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Diplomatic Efforts Against the Gulf of Aden Pirates/harvard edu

Nada Almutawa
19/02/2009 12:00 AM

Diplomatic Efforts Against the Gulf of Aden Pirates
A Model from the Gulf of Guinea by James Kraska, Brian Wilson

James Kraska is a guest investigator at Woods Hole Oceanographic Institution, a member of the faculty of the International Law Department at the Naval War College and previously served as Oceans Policy Adviser in the Joint Chiefs of Staff in the Pentagon.
Brian Wilson commands a Navy legal office in Washington, D.C and previously served as Oceans Policy Adviser in the Office of the Under Secretary of Defense for Policy.

Members of the visit, board, search and seizure team assigned to the French frigate Guepratte (F714) prepare to inspect a dhow in the Arabian Sea while coordinating with the guided-missile destroyer USS Winston Churchill (DDG 81) Courtesy of DOD, US Government: A US Navy Photo.

Twenty thousand ships pass through the Gulf of Aden each year, transporting cargo that includes 12% of the world’s daily oil supply. In 2008, maritime piracy gangs operating from Somalia focused worldwide attention on the region by attacking a hundred vessels, hijacking ships, and seizing crew as hostages. Reminiscent of the Barbary pirates who terrorized the Mediterranean during the sixteenth and seventeenth centuries, these modern pirates are holding 300 seafarers from 25 different nations and dozens of ships near Haradhere, Somalia, awaiting ransom for their release. Warships can thwart some attacks, but the only lasting solution to the problem requires reestablishment of a stable government and the rule of law ashore. In the meantime piracy can best be deterred through a regional maritime security agreement, enhanced capabilities for East African states to police their areas, and bilateral commitments to support prosecution efforts. These actions must be taken to protect freedom of the seas, which is the basis of international trade and shared economic prosperity.


Modern Responses to an Ancient Threat

Attracted by lucrative profits, between 1,400 and 2,000 Somali pirates are operating in the Gulf of Aden and the western Indian Ocean. One attack can procure as much as $10,000--a fantastic sum in a poverty-stricken area. “All you need is three guys and a little boat,” a former captain in the Somali navy commented, “and the next day you’re millionaires.” November 2008 was an especially productive month for the pirates. They seized the Liberian-flagged M/V Biscaglia, a chemical tanker with a crew that included dozens of Indians, and the Ukranian-flagged Faina, which had been transporting 33 Russian tanks and related supplies to the nascent democratic Sudan People’s Liberation Army. The 1,000-foot supertanker Sirius Star, which had been carrying $100 million in oil bound for the United States, was also hijacked nearly 500 miles East of Kenya.


The piracy threat has prompted some action from the international community. Warships from NATO, the European Union, India, Russia and Pakistan are patrolling the affected waters. To improve merchant self-defense, Admiral William E. Gortney, commander of the US Fifth Fleet in Bahrain, has encouraged vessels to employ resistance tactics such as complicated rudder movements and speed adjustments to foil attacks. However, the enormous size of the operating area--2.5 million square miles--and the pirates’ persistent efforts in search of enticing incentives have made it difficult to slow the pace of attacks.


A key factor in deciding on a solution is the fact that Somalia has lacked an effective government since 1992. The high incidence of piracy in the Gulf of Aden can be attributed to the lawlessness permeating Somalia. “That’s why the pirates there can keep enjoying their loot,” says Noel Choong of the International Maritime Bureau’s Piracy Reporting Centre. “In Asia the pirates will be caught and jailed.” Reestablishing law and order is the long-term solution, but, until then, more concrete political and diplomatic commitments can be effective.



A Regional Approach


A regional approach to maritime security is already unfolding in numerous international collaborative partnerships that promote the rule of law at sea. The model most applicable to the Gulf of Aden can be borrowed from the other side of Africa—the Gulf of Guinea. Created in 1975, the Maritime Organization of West and Central Africa (MOWCA) originally had an unremarkable record but today is experiencing a renaissance. Unlike other regional organizations with more limited goals, MOWCA helps member states cooperatively manage all maritime matters—from port and vessel security to environmental protection. In July 2008, the 25 MOWCA members established a sub-regional coast guard network for West and Central Africa, divided into four coast guard sectors with central commands in several member states. The MOWCA coast guard network integrates the member states’ efforts on the entire range of maritime security issues, from illegal fishing to piracy. Moreover, the network promotes political stability by developing guidelines for coastal surveillance, maintaining a presence in exclusive economic zones, and enforcing international maritime treaties.


Seeking to replicate the successes of other regional organizations, the IMO sponsored meetings in Tanzania and Djibouti to help Horn of Africa states agree on a treaty to address the piracy problem. A regional agreement is essential, but the MOWCA model is the best for the Horn of Africa because MOWCA is a broad agreement, covering not just piracy but all aspects of maritime security. Once the urgent business of signing a regional agreement is completed, states within the region should use their capabilities to implement the global mandate of the UN Security Council.


On the high seas or in any other place outside the jurisdiction of a state, warships from any nation may take action against piracy. Pirated ships may be boarded, the pirates detained, and the property on board seized and submitted to admiralty courts. A global agreement among many states is absolutely essential to implement these obligations, however, because determining which state should prosecute pirates seized at sea is particularly vexing. Typically, a ship victimized by pirates is registered in one state, such as Greece, owned by a corporation located in another state, such as Japan, and operated by a crew comprised of nationals of several additional states, such as the Philippines and Pakistan. Furthermore, the vessel is likely to be transporting cargoes owned by companies in yet another country. On-scene warships coming to the rescue most likely are from yet another state. Although any state may assert jurisdiction in the case of a universal crime, each of these countries has a special interest in the outcome of the prosecution.



Global Cooperation for Criminal Prosecutions


The UN Security Council adopted four resolutions in 2008 that collectively represent its most comprehensive effort to confront this aspect of the piracy problem. In the summer of 2008, the UN Security Council used its authority under Chapter VII to adopt Resolution 1816, which authorizes states to “use all necessary means” to deter, prevent and suppress acts of piracy within the territorial seas, high seas, and superjacent airspace of Somalia. To fulfill the mandate, states should cooperate to determine their respective jurisdiction in the detention, investigation, and prosecution of pirates. Once a pirate attack is disrupted, states must coordinate to provide real-time disposition and repatriation logistics for the suspected pirates, victims and witnesses. The resolution does not compel a state to prosecute or repatriate persons, but it provides the political legitimacy to facilitate the acceptance and prosecution of pirates by participating states.

Resolution 1816 also addressed one of the most challenging issues associated with piracy: pirates who capitalize on the lack of Somali government control over territorial waters to evade capture by grabbing ships and hostages in international waters and then fleeing into territorial waters. Now the Security Council has requested naval powers to cooperate with the Transitional Federal Government (TFG), a group attempting to establish authority over the country of Somalia. If the TFG invites a country to enter its territory, warships from the latter may pursue the pirates. The Security Council has also adopted resolution 1838, which calls on states to take part in actively fighting piracy by deploying naval vessels and aircraft to the area. Nations are heeding the call. Japan is considering sending warships to the region and China already has made a decision to deploy two destroyers and a supply ship. More than 1,200 Chinese vessels annually transit the Gulf of Aden, carrying up to a third of its sea-bound trade. This is Beijing’s first blue-water naval mission outside of UN-sponsored action.


The Security Council also established a judicial framework for the successful prosecution of accused pirates. Resolution 1846 declares that the 1988 Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) applies in cases where piracy is accompanied by vessel hijacking. The SUA Convention was established in the aftermath of the traumatic hijacking of the passenger line Achille Lauro in 1985. At the time, many states did not have criminal legislation for extradition or prosecution of vessel hijackers. Accordingly, the unlawful and intentional seizure or “control over a ship by force or threat thereof or any other form of intimidation” became a key SUA offense. The convention provides that state parties should either prosecute a violation or extradite the offender. State parties are obligated to criminalize attacks against vessels and establish jurisdiction over such offenses committed by ships flying their flag. Although the treaty provides a legal basis for legal collaboration, states still need to coordinate the practical and difficult logistics of disposition and repatriation of suspects, victims, and witnesses obtained during counter-piracy operations. On December 16, 2008 the Security Council acted again, authorizing the employment of “all necessary means” by states for intervention on the ground in Somalia to address the problem of marine piracy. While the sense of frustration is acute, greater regional maritime security collaboration and capacity building are likely to produce better results than forced entry ground operations against pirate warlords.


International collaboration in the maritime domain is vital because most of the ocean’s surface is not under state jurisdiction. No single nation has the naval capability to patrol the vast areas affected by piracy. Although the UN and the IMO have taken steps to recalibrate international legal authorities available to suppress maritime piracy, much more can be done. The next step requires a smarter approach to counter-piracy operations, logistics, and associated legal issues through a regional agreement that would empower collaborative real-time operational coordination for dealing with captured suspected pirates. The agreement should include the naval powers and major shipping nations outside the region that have a major stake in the security of the sea throughout the Horn of Africa.


Building Partnership Capacity

Suppression of piracy requires more than just thwarting attacks and returning pirates to Somalia; developing greater regional collaboration is key because so many states are involved in each incident. To support regional states taking the lead in maritime security maintenance, the major maritime powers and the IMO should focus on increased capacity building. States that lack vessels, aircraft, communications systems, training for patrols, or mature legal infrastructure are unable to play a constructive role in solving the crisis. The major naval powers and shipping nations should do more to help build the maritime security capacity of the states in the Horn of Africa. Doing so would enable the regional states to effectively implement the UN Security Council resolutions on piracy and reduce the need for foreign warships to patrol the area.


The United States should broaden and fully fund the “Global Train and Equip” program under section 1206 of the National Defense Authorization Act of 2006. The program is a new approach to address emerging and acute threats in an environment of weak states, rapidly developing threats, and ungoverned areas that can be exploited as terrorist safe havens. Training and equipping regional forces mitigates the risk that small problems will grow into larger issues. Support includes development of coastal surveillance infrastructure, patrol boats, and maritime interdiction capability to help countries solve problems before they become crises that require outside military intervention. In 2007, for example, Djibouti was awarded $8 million as part of this initiative. About one-third of the program, which is jointly run by the Department of Defense and the Department of State, focuses on strengthening maritime security. Last year there were $800 million in requirements, but only $300 million were funded. Much like the G8 has pooled resources to fund Cooperative Threat Reduction, the major maritime powers should develop and fund a shared and coherent program of maritime security capacity building.


Member states of the IMO should expand the Maritime Security Trust Fund, which assists developing countries in implementing IMO maritime security measures. The fund provides training on compliance with the International Ship and Port Facility Security Code in order to fuse public and private security efforts in the shipping industry. A number of developing countries—including Panama and Liberia—operate the largest shipping registries in the world, so increasing assistance and training under the Trust Fund is a low-cost way to enhance shipping security worldwide.


A Collaborative Future

On a broader note, states are acknowledging the importance of partnership and regional cooperation to build maritime security. The Indian Chief of Naval Staff Admiral Sureesh Mehta remarked on August 13, 2008 that the imperatives of globalization give added impetus for cooperative efforts to secure the sea lanes. Increased collaboration will solve the piracy problem. West Africa has surged ahead of East Africa in developing mechanisms for cooperation. MOWCA has been reenergized after decades of underachievement, and the new coast guard network for West Africa is the most promising framework to be transplanted to the Horn of Africa. The IMO has initiated negotiations among East African states to finalize an international agreement that facilitates regional cooperation on boarding and disposition logistics for persons under state control. That agreement, however, is too modest—the draft under consideration is not a legally binding instrument, it is not as comprehensive as MOWCA, and it does not include all of the extra-regional naval powers and shipping nations that are essential to support local capacity-building. Maritime nations should support a broader regional East African agreement, making maritime security capacity-building in the area a priority. If nations in East Africa develop the operational and legal architecture necessary to deal with piracy, then they will be more willing and better able to enforce the maritime rule of law in the neighborhood.