This article, which is an updated and enlarged version of one published by Mondaq Ltd on 20 January 2009, and covers the latest developments, looks at the shift in piracy at sea from south-east Asia to the Indian Ocean and the Gulf of Aden; the recent history of conflict within Somalia; the conditions in which its people are currently living; humanitarian concerns and the efforts of aid agencies; the role of the United Nations; international naval action being taken against piracy; legal and policy difficulties in prosecuting captured pirates; the United Kingdom's Government's attitude towards piracy; the cost of hijackings in financial and human terms; and the wider consequences of piracy at sea.
Attention focuses on piracy
Two things are well known about Somalia from recent newspaper reports, magazine articles, Internet pages, and radio and television broadcasts. First, it is a virtually lawless country which has been without proper government since 1991. Secondly, a small number of its people have so disrupted merchant shipping off its coasts that warships from twenty or more nations have been mobilised at vast expense to try to prevent vessels in the Gulf of Aden and the Indian Ocean from being hijacked.
In contrast, the Singapore and Malacca Straits, which were once considered to be among the most dangerous places in the world because of piracy, are now much safer for merchant vessels as a result of cooperation between nations in south-east Asia. The main sources for statistics about piracy at sea are the Singapore-based Information Sharing Centre of the members of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia ("ReCAAP"), and the Piracy Reporting Centre of the International Maritime Bureau ("IMB") in Kuala Lumpur. Figures differ slightly between these sources, partly because the two organisations use different definitions of piracy, and ReCAAP's records relate only to Asia, whereas the IMB gives global coverage. But while the number of reported piracy incidents in Asia overall, and in south-east Asia in particular, has declined in recent years, the number of attacks worldwide increased during 2008, largely owing to unprecedented activity by pirates in the waters off Somalia. And while the majority of successful attacks by pirates in south-east Asia involve the boarding of ships and the stealing of money and various articles, the Somali pirates consistently try to capture vessels and hold them and their crews for ransom.
ReCAAP reported a drop in piracy incidents in Asia in successive years from 200 actual and attempted incidents in 2004, through 148, 135, 100, and down to 96 during 2008. Meanwhile, the IMB reported a total of 293 incidents worldwide during 2008—an increase of more than 11 per cent from 2007, and the highest annual figure since the Bureau started collating details in 1992. Last year, there were 49 actual ship hijackings, with 889 crew members being taken hostage, a large proportion being from the Philippines. Of these hijackings, 42 were carried out in the Gulf of Aden and off Somalia's east coast. Africa also created the second highest group of reported incidents, with five vessels hijacked off Nigeria, where a further 27 ships were boarded and 39 crew members were kidnapped. And the IMB noted that the true figures for Nigeria, including details of incidents not formally reported to them, would have been even higher.
Attacks by heavily-armed Somali pirates create headlines, with sensational incidents such as the capture and later release of the Ukrainian ro-ro Faina (carrying 33 ex-Soviet battle tanks and other weapons), and the Supertanker Sirius Star, providing news for weeks on end. But in reports of the intrigue surrounding the sale and the intended destination of Faina's cargo of heavy weapons, and speculation as to the value of the 2 million barrels of crude oil on board Sirius Star, what has often been under-stated is the cost in human terms of the sufferings of the crews and the effect of their capture upon their families. And even further away from those headlines are the appalling conditions in which most of the Somali people themselves have been living year after year.
Conflict and instability in Somalia
In 1992, the year after the fall of the military dictatorship of General Siad Barre, who had ruled the country since assuming power in 1969, the United Nations Security Council by Resolution 751 (1992) established an operation in Somalia ("UNOSOM"), and appointed a dedicated Security Council Committee. The operation was to monitor the ceasefire then achieved between warring factions in Mogadishu, while the Committee was to monitor the embargo placed earlier in the year on the import of weapons and military equipment. Later, from December 1992, coalition forces led by the United States—a United Task Force known as "UNITAF"—intervened under UNOSOM, in a mission intended to create a secure environment for the delivery of humanitarian aid to relieve starvation in Somalia. Then, from May 1993 until March 1995 UNITAF was succeeded by UNOSOM II, charged with restoring peace, stability, and law and order. UNOSOM II was supported by troops of a United States' Joint Task Force. Overall, however, the missions were failures, although there were some humanitarian achievements.
There followed years of fighting throughout much of Somalia, with the country now effectively divided into three main regions: since 1991 Somaliland, a self-declared republic (but not recognised internationally) occupying part of the northern coast adjoining Djibouti; since 1998 Puntland, a self-declared autonomous state that has not sought independence, occupying the remaining part of Somalia's northern coast and the northern part of the eastern coast; with the remaining part of the country notionally under the control of the then Transitional Federal Government ("TFG"), established in 2004. In reality, however, the TFG was ineffective, with power largely in the hands of local secular warlords and militant Islamic groups (as is clear from, for example, the Report of the United Nations Security Council's Monitoring Group on Somalia, dated 10 December 2008). At various times, large parts of the south of the country have been controlled by the Islamic Courts Union ("ICU") and the US-proscribed terrorist organisation Al-Shabaab. In 2006, armed forces of Ethiopia—Somalia's main western neighbour—entered the country to support the TFG. There followed clashes with the ICU, which was routed in early 2007. Subsequently, new Islamic militant groups have formed, and have been in armed conflict with the TFG. The Ethiopian force departed in January 2009; it has not yet been replaced (although there are tentative plans to bring in more troops); and the remaining, small African Union force is insufficient to ensure stability.
As the year 2008 came to a close, Ahmedou Ould-Abdallah, the United Nations Secretary-General's Special Representative for Somalia, identified the key factor in Somalia's troubles not as the lack of security in the country, but as the absence of accountable and committed national leadership. Since then, the Djibouti peace process led, on 31 January 2009, to the appointment of a new president, Sheikh Sharif Sheikh Ahmed. On 13 February, Omar Abdirashid Ali Sharmarke was sworn in as the new prime minister, and on 20 February he announced his 36-member cabinet.
The start of change
One of the early steps of the new administrations' Banadir Regional Security Committee was to order police and military units out of the capital Mogadishu, where unruly members of the security forces had been robbing civilians. Meanwhile, there were numerous reports in early February 2009 that some Ethiopian troops had illegally re-entered Somalia and were extorting payments from civilian vehicles in the central Hiran region. Activity such as this provides an excuse for militant Islamists to continue fighting.
There will need to be a massive recruitment and training programme for the establishment, among other bodies, of adequate Somali police and defence forces, to replace the previous organisations, which were ineffective and largely corrupt. To this end, a major objective for the TFG must be to help finance its policies by taking control of the many revenue streams that have lapsed into the control of private enterprise. One step has been to assume authority over Mogadishu port and airport. Another step was the signing on 18 March 2009 of an agreement with Kenya—itself a troubled state—relating to import and export taxes for the benefit of the TFG. Kenya has also agreed to train Somali customs officers and, more generally, to help the TFG to establish the institutional structures and the civil service needed by the TFG to govern Somalia—actions viewed by some commentators critical of the TFG's new president as counter-productive, foreign interference.
The Somali clans
Among the factors which must be taken fully into account in any effort to resolve the situation in Somalia are the country's complex clan structures, and the ways in which the various clans and sub-clans interact. Unless neighbouring clans can co-exist peacefully, with the larger units respecting the rights of the smaller units, there will be no return to normality. Indeed, the danger is that "normality" for many Somalis means struggle, insurgency, inter-clan hostilities, and a political vacuum. Already, Somali teenagers up to eighteen years old have known no other situation.
The four main clans of Somalia are the Hawiye (in the coastal area running north from Mogadishu); the Darod (in Puntland and also in the area north of the border with Kenya); the Ishaak (in Somaliland); and the Rahanwein (west of the Hawiye, up to the border with Ethiopia). These clans, with their numerous sub-clans, are generally reckoned to account for between 80 and 85 per cent of the indigenous population of Somalia. The newly elected president, Sheikh Sharif Sheikh Ahmed (a former head of the Islamic Courts Union, when he was regarded as a moderate chairman), is from the Hawiye clan; and the new prime minister, Omar Abdirashid Ali Sharmarke (who is the son of the Somali president assassinated in 1969 before General Siad Barre assumed power, and whose family lives in the United States), is from the Darod clan.
Now, stability in the future rests on the hope that the new president and prime minister will be able to work together and command general support throughout Somalia. Their first major action has been to begin the introduction of Islamic Sharia law in Somalia, in the belief that only in this way will there be a realistic prospect of neutralising the militant Islamists. But the early indications are that the conflict is continuing, suggesting that this act of appeasement—which is not welcomed by all Somalis—may merely encourage the militants. Indeed, there are numerous recent reports of atrocities carried out by extremists, including the beheadings of Sheikhs from a rival Islamist movement.
In an address to the United Nations Security Council on 20 March 2009, Mr. Mohamed Abdullahi Omaar, the TFG's Minister for Foreign Affairs, said that the new government's prime objective was the establishment of peace and security within Somalia which, he considered, could "be achieved only through dialogue, negotiation, the will for compromise and reconciliation." Mr Omaar listed five actions taken by the TFG to lay the foundations for its programme:
- the immediate and irreversible assumption of the seat of government in Mogadishu
- the rebuilding of national security forces by the integration of the forces of the TFG and of the Alliance for the Re-liberation of Somalia into a Joint Security Force, although this had not yet been adequately funded, resourced or equipped
- the mobilization of the Somali people in support of the Djibouti Peace Process
- the start of the re-establishment of the authority of the State and the rule of law in the economy, begun by assuming full authority over Mogadishu port and airport, thereby creating additional internal revenue for the TFG
- most recently, the re-establishment of a dialogue with the international community through the International Contact Group on Somalia, the Arab League, and the African Union, and through discussions with Kenya, Burundi, Uganda and Rwanda.
Life in Somalia
Meanwhile, the ordinary population of Somalia, comprising 8-9 million persons, continues to suffer. Less than 40 per cent of the adults are literate; it is estimated that nearly half of the population is starving; and with the country's economy based largely on agriculture, including livestock, the estimated gross domestic product is under £300 a head (the UK equivalent being about £20,000). In a report published in 2007, the Minority Rights Group International—a non-governmental organisation working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples worldwide—identified Somalia as the most dangerous country in the world for minorities, and attributed the root cause of conflict within the country to inter-clan rivalries.
Subsequently, Foreign Policy magazine, in their 2008 report, ranked Somalia as the most unstable country in the world (worse even than Afghanistan, Iraq, Zimbabwe and Sudan). And the 2008 Ibrahim Index of African Government—published by the Mo Ibrahim Foundation—ranked Somalia as the clearly worst performer in Africa judged in the categories of Safety and Security; Rule of Law, Transparency and Corruption; Participation and Human Rights; and Human Development. The December 2008 Displaced Population Report, published by the United Nations Office for the Coordination of Humanitarian Affairs ("UNOCHA"), put the number of persons within Somalia who had been displaced as a result of instability in the country at 1.3 million. Of these, an estimated 1.1 million are within south and central Somalia and around Mogadishu, where the humanitarian situation continues to deteriorate, and where there have been massive civilian casualties.
UNOCHA reported that Ali Sheikh Yassin, acting chairman of the Mogadishu-based Elman Human Rights Organisation, claimed that TFG security forces had terrorised the population, and that his group had verified 16,000 civilian deaths and 30,000 injuries during 2007 and 2008, with many more people unaccounted for. In addition, there are weekly reports of aid workers being targeted and killed by gunmen. The Humanitarian Policy Group report of April 2009 records the killing of 122 aid workers worldwide during 2008. Additional information from one of the co-authors of the report indicates that of these, 45 were killed in Somalia, compared with seven deaths there during the previous year. Somalia's new prime minister has called on all aid agencies to register with the government for their own safety, and so that it will be known what sort of aid is being provided, and in which locations.
The food supply in Somalia has been adversely affected by decreased rainfall in south-central areas where, as reported in December 2008 by the Famine Early Warning Systems Network—an organisation funded by the United States Agency for International Development—both commercial and humanitarian food imports have been disrupted by civil insecurity and the activities of pirates, leading to shortages and increased food prices. The organisation's January to June 2009 Food Security Outlook forecast that food supplies in Somalia were not likely to improve in the near future. Indeed, a UNOCHA report of 3 March 2009 recorded that owing to water shortage huge numbers of livestock were dying. It is feared that as many as half of all cattle in Lower Juba, in the south of Somalia, may die, while over 40,000 sheep and goats have already died in the Mudug and Galgaduud regions of Central Somalia.
The World Health Organisation has highlighted health problems associated with inadequate supplies of drinking water and food, and has reported that 13 per cent of children under the age of five suffer from acute malnutrition, while 42 per cent are chronically malnourished. The International Federation of Red Cross and Red Crescent Societies, in their December 2008 Report on the Horn of Africa Food Crisis, noted hyperinflation in Somalia (the price of cereals having increased by 365 per cent in a year), and identified the situation in the Horn of Africa, in terms of the number of people affected, as "the largest humanitarian crisis worldwide." The International Federation concluded their report by saying of the affected peoples in the Horn of Africa: "Their suffering can no longer remain silent. We can't just stand by and accept the unacceptable. Hunger is not an option."
On 10 December 2008, the 60th anniversary of the Universal Declaration of Human Rights, Dr Shamsul Bari, the Independent Expert appointed by the United Nations Secretary-General on the situation of human rights in Somalia, spoke of "the hapless victims of human rights violations in Somalia, in particular the civilian population, women and children, refugees and [displaced persons, and] minorities who lack protection." Dr Bari appealed to the international community to "rethink and renew its commitment to human rights protection and to vow to do all it can to safeguard the human rights and fundamental freedom for an appropriate and effective human rights protection of all the Somali population." And for anyone doubting the severity of the human rights situation in Somalia there is a sobering 104-page report published in December 2008 by Human Rights Watch ("HRW") detailing numerous atrocities, and other human rights failures and abuses, committed upon the civilian population—including indiscriminate violence, and shootings, rape, robbery and looting—by all forces participating in the conflict.
HRW highlighted the then lack of political will to resolve problems that past international involvement helped to create, and concluded that "Many key foreign governments have played deeply destructive roles in Somalia and bear responsibility for exacerbating the conflict." In particular, HRW categorised United States' policy towards Somalia as revolving largely around fears of international terrorist networks using the country as a base, and pointed to that government's failure to "meaningfully confront, or even publicly acknowledge, the extent of Ethiopian military and TFG abuses in the country" as being counter-productive, and "breeding the very extremism that it is supposed to defeat." And in November 2008, Refugees International, which described Somalia as "the world's worst humanitarian disaster", severely criticised the United States for the narrow objectives of its counter-terrorism policy, which led to actions that undermined that country's humanitarian and political objectives, and which caused specific difficulties for aid organisations. HRW also criticised the European Union and key European governments for failing "to address the human rights dimensions of the crisis, with many officials hoping that somehow unfettered support to abusive TFG forces will improve stability."
What is being done?
The difficulties within Somalia stem largely from inter-clan rivalries, the ambitions of militant Islamists, and the lack of effective government, all compounded by corruption over many years within official bodies, and the defection of many of the security forces. A further complication is that many businessmen and militant leaders and hired mercenaries who have actually profited from this chaos, have had a vested interest in preventing a return to normal society. So it would be easy to take the view that the Somali people are themselves largely the cause of their troubles, and to conclude that they should be left to resolve matters themselves. That appears to be the attitude taken by many people. Indeed, the international community's response to the troubles within Somalia has manifested itself in expressions of good intent not matched by adequate actions; by a lack of political commitment to provide sufficient funds and services; and by a failure to understand that simply imposing a framework of bureaucracy, if that can be achieved, will not of itself solve the problems within the country.
The United Nations World Food Programme ("WFP") is the main supplier to Somalia of humanitarian aid in the form of food, ninety per cent of which is delivered by sea. But the activities of Somali pirates during 2007 and 2008 put this supply at risk by their attacks on merchant shipping in the Gulf of Aden and the Indian Ocean; and without the naval escorts supplied by France, Denmark, Canada and The Netherlands, and latterly by NATO and the European Union, aid deliveries would have almost stopped. With the resumption of supplies, the WFP aimed to increase distribution of relief food to 2.4 million Somalis by the end of 2008—a 77 per cent increase during the year. Among the WFP's latest initiatives is the supply of a nutritious, peanut-based food supplement with curative and preventative properties, known by its brand name of Supplementary Plumpy, for malnourished children. Trials indicated that by a two-month course of treatment, malnourished children could recover and remain out of risk for a further four months. As an illustration of the extent to which Somalia is dependent on external aid, during the first week of March 2009 the WFP distributed 6,950 metric tons of food commodities to 272,030 beneficiaries.
United Nations Security Council
As for actions designed to bring stability and peace in the country, and latterly to deal with the piracy menace, from 2006 onwards the United Nations Security Council, in a series of resolutions passed under Chapter VII of the United Nations Charter, and referring to "the lawless trauma and widespread instability in Somalia", has:
- again addressed the subject of an arms embargo for Somalia (UNSCR 1676 (2006))—first imposed in 1992 (UNSCR 733 (1992)) but having very little effect (as to which, see, for example, a detailed account in The Institute for Security Studies' Occasional Paper 180, March 2009, "Sanctions and Embargoes in Africa: Implementation dynamics, prospects and challenges in the case of Somalia", by Andrews Atta-Asamoah);
- in response to piracy during 2008, and with the agreement of the TFG, set up a procedure allowing foreign warships limited rights within Somali territorial waters (UNSCR 1816 (2008), extended until December 2009 by UNSCR 1846 (2008));
- urged all nations to use "the necessary means, in conformity with international law", for the repression of acts of piracy (UNSCR 1838 (2008));
- authorised the imposition of travel restrictions and the freezing of bank accounts of persons seeking to disrupt peace in Somalia (UNSCR 1844 (2008)); and
- authorised countries acting with the permission of the government to undertake all necessary measures "appropriate in Somalia", to interdict those using Somali territory to plan, facilitate or undertake acts of piracy and armed robbery at sea (UNSCR 1851 (2008)).
These measures are substantially directed against a product of the instability in the country (piracy), rather than against the root cause of the instability (inter-clan rivalry, lack of internal security, and the absence of an effective government), and largely result not from an aim to help the Somali people but, rather, to reduce the difficulties that have been caused to the international community by attacks on merchant shipping.
In an address to the United Nations Security Council on 20 March 2009, Sir John Sawers, the United Kingdom's permanent representative to the UN, highlighted four areas where progress was urgently needed:
- the humanitarian crisis, to help alleviate which the TFG needed to develop its own revenue streams
- the political track, where Somali solutions were needed to Somali problems, for which purpose the international community needed to support the Djibouti process
- the creation of a secure environment in which the TFG could work, including training the Somali police and strengthening the joint security forces
- tackling piracy at sea, and at its root causes on land.
The cause of piracy
The present motivation of the estimated 1,000 or so people in Somalia who are directly engaged in acts of piracy is the acquisition of funds. Receiving a share of a ransom payment—which may total US$2-3 million—is a means, and for Somalis perhaps the only means, of obtaining sufficient capital, and prestige, to set themselves up in business locally or to seek a new life abroad. The pirates themselves often seek to justify hijackings—which they recognise are illegal—by explaining that many foreign trawlers have illegally fished off Somalia in its in-shore waters which are, or were, particularly rich in stocks of sharks and lobsters, and pelagic fish with high unit values such as tuna and mackerel. Another reason that is often advanced to give some form of justification for hijackings is the illegal disposal of toxic waste off Somalia—a well-documented practice which is having severely adverse consequences for the environment.
Illegal and aggressive fishing in Somali waters by foreign trawlers is still occurring. A report on 2 April 2009 by UNOCHA's Integrated Regional Information Networks gave some details provided by Abdirahman Ibbi, the new Deputy Prime Minister and Minister of Fisheries and Marine Resources. Mr Ibbi said that there were an estimated 220 foreign-owned trawlers, mostly from European countries, exploiting Somali fisheries, but that the TFG was not yet able to monitor their activities properly. And Somali fishermen have reported numerous incidents of harassment from foreign trawlers, including nets being damaged or stolen, fishing vessels being rammed, and with some Somali fishermen missing, presumed dead, after such encounters. Similar confrontation has occurred off Puntland, where there have been armed clashes between fishing vessels and a private coastguard company licensed by the former Puntland administration.
Latest developments on land
The departure of 3,000 Ethiopian troops during the first two weeks of January 2009 enabled Islamist forces to make further gains in the area of Mogadishu and to consolidate their control of most of southern Somalia. At present, only 3,450 Ugandan and Burundian troops remain in the African Union Mission to Somalia ("AMISOM") out of the 8,000 envisaged when the operation began in January 2007. On 16 January 2009, to give further support to the TFG, the United Nations Security Council passed a resolution (UNSCR 1863 (2009)) sponsored by the United States, calling for the establishment of a trust fund to help support AMISOM, and to provide training and equipment to enable the force to be absorbed, eventually, into a UN force—the creation of which, however, has not yet been approved. Last November, UN Secretary-General Ban Ki-moon reported that a multinational force of about 10,000 troops would be needed to bring stability to Somalia, after which a UN peacekeeping force of 22,500 troops would be needed. But in another illustration of international apathy, no country has so far volunteered to lead a stabilising force, and only a few are prepared to provide troops for it. On 11 March 2009, the Peace and Security Council of the African Union extended AMISOM's mandate for three months from 17 March and called on the United Nations Security Council to authorize, as soon as possible, the expected support package for AMISOM.
The task of the proposed UN mission would be to "assist in the delivery of humanitarian aid; protect political actors and Government buildings and staff, and United Nations staff; monitor implementation of the Djibouti Peace Agreement [reached in June 2008 between the TFG and the Alliance for the Re-liberation of Somalia] and any subsequent ceasefires and joint security arrangements; and build up Somali security forces." But pending the strengthening of AMISOM, and the deployment of a UN stabilising force—if one is established—it is likely that fighting will continue, with dramatic consequences for the ordinary civilian population. Already, the Dadaab refugee camp complex in Kenya, to which many Somalis have fled, houses about 230,000 people. This is the largest concentration of refugees in the world.
Viewed against the background of the situation in Somalia itself, the headline-grabbing activities of the Somalis engaged in piracy can be recognised as merely part of the consequences of a much deeper problem. The situation in Somalia has been largely neglected by the international community for almost twenty years, during which time many thousands have died, many more have been injured, and very many more have lost their jobs, their homes and their means of livelihood. The hijacking of merchant vessels needs to be stopped, but even more pressing is the need to stabilise the situation within Somalia itself. However, the hijackings are having a more immediate effect on the international community, so piracy is currently receiving most attention.
Naval action against pirates
During the early months of 2008, security in the Gulf of Aden was almost solely provided by the Combined Maritime Forces' ("CMF") Combined Task Force 150 ("CTF-150"). At various times CTF-150 has comprised vessels of the United States, the United Kingdom, Canada, France, Germany, Australia, Italy, The Netherlands, New Zealand, Spain, Portugal, Denmark, Pakistan, Turkey and other nations. But piracy has not been its main target—which is general maritime security as part of the War on Terror—and CTF-150 is thinly spread over not just the Gulf of Aden but also the Gulf of Oman, the Arabian Sea, the Red Sea and a large part of the Indian Ocean; a total of 2½ million square miles. To cover this vast area CTF-150 usually has about 14 ships, including supply vessels.
In August 2008, as a result of pressure from the International Maritime Organisation and other bodies, CTF-150 established a Maritime Security Patrol Area in the Gulf of Aden, with the intention of channelling merchant vessels through a corridor that would in theory afford greater safety, because defensive measures would be more effective when concentrated in a smaller area. In October the French Navy started a limited form of close escorts for vessels transiting the region; and for a short period, naval vessels of a NATO Response Force—Standing NATO Maritime Group One—were operating close to Somalia. Subsequently, independent naval vessels from other nations, including Malaysia, India, Russia, China, Saudi Arabia, Iran and Japan have been deployed into waters off Somalia on anti-piracy duties. Warships from Sweden, Singapore, South Korea, Belgium and Poland are expected to join them. In addition, a NATO Standing Force comprising six frigates and a tanker is undertaking a short anti-piracy mission off Somalia, named Operation Allied Protector, while en route to Karachi, Singapore and Freemantle; and will play a similar role on its eventual return. But all these measures, although ensuring the safe passage of some merchant ships, and preventing some boardings, cannot entirely avert further hijackings and an even greater number of unsuccessful attacks. In particular, while the naval forces concentrate on the Gulf of Aden, large areas of the Indian Ocean off Somalia's east coast are virtually unprotected—a situation now being exploited by the pirates.
European Union naval force
A development in December 2008 was the establishment of a European Union naval task force, its first ever, charged with protecting vessels of the World Food Programme delivering food aid to Somalia, and "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." The task force, under the command of Royal Navy Rear Admiral Philip Jones, and created within the framework of the European Security and Defence Policy and United Nations Security Council resolutions, is named EU NAVFOR Somalia (Operation Atalanta). It is operating initially for 12 months from December 2008 and its warships fly the EU flag in addition to their national flags. Guidance Notes to mariners explained that merchant ship protection would be achieved "through close co-ordination of surface units, maritime patrol aircraft and helicopters, in the UKMTO [UK Maritime Trade Operations] Transit Corridor, which transits through the Maritime Security Patrol Area, other areas of the Gulf of Aden and the Somali Basin which suffer from a high risk of piracy." From 1 February 2009 the corridor was officially renamed as the International Recommended Transit Corridor, and new co-ordinates were given by the Maritime Liaison Office at Bahrain. Shipowners seeking to avail themselves of this facility should register with the Maritime Security Centre, Horn of Africa, and provide details of their proposed voyages.
Rear Admiral Jones pointed out that greater safety could be achieved by grouping vessels together, but that virtually complete safety for regular convoys was not feasible as this would entail the use of at least 50 warships. Highlighting some of the difficulties in combating piracy, Rear Admiral Jones called upon escorted vessels to
"avoid entering Yemeni Territorial Waters ("TTW") while on transit. This is for reasons of international law, as it is more difficult for EU NAVFOR ATALANTA and associated forces to be able to protect vessels that are attacked inside Yemeni TTW."
Operation Atalanta's mandate, which allows the taking of "necessary measures, including the use of force" in relation to piracy and armed robbery, also allows its own armed units to be placed on vessels chartered by the World Food Programme. These vessels carry 90 per cent of the food aid destined for Somalia. The force comprises frigates and a small number of maritime patrol aircraft provided by the UK, France, Greece, Spain, Germany and Italy, with participation expected soon from Sweden, Belgium, The Netherlands and Norway. The force has a 20-strong logistic support staff in Djibouti, and in April was due to have a dedicated fuel tanker. Rear Admiral Jones explained to a House of Lords EU Sub-Committee on 12 February 2009 that his objective was to discourage piracy by changing the risk-reward balance for the pirates, and that the force's mission was to deter and disrupt piracy rather than capture pirates. In a parliamentary answer given in March 2009, the UK Secretary of State for Defence explained that Rear Admiral Jones is accountable to the EU Political and Security Committee, a council body in which ambassadors from each of the EU member states exercise political control and strategic direction over the operation, on instructions from national authorities. The Political and Security Committee reports regularly on the progress of the operation to the Council of Ministers, which comprises national Ministers from each of the EU member states (Hansard HC, 9 March 2009, column 177W).
A development in January 2009 was the creation of the CMF's Combined Task Force 151 ("CTF-151"), commanded by US Navy Rear Admiral Terence McKnight, with a specific mandate to counter piracy operations in and around the Gulf of Aden, the Arabian Sea, the Indian Ocean and the Red Sea, thereby releasing CTF-150 to carry out its original task of anti-drug, anti-smuggling, and other general maritime security operations. Initially, CTF-151 comprised two US naval vessels, soon joined by UK Type 23 frigate HMS Portland. In early March its flagship was the amphibious assault ship USS Boxer, which had embarked a Navy helicopter detachment and Marines from the US 13th Marine Expeditionary Unit. At that time CTF-151 also included Danish and Turkish forces, and will in due course have support from twenty or more nations. Its assets will include a significant fleet of helicopters and other means of carrying out aerial surveillance, including unmanned aircraft—some with night-vision capability. On 5 April, command of CTF-151 passed to Rear Admiral Michelle Howard.
The benefit of naval protection
Records maintained by the International Maritime Bureau show that during the year 2008 there were 42 successful hijackings of vessels in the waters off Somalia, and well over a hundred unsuccessful attacks. Most of these hijackings occurred in the Gulf of Aden, but a significant number, including the capture of the Faina, took place off Somalia's east coast in the Indian Ocean, and some—such as the hijacking of the Sirius Star—occurred well away from Somalia, in fact about 450 nautical miles off the coast of Kenya. The number of Somali hijackings peaked during the period August to December 2008, and it now seems that the significant naval forces, mainly in the Gulf of Aden, are having the desired effect of reducing the number of successful attacks in that area. However, they are doing so not because their presence has discouraged the pirates, but mainly because shipping has been channelled through a narrow, security corridor in the Gulf of Aden, and the warships have often been able to respond rapidly to calls for help.
This is partly because merchant vessels in the Gulf of Aden are encouraged to travel in convoys through a patrolled area, sometimes with an escort (a practice started by the French navy), and because many of the warships are equipped with helicopters which can quickly reach the scene of an attack. Without the fast response time of helicopters, and intelligence gained from aerial surveillance, many more of the attacks would have been successful. Also contributing to the reduction in successful hijackings in the Gulf of Aden is the increased vigilance of merchant vessels passing through the danger areas, and their increased willingness to adopt non-lethal defensive measures.
A further factor reducing the number of hijacking attempts during the early part of 2009 was the weather, with easterly winds in the Gulf of Aden running at up to 25 knots. The associated sea conditions made it more difficult for pirates to board vessels. Nevertheless, four vessels were hijacked near Somalia during January and February, and there were attacks on many others. The determination of the pirates, coupled with their tactical resourcefulness, suggests that there will continue to be hijackings, because it is impossible for every merchant vessel to be adequately protected—especially outside the International Recommended Transit Corridor in the Gulf of Aden. There are already indications that with improved weather in the Indian Ocean the pirates are targeting more vessels off Somalia's east coast and also further south—the area in which the Sirius Star was captured last year. Hijackings have occurred this year over 300nm east of Somalia, and unsuccessful attacks have been reported as far as 900nm from the coast. In these activities the pirates launch small motor boats from fishing vessels or dhows acting as mother ships. Ironically, this extension of the pirates' hunting ground may place vessels which have been diverted around the Cape of Good Hope in greater danger than if they were to pass through the Gulf of Aden and the Suez Canal.
Prosecution of captured pirates
A major difficulty arose over the treatment of captured pirates. A number of pirates captured by warships have been released without trial, owing to real or imagined legal difficulties associated with prosecutions. This happened on several occasions, most notably when the Danish warship HDMS Absalon in September 2008 captured ten pirates but released them six days later on a Somali beach. On that occasion Commander Dan B. Termansen said that it would be an illusion to think that the pirates would have been brought to trial if they had been handed over to the authorities in Somalia, and added that there was nothing else that could be done. There have subsequently been further similar incidents involving Danish and other warships, illustrating the (real or imagined) ineffectiveness of international and certain domestic law to deal with piracy, and the reluctance of many governments to gets to grips with the issues.
Later, however, and to avoid a similar situation with pirates captured by a Royal Navy vessel, agreement was reached between the UK and Kenya on 11 December 2008 that Kenya will accept and prosecute such pirates. Previously, there was an ad hoc arrangement in relation to eight pirates who were captured in September 2008 by a boarding party from HMS Cumberland, and those pirates were put on trial in Mombasa. The United States established a similar, permanent arrangement, on 16 January 2009, and an agreement to the same effect for the benefit of vessels taking part in EU NAVFOR's Operation Atalanta was signed in Nairobi on 6 March 2009. Currently, efforts are being made to encourage other nations near Somalia to offer similar facilities, as already the Kenyan authorities have made it clear that they do not wish their country to become the repository for all captured pirates.
In a related initiative, on 29 January 2009 a group of African and Arab nations signed a regional Code of Conduct in Djibouti on the subject of piracy. Early signatories were Djibouti, Ethiopia (the only non-coastal state), Kenya, Madagascar, the Maldives, the Seychelles, Somalia, Tanzania, and Yemen. Other countries participating in the meeting, which was sponsored by the International Maritime Organisation, were Comoros, Egypt, France, Jordan, Oman, Saudi Arabia, South Africa and Sudan; and also present were observers from other IMO member states. The Code, which is aimed at repressing armed robbery against ships off Somalia and in the Gulf of Aden, remains open for signature by all countries in the region. It envisages the creation of information centres in Mombasa (Kenya), Dar es Salaam (Tanzania) and Sana'a (Yemen), and agreement was reached for the establishment of a training centre in Djibouti. Each signatory agreed to review its legislation to be sure that adequate laws are in place to criminalise piracy and related crimes, so that there will be a degree of uniformity of treatment of captured pirates.
A range of solutions is being applied by other nations participating in anti-piracy patrols. For example, in a more robust stance by the Danish government, five pirates captured by HDMS Absalon on 2 January 2009, as they were attacking the Netherlands Antilles-flagged cargo ship Samanyolu, are facing proceedings in The Netherlands. In incidents on 11 and 12 February, the American cruiser USS Vella Gulf captured a total of sixteen pirates, who will be tried in Kenya. And the Russian Ministry of Justice was giving consideration to the trial of ten pirates captured by the Russian cruiser Peter the Great on 12 February 2009.
When giving evidence before the US Congress Armed Services Committee on 5 March 2009, Vice Admiral William Gortney, Commander US Naval Forces, Central Command, headquartered in Bahrain, reported that up to that time CTF-151 and other cooperating naval forces had encountered almost 250 pirates. Of these, 121 had been disarmed and released, 117 had been disarmed and handed over for prosecution, and nine were being held pending a decision as to whether to prosecute. Subsequently, US warships have had several more encounters with Somali pirates, including the dramatic rescue on 12 April of the American master of Maersk Alabama, in an operation during which three pirates were killed.
Possible solution to prosecution difficulties
The absence of an internationally agreed procedure for prosecuting captured pirates has discouraged many nations from taking more vigorous action against piracy. That there should be difficulties in prosecuting captured pirates is highly unsatisfactory. In some quarters the question has been raised whether an international tribunal should be established for this purpose, similar to the International Criminal Court ("ICC") at The Hague. Such tribunals are established to prosecute in circumstances where national courts are unable or unwilling to do so. There are some superficial attractions in such a plan, but an examination reveals the idea to be impractical, particularly in the short-term. Such tribunals take a long time to set up, are very expensive to run, and their trials often last for years. The ICC itself (dealing with genocide, crimes against humanity, war crimes, and the crime of aggression), is based on the Rome Statute of 1998 and took four years to become effective, when 60 states ratified it in 2002. That was in addition to the many years taken to draft and negotiate the Statute. What is needed to deal with Somali pirates is a solution that can be implemented much sooner.
A viable scheme is for warships within Operation Atalanta, or in CTF-151, or operating independently, to have on board a law enforcement detachment ("LEDET") from one of the countries best placed to hold trials, for example, Kenya and Yemen, which are both close to the areas where Somali pirates operate. LEDETs would be able to arrest pirates at source, retain custody of them, and bring them to trial, all within one legal framework. LEDETs would need training to a sufficient standard of competency, and there would need to be a sufficient number of ships deployed from countries which reach agreement with the prosecuting states which supply the LEDETs. Military and civilian witnesses would need to attend the trials to give evidence. The cost of training and maintaining the LEDETs, and the cost of trials, including the attendance of witnesses, would need to be funded by the countries supporting the scheme. Funding would also need to be available for the long-term costs of holding prisoners in jail after conviction and for repatriating them after a sentence has been served. These costs would be significant, but relatively small in comparison to the existing cost of maintaining warships on station.
There is an excellent precedent for embarking LEDETs in Royal Navy ships. Such a practice has been in place in the Caribbean (US LEDETs in RN ships) for many years. It could certainly be replicated in the waters off Somalia. Also, in principle, it could be repeated elsewhere in the world if the need arises, as Somalia is not the only place where piracy occurs. However, Somalia is in many ways a special case, as it is a failed state which is unable to secure its territorial waters, and its legal system is inadequate to deal with the impartial prosecution and the detention of its own citizens who undertake piracy.
An important factor where the prosecution of pirates captured by a Royal Navy vessel is contemplated outside the UK, is the need to ensure that a trial will be fair and that any sentence will be humane and will not include the possibility of capital punishment. The UK Secretary of State for Defence has given an assurance in the House of Commons (Hansard HC, 12 January 2009, column 108W) that where the UK transfers prisoners to third party states it will do so "in accordance with its international law obligations and will always seek assurances of fair treatment and international standards of human rights." More recently, the EU reached an understanding with Kenya that no pirates who are transferred there under the 6 March 2009 agreement will suffer a death sentence.
UK Government's attitude towards Somali pirates
During 2008, at a time when the French navy was being praised for its robust action in capturing pirates, securing the release of hostages, and instituting a convoy system in the Gulf of Aden, the Royal Navy and the UK Government came in for criticism in press reports alleging that pirates were not being detained at sea, and particularly were not being brought to the UK for trial, because of the risk that they might acquire immigration rights, or might be able to secure the right to asylum, or to avoid ultimate repatriation on humanitarian grounds. Questions were also raised about the rules of engagement under which Royal Navy vessels operated.
On the first aspect, in January 2009 the Secretary of State for the Home Department said in the House of Commons in a written response to a question, that information was not collated about any actual or suspected pirates who at some point previously had been detained by the Royal Navy or other agencies or foreign navies, and who had applied for asylum. (Hansard HC, 12 January 2009, column 299W).
And as to the rules of engagement applying to piracy, Baroness Taylor of Bolton, the Parliamentary Under-Secretary of State, Ministry of Defence, explained in the House of Lords that
"The Foreign and Commonwealth office does not provide advice to the Royal Navy. The Ministry of Defence provides classified policy advice to the Royal Navy, which in turn provides detailed classified policy and legal guidance to its commanding officers to enable them to fulfil the UK's obligations under international law including, in particular, the United Nations Law of the Sea." (Hansard HL, 13 May 2008, column 920).
Nevertheless, it is significant that later, policy guidance was strengthened. In November 2008 the Secretary of State for Defence told the House of Commons that the Government's stance on piracy had recently been reviewed, resulting in a more proactive posture whereby Royal Navy units would actively seek out pirates, and that "we have issued them with more robust guidance to deal with any pirates encountered." (Hansard HC, 17 November 2008, column 153W).
This more robust approach, coupled with the ability to put captured pirates on trial in Kenya and probably elsewhere, will allow the Royal Navy to play a full part in deterring piracy off Somalia, which is likely to result in the preservation of property and life, and the avoidance of environmental damage. What would now seem appropriate would be for those directly benefiting financially from this action, such as marine underwriters (including P&I Clubs), to make some contribution towards the expense of the prosecution and any subsequent detention of pirates.
The financial cost of piracy
Having regard to necessary direct and indirect expenditure, and in light of figures provided by some foreign defence ministries, it seems not unreasonable to assume that the cost of deploying a typical frigate off Somalia is in the order of US$1-1.5 million a month. So with a total deployment at any one time of between a dozen and twenty or more warships from nations contributing to Combined Task Force 151 and EU NAVFOR Somalia (Operation Atalanta), or operating independently, the total annual cost of fighting piracy with naval vessels in the Gulf of Aden and the western Indian Ocean is probably between US$150 million and US$350 million, without considering the expense of commissioning and decommissioning, and the cost of shore-based support and reconnaissance aircraft. And those figures could easily be doubled by taking account of capital depreciation of warships and aircraft. Even so, the sums are probably at least matched by the additional cost to the shipping and insurance industry of hijackings and disruption caused by the Somali pirates. In virtually all of the incidents where vessels have subsequently been released, a ransom payment has been made. Taking account of ransom payments made where ships have already been released, and the costs of negotiation, legal expenses (which, however, have been hugely exaggerated in the press), and the heavy expenses incurred in delivering ransom money, it is likely that the direct cost of releasing the freed vessels is in the order of US$100-150 million.
But the loss of revenue for shipowners whose vessels are hijacked, and out of service for two months or more, will be an additional burden. And further costs to the shipping industry include increased insurance premiums; increased payments to crews asked to navigate through a war risks area; the cost of delays waiting for naval escorts; and, for some, the extra cost in terms of bunkers, crew wages, and other expenses of diverting vessels around the Cape of Good Hope. During 2008 there were 21,420 transits of the Suez Canal, which gives an approximate (but obviously not precise) indication of the number of vessels passing through the Gulf of Aden. For diverted vessels there will be a saving in Suez Canal dues (with large tankers being charged in the order of US$200,000 a transit), but a main factor will be the additional time needed for such a voyage. Using the Canal saves about 3,500 miles on a voyage from Tokyo or Singapore to Rotterdam, and over 4,700 miles from Ras Tanura to Rotterdam. A significant number of shipping companies are already diverting their most vulnerable vessels around the Cape of Good Hope, but even so, recent events have shown that the risk of hijackings has not been avoided.
In addition to these costs, there is an additional expense in supplying humanitarian aid. The World Food Programme recently claimed that it was costing "hundreds of millions of dollars more" than a year ago to feed people in Somalia, with the increase partly attributable to piracy.
The human cost
While, in this sort of way, it may be possible to make a broad estimate of the immediately-linked additional costs caused by pirate attacks and efforts to curtail them, the full financial effect on the worldwide community is beyond calculation. And whatever is the cost in terms of money, there are other intangible consequences in terms of the suffering caused to the captured crews and their families and friends. In addition to the almost unbelievable number of 889 crew taken hostage worldwide during 2008, there were 11 reported deaths of crew members as a result of piracy or armed robbery at sea; a further 21 persons are missing, presumed dead; and 32 were injured. It is known that not all incidents were reported. Piracy is one of the factors which have led to an acute shortage of seafarers, a topic addressed at a maritime industry meeting in London on 30 March 2009, sponsored by the International Maritime Organisation.
The wider effect of piracy off Somalia
Apart from its toll in terms of human life and liberty, and the financial cost on the worldwide community in general, and on sections of the marine and insurance industry and naval forces in particular; the acts of piracy off Somalia are setting a dangerous precedent. And the publicity given to them tends to mask the fact that similar dangers are faced by mariners elsewhere in the world, in particular in the Gulf of Guinea, especially in the area from Ghana to Cameroon, with most of the activity centred around Nigeria. But surprisingly, there have been some benefits—other than to those receiving ransom payments, and organisations (including some law firms) which have seen an increase of work—such as the cooperation shown between governments and their naval forces in responding to the threat of piracy off Somalia. Who would have imagined that warships from the United States, the United Kingdom and other western countries, and nations such as Japan, would be exchanging intelligence and cooperating with their counterparts from Russia and China in opposing a common threat. Undoubtedly, some countries taking part in combined anti-piracy measures have mixed objectives, including not only support for their national assets; but concern about their perceived standing in the world; and intelligence-gathering. But there is genuine concern all round about the security of trade routes, and the large view concerning international cooperation still looks promising. Further, there is hope that the concentration of public attention on piracy, coupled with the high cost of hijackings and efforts to prevent them, will lead to a realisation that a greater international effort is needed to tackle the root causes of the troubles within Somalia, which have been allowed to develop for far too long.
© Copyright, Holman Fenwick Willan, 2009
John Knott is a consultant at the London head office of Holman Fenwick Willan, who have been instructed in relation to more than half of the hijackings that have occurred off Somalia during the last year.
This article is not exhaustive and is not intended to form a legal opinion. Specific advice should be sought on any matter falling within the scope of the article.