 nautical mile Exclusive Economic Zones (EEZ). While similar crimes within a territorial sea (so-called ‘armed robbery against ships’) are solely coastal-state matters, the mere fact that piracy has occurred in a 3 state’s EEZ gives the coastal state no special rights. Second, the two vessel requirement means that internal hijacking, as 4 occurred in the notorious Achille Lauro incident, cannot be piracy. Third, piracy must be committed for ‘private ends’. 5 There is some debate over the meaning of this phrase. Many

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Articles 101(b) and 103, United Nations Convention on the Law of the Sea 1982, 1833 UNTS 3 [hereinafter, ‘UNCLOS’]. These provisions were taken almost without change from the earlier Geneva Convention on the High Seas 1958, 450 UNTS 82 [hereinafter, ‘High Seas Convention’]. Crimes in national law called ‘piracy’ may cover the enacting States’ territorial sea; and in UK insurance law the term can cover foreign internal waters. These are simply different legal concepts with the same label: they do not contradict international law, although they can cause confusion. Although a State conducting law enforcement operations in a foreign EEZ is obliged to have ‘due regard’ for the coastal State’s rights in matters of natural resources and marine pollution in any action it takes: Art 58(3), UNCLOS. In the Achille Lauro incident members of the Palestinian Liberation Front, posing as passengers, boarded a cruise ship peacefully in port and subsequently took violent control of the vessel at sea, killing one of the passengers. See: L McCullough, ‘International and Domestic Criminal Law Issues in the Achille Lauro Incident: A Functional Analysis’, Naval Law Review, 36, 1986. p.53. Historically it revolved around the status of insurgents in a civil war and whether they could be classed as pirates if they: (1) attacked the vessels of the government they were attempting to overthrow; or (2) enforced a blockade on government ports against ‘neutral’ shipping. There is no suggestion Somali pirates are insurgents engaged in either activity. On the debate see: I. A. Shearer (ed.), D. P. O’Connell, The International Law of

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would contend that the ‘private ends’ requirement means 6 politically-motivated violence cannot be piracy. Others would suggest this simply reflects the rule that government vessels cannot commit piracy (i.e. any act of violence that is not 7 publicly authorised is an act for private ends). These last two limitations appear irrelevant to Somali piracy, involving shipboarding at sea and large ransoms paid by private entities.

6.1.1 Powers of Suppression All states’ warships have powers of visit, search, seizure and arrest over vessels suspected of piracy - and may bring captured 8 pirates before their own courts. This subsequent right of arrest and prosecution can only be used regarding piracy. With only limited exceptions, flag state consent is required for any other 9 law-enforcement activity at sea. However, under customary

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the Sea, Oxford: Clarendon, 1984, vol. 2, p. 975-6; Hersch Lauterpacht, ‘Insurrection et piraterie’, Revue Générale de Droit Public, 46, 1939, p.513. The words ‘for private ends’ were first included only to cover such civilwar cases. See: D. Guilfoyle, Shipping Interdiction and the Law of the Sea, Cambridge: Cambridge University Press, 2009, pp.33, 35-36. E.g. Ian Brownlie, Principles of Public International Law, 7th ed., Oxford: Oxford University Press, 2008, p.232; Malcolm N. Shaw, International Law, 6th ed., Cambridge: Cambridge University Press, 2008, p. 615. For example: M. Halberstam, ‘Terrorism on the high seas’, American Journal of International Law, 82, 1988, pp.269, 276-284; Michael Bahar, ’Attaining Optimal Deterrence at Sea’, Vanderbilt Journal of Transnational Law, 40, 2007, pp.1, 32; Guilfoyle, Shipping Interdiction and the Law of the Sea (n.4), pp. 36-40. Note also the change in the French text from ‘buts personnels’ in Article 15, High Seas Convention to ‘fins privées’ in Article 101, UNCLOS. Articles 110 and 105, UNCLOS. Note the limited powers of inspection (but not necessarily arrest) regarding vessels suspected of slave-trading, illegal high-seas radio broadcasting and statelessness: Article 110, UNCLOS. There is some debate as to whether ‘stateless’ vessels may simply be arrested as such: R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd ed., Manchester: Manchester University Press, 1999, p.213-14. However, small craft not flying a flag or carrying registration papers – such as pirate skiffs – are not necessarily stateless. Small vessels may hold nationality without registration in some legal systems: O’Connell, The International Law of the Sea, vol. 2, p.753.

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international law all states have universal jurisdiction to arrest and prosecute pirates subsequently found in their territory, irrespective of any links between that territorial state and the pirates’ offence and regardless of whether a different state first captured them at sea. The practical result is that while all states have international legal authority to capture and prosecute pirates, they do not have a duty to do so. While there is a duty to cooperate to suppress piracy ‘to the fullest possible extent’ (Article 100, UNCLOS), there is only a discretion to prosecute them (Article 105). While a duty to cooperate to the fullest possible extent may seem a strong obligation, the international community has not agreed that it has any specific minimum content. Identifying a breach of a duty to cooperate is notoriously difficult. Further, where it is impractical for the capturing warship to try a pirate, UNCLOS contains no mechanism to transfer them to another state. While the general international law of piracy does not prohibit such transfers, it does little to facilitate them. In this context it is very important to note that there is no hierarchy of jurisdictions in international 10 law. A capturing state is neither obliged to prosecute a suspect pirate nor to offer a right of first prosecution to the pirate’s state of nationality, the state of nationality of any victims or the flag state of the attacked vessel (although as a practical matter it may). Nor is a state exercising universal jurisdiction after the event required to secure the consent of other states or satisfy itself that no other state could, or is willing to, prosecute the case first. Put simply, it is the state with the suspect pirate in

10 Robert Cryer, Håkan Friman, Darryl Robinson, Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure, Cambridge: Cambridge University Press, 2007, p. 37. Although one great international lawyer proposed resolving such questions by using private law principles applied in international commercial disputes (FA Mann, ‘The Doctrine of Jurisdiction in International Law’, in Studies in International Law, Oxford: OUP, 1973, p.35) it was a proposal which has ‘not ... so far commended itself to governments or national courts’: Kate Brookson-Morris, ‘Conflicts of criminal jurisdiction’, ICLQ, 56, 2007, pp.659, 660.

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custody that has the final say over where that suspect will be sent for trial, if (s)he is sent anywhere at all. On the other side of the equation, no state has a duty under the law of piracy to receive a captured pirate from a seizing warship and to prosecute them: all could do so, but none must do so. The legal problems in suppressing piracy are therefore not problems of authority; they are problems of implementation and coordination. The general international law of piracy imposes few express obligations on states other than the duty to cooperate. It contains no mandatory obligation to prosecute, nor any mechanism to facilitate transferring a suspect pirate from a capturing state to one willing to try that suspect.

6.1.2 Terrorism Suppression Treaties It may be that the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988 (‘the SUA 11 Convention’) could fill some of these gaps in general law. While the SUA Convention is commonly referred to as a ‘terrorism suppression convention’ and while it is important to note that it does not target piracy per se, that does not make it irrelevant for present purposes. It is not uncommon that several different criminal laws might apply to the same conduct or that laws made for one purpose may have other less obvious applications. The place to start is with the literal words of the SUA Convention. Somali hostage-taking piracy clearly falls within the Convention-defined offence of ‘seiz[ing] or exercis[ing] control over a ship by force’ when navigating in 12 international waters. This broad offence would not cover the petty-theft smash-and-grab type of piracy common in South East Asian waters, but it certainly appears to fit the Somali variety. Further, this offence has no requirement of any special motive. While a number of states passed domestic laws implementing the SUA Convention that required SUA offences

11 (1988) 27 International Legal Materials 672. 12 Articles 3(1)(a) and 4(1).

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to be committed with a political motive, no such requirement appears on the face of the Convention. This is consistent with the intent of the three states that first proposed the SUA Convention, as they saw a need for a comprehensive treaty on high-seas violence not restricted by ‘arbitrary distinctions’ such as the private ends or two-vessel requirements in the law of 13 piracy. Thus, the SUA Convention could cover both politically-motivated and privately-motivated acts. Article 8(1) of the SUA Convention further provides that the master of a ship of a State Party (the ‘flag State’) may deliver to the authorities of any other State Party (the ‘receiving State’) any person who he has reasonable grounds to believe has committed ... [a Convention offence]. United Nations Security Council Resolutions 1846 and 1851 appear to anticipate warships using this provision to 14 deliver pirates to a port state, thus supplying any missing transfer mechanism. A crucial advantage of the law of piracy is that it is an offence of universal jurisdiction. Any state may prosecute the crime irrespective of any ordinary jurisdictional link or nexus to its interests, such as the crime having been committed by (or against) one of its nationals, or within its territory or aboard its flag vessel. At first sight, the SUA Convention requires just such limiting links in order to apply. Under Article 6 state parties must make SUA offences a crime under national law when committed: a) against or on board their flag vessels;

13 IMO Doc. PCUA 1/3 (3 February 1987), Annex, paragraph 2. The original sponsoring States were Austria, Egypt and Italy. 14 See UNSCRs 1846 (paragraph 15) and 1851 (preamble). This may seem counter-intuitive as Article 2(1)(a), SUA Convention provides ‘[t]his Convention does not apply to ... a warship’. However, this was included only to prevent the Convention applying to offences subject to military discipline, such as mutiny. Thus while the offence creating provisions do not apply to warships, the SUA Convention transfer mechanisms may still be applied by them.

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b) within their territory, including their territorial sea; or c) by one of their nationals. In addition state parties may establish criminal jurisdiction where a relevant offence is committed, inter alia, against one of their nationals or in an effort to compel their government to do or abstain from doing any given act. This may seem quite limited compared to universal jurisdiction. However, once a suspect is within a contracting state’s territory (including as the result of an Article 8 transfer), then that state is obliged to commence an investigation and then either to extradite the suspect to a state having jurisdiction or to submit the case to its 15 national prosecutorial authorities. To this end state parties must additionally have adequate national laws allowing for the prosecution of SUA Convention offences even in cases lacking an ordinary jurisdictional nexus with the prosecuting state, so long as the offence falls within the jurisdiction of another 16 Convention party. The net effect of this ‘extradite or prosecute’ provision is that it creates a ‘quasi-universal’ jurisdiction among SUA Convention parties which is mandatory. Putting the pieces together, then, if the warship of a party to the SUA Convention captures pirates, it could put them off in the port of another state party under Article 8. That ‘receiving’ state party would then be obliged to commence an investigation and, if appropriate, detain the suspects. At the end of the investigation the receiving state would be obliged either: (1) to extradite the suspect to a SUA party having an ordinary jurisdictional link to the offence; or (2) to submit the case to its domestic authorities for prosecution. There is no evidence, however, that the Article 8 mechanism has been used to force a port state to receive suspects and commence investigations/submit cases to local prosecutorial authorities. Indeed, there is not much point in obliging a state to submit a

15 Article 7 and 10(1), SUA Convention. 16 Article 6, SUA Convention.

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case for possible prosecution if the suspect has not been handed over with evidence admissible in local courts and if necessary witnesses are not willing to travel to the receiving port state for any trial (an issue returned to below). Nonetheless, the SUA Convention would appear to have played a role in the conclusion of separate non-binding agreements for the transfer of suspected pirates to Kenya for trial. The United States, the United Kingdom and Denmark have concluded Memorandums of Understanding (MOUs) with Kenya governing such transfers 17 and the European Union has a similar Exchange of Letters. That is, given the background of ‘hard law’ SUA obligations it was perhaps easier to conclude such ‘soft law’ agreements governing the practicalities of such transfers. Kenya had at the time of writing, October 2009, accepted some 110 pirates for trial and concluded proceedings against 10. Similar agreements have been concluded with the Seychelles, and pirate trials are 18 also being conducted with Yemen. A trust fund to support trials in the region has been established under the auspices of the Contact Group on Piracy off the Coast of Somalia (see 19 below). Nonetheless, despite the push for regional solutions, Kenya is presently conducting the bulk of prosecutions. Before concluding this section a few points should be noted about the similarities and differences between the general law on piracy and the SUA Convention. First, the SUA Convention does not cover piracy per se, but as noted above

17 Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer, 6 March 2009, Official Journal of the European Union L 79/49 (25 March 2009) (‘EU-Kenya Agreement’). 18 E.g. Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for their Treatment after such Transfer [2009] Official Journal of the EU L 315/37 (applies on a transitional basis pending further agreements). 19 UNSCR 1897 (2009), operative paragraph 13.

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some acts constituting piracy under UNCLOS may also be offences under the SUA Convention. Second, while the law of piracy contains a duty to cooperate in the suppression of piracy but a discretion as to whether to prosecute suspected pirates, the SUA Convention places express obligations upon state parties both to have adequate national criminal offences and to either extradite or to commence prosecution of suspects found within their territory (irrespective of where the offence was committed). Third, the definition of piracy is restricted by the ‘two vessels’ requirement (which excludes internal hijackings) and perhaps by the ‘private ends’ requirement. The SUA Convention is a comprehensive treaty drafted to avoid any such restrictions. Fourth, only the law on piracy provides an exception to the exclusive jurisdiction of the flag state and can justify the stopping, searching, arrest or seizure of suspect pirate vessels and persons aboard on the high seas. The SUA Convention does not provide any such right of enforcement on the high 20 seas. Finally, piracy is a crime of universal jurisdiction. The SUA Convention ‘extradite or prosecute’ obligation creates a more limited form of ‘quasi-universal’ jurisdiction among the Convention parties. Whether the SUA Convention closes any gaps in the law of piracy will depend on national implementation and whether the suspect is delivered with evidence admissible in the port state’s courts. Cooperation between capturing and prosecuting states is thus vital: no ‘one size fits all’ or ‘top down’ solution will succeed.

20 Although a 2005 Protocol to the SUA Convention contains a mechanism for seeking the flag State’s permission for such a boarding: see Article 8bis, IMO Doc LEG/CONF.15/21. The 2005 Protocol will enter force for ratifying States on 28 July 2010.

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6.1.3 UN Security Council Resolutions and the use of force While the UN Security Council has passed a significant number of resolutions on Somali piracy, they do not greatly alter the existing law and require only brief discussion here. A series of ‘territorial’ resolutions authorise action within Somalia’s territorial sea or on Somali soil. Theoretically, pirates could attempt to outrun warships and seek safety in territorial waters, as high seas counter-piracy powers do not extend to foreign territorial waters. Somalia is also unable to patrol its own waters to prevent armed robbery against ships inside the 12 nm limit of 21 the territorial sea. Thus UN Security Council Resolutions 1816 and 1846 established a system for states cooperating with Somalia, where that cooperating status has been notified in advance to the UN Secretary-General, to conduct law22 enforcement operations in its territorial sea. Importantly, these resolutions only allow such operations to be conducted consistently with the law otherwise applicable on the high seas. They do not grant unlimited authority to use force but simply extend existing counter-piracy powers to Somalia’s territorial sea. Similarly, resolution 1851 contemplates cooperating states taking action to suppress pirate activity in Somalia’s land territory. In practice, these resolutions are perhaps of limited relevance as pirates now operate so far out to sea that flight home is not feasible. Even where hijacked vessels are moved close in to the Somali coast, navies are generally reluctant to intervene as any armed rescue operation risks hostages’ lives.

21 Technically, Somalia claims a 200 nm territorial sea. The general assumption in the international community is that the claim is valid to the extent permitted by international law: i.e. a territorial sea to 12 nm and an Exclusive Economic Zone to 200 nm. 22 For a further discussion see: D. Guilfoyle, ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’, International and Comparative Law Quarterly, 57, 2008, p.690; Jane G. Dalton, J. Ashley Roach, and John Daley, ‘Introductory Note to United Nations Security Council: Piracy and Armed Robbery at Sea Resolutions 1816, 1846 and 1851’, ILM, 48, 2009, p.29; and Tullio Treves, ’Piracy, Law of the Sea, and Use of Force: Developments Off the Coast of Somalia’, European Journal of International Law, 20, 2009, p.399.

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There are no reported land operations under UNSCR 1851. Each resolution is time limited: UNSCR 1816 has expired and was replaced by UNSCR 1846, which was due for renewal along with UNSCR 1851 no later than December 2009. The measures contained in both resolutions were thus renewed for a further 12 months by UNSCR 1897 of 30 November 2009. More interesting for their themes rather than their legal content are the resolutions applicable to high seas piracy off Somalia. In June 2008, UNSCR 1816 simply urged warships in the region to exercise vigilance and take deterrent measures against piracy, emphasising the existing counter-piracy powers granted by international law. In October 2008, in slightly stronger language, UNSCR 1838 called upon states to use ‘the necessary means, in conformity with international law’ to 23 repress piracy. UNSCR 1851 calls on states, regional and international Organizations ‘to take part actively in the fight against piracy’ consistently with international law and including ‘seizure and disposition of boats, vessels, arms and other related equipment’ suspected of pirate use. This latter resolution has two interesting features: first, it acknowledges the role of regional and international Organizations such as the EU and NATO; second, it makes reference to a summary power to 24 dispose of equipment upon suspicion of pirate use or intent. Such a power is quite useful, but absent the Chapter VII 25 authorisation of the UN Security Council it is not one clearly found in UNCLOS which refers to courts determining the final disposition of seized pirates and property.

23 Operative paragraph 3. 24 Both these features were preserved in UNSCR 1897, operative paragraph 3. 25 Under Chapter VII of the United Nations Charter the Security Council has very wide powers to authorise States to take ‘action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’ (Article 39, United Nations Charter). In effect, the Security Council may thus grant or create powers of enforcement action which would not otherwise exist under international law.

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Another notable theme in the relevant resolutions is the steady turn towards the promotion of law-enforcement cooperation. Resolutions 1816 and 1846 call in fairly general terms for ‘States with relevant jurisdiction under international law and national legislation, to cooperate in determining jurisdiction ... [as to] the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia, consistent with applicable international law including international human rights law’ and encourage states to provide technical assistance to regional states where 26 requested. Resolution 1846 expands upon this a little further by calling for greater coordination among states with naval forces in the Gulf of Aden, including through information sharing. The breakthrough in acknowledging the need for a lawenforcement approach over military solutions comes with UNSCRs 1851 and 1897 which encourage measures including: (1) the use of ‘ship-riders’; (2) the creation of an ‘international cooperation mechanism to act as a common point of contact’, now established as the Contact Group on Piracy off Somalia; (3) the establishment of an information-sharing centre in the region; and (4) capacity building both in Somalia and the 27 region, including judicial capacity (on which see the discussion below of the UNODC’s role in Kenya). Of these measures, the 28 term ship-rider requires some brief explanation. Put simply, a ship-rider is a law-enforcement official from state A embarked on a vessel of state B who may, subject to specific treaty

26 UNSCR 1816 (operative paragraphs 5 and 11); UNSCR 1846 (operative paragraphs 5 and 14). 27 UNSCR 1851, operative paragraphs 3, 4, 5 and 8; UNSCR 1897, operative paragraphs 4, 5, 6, 11 (not, however, renewing calls for the establishment of a regional centre). 28 See: Kathy-Ann Brown, The Shiprider Model, Bridgetown: University of the West Indies, 1997; Bill Gilmore, ‘Counter-Drug Operations at Sea: Developments and Prospects’, Commonwealth Law Bulletin, 25, 1999, pp. 609, 612-14; Michael Byers, ‘Policing the High Seas: The Proliferation Security Initiative’, American Journal of International Law, 98, 2004, pp.526, 538-40; Guilfoyle, Shipping Interdiction and the Law of the Sea, Chapter 5.

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arrangements, authorise interventions aboard state A’s vessels (or in its territorial waters) or arrest persons at sea under the law of state A. Thus, if it was known in advance that any pirates captured by a given warship would face trial in Kenya it could simplify matters if they were arrested and evidence was gathered in the first instance by a Kenyan officer embarked aboard. In practice, ship-rider agreements require detailed implementing 29 arrangements and the ship-rider must have domestic legal authority to make extraterritorial arrests. This may require national legislation as in some legal systems including kenya’s coast guard or police officers have no powers of arrest outside national waters. Where pirate trials occur, transfers from warships to policing officials ashore seem likely to remain the common practice. A final point concerns the use of force against pirates. The relevant UN Security Council resolutions authorise the use of ‘necessary means’, language usually associated with the use of military force. Given this, non-lawyers may well ask why navies do not simply blow pirates out of the water. Standards of due process have moved on since the days of hanging at the yardarm. UN Security Council Resolutions 1816, 1838, 1846, 1851 and 1897 all emphasise that counter-piracy operations are to be conducted compatibly with human rights law, and within the general law of the sea framework. Despite the rhetoric of classical writers on this subject, which denounce the pirate as hostis humani generis (an enemy of all mankind), we are not at war with pirates. Simply put, pirates are criminals to be captured using reasonable force, not combatants. The relevant law applicable to using force against pirates will be the national law of the intervening warship and the customary international law governing police operations at sea. This, however, does not mean pirates must be handled with kid gloves. While pirates should be treated as criminals to be captured using only reasonable force, if they present a clear threat to human life

29 Guilfoyle, Shipping Interdiction and the Law of the Sea, 91.

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(including by firing on military personnel), naval forces may shoot in self-defence or the defence of others. Pirates have been killed in self-defence actions or hostage-rescue incidents such as 30 the Maersk Alabama. The applicable law in such cases is that of law-enforcement or police powers. The International Tribunal for the Law of the Sea (ITLOS) held in the case MV Saiga (No 2), found that when ‘boarding, stopping and arresting’ a vessel, international law: requires that the use of force must be avoided as far as possible and, where … unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply… The normal practice … is first to give an auditory or visual signal to stop, ... [then to take other action], including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning must be issued … and all efforts should be made to ensure that life is not endangered.31 Warning shots may not be required in cases where this would aggravate an imminent risk to life, but the general principle should remain that firearms should only be used ‘in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a

30 In 2009 a failed hijacking resulted in the captain of the ship Maersk Alabama being taken hostage aboard a lifeboat by pirates. In the course of his rescue on 12 April 2009 US snipers aboard the warship Bainbridge shot dead three of his captors when they judged them to pose an imminent risk to human life. See: R McFadden and S Shane, ‘In Rescue of Captain, Navy Kills 3 Pirates’, New York Times Online, 13 April 2009, http://www.nytimes.com/2009/04/13/world/africa/13pirates.html. In the similar Tanit incident the French Navy killed two pirates and one hostage during a rescue operation, see: ‘Frenchman dies in Somalia rescue’, BBC News, 11 April 2009, http://news.bbc.co.uk/1/hi/world/7994201.stm. 31 M/V ‘Saiga’ (No. 2) (Saint Vincent and the Grenadines v. Guinea), ITLOS Case No. 2; (1999) 38 ILM 1323, 1355.

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particularly serious crime ... and only when less extreme means 32 are insufficient’. A more aggressive approach may risk the lives of hostages. Not only do Somali pirates take hostages for ransom, but they also commonly seize fishing craft to use as mother-ships to stage attacks further out to sea and will keep the fishermen as prisoners on board. The Indian government learned this the hard way when 14 hijacked fishermen were inadvertently killed along with their pirate captors in the INS 33 Tabar incident. Even if more aggressive action was desirable, the laws of war are neither applicable nor appropriate. The laws of war only apply during an armed conflict. The existence of an international or non-international armed conflict is a question of fact: ‘an armed conflict exists whenever there is a resort to armed force between States [i.e. an international armed conflict] or protracted armed violence between governmental authorities and organized armed groups or between such groups within a 34 State [i.e. a non-international armed conflict]’ International armed conflicts occur when a certain level or scale of violence is reached between states. Non-international armed conflicts require ‘protracted armed violence’ (more a question of 35 36 intensity than duration) involving organised armed groups

32 Article 9, United Nations Basic Principles for the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, http://www2.ohchr.org/english/law/firearms.htm. 33 On 18 November 2008 the Indian naval vessel Tabar came under attack from a suspected pirate mother-ship and returned fire in self-defence. While the mother-ship was sunk, the pirates escaped. It was later learned 15 Thai fishermen had been held hostage on board, only one of whom survived: ‘Indian navy 'sank Thai trawler'’, BBC News, 25 November 2008, http://news.bbc.co.uk/1/hi/world/south_asia/7749245.stm. 34 Prosecutor v. Tadic, International Criminal Tribunal for the Former Yugoslavia, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1-AR72, para 70. 35 Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, ICTY, Judgement, 3 April 2008, Case No. IT-04-84-T, para 49. 36 See Article 1(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-

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Somali pirates are at best several different organised criminal groups acting without state sanction who have mounted a series of individual attacks against vessels of varying nationalities. These attacks have, on occasion, been seen off by foreign naval vessels with (on fewer occasions still) shots being exchanged and pirates and hostages being killed as a result. Neither the actors involved (disparate private parties and disparate military forces), nor the level of violence reached (small-scale exchange of fire) could seriously justify characterisation as an international armed conflict. Nor do the pirates satisfy the definition of armed bands engaged in a non-international armed conflict: they control no territory, are not acting within a state and their attacks are not made (at least not primarily) against other armed bands or government forces. Pirate activity seems closest to ‘situations ... such as riots, [and] isolated and sporadic acts of violence’ falling 37 below the threshold for the existence of any armed conflict. Indeed, applying the laws of war would produce further legal difficulties. If pirates are considered combatants they could legitimately be targeted with lethal force based on their status: participants in a conflict. International law on the use of force in policing actions would certainly not permit a shoot-to-kill policy. Thus, invoking the law of armed conflict could justify using against criminals what would otherwise be excessive force. Alternatively, if one considers that the laws of war apply, but that pirates are civilians, this would mean they may not be 38 deliberately targeted at all. Under international humanitarian law, the deliberate targeting of civilians as such is prohibited (except if they take up arms and fire is returned in self-defence). Civilian casualties are only acceptable where proportionate to

International Armed Conflicts (Additional Protocol II), 8 June 1977; Article 8(2)(f), Rome Statute of the International Criminal Court 1998, 2187 UNTS 90 (‘ICC Rome Statute’). 37 Article 1(2), Additional Protocol II; cf. Article 8(2)(d) and (f), ICC Rome Statute. 38 Eugene Kontorovich, ’International Legal Responses to Piracy off the Coast of Somalia’, ASIL Insights, 13(2), 6 February 2009, http://www.asil.org/insights090206.cfm.

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achieving a legitimate military end. Invoking the laws of war in counter-piracy actions thus only complicates the issues involved. At best, the law of armed conflict may have some limited 39 application to counter-piracy operations on land if a group of 40 Somali pirates were also civil war insurgents or where counterpiracy operations against those supplying or equipping pirates resulted in military engagement with insurgents on land. A quite separate issue arises in respect of placing private, armed security contractors (‘armed PSCs’) aboard merchant vessels transiting the Gulf of Aden. Armed PSCs aboard a private vessel act under the law of that vessel’s flag state. The law of most states would allow the use of reasonable force by private individuals in self-defence or in defence of others or to prevent a serious crime. In general, then, where pirates use – or threaten to use – firearms, armed PSCs can likely respond in lawful self-defence. The principal difficulty is insurance law. If an illegal act is committed in the course of a commercial voyage it is likely to invalidate the ship’s insurance. The main risk is not that armed PSCs might respond with excessive (and therefore illegal) force to a pirate attack, though this is possible. The bigger threat is the guns themselves. Any weapons which armed PSCs carry will need to be licensed ahead of time in every state where the ship is scheduled to call in port or there is the real risk that the PSCs could be charged with carrying unlicensed weapons. Such a charge could invalidate the vessel’s insurance and the impracticality (if not impossibility) of registering firearms in multiple jurisdictions ahead of time has significantly dampened industry enthusiasm for the use of armed PSCs.

6.1.4 The Impact of Human Rights Law Capturing warships will also have to comply with certain human rights guarantees. Pirates cannot be sent by a state which is party either to the Torture or Refugee Conventions for trial in a

39 UN Security Council Resolution 1851, paragraph 6. 40 Guilfoyle, Shipping Interdiction (n.4), p.70.

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state where they would face a real risk of torture or 41 persecution. Parties to the European Convention on Human Rights will also owe duties to criminal suspects within their extraterritorial jurisdiction including obligations to bring them promptly before a judicial authority and to protect them from: cruel, inhumane and degrading treatment or punishment; a flagrant denial of their fair trial rights; or the imposition of the 42 death penalty. Agreements between the United States, the United Kingdom and the EU with Kenya seek to meet these 43 concerns. Bringing suspects promptly before a judge is less of a concern than one might expect. The European Court of Human Rights has shown a flexible and pragmatic attitude to this issue in cases where it has taken two weeks to steam a captured vessel 44 into port. The larger problem is likely to be the Court’s finding that a state capturing criminal suspects at sea must have an adequate national law authorising their detention while at sea, even where ‘detention’ simply means being confined to one’s 45 own vessel. It is far from clear that many states have such an express law covering high-seas law enforcement operations. Is transferring pirates to Kenya for trial compatible with European human rights law? The issues involved are complex

41 Article 3(1), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS 85; Article 33(1), Convention relating to the Status of Refugees 1951, 189 UNTS 150, entered into force 22 April 1954 (Refugee Convention). 42 Articles 3, 5 and 6 Convention for the Protection of Human Rights and Fundamental Freedoms 1950, 213 UNTS 221; and the Sixth and Thirteenth Protocols on the death penalty. While not expressly prohibiting refoulement, these provisions have been interpreted to have that effect by the European Court of Human Rights. 42 999 UNTS 171. 43 The only publicly available text at present is the ‘EU-Kenya Agreement’ (n.16). 44 Paras 65-69, Medvedyev v. France, ECtHR, Application No. 3394/03, Judgment of 10 July 2008 (where the ECHR’s application to high-seas law enforcement operations was not contested by France). See also: Rigopoulos v. Spain, ECtHR, Application No. 37388/97, Judgment of 12 January 1999. 45 Ibid, especially at para 61.

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and are more fully discussed elsewhere. In brief, Kenya has an admittedly poor record on police corruption, prison conditions 47 and torture in custody. In analogous cases the European Court of Human Rights has prohibited deportation on the grounds that merely being held in prison in such a state places an 48 individual at an unacceptable risk of prohibited mistreatment. Deportation to states with generally poor records on mistreatment in custody may, however, be permissible if credible assurances can be given that a given individual will not be mistreated if transferred. This usually requires a tailored package of political undertakings, extensive pre-deportation 49 enquiries and post-transfer monitoring. The key factor supporting the likely legality of such transfers to Kenya is thus the remarkable achievements of a UN Office on Drugs and Crime project to improve conditions in prisons where Somali 50 pirates are held and at the court building in Mombassa. At one such prison, Shimo La Tewa, all prisoners (not just pirates) now have their own bedding and improved access to medical care, there is a new kitchen and innovative measures are being taken to reduce over-crowding. The UNODC is also working on projects to create functioning prisons meeting international minimum standards within Somalia. This would potentially

46 See: D. Guilfoyle, ‘Counter-Piracy Law Enforcement and Human Right,’ International and Comparative Law Quarterly, 59, 2010, p. 141. 47 See: ‘Concluding observations of the Committee against Torture: Kenya’, UN Doc. CAT/C/KEN/CO/1 (21 November 2008), paras 13-15; see also ‘Concluding observations of the Human Rights Committee: Kenya’, UN Doc. CCPR/CO/83/KEN (29 April 2005), para 18. 48 Soldatenko v. Ukraine, ECtHR, Application no. 2440/07, Judgment, 23 October 2008, paras 71-74. 49 See generally: Kate Jones, ‘Deportations with Assurances: Addressing Key Criticisms’, ICLQ, 57, 2008, p.183. 50 Antonio Maria Costa, ‘Fighting piracy on land and at sea’ (Testimony to the United States House of Representatives Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight Washington, 14 May 2009), http://www.unodc.org/unodc/en/about-unodc/speeches/2009-14-05.html; see also UNODC Press Release, ’UNODC Proposes Measures to Stop Piracy in the Horn of Africa’, 16 December 2008, http://www.unodc.org/unodc/en/press/releases/2008-12.16.html.

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allow pirates convicted in the region to be transferred back to Somalia to serve their sentences. In addition, it has carried out reviews of the adequacy of the applicable legal frameworks in Kenya, the Seychelles and Tanzania for prosecuting pirates and made a series of recommendations to those jurisdictions ‘to be 51 implemented in the short, medium and long term’.

6.2

Practicalities and Problems of National Law

As noted, while general international law grants states universal jurisdiction over piracy and extensive powers on the high seas to suppress it, it does not oblige them to use it. It leaves states a 52 wide measure of discretion as to how they will cooperate, often resulting in states having no adequate national legal framework. Indeed, it has long been noted that many – if not most – states 53 lack adequate national laws to prosecute piracy. Some states’ legal systems face problems in prosecuting crimes lacking a ‘link’ to national interests such as the offence being committed by or against one of their nationals or flagged merchant vessels. Using military personnel to arrest pirates may also cause problems at the national level: are they trained to gather evidence? Is there a constitutional prohibition on their use in law enforcement? In early counter-piracy operations in 2008 off the coast of Somalia, warship contributing states either did not think these issues through in advance or – deeming them too hard or too

51 See: http://www.unodc.org/easternafrica/en/piracy/index.html. 52 See: Yearbook of the International Law Commission, II, 1956, p.282. 53 Joseph W. Bingham (reporter), ’Harvard Research in International Law: Draft Convention on Piracy’, American Journal of International Law Sup.,26, 1932, pp.755–756, 760; Laurent Lucchini and Michel Voelckel, Droit de la mer, Tome 2, vol. 2, Pedone 1996, p.158-9; see also UN Security Council Resolution 1851 (2008), preamble. Many States are now moving to correct this: Japan, for example, passed its first piracy law in 2009.

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unlikely to arise – ignored them. This led to a number of embarrassing incidents, such as that in September 2008 involving the Danish warship Absalon. The Absalon succeeded in intervening in a pirate attack and capturing the ten pirates involved. After holding them for six days, Danish authorities concluded that they could not be prosecuted due to deficiencies in Danish law. As a result, the pirates were put off on a Somali 55 beach. Similarly, in May 2009 it was reported that ‘t]he Russian navy has been holding 29 suspected pirates aboard one of its warships for three weeks while it determines whether to 56 prosecute them in Russia.’ In most legal systems, including Russia’s, such a long delay in bringing suspects before a judge could be fatal to any prosecution. As one official has remarked ‘before you go looking for pirates, it’s a good idea to be clear 57 about who will be assuming jurisdiction ... first’. While it might be thought that the flag state of the capturing warship should prosecute any pirates discovered, there may be numerous obstacles not the least of which is evidence. It will seldom be navies that chose whom to prosecute; these are decisions for independent national prosecutors. A good prosecutor will seldom run a case based solely on circumstantial evidence. If intercepted pirates dump their boarding ladders and weapons into the sea it will be difficult to prove beyond reasonable doubt in a courtroom thousands of miles away that these were not just fishermen or Somali asylum seekers bound for Yemen. Further, extraterritorial crimes are often expensive and complex to prosecute and the interests of justice might be thought better served by a trial in the region.

54 ‘World Scrambles to Deal with Pirate Threat’, Spiegel Online, 24 November 2008, http://www.spiegel.de/international/world/0,1518,592433,00.html. 55 Marcus Hand, ‘Danish Navy release 10 Somali pirates’, Lloyd’s List, 25 September 2008, http://www.lloydslist.com/ll/news/danish-navy-releases10-somali-pirates/20017574257.htm. 56 Kathryn Westcott, ‘Pirates in the dock’, BBC News, 21 May 2009, http://usproxy.bbc.com/2/hi/africa/8059345.stm. 57 Ibid.

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A further difficulty of legal mandate may arise in multinational forces. The EU has a transfer agreement with Kenya covering suspected pirates, NATO does not. NATO as an Organization has no law-enforcement mandate, so while it can ‘deter and disrupt’ pirates if a NATO warship actually catches pirates any prosecution relies on the capturing member 58 state.

6.3

The Way Forward

While it is common to suggest that states with navies active in suppressing piracy in the Gulf of Aden should be doing more in terms of prosecuting pirates or that their mission would be 59 simplified by creating an international piracy tribunal, neither is necessarily the case. It is easily overlooked that these naval operations are not cost-free, regional states lack the effective naval capacity to patrol the area and regional states would suffer significantly if shipping was rerouted to avoid the area. Regional states can, if properly supported, play an effective role in the suppression and prosecution of piracy. To this end regional states have concluded the non-binding Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden concluded at an IMO-sponsored meeting in Djibouti on 60 61 29 January 2009, now signed by 10 states. Measures

58 ‘NATO to resume counter piracy operation off Horn of Africa’, undated, http://www.snmg1.nato.int/SNMG1_ficheiros/Page4065.htm#OP1. 59 See, e.g., UN Doc. S/PV.6046, p.31 (Egypt); President Dmitry Medvedev (Russian Federation), ‘Countries need to make a joint legal response to piracy’, Statement, 4 May 2009, http://www.diplomacymonitor.com/stu/dm.nsf/dn/dnD9E8B6DFDFF46F 50852575AC005DF7BE. 60 Text available in: A.V. Lowe and S.A.G. Talmon (eds), The Legal Order of the Oceans: Basic Documents on the Law of the Sea, Oxford: Hart Publishing, 2009.

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envisaged under the Code include information-sharing, maritime interdiction, apprehension and prosecution of piracy suspects and ‘facilitating proper care, treatment, and 62 repatriation’ of piracy victims as well as the use of ship-riders. Much will obviously depend on building regional capacity to this end, and Japan has already approved US $15 million in 63 implementation assistance. The present lack of regional capacity might be thought an argument for having some international mechanism to try suspected pirates. The most commonly discussed options are the establishment of a regional piracy tribunal, adding the offence to the jurisdiction of the International Criminal Court (ICC), or giving jurisdiction over such cases to the International Tribunal for the Law of the Sea (ITLOS). Piracy is a common crime: little more than armed robbery, hijacking and hostage taking at sea. The ICC is established to deal with complex crimes committed on a scale warranting international concern. Indeed, the Court must decline jurisdiction where crimes are 64 not of ‘sufficient gravity’ to justify bringing them before it. It would not simply be a question of adding piracy to its jurisdiction (which is complex enough), there would have to be a significant dilution of the principle that the Court should not concern itself with minor offences (which could have farreaching unintended consequences). Nor should piracy cases be heard before ITLOS, even if it were given jurisdiction, because neither the tribunal’s building in Hamburg nor its judges are equipped to handle criminal cases. ITLOS judges are experts in the law of the sea and hear cases principally concerning environmental law or applications for the prompt release of detained fishing vessels. They are not experts in criminal law,

61 Djibouti, Ethiopia, Kenya, Madagascar, Maldives, Seychelles, Somalia, United Republic of Tanzania and Yemen were original signatories, Egypt joined on 1 October 2009. Other States are expected to join. 62 Articles 2 and 7. 63 Sandra Speares, ‘Mitropoulos highlights industry’s death toll’, Lloyd’s List, 24 June 2009, p.3. 64 Article 17(1)(d), Rome Statute of the International Criminal Court.

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criminal procedure or evidence. A regional or ad hoc international tribunal would run into problems of delay and expense, and raise questions as to whether international funds would not better be spent building regional capacity. The experience of the tribunals for Rwanda and the former Yugoslavia show the likelihood that early cases will be dominated by challenges to any new tribunal jurisdiction and lengthy appeals on technical points as the tribunal establishes its own rules of procedure and evidence. Further, when such a tribunal inevitably closes down its accumulated experience would be dispersed with its international staff, not retained in regional systems. While there was some initial enthusiasm for an ad hoc international piracy tribunal, there has been intense debate over what kind of ‘mechanism’ should be established to conduct 65 piracy trials. The mood now appears to be shifting towards the idea of a ‘hybrid’ tribunal (or tribunals) in the region. Hybrid tribunals come in many forms, but usually contain a mixture of national and international elements. One example is the Special Court for Sierra Leone, which is established both under national law and a UN treaty, applies both international and national criminal law, is staffed by a mix of national and international judges and which receives funding from the international community. The most likely outcome regarding Somali piracy now seems likely to be trials conducted in national courts in the region, under national laws and before national judges – but with significant international financial and technical assistance. There is simply too much resistance to the idea of creating another major international tribunal to succeed; a ‘hybrid’ tribunal is likely to be the only acceptable compromise. A mixture of national law and international elements will enable

65 See: ‘Press Release: Fourth Plenary Meeting of the Contact Group on Piracy off the Coast of Somalia’ (11 September 2009) http://www.state.gov/r/pa/prs/ps/2009/sept/129143.htm (issue of an ‘international, regional or other mechanism’ for prosecuting pirates still under discussion).

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both pragmatists and supporters of an international tribunal to claim victory. The basic point is that regional prosecutions can work and are working. Kenya has successfully tried and convicted ten pirates and those convictions have survived appeal. Kenya’s applicable rules of evidence are known and certain. In an interesting innovation, navies working with Kenyan authorities have drafted evidentiary ‘templates’ to assist naval personnel in gathering evidence of a type and in a manner that will assist 66 Kenyan prosecutors. These templates have been circulated through the Contact Group on Piracy off Somalia (Working Group 2 on Legal Issues) and now appear to be widely used. They deal with matters such as: having designated officers responsible for photographing and collecting evidence to ensure a chain of custody over future exhibits; retaining and not disposing of weapons which must be presented as part of the case; making sure witnesses will be available to give evidence regarding the boarding and search of the suspect vessel and so on. Kenya’s national legal system has the demonstrated potential to handle further prosecutions, if adequately supported. Clearly, it cannot handle all possible cases and 67 further regional partners will be needed and in some numbers. Nonetheless, the regional prosecution model is viable. International funding should be made available to support prosecutions and prisoner-transfer agreements established where needed to prevent too much of the long-term burden falling to Kenya alone. Such a funding mechanism, an international trust fund established under the auspices of the Contact Group on Piracy off Somalia, was set up on 10 September 2009. In conclusion, international law provides all the necessary legal authority to suppress piracy in the Gulf of Aden. What is required is national implementation and international

66 Ibid. 67 While the Seychelles has been willing to take on trials, it has a total official prison capacity of 400 detainees: see the King’s College London World Prisons Brief: http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/.

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cooperation, as well as regional capacity building. Piracy trials in regional states have the capacity to be an effective and efficient means of not only prosecuting pirates but strengthening local judicial systems and improving prison conditions. This will, however, require close cooperation and training arresting naval officers in working to the national standards of the receiving judicial system. Again, this will not be as simple as establishing uniform or model ship-rider agreements or extradition laws. Attempting to impose uniform external solutions on widely divergent criminal justice systems is seldom successful. Solutions must be closely tailored on a bilateral basis to meet the legal requirements of both the state capturing a given pirate and the state prosecuting him. Close cooperation between legal systems is far more likely to succeed than attempting to impose a new layer of law over existing legal systems. The work involved will be less dramatic and less visible than a high-profile international tribunal or the negotiation of new treaties but represents a pragmatic solution. Advocates of a new international tribunal have, potentially misdiagnosed the problem and have underestimated the disadvantages of creating unnecessary new legal structures. The sensible way forward is the use of international donor funds and technical expertise to establish special international piracy chambers within regional national legal systems, and this is the approach that looks likely to prevail.

7. The Interplay between Counterpiracy and Indian Ocean Geopolitics

James R. Holmes

Analysts and practitioners who urge nation states to supply ‘international public goods’ like maritime security assume that beneficiaries are grateful to receive them, and thus that they confer legitimacy on preponderant powers that provide them. A kind of reciprocity takes hold, furthermore, with recipients of public goods becoming more favourably disposed toward endeavours proposed by suppliers. Major powers help themselves by helping others. While I generally agree with this claim, I postulate that one such public good, counterpiracy, could work against amity in the Indian Ocean unless carefully managed. Because Somali pirates are pirates in the true sense dispersed bands of predators out for private gain - raiding their coastal bases would produce only fleeting strategic effects. They would regroup once the raids ended, resuming attacks on shipping. If counterpiracy forces went ashore and stayed, they would find themselves embroiled in a struggle disquietingly similar to a counterinsurgency. The diplomatic costs of counterpiracy, then, could be high for the United States, eroding its strategic position in South Asia over time. A ‘strategic triangle’ is taking shape among India, China, and the United States. Counterpiracy will influence interactions among the three protagonists at sea. It will shape and be shaped by - the campaign in the Gulf of Aden. Absent painstaking diplomacy, counterpiracy could frustrate efforts to forge a cooperative triangle among the three sea powers. In turn, the multinational effort off the Horn of Africa could itself falter.

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To get some purchase on this topic, I first examine the nature of modern Somali piracy, then consider how the fight against it will shape - and be shaped by - seagoing powers’ geopolitical interests, manoeuvres, and counter-manoeuvres. My findings, in brief, are that: (1) However appealing, and no matter how robust the international legal backing for a departure from current strategy, carrying the fight to Somali pirates ashore would likely backfire on the United States. The nature of Somali piracy deprives military forces of a point target to strike at. Forays against coastal enclaves where brigands shelter would either be ineffective or would metamorphose into something resembling a counterinsurgency, with all the pitfalls of that mode of prolonged warfare. (2) Should an amphibious strategy misfire, it would degrade relations with important players in maritime South Asia. Even success would harm the US strategic position in the region if it exacerbated the humanitarian plight of the Somali people. Reflexes of centuries-standing prime policy-makers in New Delhi and Beijing to distance themselves from sea-launched expeditionary operations, which can smack of colonialism. They would likely step up their naval build-ups in the Indian Ocean if they lost confidence in US leadership. Indian and Chinese self-help would carry unpredictable but probably damaging consequences for regional harmony. (3) For Washington, the defensive strategy currently in place offers the greatest return on the modest investment warranted by the modest threat of piracy. It should continue. Should the threat to commercial shipping worsen, as seems probable, more forceful measures may be in order, including arming merchantmen for 1 point defence. There is ample historical precedent for doing so. With any luck, the makers and executors of maritime strategy will glimpse the potential strategic and political effects of actions conducted on the operational level. The Indian Ocean is a microcosm of the strategic dilemmas confronting modern

1

Derek S. Reveron, ‘Piracy Season Opens with a Bang’, New Atlanticist website, 31 August 2009, http://www.acus.org/new_atlanticist/piracyseason-opens-bang.

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navies. Combat operations rage on in Afghanistan, even as billion-dollar warships police regional waters for illicit activities like piracy or weapons trafficking, often carried on by rudimentary craft like sail-propelled dhows. Maritime security is connected inextricably to seemingly unconnected matters. Off Somalia, it seems, everything old is new again. Piracy has afflicted navigation since men first ventured out to sea. Thucydides recalls that King Minos of Crete founded the first Greek navy to combat pirates who ravaged coastal cities. Sweeping through the Aegean in the decades before the Trojan Wars, Minos’ fleet expelled marauders from their island bases and planted new colonies there - advancing both maritime 2 security and the imperial interests of Crete. This approach to counterpiracy endured into recorded history. In the first century BC, a young Julius Caesar was taken captive by pirates, only to joke with his captors that he would return and put them to 3 death once ransomed. And so he did, crucifying the lot. That particular band of corsairs preyed on the wrong person. Nor is counterpiracy an especially European malady. Ming Dynasty Admiral Zheng He vanquished a pirate fleet near the Strait of Malacca six centuries ago. Pirate chieftain Chen Zuyi was hauled to the imperial capital of Nanjing in chains, there to 4 be hanged. Summary punishment was the order of the day for many centuries, throughout maritime Eurasia. The Barbary Wars offer a different paradigm of counterpiracy, namely the battle against state-sponsored predators. The early American Republic once considered disbanding the US Navy to cut expenses. North African potentates’ escalating demands for ‘tribute’ - in effect protection

2

3 4

Thucydides, The Landmark Thucydides: A Comprehensive Guide to the Peloponnesian War, ed. Robert B. Strassler, intro. Victor Davis Hanson, New York: Free Press, 1996, pp.4-6. Plutarch’s Lives, ed. Charles W. Eliot, New York: P.F. Collier, 1909, pp.274-275. Louise Levathes, When China Ruled the Seas: The treasure fleet of the Dragon Throne, 1405-1433, New York and Oxford: Oxford University Press, 1994, pp.47, 50-52.

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money - prompted President Thomas Jefferson, a steadfast opponent of standing armed forces, to reverse course. US naval expeditionary forces were fitted out and dispatched to the Mediterranean Sea to battle the Barbary States, by land and by sea. Counterpiracy meant not only protecting commercial shipping but mounting a credible threat of ‘regime change’ against the petty rulers who ran protection schemes. With discrete targets to aim at, the United States at last 5 put a stop to Barbary depredations. Yet maritime brigandage is still with us today, two centuries hence. Such is the resiliency of piracy. Like other threats to ‘good order at sea,’ this scourge can be managed but, it is safe to say, never eradicated outright. As long as anarchy prevails in expanses like the Gulf of Aden and financial gains are to be had, pirates will ply their trade.

7.1

Beware of Going Ashore

How can seafaring nations defend the system of global trade and commerce against this menace? Carl von Clausewitz warns that the first, the supreme, the most far-reaching act of statecraft is to grasp the nature of the war, neither mistaking it for, nor 6 trying to transform it into, something alien to its nature. In a similar vein, Sun Tzu exhorts statesmen and generals to know 7 the enemy, as well as themselves. Understanding the strategic setting is the basis for success in competitive enterprises like armed conflict, an arena for human interaction, dark passions, and chance and uncertainty. This basic act of strategy-making is equally critical to ambiguous, open-ended, non-war ventures like counterpiracy in the Gulf of Aden. Asian theorists commonly transpose concepts

5 6 7

Michael B. Oren, Power, Faith, and Fantasy: America in the Middle East, 1776 to the Present, New York: Norton, 2007, pp.51-79. Carl von Clausewitz, On War, ed., trans. Michael Howard and Peter Paret, Princeton: Princeton University Press, 1976, pp.88-89. Sun Tzu, The Art of War, trans., intro. Samuel B. Griffith, London and New York: Oxford University Press, 1963, p.84.

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from strategic theory into the domain of peacetime international affairs. Sun Tzu declares that the ‘acme of skill’ is to subdue opponents without fighting. This is a working definition of 8 diplomacy. Mao Zedong proclaims that ‘politics is war without 9 bloodshed while war is politics with bloodshed.’ For Hindu theorist Kautilya, accommodating rival sovereigns is a mere expedient, a way to improve one’s standing at their expense. Says R.P. Kangle, ‘the king is advised to thwart or outwit the strong enemy when fulfilling the terms of the treaty, and, after biding his time till he gets strong, to overthrow the strong 10 enemy.’ For these Asian thinkers, the dividing line between war and peacetime competition blurs into invisibility. I take my lead from them. Strategic theory offers counsel useful not only in times of armed strife but for constabulary actions like battling pirates. To define the nature of the struggle off Somalia, it may be easiest to invert Clausewitz’s maxim, defining the nature of the adversary not by what he is, but by what he is not. Somali pirates are not a state-sponsored corps of maritime predators like the Barbary ‘pirates,’ who were not pirates at all. Neither are they privateers like Sir Francis Drake, who plundered Spanish galleons on behalf of Queen Elizabeth I. Nor are they like the Confederate raiders who disrupted Union shipping during the American Civil War, also at the behest of government. The paradigm of state-sponsored lawlessness simply does not apply. So pleas for the United States to strike at Somali pirates’ coastal lairs the way it did in North Africa two centuries ago are fundamentally misguided. Such recommendations were commonplace in April 2009, after the US-flagged freighter 11 Maersk Alabama fell prey to hijackers. But as government

8 9

Ibid., p.77. Mao Zedong, ‘On Protracted War’, in Selected Military Writings of Mao Tse-Tung. Beijing: Foreign Languages Press, 1967, pp.206-263, 345-352. 10 The Kautilīya Arthaśāstra, trans. R.P. Kangle, 2d ed., repr. Delhi: Motilal Banarsidass, 1988, part 3, pp.252-253. 11 ‘US Naval Institute CEO: Hit the Pirates at Their Bases in Somalia’, US Naval Institute website, 10 April 2009, http://www.usni.org/forthemedia

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agents, the Barbary pirates had a return address, a 12 Clausewitzian ‘centre of gravity’ susceptible to military attack. Their political masters in Algiers or Tripoli could be coerced, or they could be overthrown if they refused to desist. And so the Jefferson administration did in 1804, dispatching US frigates to protect Mediterranean sea lines of communication, or SLOCs, while an army of US Marines, Bedouins, and Greeks marched overland to assault Tripoli. In short, nineteenth-century North Africa lent itself to offensive action on land and at sea. The West has no such luck today. Somali corsairs are private individuals who prey on commercial shipping for private gain. They have no political masters, unlike the state-sanctioned marauders of Jefferson’s day. The Transitional Federal Government in Mogadishu exercises little if any control over them. To describe its sovereignty as flimsy understates matters. Sovereign states control national territory, wield a near-monopoly of legitimate violence on that territory, and protect foreign interests within their jurisdiction. The transitional government does none of that well. Indeed, Harvard University’s Belfer Center portrays Somalia as the worst-governed nation state in Africa, no small 13 feat. Attempting to replicate Jefferson’s strategy, using force to cow a hostile regime into submission, would be foolish under

/PiracyUpdate.asp; Arthur Bright, ‘Critics Say US Should Attack Somali Pirates’ Land bases’, Christian Science Monitor’, 10 April 2009, http://www.csmonitor.com/2009/0410/p99s01-cole.html; Bill Lambrecht, ‘Skelton Praises Somalia Rescue, Says Bigger Fix Needed’, St. Louis PressDispatch, 13 April 2009, http://www.stltoday.com/blogzone/politicalfix/political-fix/2009/04/skelton-praises-somalia-rescue-says-bigger-fixneeded/. 12 In the Prussian theorist’s words, the centre of gravity is a ‘hub of all power and movement, on which everything depends.’ Clausewitz, On War, pp.485-486. 13 Robert I. Rotberg and Rachel M. Gisselquist, Strengthening African Governance: Ibrahim Index of African Governance Results and Rankings, 2008. Cambridge, MA: Belfer Center, Harvard University, 2008, http://belfercenter.ksg.harvard.edu/publication/18541/strengthening_africa n_governance.html.

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prevailing circumstances. Overthrowing the Transitional Federal Government would not only not end piracy, it would do positive harm by creating a vacuum for radical Islamists like al-Shabab to fill. A merger between piracy and radical Islamism would become conceivable should that occur. Regime change in Mogadishu, in short, would amount to self-defeating behaviour on the United States’ part. What about bypassing the Somali government and striking directly at coastal safe havens? While this makes superficial sense, the dispersed, amorphous nature of the opponent denies commanders a concentrated centre of gravity to assail. Legal authority is not the problem. Enacted under Chapter VII of the UN Charter, UN Security Council Resolution 1851 authorizes 14 UN Member States to raid pirate strongholds. That might buy flag states a reprieve by scattering pirate bands, but in all likelihood, the corsairs would melt away at the advance of US forces and regroup afterward. Their villages could be cleared with little difficulty, but they would not stay cleared for long. The alternative would be to wage an all-out offensive. In other words, US expeditionary forces would go ashore and stay there. They would eradicate coastal safe havens and remain afterward to prevent the pirates from resuming their attacks on shipping. But at that point, counterpiracy would blur into counterinsurgency, with all the combat, constabulary action, and nation-building that mode of warfare entails. The occupiers would find themselves compelled to clear, hold, and build. And even if they were successful, counterinsurgent operations depend on the emergence of a viable indigenous government precisely what Somalia does not possess, has not possessed for many years, and has little prospect of creating any time soon.

14 UN Department of Public Information, Security Council SC/9541, ‘Security Council Authorizes States to Use Land-Based Operations in Somalia, As Part of Fight Against Piracy Off Coast, Unanimously Adopting 1851 (2008)’, 16 December 2008, http://www.un.org/News/Press/docs/2008/sc9541.doc.htm.

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In short, what looks like a straightforward strategy of counterpiracy would likely entangle the West in Somali politics for years to come - adding up to a protracted engagement out of any proportion to the political stakes. Clausewitz offers a simple yet powerful equation to help policymakers think through such questions. The value of the political object, he maintains, determines the magnitude and the duration of the effort a belligerent should expend to obtain that object. If the objective is extremely valuable - say, safeguarding the homeland against direct attack - then an effort of maximum scale and length is probably worthwhile and sustainable. But undertaking a costly, protracted operation or campaign for lesser stakes is asking for trouble. If the likely cost in lives, treasure, or political capital is too great, a belligerent government should forego the effort altogether; if the costs soar once the campaign is in progress, making the political objectives too expensive, the leadership should start looking for ways to extricate itself, preferably 15 without lasting damage to its interests. Apply this mode of cost/benefit analysis to the Gulf of Aden. Are the political stakes worth a potentially long, costly land campaign? The evidence suggests not. Statistically speaking, piracy is more a nuisance than a serious threat to 16 regional SLOCs. The complacency of shipowners provides a small but telling indicator of this. Many firms balk at low-cost measures, like transponders that permit their vessels to be 17 recovered after a hijacking. Going ashore, then, would disturb the Indian Ocean equilibrium for minimal gain and with unforeseeable, perhaps grave consequences. When shipowners start paying to harden their ships and crews against pirate attack, this will show that the threat is worsening, and that they

15 Clausewitz, On War, p. 92. 16 Bjoern Siebert, ‘Somali Piracy Q&A’, Royal United Services Institute website, http://www.rusi.org/research/militarysciences/maritime/commentary/ref:C 4A26436289B1F/. 17 Author discussions with Prof. Stephen Downes-Martin, US Naval War College, Newport, RI, April 2008.

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are coming to believe security measures are worth paying for. And indeed, this may be happening. The Maersk Alabama was the target of a second hijacking attempt in November 2009. A private security detachment stationed on board the vessel fought off the attack - howing that one firm, at least, has come to perceive a serious threat to its interest in free passage through 18 regional waters. The readiness of shipowners to spend on security, then, offers one way to gauge the threat to shipping, helping governments determine whether a more forceful strategy and tactics are in order.

7.2

Geopolitical Setting

Operational effects can reverberate up to the levels of strategy and high politics. As noted at the outset, the case for providing public goods like maritime security rests on their supposed benefits not only for recipients but supplier governments themselves, ameliorating fears of their politico-military predominance while helping them rally international support for ventures they deem worthwhile. Writing a century ago, British diplomat Eyre Crowe declared that the Royal Navy’s defence of free navigation rendered British naval supremacy palatable to 19 lesser powers. Contemporary scholars like Joseph Nye maintain that US guardianship of SLOC security eases worries about US hegemony, however much American dominance may 20 rankle. True, but counterpiracy operations, a quintessential

18 ‘Pirates Foiled in a Second Attack on Maersk Alabama Cargo Ship’, CNN.com, 19 November 2009, http://www.cnn.com/2009/WORLD/africa/11/18/maersk.alabama.pirates/i ndex.html#cnnSTCText. 19 Eyre Crowe, ‘Memorandum on the Present State of British Relations with France and Germany, 1 January 1907’, in G. P. Gooch and Harold Temperley, eds., British Documents on the Origins of the War 1898-1914, vol. 3: The Testing of the Entente, 1904-6, London: His Majesty’s Stationery Office, 1927, pp. 402-417. 20 Joseph S. Nye, ‘The American National Interest and Global Public Goods’, International Affairs 78/2, April 2002, p.238.

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public good, could work against great-power amity in the Indian Ocean unless carefully managed. If things went wrong - say, if a land campaign misfired, inflicting excessive harm on non-combatants - then powers like India and China might well lose confidence in American leadership, to the detriment of the US strategic position in the region. And in the case of New Delhi, missteps by the United States, India’s seagoing partner, could taint the nation’s image vis-à-vis fellow South Asian peoples and governments. Indian leaders would likely distance themselves from Washington following a botched or overly costly amphibious operation. In short, New Delhi and Beijing would resort to self-help, the timetested means by which nations uphold their interests. As they equipped themselves with the naval means for self-help, the potential for misunderstandings and Sino-Indian rivalry would grow. By doing less, then, the US can do more to buttress its standing in the Indian Ocean region. The United States has been the self-appointed custodian of maritime security in Asia since 1945. The challenge before the Obama administration is to marshal enough multinational forces to prosecute a defensive strategy that is effective, affords sea powers like India, China, and the European Union a leadership role, and avoids unduly affronting the sensibilities of Washington’s partners. This is no small task, but it is consistent with the 2007 US Maritime Strategy, a document predicated in large part on cooperative efforts to uphold maritime security - thereby sharing a burden the US Navy long bore almost alone.21 And it is a critical task. The strategic setting in the Indian Ocean basin is changing at breakneck speed, not only in material terms but in the realm of ideas about the sea. Strategic theorist and US Air Force colonel John Boyd once observed that people, ideas, and hardware - in that order - are the

21 US Navy, Marine Corps, and Coast Guard, A Cooperative Strategy for 21st Century Seapower, Washington, DC: Department of the Navy, 2007, http://www.navy.mil/maritime/MaritimeStrategy.pdf.

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22

determinants of competitive international endeavours. If so, it is essential not only to inspect the panoply of ships, aircraft, and weaponry that nations put to sea, important though the material trappings of maritime strategy may be, but also to probe how seafarers and their political masters think about the uses of naval power. If mishandled, counterpiracy could yield unintended consequences, even though it is a seemingly innocuous (or 23 ‘benign,’ as the Indian Navy would say) mission aimed at good order at sea, a boon to all trading nations. Even if the nations patrolling the Gulf of Aden manage their interactions wisely, a certain amount of tension is likely, as Indian commentators’ visceral response to the Chinese Navy’s modest three-ship deployment for convoy duty attests. Many Indians see the deployment as the first step onto a slippery slope to a permanent naval presence in the Indian Ocean, waters New Delhi regards 24 as an Indian preserve. Consider the material dimension of strategy first, before we turn to the ideas that propel strategy. Yale University professor Paul Kennedy opines that European and Asian navies are on opposite trajectories from a material standpoint. European governments seem resigned to letting their fleets shrink, in effect surrendering their claim to sea power, even as Asians bolt together fleets with gusto. Kennedy likens this to a previous historical coincidence six centuries ago, when China’s Ming Dynasty dismantled the world’s most formidable navy,

22 ‘Summary: 2007 Boyd Conference’, Defense and the National Interest website, 13 July 2007, http://www.d-n-i.net/boyd/2007_conference/ vandergriff_ richards_report.htm. 23 Integrated Headquarters, Ministry of Defence (Navy) INBR-8, ‘Indian Maritime Doctrine’, Mumbai: Maritime Doctrine and Concept Centre, 2009, pp.119-122. 24 Howard Chua-Eoan, ‘Beyond Pirates: On the High Seas, an India-China Rivalry’, Time, 8 April 8 2009, http://www.time.com/time/world/article/0,8599,1890251,00.html; Thomas Mathew, ‘Mighty Dragon in the Sea’, Hindustan Times, 24 June 2009; G. Parthasarathy, ‘Challenges from China: India Faces Growing Hostility after 26/11’, Tribune, 19 March 2009, SAP20090319378013.

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evacuating the seas scant decades before Vasco da Gama 25 dropped anchor along the Indian coast. Europe inherited its mastery of South Asian waters almost by default. The reverse seems to be happening now - witness the decision by Britain’s Royal Navy to mortgage its future to fund two midsized aircraft carriers. Navy leaders retired surface combatants early to fund the flattops, only to see the British government consider 26 cancelling them anyway. In the domain of ideas, Professor Geoffrey Till of King’s College London maintains that Europeans are entering a ‘postmodern,’ ‘post-Mahanian’ perspective on sea power, an approach predicated more on non-combat missions aimed at good order at sea than on waging fleet actions. Asians, says Till, are on precisely the opposite intellectual track, entering a ‘modern,’ ‘neo-Mahanian’ age rather like the one inhabited by 27 Western sea powers and Japan a century ago. Realpolitik and naval battles remain the order of the day. The United States is trying to straddle the neo- and post-Mahanian worlds, meeting escalating demands with declining resources. An old navy joke conveys the challenge before the US sea services: if American mariners keep doing more and more with less and less, they will end up doing everything with nothing. Such is the lot of a nation that regards itself as both the guardian of the system of globalised maritime commerce and as the protector of its own national interests and prerogatives against emerging ‘peer competitors,’ shorthand for China. It is worth examining the three vertices of a ‘strategic triangle’ now taking shape in the Indian Ocean basin, namely India, China,

25 Paul Kennedy, ‘The Rise and Fall of Navies’, New York Times, 5 April 2007, http://www.nytimes.com/2007/04/05/opinion/05iht-edkennedy. 1.5158064.html. 26 Jasper Gerard, ‘Ministers Accused of ‘Sea Blindness’ by Britain’s Most Senior Royal Navy Figure’, Telegraph, 12 June 2009, http://www.telegraph.co.uk/news/newstopics/politics/defence/5517833/Mi nisters-accused-of-sea-blindness-by-Britains-most-senior-Royal-Navyfigure.html. 27 Geoffrey Till, ‘Maritime Strategy in a Globalizing World’, Orbis 51/4, fall 2007: pp.569-575, and Seapower, London: Frank Cass, 2003.

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and the United States. Whether the pattern of interactions among three leading sea powers tends more toward cooperation, antagonism, or indifference will both influence and be influenced by counterpiracy operations off the Horn of Africa. This is an exceedingly interactive strategic environment. First, consider India. In the United States, analysts and practitioners of sea power have generally assumed that the Indian Ocean is a kind of vacuum into which external powers can expand at will, playing out their rivalries with scant heed to South Asian sensibilities. Indeed, a former political counsellor to the US Pacific Command terms US strategy for the region an ‘I95 strategy,’ for the main north-south highway along the American east coast. That is, motorists get on the superhighway, zip along as fast as they think they can get away with it, and get off at the exit, taking little notice of the surroundings. This relegates the Indian Ocean (with the exception of the volatile Persian Gulf) to the status of a backwater in world affairs. Indians have other ideas about this. Not long ago, the Asia columnist for The Economist of London recounted discussing sea power with Indian officers in Singapore, at the 2009 Shangri-La Dialogue. When pressed, they expressed ‘Mahanite’ sentiments about the future of the Indian Ocean, propounding 28 an austere realpolitik. (He said the same of Chinese officers.) ‘Banyan’ is on to something. What he says, however, is true primarily because so many people equate Alfred Thayer Mahan with power politics and war at sea. Indians seldom quote Mahan, except on occasion to misquote him on the importance 29 of the Indian Ocean. Some Indian mariners study Mahan—the current Indian chief of naval staff is a graduate of the US Naval War College - but they show little sign of drawing specific guidance from his works.

28 ‘Chasing Ghosts’, The Economist, 11 June 2009, p. 48, http://www.economist.com/displayStory.cfm?story_id=13825154. 29 Rahul Roy-Chaudhury, Sea Power and Indian Security. London: Brassey’s, 1995, p.199.

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Indians do look to US history for inspiration, but they look not to Mahan but to the Monroe Doctrine, the 1823 foreignpolicy statement that forbade Europeans to reclaim their holdings or political control in the Western Hemisphere. In 1961, Prime Minister Jawaharlal Nehru invoked Monroe’s principles to justify forcibly evicting Portugal from its coastal enclave at Goa. Nehru took the opportunity to proscribe any outside intervention in the Indian Ocean region that would interfere with the Indian political system. Subsequent prime ministers put an even more assertive, more preventive gloss on 30 his security doctrine. New Delhi intervened beyond the subcontinent on several occasions during the late Cold War, in hotspots like Sri Lanka and the Maldives. India, in effect, declared itself the arbiter of regional affairs. Perhaps the Monroe Doctrine is a natural precedent for a power that considers itself the leader of a non-aligned bloc of nations, the foremost power in its home region, and the defender of its vital interests against external interference. Like nineteenth-century Americans before them, Indians bridle at real or perceived encroachment by powerful outsiders in their geographic backyard. This applies especially to China, a rival Asian power with which India shares a land frontier, a turbulent past, and interests in the same sea lanes. But even the United States is hardly exempt from Indian scepticism about its motives and actions, given the rocky relations between the two nations during the Cold War, when New Delhi professed non-alignment but leaned more toward the Soviet Union than the West. To fulfil its policy of regional primacy, New Delhi has set 31 out to procure what it frankly calls a blue-water navy. Unlike the Chinese, who mention the Monroe Doctrine only to

30 James R. Holmes and Toshi Yoshihara, ‘India’s “Monroe Doctrine” and Asia’s Maritime Future’, Strategic Analysis 32/6 November 2008, pp.9971011. 31 Rajat Pandit, ‘Blue-Water Navy Is the Aim’, Times of India, 1 November 2006, http://timesofindia.indiatimes.com/NEWS/India/Blue-water-Navy-is-theaim/articleshow/263611.cms.

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distance themselves from it, the Indians do not hedge about their nautical vision. Assuming the Indian Navy’s foreign arms purchases and domestic shipbuilding efforts pan out - both big assumptions, judging from the fitful progress of the Admiral Gorshkov sale - the navy will boast a fleet of three midsized aircraft carriers, the associated escorts and auxiliaries, and eventually nuclear-powered attack and ballistic-missile submarines (SSNs and SSBNs, respectively). Factor in the usual maintenance, workup, and deployment cycle, and the fleet will probably boast one or perhaps two aircraft-carrier task forces ready for combat service at any given time. That would be enough for permissive strategic surroundings, in which the threat to Indian security remains low. How aggressively New Delhi presses ahead with its naval build-up depends on whether the leadership sees the surroundings as permissive. Indian commentators, mainly retired naval officers, sketch at least two ‘red lines’ for competition with the Chinese Navy. First, they object vehemently to any deployment of Chinese nuclear submarines to South Asian waters. They seldom specify, but presumably they mean SSNs suitable for antisubmarine warfare, SLOC interdiction, and land attack. China’s Second Artillery can already range all of India with land-based ballistic missiles. SSBN patrols in the Indian Ocean would do little to alter the strategic balance and thus would cause less discomfiture than one might think. SSNs, on the other hand, could change the rules of Sino-Indian relations at the theatre level. Their virtually unlimited cruising radius, long on-station time, and lethal weaponry could prompt India to take countermeasures. Second, Indians fret that China will militarize its ‘string of pearls,’ the popular name for the network of basing agreements Beijing has negotiated with coastal states in South Asia. If the Chinese Navy forward-deployed warships along Indian Ocean shipping lanes, its actions could well set a competitive cycle in motion. Indeed, one well-known Indian analyst, Indian Navy commander Gurpreet Khurana, now discerns a Sino-Indian ‘rivalry arc’ enclosing all of South, Southeast, and East Asia. It

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is probably no accident that the western terminus of the rivalry 32 arc falls in the Gulf of Aden. For New Delhi, then, counterpiracy represents another marker for Chinese capabilities and intentions in the Indian Ocean region. Should China cross the Indian red lines, New Delhi may well step up its naval development efforts with the goal of putting two or even three fleets to sea, each composed of two to three carrier groups. This would allow for east- and west-coast fleets, along with an expeditionary fleet for service outside the Indian Ocean. The latter would represent an Indian counterpart to the US Fifth and Seventh fleets. The Indian carrier fleet thus would grow to four to nine flattops, depending on the operating tempo the Indian Navy can sustain, taking upkeep and training into account. The US Navy thumb rule is that the fleet requires three ships to keep one at sea. At any given time, that is, one unit is in extended overhaul, another is undergoing predeployment workups, and the third is deployed. But the Indian Navy will not face the US Navy’s operating tempo or its global commitments, and thus its fleet will not incur the same wearand-tear. It is entirely possible, then, that India could make do with a two-to-one ratio between combat-ready ships and those in refit. So Geoffrey Till is right in a loose sense. India inhabits a modern world in which the prospect of naval war remains real. Whether Mahan’s precepts exert much influence on its maritime strategy, however, is doubtful. The Indian Navy seems to be using the current strategic pause, in which the US Navy remains dominant and any serious Chinese naval threat remains years distant, to investigate various sources of strategic and

32 Gurpreet S. Khurana, ‘China-India Maritime Rivalry’, Indian Defence Review 23/4, 2009, http://www.indiandefencereview.com/2009/04/chinaindia-maritime-rivalry.html. Of note, Commander Khurana was in charge of writing the Indian Maritime Doctrine published in 2009.

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operational guidance. Mahan is only one of these sources, and 33 by no means the dominant one. China represents the next vertex of the strategic triangle. China, too, dwells in the modern world of power politics. If New Delhi embraces the Monroe Doctrine while remaining indifferent to Mahan, the situation is just the reverse in Beijing. A vocal school of thought in the Chinese strategic community propounds a neo-Mahanian vision of sea power, while Beijing goes to extravagant lengths to disavow any thought of a Monroe 34 Doctrine. What would a neo-Mahanian vision mean for China? It would have a strong eastward-facing component, centred on Taiwan. A host of benefits would accrue to Beijing should it regain control of this unsinkable aircraft carrier, restore national unity, and burnish its reputation as a seafaring nation. But what would a Mahanian strategy mean on the ‘day after Taiwan’ - a day that no longer seems quite so remote in this apparent era of good feelings across the Strait, and with China’s margin of military superiority over the island steadily widening? This is where the southward-facing component of Chinese strategy would come in. It is commonplace to point out that the Chinese economy depends increasingly on seaborne shipments of oil, natural gas, and other raw materials originating in the Indian Ocean basin. Indeed, now that communist ideology has imploded, the Chinese Communist regime has staked its legitimacy on assured supplies of these resources, which it considers vital to improving the standard of living for the Chinese populace. Both the Indian Ocean and the South China Sea, the interface between East and South Asia, are clearly expanses that engage vital Chinese interests. Does this mean naval conflict between the two Asian titans is predestined? Not necessarily. Counterpiracy provides the Indian Ocean powers a

33 Donald L. Berlin, ‘The Evolving Trends in Maritime Security’, in V. R. Raghavan and W. Lawrence S. Prabhakar, Maritime Security in the Indian Ocean Region: Critical issues in debate. New Delhi: Tata McGraw-Hill, 2008, pp.29-44. 34 James R. Holmes and Toshi Yoshihara, Chinese Naval Strategy in the 21st Century: The Turn to Mahan. London: Routledge, 2007.

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chance to fashion a maritime consortium, much as Mahan counselled the United States to seek such a consortium with 35 Great Britain, its erstwhile foe. Such a condominium is thinkable for three reasons. First, it is worth pointing out that Chinese intentions in South Asia remain unclear, for all the Indian and American talk of a string of pearls. It is also worth noting that this is not a Chinese phrase; it is American. It originated in a 2005 Booz Allen study and gained popularity through the writings of Washington 36 Times reporter Bill Gertz. Indian commentators leapt at it. It is an article of faith for some of them that the Chinese Navy is deliberately encircling India from the sea. The rivalry arc traced by Khurana looks remarkably solid, like a barrier to rightful 37 Indian aspirations at sea. Whether Beijing’s pursuit of basing agreements reflects a concerted strategy aimed at maritime preponderance, a prudent effort at SLOC security, or simple hedging remains to be determined. Sea-power analysts in New Delhi and Washington need not interpret every Chinese flotilla cruising the Indian Ocean as proof of sinister motives. Second, Beijing tends to deprecate the potential of Indian sea power. Chinese analysts appraise the Indian maritime challenge on two levels. They understand that Indians harbour a starkly geopolitical vision of a South Asia presided over by a strong, benign India. They worry that New Delhi might weld the Andaman and Nicobar islands into a ‘metal chain’ across 38 the western entry to the Strait of Malacca. At the same time,

35 Robert C. Rubel, ‘The New Maritime Strategy: The rest of the story’, Naval War College Review 61/2, spring 2008, pp.69-78. 36 Bill Gertz, ‘China’s Pearls’, 1 January 2009, http://www.gertzfile.com/gertzfile/ring010109.html. 37 Thomas Mathew, ‘Mighty Dragon in the Sea’, Hindustan Times, 24 June 2009; Gurpreet S. Khurana, ‘China’s ‘String of Pearls’ in the Indian Ocean and its Security Implications’, Strategic Analysis 32/1 ,2008, pp.139. 38 Robert Kaplan, ‘Center Stage for the 21st Century: Rivalry in the Indian Ocean’, Foreign Affairs, March/April 2009, http://www.realclearpolitics.com/printpage/?url=http://www.realclearpoliti cs.com/articles/2009/03/rivalry_in_the_indian_ocean.html.

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they scoff at New Delhi’s ability to follow through in operational and force-structure terms. They ridicule the Indian Navy’s hodgepodge of foreign-built hardware, its inability (to date) to serial-produce modern surface or subsurface warships in any numbers, and so forth. India, they conclude, poses little danger 39 to Chinese interests in maritime South Asia. Unless that changes, the Indian Navy will apply only a weak stimulus for Sino-Indian naval competition. Oddly, then, Chinese perceptions of Indian weakness could advance the cause of strategic equilibrium in the region, suppressing incentives for Beijing to mount a resource-intensive forward deployment. In the meantime, counterpiracy offers a venue for functional cooperation. And third, it will take time for China to extend its seaward reach into South Asia, building up the means to carry out a vigorous maritime strategy there. For example, underway replenishment, or UNREP - meaning the equipment and procedures for restocking ships with ‘bullets, beans, and black oil’ at sea, as a previous generation of American sailors colourfully put it - is a perennial weak spot for the Chinese Navy. Indeed, when interrogated after World War II, wartime Japanese Prime Minister Hideki Tojo singled out UNREP as a decisive factor in the Pacific. Their capability to remain at sea, surmounting the tyranny of distance, represented an immense comparative advantage for US Navy task forces. The Chinese squadron off Somalia has performed impressively, demonstrating its capacity for sustainment, at-sea endurance, and on-station relief. Nevertheless, such capabilities and skills are not put in place overnight. Beijing clearly covets some say in Indian Ocean affairs, and to do that it needs international commerce, merchant and naval shipping, and forward bases - ’in a word, sea power,’ as

39 James R. Holmes, Andrew C. Winner, and Toshi Yoshihara, Indian Naval Strategy in the 21st Century. London: Routledge, 2009, pp.127-149.

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Mahan put it. It has started laying the groundwork for a more assertive maritime policy in the region, as its counterpiracy mission attests. In November 2009, moreover, the Chinese leadership made noises about assuming a leadership position off Somalia. Chinese Navy spokesmen advocated rotating the chairmanship of SHADE, the multinational Shared Awareness and Deconfliction group - in effect a clearing-house for exchanging data about pirate activity, merchant traffic, and patrol practices - so that China could periodically perform this supervisory function. A few days afterward, however, Beijing abruptly dropped its proposal. It instead took to espousing dividing regional waters into patrol areas, each controlled by an individual government or, in the cases of the European Union and NATO, 41 a multinational squadron. This turnabout in China’s position on counterpiracy bespeaks indecision about the nature of China’s stance in the Indian Ocean, and presumably about how to manage relations with India and the United States at sea. It is too soon for outsiders to say with any confidence what the nature of Chinese policy is, if indeed Beijing has reached a concerted policy toward the Indian Ocean. It is entirely possible that the outcome of the internal debate remains to be determined. Scholars and practitioners should not write off the possibility of cooperative relations among the major sea powers, given their mutual, compelling interest in maritime security and unfettered trade. If China consistently rebuffs US and Indian entreaties, that will offer an indicator that competition lies in store. Gestures toward collaboration will suggest otherwise. And then there is the United States, the final vertex of the strategic triangle. The 2007 US Maritime Strategy, entitled ‘A Cooperative Strategy for 21st Century Seapower’, directs the

40 Alfred Thayer Mahan, The Influence of Sea Power upon History, 1660-1783, 1890; repr., New York: Dover, 1987, p.71. 41 Richard Weitz, ‘Priorities and Challenges in China’s Naval Deployment in the Horn of Africa’, China Brief 9/24, 3 December 2009, http://www.jamestown.org/single/?no_cache=1&tx_ttnews%5Btt_news%5 D=35795.

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US Navy and Marines to station ‘credible combat power’ continuously in the Indian Ocean and Persian Gulf region, as 42 well as the western Pacific, for the foreseeable future. America’s strategic gaze is now fixed on maritime Asia. How does Washington rate the potential of Indian sea power? The US leadership has been optimistic, perhaps excessively so, about a ‘natural strategic partnership’ between the world’s oldest and the world’s largest democracy. Talk of a democratic league between the two nations goes back to the Clinton administration; spokesmen for both 2008 presidential campaigns endorsed the idea. Working with a vibrant Indian Navy on the high seas would constitute an operational expression of a US-Indian concert. And in fact New Delhi has cooperated closely with the US Navy and Coast Guard on the functional level, gaining exposure to US tactics, techniques, and procedures, and breaking down bureaucratic stovepipes between its own navy and coast guard. This is one reason why the annual Malabar exercises, ongoing since 1992, have become such a major event. Even so, a certain ambivalence haunts the bilateral relationship on the political and strategic levels. India has never lost its national independence except to a seaborne conqueror, Great Britain. This cultural memory predisposes Indians to scepticism toward external sea powers, even generally friendly ones like the United States. Indian scholars and officials regale Americans with the story of the USS Enterprise carrier group’s cruise in the Bay of Bengal during the 1971 Indo-Pakistani War, an act New Delhi saw as clumsy US intervention in Indian affairs. The Indian military waged an inconclusive counterinsurgency on Sri Lanka in the late 1980s, in part to keep the US Navy from obtaining basing rights at the port of Trincomalee, along the subcontinent’s oceanic frontiers. There is more to the relationship between America and India than a common language and ideological affinities. At the

42 US Navy, Marine Corps, and Coast Guard, Cooperative Strategy for 21st Century Seapower.

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same time, it is important not to make too much of what divides the United States and India. Indian and US interests coincide to a great extent, auguring well for some form of entente between them. But New Delhi almost certainly will not accede to any formal seagoing arrangement with Washington. Non-alignment is reflexive for Indians. Even the Proliferation Security Initiative has proved suspect, despite Indian officials’ avowed, apparently genuine support for counterproliferation. New Delhi will balk, furthermore, at any entente that implies junior status for India in the Indian Ocean. Indian national pride would not permit it. Fears of being blamed by fellow South Asians for real or perceived US transgressions - say, a failed invasion of Somalia, or strikes against the Iranian nuclear sector - represent still another deterrent to bandwagoning too closely with the United 43 States. Unless and until the benefits of cooperation seem to outweigh these pitfalls, then, India will welcome tactical collaboration with the United States while holding the United States at arm’s length on the strategic level. Informal, lowprofile working arrangements are possible and indeed probable. Beyond that, it will take hard diplomatic work to determine the content of a strategic partnership. In themselves, democratic, cultural, or linguistic affinities exert too little binding force to hold together a maritime consortium.

7.3

The Best Defence Is a Good Defence

Clearly, then, the outlook for the Indian Ocean is mixed, the strategic environment dynamic. How will counterpiracy unfold amid this shifting context? In all likelihood, first, coastal raids would prove ineffectual. A full-scale, US-led amphibious invasion might be effective on the operational and the strategic level, but the United States might forfeit its chances for a

43 Exchange of correspondence between the author and Commander Gurpreet Khurana, September 2008.

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strategic partnership with India. China, itself no stranger to seaborne intervention during its ‘century of humiliation,’ might withdraw its support as well. The diplomatic costs of an offensive thus exceed any likely military advantage. How India and China respond to any forceful measures undertaken by the United States will bear monitoring. Second, how Indians react to Chinese counterpiracy deployments will supply a leading indicator of how Sino-Indian relations may evolve in the region. Indians could create a selffulfilling prophecy if they set the threshold for competition so low that any Chinese naval activity in the region appears intolerable. As noted before, slippery-slope arguments have started appearing in official statements, newspaper punditry, and learned commentary. Such commentators worry that Beijing is using counterpiracy as a pretext for more ambitious deployments to the subcontinent’s west. How New Delhi construes its red lines for naval rivalry also merits close scrutiny. And third, baseball sage Yogi Berra observes that prediction is tough - especially when it involves the future! For now, the political stakes remain too small to justify a costly effort on land, but some dramatic event like a collapse of the Somali Transitional Federal Government could transform the situation, say by inducing Islamists and pirates to make common cause. A more lethal brand of piracy might impel India and China to set aside their differences, working together to safeguard free passage through regional seas, and perhaps muting their opposition to an offensive strategy. If there is any upside to piracy’s metastasizing into some more virulent form, concentrating minds in Asian capitals would be it. For now, though, staying on the strategic defensive is the best way to match the magnitude and duration of the counterpiracy effort to its political ends. The navies patrolling the western Indian Ocean should keep doing what they are doing while bolstering maritime domain awareness and improving unity of effort among themselves. Continual adaptation to changing circumstances is a must, while additional resources would be helpful, as in any major undertaking.

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For their part, merchantmen can take certain simple precautions against pirate assaults. Crews can steer evasive courses, make the transit at high speed, and remove ladders and other fittings from their ships’ sides that make it easy for pirates to board. If the current spate of pirate attacks persists or worsens, commercial shipping firms and flag states should consider arming their vessels for the transit through regional waters. In Wild West surroundings like those off the Horn, it seems best to equip the ‘townsfolk,’ merchant ships, to provide for their own defence until the ‘sheriff,’ a navy warship, can restore order. Self-help should be the order of the day. A variety of objections have been lodged against arming commercial ships, and indeed the International Maritime 44 Organization opposes arming merchant crews. But these objections raised are manageable. Potential workarounds include requiring firearms certification for crews, hiring private security firms, or stationing marine detachments on board. Nor would this represent some radical break with the past, as many commentators and officials allege - although it would depart 45 from recent practice. For centuries, reaching back to the days of King Minos, it was common practice to arm merchantmen. During the Anglo-Dutch wars, merchant ships took their place in the line of battle, fighting in company with men-of-war. Freighters sported deck-mounted guns during the world wars. ‘Q-ships’ disguised as freighters lured in and engaged German submarines. The orthodox model of unarmed shipping may have to yield to today’s exigencies, as it did in ages past. Should piracy fuse with radicalism, some rethinking would be in order. The scale of the threat might come to justify the expense and hazards of offensive strategy while damping any outcry over the hardships that accompany land campaigns. The

44 Niluksi Koswanage, ‘IMO Worried About Arming Ships to Fight Piracy’, Reuters.com, 18 May 2009, http://af.reuters.com/article/topNews/idAFJOE54H0HD20090518. 45 Author discussions with European officials, Netherlands Institute for International Relations ‘Clingendael’, The Hague, 8 July 2009.

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Barbary Wars paradigm of state-sponsored banditry would gain new saliency, simplifying the operational challenge. New options for coercive diplomacy will open up should a well-defined centre of gravity present itself. But that is getting ahead of ourselves.

8. Conclusion: Challenges and Opportunities

Bibi van Ginkel and Frans-Paul van der Putten

The central theme of this book is the international response to Somali piracy. In this concluding chapter we will return to the two main questions that were posed in the introduction: how do actors with different nationalities interact when responding to Somali piracy, and what are the prospects for greater international cooperation? In discussing these two questions, this chapter will adopt a practical perspective on a number of issues that are relevant to fighting piracy, or at least to limiting the damage it causes. These issues are ultimately also relevant for the international level, either directly or indirectly. Finally, as this book represents an attempt to study a phenomenon that is still in a very early phase – i.e., international cooperation against maritime piracy – we will end by identifying some of the themes 1 that require further research.

8.1

The International Response

In order to answer the question of how actors with different national backgrounds interact with each other in the international response to Somali piracy, we will first highlight the (governmental) actors on whom this book primarily focuses, as well as the mechanisms for international interaction. From

1

Although this concluding chapter is based on the preceding chapters, the views expressed here are those of the chapter’s authors and do not necessarily represent those of the other contributors to this book.

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the various contributions to this volume it has become clear that the interests of the main governmental actors are to some degree aligned, although the degree of cooperation is still limited. The governments involved can be subdivided into a number of distinct categories: Somali governmental authorities (such as the Transitional Federal Government, or TFG, and the regional governments of Somaliland and Puntland), governments of countries in the region (such as Djibouti, Yemen, Kenya, Oman, Egypt, Tanzania, the Maldives, the Seychelles, Eritrea, Ethiopia), various Western countries (often - but not always operating in a joint setting), and a number of Asian countries plus Russia (countries that tend to operate more individually than the Western countries). Individual governments are not the only type of actors involved. Also various international governmental Organizations are directly involved in counterpiracy or in addressing the lack of effective state control in Somalia. These include the European Union, NATO, the African Union, and the United Nations. In addition, there are many non-governmental actors. First and foremost, of course, the companies involved in commercial shipping, fishing, trade, and maritime insurance. The mechanisms for international interaction most often referred to in this book are the Contact Group on Piracy off the Coast of Somalia (CGPCS), the Shared Awareness and Deconfliction meetings (SHADE) in Bahrain, and the Internationally Recommended Transit Corridor (IRTC). The Contact Group is the main mechanism for interaction at the political level for most of the actors who are engaged in addressing piracy. It has four working groups that deal with operational issues, judicial issues, commercial industry coordination, and public information. The United Nations Secretariat is among the participants in the Contact Group. SHADE and the IRTC are major mechanisms at the operational level, both of them being aimed at the maritime dimension. The SHADE meetings bring together the countries that deploy naval missions to the Gulf of Aden, as well as some Organizations representing the shipping industry. These are working-level

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meetings where information about each actor’s activities in the Gulf of Aden is shared. The IRTC, finally, brings together the naval operations of the European Union, the US-led Combined Maritime Forces, and NATO in a single operational framework (a transit corridor that is secured jointly by these actors). The navies of Japan and South Korea, although not integrated in this framework, cooperate closely with it as their escort missions pass through the IRTC. While the Contact Group, SHADE, and the IRTC take up a central role in the international response to Somali piracy, many other mechanisms are also important, including a broad range of institutions, platforms, or bodies such as the Djibouti Code of Conduct, the Mercury system of communication, the United Nations Security Council, the International Maritime Organization, the World Food Programme, the African Union Mission in Somalia (AMISOM), and the International Maritime Bureau of the International Chamber of Commerce and other international business associations. As stated, various contributors to this book have pointed to the fact that the interests of the main governmental actors are only partly aligned when it comes to fighting Somali piracy. Strategic competition between major naval powers such as the US and China, or India and China, but also between Organizations that have largely identical memberships, such as NATO and the EU, constitutes an obstacle to effective and efficient cooperation. In addition to this, for the main actors, combating piracy is not the sole motive for deploying warships to the Gulf of Aden. Given the relatively limited threat that Somali piracy poses to the interests of individual nations – increased insurance rates probably being the greatest overall problem at the national and international level – and the lack of options to eradicate Somali piracy in the short term, for the major actors geopolitical considerations overrule the fight against piracy. This has been demonstrated most clearly in the chapter by James R. Holmes on the United States, the world’s most powerful naval actor. For the US, the benefits of attempting to eradicate piracy in Somalia do not outweigh the

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risks that this would involve for America’s geopolitical interests in the Indian Ocean. Also in the considerations of the other main naval powers, geopolitical considerations are likely to carry more weight than the immediate problems that piracy poses to their shipping interests. Nevertheless, in spite of this, the countries involved do have a common interest in protecting international shipping and combating piracy. Maritime piracy, especially when occurring in such a strategically important thoroughfare as the Gulf of Aden, provides a basis on which international maritime security cooperation can be built. The degree of actual cooperation is still limited. At the strategic level, the Contact Group has considerable potential to coordinate the response to Somali piracy. However, so far, this potential has only been partly realised, as the Contact Group has not really taken the overall lead. Nevertheless, several important steps have been taken, for instance with regard to land-based initiatives to combat the root causes of piracy. Proposals to this end have been discussed by the TFG and the Special Representative of the Secretary-General of the UN for Somalia, and are also addressed within the Contact Group. Moreover, an assessment of regional capability development is being conducted, which is closely linked to the Djibouti Code of Conduct. Another promising development relates to creating a legal toolbox that provides support to states and relevant Organizations in dealing with Somali piracy. The establishment of an International Trust Fund, furthermore, helps to defray the expenses associated with the prosecution and detention of suspected pirates and their imprisonment upon conviction as well as other activities related to the implementation of the Contact Group’s objectives regarding combating piracy in all its aspects. Other initiatives related to the Contact Group are to discuss seafarers’ protection and welfare issues, and how seafarers should deal with piracy attacks, hostage situations, and the post-hostage period. At the operational level, there is no fully integrated approach in the maritime sphere - let alone an integrated approach to piracy that combines the maritime, political, and

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legal dimensions. The IRTC involves only a part of the naval powers, and although the participating navies jointly coordinate their activities there is no central command under which all warships in the IRTC fall. Various other navies still prefer to escort maritime vessels through the Gulf of Aden rather than joining the IRTC. SHADE and the Contact Group are primarily platforms for the exchange of information and for initiating approaches which are then carried out by the participating governments and non-governmental actors. Other relevant instances of international cooperation include the agreements between the EU and some countries in the region regarding the handing over of piracy suspects. However, the EU member states still make their own decisions on whether or not they negotiate the handing over of piracy suspects in the region, extradite them to another state, prosecute them themselves, or release them because of a lack of interest. NATO, moreover, does not have any power to arrest piracy suspects, which means that states participating in the Standing NATO Maritime Group deployed to the region will have to operate under their own flag if they want to make an arrest. In spite of the various limitations that play a role, the current mix of international initiatives, with at the centre the Contact Group and the SHADE-IRTC approach, is still a novelty in the history of counterpiracy. It is therefore worthwhile considering what the prospects are for increased coordination at the international level when dealing with maritime piracy.

8.2

Challenges and Opportunities Regarding the Fight against Piracy

Given the geopolitical considerations that influence the international approach to Somali piracy, including the deployment of warships as well as the approach to the political situation within Somalia, there are clear limits to the space in which further cooperation can develop. Also, part of the lowhanging fruit may already have been picked. Take, for example,

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the long-standing military allies Europe and the US, for whom it has been relatively easy to work together. But cooperating through the Contact Group and SHADE is more difficult, as they combine a wider group of actors and cannot by themselves execute policies. Also, incorporating further navies into the IRTC or expanding the scope of activities of other mechanisms is likely to involve serious obstacles. These include the disinclination of various countries to transfer control over their military assets to a multinational command structure, and limitations to the degree in which actors are able to share 2 intelligence. Different approaches to human rights are an additional impediment for countries to work together in dealing 3 with suspected pirates. And although the IRTC and the escort missions in the Gulf of Aden have succeeded in increasing security for shipping, this success has induced Somali pirates to redirect their attacks to the Indian Ocean. This is a far greater body of water in which transit corridors or escort systems cannot be implemented, or at least would require numbers of navy ships that are not available. Yet another challenge is finding a common approach to address the political fragmentation of Somalia, which involves overcoming even stronger conflicting interests than those related to a purely maritime approach. While the Contact Group is looking for ways to strengthen the legal system in the region, in an attempt to avoid impunity, another challenge lies in the difficulty of evidence gathering and keeping suspects in legal detention while on board of navy ships. Each national legal system sets a different standard for the evidence needed for a conviction, and has its own instructions on the powers that can be used against suspects to hold them in pre-trial detention, although ultimate limits in relation to the time-limits of pre-trial detention are set by human rights treaties. These facts might further complicate prosecution. In

2 3

For instance, intelligence sharing between the EU and NATO is hindered due to the Cyprus conflict and the Turkey-EU accession question. This issue is relevant, for instance, in EU-China relations: discussion by one of the authors with an EU official, Brussels, May 2010.

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this respect it will be interesting to see how the first European trials against Somali piracy suspects will develop in the Netherlands and Germany. To deal effectively with evidence gathering and prosecution, greater cooperation is also required between governments and shipping companies. On a more detailed level, another question to be addressed is how and when the capacities of local coastguard Organizations can be strengthened without ending up with having provided pirates with extra means to navigate the sea and attack ships. The overall challenge is to achieve a comprehensive approach that involves all actors, covers all dimensions (land, sea, and legal), and allows for the pooling of resources. As stated before, the Contact Group seems to be best equipped to fulfil that task. However, even if it turns out to be possible to develop the right initiatives in the different working groups, and to find the support and the finances to translate the ideas into action, the question remains who should take the lead and assure a coherent and coordinated approach. This would require states to participate in the work of the Contact Group under the direction of a state or an Organization. Considering the geopolitical interests at stake, that is an unlikely scenario. And even with a fully comprehensive international approach, eradicating Somali piracy involves a state-building process and thus requires a great deal of time. Although the topics discussed above are presented as challenges rather than as opportunities, the challenges themselves can bring forth new opportunities. Even though the space for increased cooperation is limited, it still seems that the degree of cooperation will keep growing. Somali piracy is not likely to disappear soon, and it is therefore fair to assume that a great number of international actors will remain involved in counterpiracy initiatives. Increased coordination will enable a more efficient use of warships and aircraft, and thus serves the interests of all naval powers involved. Also, countries such as China and India – as aspiring major naval powers in the Indian Ocean - have an interest in joining the US and the Europeans in being at the forefront of the international approach. Somali

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piracy has turned out to be an important opportunity to make progress in the sphere of international maritime governance – so far a relatively little-developed part of global governance. The shared interests and the mechanisms already in place make it relatively easy to experiment with new approaches to greater efficiency and deeper interaction. If anything, the case of Somali piracy represents an example of international cooperation growing out of a pragmatic, ad hoc approach, largely at the operational level. The chapter by May-Britt Stumbaum and Per Gullestrup has highlighted another area where the challenges can bring about new opportunities. Greater cooperation among shipping companies when dealing with hijackings and ransom payments might prevent ransom prices going up, and might prepare shipping companies to deal more efficiently with hijackings. A joint platform for organising negotiations, communicating with the family members of hijacked crews and with the press, and looking after crew members once released might be established through the IBM or IMO, or any other overarching body. Insurance companies could play a major role, as insurance fees might be used in part to contribute to such a joint platform. Furthermore, the insurance companies might offer reduced fees once precautionary measures have been taken by shipping companies with regard to limiting the risk of successful piracy attacks. In general, greater cooperation in the business sector can enhance maritime security and the well-being of seafarers.

8.3

Topics for Further Exploration

Although many issues have been raised in this book, it has become clear that there is not yet a clear-cut answer to the question of how to deal with Somali piracy. The main maritime powers are showing an unprecedented effort in trying and find a solution. The issue of cooperation at the governmental level has been the central focus of this book, and requires further research. Some important issues in this regard are (1) the way in

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which the response to Somali piracy is related to progress on maritime security governance, (2) how it relates to geopolitical relations between the great powers, and (3) how the costs of the international response relate to the benefits in terms of increased maritime security and political stability in Somalia. Various related areas also need further study. An important question is where public responsibility ends and private responsibility starts, or vice versa. Another area of research that needs further attention relates to the role of private security companies: what role can they play and how can they be controlled or held legally responsible for any damage? Yet another question relates to the complexity of the situation in Somalia, which does not only suffer from a weak government, militants in the south, autonomous regions in the north, and piracy, but from a series of other highly organised criminal activities, such as arms smuggling, drug smuggling, and human trafficking. Directly related to this is the question of how the international naval presence should deal with these activities – and waste dumping - whenever they encounter them. And clearly, one of the most important areas for further research deals with the questions of how to follow the money trail that is behind the financing of piracy, as well as the money-laundering activities that are exercised after the ransoms have been collected. Hopefully this book will be a first step in trying to find answers, and inspire those who will take up the challenge of studying those questions that still need answers.

List of abbreviations

AIAI AIS AMISOM AU BIMCO BMP BSP CC-Mar CFSP Djibouti Code

CGPCS CMF Contact Group CSDP CTF-150 CTF-151 EEZ EU EUMC EUNAVFOR EUOHQ ESDP FAO

- al-Itihaad al-Islamiyya - Automatic Identification System - African Union’s Military Mission in Somalia - African Union - Baltic and International Maritime Council - Best Management Practices - British Somaliland Protectorate - Allied Maritime Component Command - European Common Foreign and Security Policy - Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden - Contact Group on Piracy off the Coast of Somalia (also ‘Contact Group’) - Combined Maritime Forces - Contact Group on Piracy off the Coast of Somalia - Common Security and Defence Policy - Combined Task Force 150 - Combined Task Force 151 - Exclusive Economic Zones - European Union - European Union Military Committee - European Union Naval Force - European Union Operational Headquarters - European Security and Defence Policy - Food and Agriculture Organization

190

FSNAU

List of Abbreviations

- Food Security and Nutrition Analysis Unit, part of FAO FHQ - Force Headquarters GMDS - Global Maritime Distress System GoA - Gulf of Aden GPS - Global Positioning System ICC - International Criminal Court ICU - Islamic Courts Union IGAD - Inter-Governmental Authority on Development IMB - International Maritime Bureau IMC - International Maritime Court IMO - International Maritime Organization Interpol - International Criminal Police Organization INTERTANKO - International Association of Independent Tanker Owners IRGS - Islamic Republic IRTC - Internationally Recommended Transit Corridor ISAF - International Security Assistance Force ITLOS - International Tribunal for the Law of the Sea ITU - International Trade Unions MOU - Memorandum of Understanding MSPA - Maritime Security Patrol Area MSC-HOA - Maritime Security Centre - Horn of Africa MSA - Maritime Situational Awareness MARLO - Maritime Liaison Office NATO - North Atlantic Treaty Organization NAVCENT - US Naval Forces Central Command nm - Nautical Miles PSC - Political and Security Committee PSCs - Private Security Companies PSI - Proliferation Security Initiative RPG - Rocket Propelled Grenade RMP - Recognised maritime picture RoE - Rules of Engagement

List of Abbreviations

191

SDR SHADE SLOC SMG SNM SNMG SS SSDF SUA Convention

-

TFG UAE UAV UKMTO

-

UNCLOS UNITAF UNODC UNOSOM UNREP UNSC VPDs WFP

-

Somali Democratic Republic Shared Awareness and Deconfliction Sea Lines of Communication Somalia Monitoring Group Somali National Movement Standing NATO Maritime Group State of Somaliland Somali Salvation Democratic Front Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 Transitional Federal Government United Arab Emirates Unmanned Aerial Vehicle United Kingdom Maritime Trade Operations UN Convention on the Law of the Sea Unified Task Force UN Office on Drugs and Crime UN Operation in Somalia Underway Replenishment United Nations Security Council Vessel Protection Detachments World Food Programme

Index

Abbaanduule, 36 Abdi Aware, Sheikh Mohamed, 53 Abdirahman Mohamed Mohamud ‘Farole’, 52 Absalon, 105, 147 Abtirsiinyo, 32 Achille Lauro, 128 Adale, 38 Afghanistan, 108, 123, 155 Africa, 6, 16, 27, 30, 34, 41, 42, 43, 44, 50, 56, 58, 68, 71, 76, 80, 81, 99, 157, 158 Africa Subcommittee of the U.S. House of Representatives, 56, 58 African Union, ix, 40, 50, 73, 111, 180, 181 African Union’s Military Mission in Somalia, 73 Afweyne, 44 Ahmed, Sheikh Sharif Sheikh, President, 40 Alakrana, 46 Algiers, 5, 158 Al-Itihaad al-Islamiyya, 39 Allied Maritime Component Command, 77 American Civil War, 157

Anglo-Dutch, 4 Anglo-Dutch wars, 176 Asia, 4, 5, 6, 13, 16, 42, 47, 68, 77, 91, 153, 162, 165, 166, 167, 169, 170, 171, 173 Australia, 39, 75, 78, 113 Austria, 110, 132 Automatic Identification System, 87 Bab El Mandeb, 108 Bahrain, 75, 78, 79, 80, 85, 86, 113, 114, 123, 180 Bainbridge, 140 Baltic and International Maritime Council (BIMCO), 111 Ban Ki-moon, 54 Barbary States, 156 Barbary Wars, 155, 177 Bay of Bengal, 6, 68, 173 Bay of Matanzas, 66 Beijing, 154, 157, 162, 167, 169, 170, 171, 172, 175 Belfer Center, 160 Belgium, 75, 77, 110 Bennet, Graham Lieutenant Commander, 97 Berbera, 87 Berlin Plus, 112

194

Berra, Lawrence Peter, 'Yogi', 175 Blackwater Worldwide Company, 81 Boosaaso, 87 Borneo, 4 Boyd, John, Colonel, 162 British Foreign and Commonwealth Office, 57 British Somaliland Protectorate, 49 Brussels, 74, 77, 109, 184 Burao, 49 Burundi, 40 Caesar, Julius, 155 California, 69 Canada, 40, 72, 77, 78, 113 Cape of Good Hope, 42, 108, 116 Carter, Jimmy, President, 35 CENTRIXS, 88 Chen, Zuyi, Pirate chieftain, 155 China, 3, 4, 6, 7, 10, 13, 45, 72, 79, 84, 85, 88, 91, 99, 101, 105, 107, 109, 110, 113, 114, 123, 125, 153, 155, 162, 163, 164, 166, 167, 168, 169, 170, 171, 172, 174, 175, 181, 184, 185 China’s Second Artillery, 167 Chinese navy, 113

Index

Christensen, Nate Lieutenant, 80 Clausewitz, Carl von, 156 Clinton administration, 173 Clinton, Hillary Rodham, 55, 56 Clipper Group, 115, 116, 118 Code of Conduct, 59, 94, 95, 102, 103, 148, 181, 182 Cold War, 5, 108, 166 Combined Maritime Force, 78 Combined Maritime Forces, 72, 78, 113, 181 Combined Task Force-150, 72, 78 Combined Task Force-151, 72, 74, 78 Common Security and Defence Policy, 73, 96, 105, 108, 123 Congo, 108 Congressional Resolution, 56 Contact Group on Piracy off the Coast of Somalia, viii, 92, 93, 102, 109, 110, 125, 134, 138, 150, 151, 180 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 131 Cornwall, 95

Index

Criminal law, 149, 150 Croatia, 75 Crowe, Eyre, 161 Cyprus, 75, 110, 184 Dar-es-Salaam, 81, 95 Darod, 33, 35, 46, 50, 51 Denmark, viii, 72, 76, 77, 78, 110, 112, 113, 134 Dhulbahante, 51 Digil, 33 Digil Mirifle, 33 Dir, 33 Diya, 33 Djibouti, 27, 49, 59, 79, 94, 95, 96, 102, 103, 148, 149, 180, 181, 182 Drake, Sir Francis, 66, 157 Duale, Abdillahi Mohamed, 57 Dubai, 25, 38, 75, 120, 125 Durban, 81 Dutch Navy, 91 Dutch special forces, 22 Egypt, viii, 79, 94, 110, 132, 148, 149, 180 El Maan, 38 Elections, 28, 51 Eritrea, 44, 180 Ethiopia, 39, 49, 94, 149, 180 EU member states, 75, 108, 110, 122, 123, 183 Eurasia, 155 Europe, 7, 42, 69, 74, 75, 76, 81, 99, 101, 109, 113, 164, 184

195

European Common Foreign and Security Policy, 108 European Convention on Human Rights, 144 European Council, 73, 109 European Court of Human Rights, 144, 145 European Security and Defence Policy, 73, 96, 105, 112 European Security Strategy, 109 European Union, ix, 3, 9, 45, 73, 75, 78, 105, 107, 109, 110, 111, 112, 113, 123, 125, 134, 162, 172, 180, 181 Exchange of Letters, 134 Exclusive Economic Zones, 128, 136 Eyl, 17, 53 Failed state, 8, 32, 48, 59, 123 Farah, Hussein Mohamed ‘Aideed’, 44 Finland, 75 Fitzgerald, Mark P., Admiral, 81, 99 Florida, 78 Force Headquarters, 74, France, ix, 43, 69, 70, 72, 73, 75, 76, 78, 80, 96, 99, 110, 113, 144, 161 FV Mavuno I, 44 FV Mavuno II, 44 Gaalkacyo Agreement, 94

196

Gadabuursi, 50 Galle, 81 Garaad, 44, 53 Garowe, 51 Gedo, 53 General law, 131, 135, 139 Germany, ix, 75, 77, 78, 110, 113, 161, 185 Gertz, Bill, 170 Global Maritime Distress System, 87 Goa, 166 Gorshkov, Admiral, 167 Government, 2, 13, 20, 27, 28, 29, 30, 31, 32, 41, 40, 41, 43, 47, 48, 50, 51, 52, 56, 57, 58, 66, 67, 80, 96, 122, 128, 129, 133, 141, 142, 157, 158, 159, 160, 164, 172, 187 Great Britain, 49, 170, 173 Greece, 65, 75, 77, 78, 110, 113 Guantanamo, 57, 58 Gulf of Aden, 2, 3, 7, 9, 13, 14, 19, 21, 22, 23, 29, 42, 59, 66, 69, 71, 74, 76, 77, 78, 80, 81, 82, 83, 84, 88, 91, 94, 99, 101, 102, 103, 106, 108, 109, 112, 114, 115, 116, 120, 123, 125, 138, 143, 148, 151, 153, 156, 160, 163, 168, 180, 181, 183, 184

Index

Gumiero, Giovanni, Force Commander Rear Admiral, 112 Guurti, 50 Hamburg, 149 Haradheere, 118, 124 Harakat al-Shabaab alMujahideen or Movement of Warrior Youth, alShabaab, 39 Harti, 50, 51 Hawiye, 33, 35, 36 Hein, Piet, Admiral, 66 Helander, 34 Hersi, Mohamud Muse, 52 Hideki Tojo, 171 HMS Carlskrona, 74 HNLMS Evertsen, 76 Hobyo, 17, 53 Hoop Scheffer, Jaap de Secretary General of NATO, 77 Horn of Africa, x, 30, 31, 35, 37, 38, 39, 43, 60, 74, 76, 85, 94, 100, 110, 145, 148, 153, 165, 172 Hostis humani generis, 3, 139 Hudson, Peter, Operation Commander Rear Admiral, 112 Humanitarian law, 142 India, 3, 4, 10, 72, 79, 84, 85, 88, 89, 91, 99, 101 105 109, 113 125 153 162 163 164 165, 166,

Index

167, 168, 170, 172, 173, 174, 175, 181, 185 Indian Navy, 163, 167, 168, 171, 173 Indian Ocean, 2, 4, 7, 9, 10, 20, 21, 22, 23, 59, 66, 67, 69, 71, 72, 74, 78, 79, 89, 94, 99, 101, 102, 106, 108, 148, 153, 154, 160, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 174, 175, 182, 184, 185 Indonesia, 5, 6 INS Tabar, 141 Inter-Governmental Authority on Development, 39 International Association of Independent Tanker Owners, 111 International Criminal Court, 122, 142, 149 International law, ix, 3, 49, 58, 117, 127, 128, 130, 131, 136, 137, 138, 139, 146, 151 International Maritime Bureau, 20, 23, 42, 48, 181 International Maritime Court, 122 International Maritime Organization, 3, 83, 94, 102, 111, 125, 176

197

International Trade Unions, 115 International Tribunal for the Law of the Sea, 140, 149 Internationally Recommended Transit Corridor, 74, 83, 114, 180 Interpol, 121 Iran, 72, 79, 86, 88, 99, 113, 120 Iraq, 80, 120 Isaq, 33, 35, 50 Ise, 50 Islamic Courts Union, 27, 38, 39, 40 Islamism, 37, 39, 159 Islamist insurgency, 2, 32 Ismail Hurre Buba, 57 Italy, 34, 75, 77, 79, 110, 112, 113, 132 Jaalle, 35 Japan, 3, 5, 43, 72, 79, 84, 85, 88, 95, 113, 146, 149, 164, 181 Jefferson, Thomas, President, 156 Joint Command Lisbon, 77 Jordan, 79 Kahin, Dahir Riyale, 57 Kangle, R.P., 157 Kautilya, 157 Kennedy, Paul, 163 Kenya, ix, 39, 43, 45, 56, 57, 70, 76, 94, 95, 97,

198

134, 138, 144, 145, 148, 149, 151, 180 Khurana, 167, 168, 170, 174 King Minos, 155, 176 Kuwait, 79 Layered defence approach, 87 Lewis, I.M., 33, 36, 37, 42, 43, 49 Link11, 88 Luxembourg, 75 Madagascar, 89, 94, 149 Mahan, 165, 166, 168, 169, 171 Mahdab, 37 Majeerteen, 43, 51 Malabar, 173 Malaysia, 5, 6, 72, 79 Maldives, 94, 149, 166, 180 MALSINDO, 5 Malta, 75 Mao Zedong, 157 Maritime Asset Security & Training, 82 Maritime Liaison Office, 75, 120 Maritime situational awareness, 87, 88, 98 Marxist, 35 Mazimhaka, Patrick, 50 Mediterranean Sea, 156 Mengistu Haile Mariam, 35 Menkhaus, Ken, 39, 43, 44 Mercury, 88, 181 Middle Ages, 65

Index

Middle East, 42, 72, 156 Millennium Development Goals, 97 Ming Dynasty, 155, 163 Mogadishu, 27, 28, 29, 31, 35, 38, 39, 40, 41, 48, 53, 58, 76, 87, 158, 159 Mombassa, 76, 95, 145 Monroe Doctrine, 165, 169 Montenegro, 75 MSC-HOA, 74, 83, 84, 110, 120, 125 Muhammad, Ali, Mahdi, 36 Murphy, Martin, 41 Muse Adde’, 52 MV Horizon 1, 74 MV Maersk Alabama, 140, 157, 161 MV McArthur, 81 MV Naviluck, 41 MV Navios Apollon, 69 MV Rozen, 44 MV Saiga, 140 MV Shen Kno II, 46 MV Sirius Star, 17, 111, 118 MV Taipan, 22 MV Veesham, 38 Nairobi, 25, 56 National law, ix, 122, 128, 133, 139, 144, 150 NATO’s Allied Joint Task Force Command, 81, 99 Nautical miles, 48, 69, 84 Naval Forces Central Command, 78

Index

Nehru, Jawaharlal Prime Minister, 166 Netherlands, ix, 1, 66, 72, 75, 76, 77, 78, 96, 110, 112, 176, 185 New Delhi, 154, 162, 163, 166, 167, 168, 169, 170, 173, 174, 175 New York, 6, 41, 42, 43, 49, 92, 93, 120, 140, 155, 156, 164, 171 New Zealand, 75 Nicobar, 170 Niyoyunguruza, Juvenal, Brigadier General, 40 North Atlantic Treaty Organization, 3 Northwood, 73, 77, 112, 120 NSAWAN, 88 Nye, Joseph, 161 Obama, Barack Hussein, President, 56, 57, 162 Oman, 80, 180 Operation Allied Protector, 76, 77 Operation Allied Provider, 76 Operation Atalanta, 73, 76, 100, 108, 111 Operation Ocean Shield, 76, 77 Operation Patch, 95 Operational Headquarters, 73, 112 Pacific, xiv, 171, 173

199

Pakistan, 78, 113 Panama Canal, 116 Pan-Islamist, 38 Persian Gulf, 4, 165, 172 Philippines, 66 Political and Security Committee, 73, 111 Portugal, 77, 110, 112, 166 Private security companies, 9, 10, 11, 80, 82, 187 Proliferation Security Initiative, 138, 174 Puntland, 2, 20, 27, 28, 34, 43 52, 53, 55, 58, 70, 87, 93, 96, 97, 180 Qadiriyya, 37 Qatar, 80 Queen Elizabeth I, 157 Raas Xaafuun, 41 Rahanweyn, 33, 34 Realpolitik, 164 Red Sea, 33, 34, 37, 72, 74, 79, 91, 102 Regional Cooperation Agreement on Combating Piracy and Armed Robbery, 6 Rice, Condoleezza, 39 Roman Empire, 3, 65 Romania, 75 Royal Marines, 82 Rules of engagement, 10, 90 Russia, 3, 72, 79, 84, 85, 88, 99, 110, 113, 114, 120, 147, 180 Rwanda, 150

200

Samantar, Mohamed Ali, 55, 56 San Felipe, Spanish Galleon, 66 Sarkozy, Nicolas, President, 73 Saudi Arabia, 43, 72, 78, 79, 85 Sea lines of communication, 105, 107, 122, 158 Seychelles, ix, 69, 70, 76, 80, 88, 94, 97, 106, 134, 146, 149, 151, 180 Shabaab, 2, 27, 29, 39, 40 Shangri-La Dialogue, 165 Shared Awareness and Deconfliction, 83, 85, 113, 123, 172, 180 Shimo La Tewa, 145 Siad Barre, Muhammad, 27, 32, 34, 35, 41, 49, 56 Siad, Yusuf Mohamed, 57 Singapore, 4, 5, 6, 72, 78, 165 Sino-Indian, 162, 167, 171, 175 Socialism, 35 Somali Basin, 69, 71, 87, 89, 101, 120 Somali Democratic Republic, 31, 35, 49, 54, 59 Somali National Movement, 49 Somali Salvation Democratic Front, 46

Index

Somalia Monitoring Group, 97 Somalia Reconstruction and Development Programme, 97 Somaliland, 2, 21, 28, 29, 34, 37, 39, 43, 49, 50, 51, 52, 53, 55, 57, 70, 93, 96, 97, 180 Somaliland Coast Guard, 87 South Africa, 75 South Korea, 3, 43, 72, 78, 79, 84, 88, 113, 181 Sovereignty, 43, 49, 59, 158 Soviet Union, 166 Spain, 4, 24, 43, 66, 70, 75, 77, 78, 80, 110, 144 Special Court for Sierra Leone, 150 Sri Lanka, 81, 166, 173 Standing NATO maritime Group, 77 Strait of Hormuz, 91, 108 Strait of Malacca, 5, 69, 91, 108, 155, 170 SUA, 131, 132, 133, 135 Sudan, 80 Suez, 72, 80, 81, 108, 116 Suez Canal, 72, 80, 108, 116 Sun Tzu, 156, 157 Sunni, 37 Sweden, 75, 110 Switzerland, 75 Taiwan, 4, 43, 169

Index

Tanzania, 94, 95, 146, 149, 180 Terrorism Act, 40 Till, Geoffrey, Professor, 164 Törnqvist, Jan, 73 Torture or Refugee Conventions, 143 Transitional Federal Government, 2, 39, 44, 93, 158, 159, 175, 180 Trincomalee, 173 Tripoli, 158 Turkey, 77, 78, 113, 184 Uganda, 57 UK Maritime Trade Operations, 75 UN Joint Programme on Local Governance and Decentralized Service Delivery, 97 UN Member States, 159 UN Office on Drugs and Crime, 97, 145 UN Secretary-General, 54, 76, 102, 136 UN Security Council, viii, x, 3, 45, 54, 58, 92, 93, 95, 96, 97, 109, 132, 136, 137, 139, 143, 146, 159, 181 UN World Food Programme, 71, 76, 105, 108, 111 Unified Task Force, 36 United Arab Emirates, 38

201

United Kingdom, viii, 45, 73, 75, 76, 77, 78, 99, 110, 113, 114, 134, 144 United Nations Convention on the Law of the Sea, 45, 98, 128 United States, viii, ix, 3, 4, 5, 6, 10, 14, 21, 27, 35, 36, 37, 45, 55, 56, 57, 58, 69, 72, 77, 78, 80, 81, 88, 89, 92, 93, 99, 110, 113, 123, 134, 144, 145, 153, 156, 157, 159, 162, 164, 165, 165, 170, 172, 173, 174, 181 United States Navy, 21 Unmanned Aerial vehicle, 69 US 5th Fleet, 78, 80, 113 US Air Force, 162 US Marines, 158 US Maritime Strategy, 162, 172 US Naval War College, 160, 165 US Navy, 75, 91, 120, 155, 162, 168, 171, 172, 173 US Navy and Coast Guard, 173 US Office of Naval Intelligence, 115 US Pacific Command, 165 US Supreme Court, 56 USS Winston Churchill, 45 Vessel Protection Detachments, 80

202

Warlords, 25 Warsangeli, 51 Washington, 35, 36, 38, 40, 41, 56, 57, 89, 145, 154, 162, 170, 173, 174 World War II, 68, 99, 171 Xarardheere, 17, 53

Index

Xeer, 37 Yemen, ix, 14, 43, 78, 80, 81, 83, 94, 95, 134, 147, 149, 180 Yugoslavia, 141, 150 Zheng He, Admiral, 155