The recent history of Somalia is more complex than that of most countries, involving three distinct regions, a multi-clan indigenous population, and almost twenty years of turbulence resulting from an absent or ineffective central government. With the country as a whole credited with having the worst humanitarian conditions in the world; with nearly one-half of its people starving; with over one million people internally displaced; and with the southern half of Somalia being effectively under the control of extreme, Islamic insurgents; one can understand that a solution to the problem of piracy at sea calls for more than the presence of a few dozen warships.1
But for the provision of over 3,000 troops by the African Union, the current Transitional Federal Government ("TFG"), created in January 2009 with United Nations' backing and based in Mogadishu, would have been over-run long ago. As it is, the TFG's existence is precarious. It controls very little territory outside the capital's port and airfield; its influence in most of the country is negligible; and the Islamist insurgents continue to gain ground. It is clear that the TFG's early act of appeasement to the insurgents, in introducing a form of Sharia law, was a sign of weakness which merely encouraged the insurgents. The relatively few hopeful signs outside the autonomous north-west region of Somaliland—which is aiming at full independence—are that some of the moderate Islamists are now fighting the more extreme al-Shabaab element, and that the US and Kenya are supporting the TFG by supplying it with much-needed heavy weapons and ammunition.
The current President of Somalia, Sheikh Sharif Sheikh Ahmed, is a former head of the Islamic Courts Union ("ICU"), when he was regarded as a moderate chairman. Since then, the role of al-Shabaab has become a dominant one for much of Somalia. It was the armed branch of the ICU, which during 2006 controlled a large part of southern Somalia until temporarily routed by Ethiopian troops in early 2007. During 2008 the leadership of al-Shabaab formally declared allegiance to the proscribed organisation al-Qaeda; in February 2009 the US Government designated al-Shabaab as a Foreign Terrorist Organization under Section 219 of the Immigration and Nationality Act; and in March 2009 Osama bin Laden publicly expressed support for al-Shabaab's aim of overthrowing the TFG, thus confirming al-Shabaab's status as a terrorist organisation.
Pirates and Terrorists: Impact on Ransoms
The presence of terrorists in Somalia has given rise to concern and speculation about the legality of making ransom payments to resolve hijackings. Different legal systems have different laws concerning the payment of ransoms, but in the context of English domestic law the payment of a ransom in response to extortion is in principle legal, and has been for almost 200 years, since the reign of George IV.
Whether, notwithstanding this general principle, there may be reasons why in particular circumstances the payment of ransoms to Somali pirates may be unlawful, was a matter that was recently considered in great detail by the House of Lords' EU Committee in their July 2009 report Money laundering and the financing of terrorism [HL Paper 132-I]. Among the Committee's conclusions was that the payment of a ransom should not be made a criminal offence [Paragraphs 164 and 222]. The Committee was, however, concerned about the possibility that the proceeds of Somali piracy might be financing terrorism [Paragraphs 167 and 223], and urged the Government to explore this possibility [Paragraphs 168 and 224].
In considering the weight to be attached to the Committee's views, it is appropriate to have regard to the evidence which they received [HL Paper 132-II]—in particular, the evidence given by the Government—and to the material revealed in the subsequent debate in the House of Lords.
Written evidence given to the Committee by HM Treasury and the Home Office [in Appendix A to their Supplementary Memorandum 3], conceded that the existence of terrorist groups in Somalia was well known, but added "It is not thought at the present time that Somali pirates are connected in any systematic way to those terrorist organisations." The Memorandum then speculated that "If in the future it were to become known that such a connection existed, then it might become the case that the knowledge or suspicion limb of the offence would be satisfied ...", creating an offence under sections 15-18 of the Terrorism Act 2000.
In its written reply to the Committee's report [Cm 7718, published in October 2009], the Government welcomed the Committee's recommendation that the payment of ransoms should in principle remain lawful. On the question whether the proceeds of Somali piracy were financing terrorism the Government said that it saw this as a serious issue, and that it had "examined intelligence for evidence of links between piracy and terrorism at the highest level. To date we have no evidence that terrorists are using piracy as a means of raising funds ...." They would keep the situation under review.
In the subsequent debate in the House of Lords, in December 2009, Lord Brett (Parliamentary Under-Secretary of State, leading on Home Office EU Business), commented at some length on the topic. He said [Hansard HL Deb, 7 December 2009, c978]:
"The Government regularly examine all available intelligence for evidence of links between piracy and terrorism. I have to say that, to date, we have found no evidence. I sympathise with the view that one cannot see vast sums of money being passed around in Somalia without believing that some of it could be going to terrorist organisations in one form or another.
"However, we have found no evidence of any operational or organisational links. There is much open-source speculation—we are all a part of it. The noble Lord, Lord Skelmersdale, asked what we are doing to try to establish whether it is true. It has not been possible for any of our or our partners' intelligence agencies to corroborate it. Therefore, it is a question not of a country having a view, but of intelligence that we have been able to glean from allies, as well as from our own endeavours, failing to find any organisational or operational link."
This is also the conclusion reached in numerous independent reports, and by organisations such as the International Maritime Bureau which make a particular study of piracy.
Speculation in the Press
One can read wild speculations almost every day in the press, recycled from one source to another—and given a measure of plausibility by those who see the hand of terrorism everywhere—about an organisational link between Somali piracy and terrorism. But HM Government's position, set out above by Lord Brett, is very clear. Not only for the purpose of various international maritime conventions, but also in the context of the Terrorism Act 2000, and the Proceeds of Crime Act 2002, there is a very important distinction between piracy and terrorism.
Put broadly, piracy is undertaken for personal gain, while terrorism has a political motivation. Considered specifically in relation to the hijacking of ships, pirates typically seek to preserve the ships, cargo and crew, in order to extract the largest possible ransom payment in exchange for their release. A terrorist group, on the other hand, would typically aim to create an act of violence, probably involving the destruction of ship and cargo and the death of the crew, in order to promote its notions of acceptable behaviour towards elements of society, and to gain maximum publicity for its cause. The intention of the Somali pirates, as clearly shown by their procedures and the histories of their many hijackings, is to acquire large amounts of money. Ultimately, some of this money, in common with money from other sources, may at some time pass through the hands of other criminals or even terrorists; but that is merely an illustration of the way money circulates. In a similar way, some of the money in your pocket may ultimately pass into the possession of criminals, but that does not make you responsible for their activities, and it does not mean that you encourage or support them.
Moral and Practical Issues: The case against paying ransoms
Whether or not ransoms should be paid raises quite separate issues from whether a payment is lawful. When considered from a moral viewpoint, there is overwhelming support for not paying ransoms to pirates. Payment will enrich the pirates, so they can afford to continue to commit acts of piracy, and it will provide a positive encouragement for them and others to do so. With any ransom money that they receive they can acquire ever more powerful and more dangerous weapons, and they can purchase sophisticated technology to help them carry out further attacks. On land, an increase in successful piracy attacks will lead to pirates becoming independently wealthy and achieving a higher social status within their province. Making the pirates more powerful than the embattled government is liable to feed corruption. In the long term, the encouragement of further attacks will mean that more crew members will be endangered, which stands in direct contrast to the argument that paying ransom preserves the personal safety of crews. And the crew on board are not the only persons at risk. People involved in the physical transfer of ransom funds to the pirates are placing themselves in grave personal danger, despite their training and the precautions they take.
The Case for Paying Ransoms
There are, of course, points in favour of paying a ransom—otherwise ransoms would never be paid. A payment can normally be expected to bring about a swift resolution to a desperate situation and, most importantly, has the effect of minimising the physical and emotional strain on crew members and their families. The Somali pirates have made no secret of their willingness to use crew members as human shields in order to obtain and maintain control of ships, and they have from time to time made specific threats to kill European crew members following incidents involving the arrest and detention of fellow pirates. From a commercial viewpoint, the payment of a ransom ensures that a hijacked vessel can be returned to normal service as soon as possible, causing a minimal disruption to the owner's trade and, in turn, world trade, which is of particular significance in the current world-wide economic situation.
There are in fact few alternatives to the payment of a ransom once a ship has been attacked and its crew have been taken hostage. A held ship generally cannot rely on assistance from naval forces. There have been some successful rescues, but the risks are considerable, and the histories of hijackings show that few nations are prepared to use force to achieve a resolution. Finally, the payment of a large ransom ensures that the issue of piracy continues to be given a global spotlight, and promotes the coming together of the global community to provide a long-term solution to the underlying problems of Somalia.
A ship hijacking illustrates in a dramatic way the difference between theory and practice. While one can argue that ransoms should in principle not be paid—the formal stance of most governments, and the position adopted by the United Nations Security Council in Resolution 1897, passed on 30 November 2009—it would be very difficult to oppose payment if that were the only feasible means of securing the release of one's own family. Who among us would take a stand on principle in such circumstances? And if not for one's own family, then why for another?
1. A detailed account of the conditions within Somalia is given in the author's paper "Somalia, the Gulf of Aden, and Piracy: An overview, and recent developments", a revised version of which is available at http://www.theamericanmuseum.org/may.09.eighth.html (www.theamericanmuseum.org/may.09.eighth.html)
© Copyright John Knott, 2010.
The author is a consultant at the London head office of Holman Fenwick Willan LLP, who have been instructed in relation to over 40 of the commercial vessel hijackings that have occurred off Somalia since 2008, in addition to similar incidents elsewhere. This article is written in the context of English law, but is for information purposes only and does not constitute legal advice. Specific legal advice should be sought for particular situations on any aspects falling within the scope of the article.