piracy in focus: somalia and legal problems
5th April 2018
Off the coast of Somalia is where almost all of the oil from the Middle East must travel. Piracy is still rampant in these areas, costing the international community billions of dollars a year in losses. There have been thousands of people held hostage to pirates in inhumane conditions (2,919 seafarers between 2000-2013*) and hundreds of vessels have been captured. Many of the hostages continue to deal with the lasting physical and emotional impacts after their release. Piracy is a major problem for the international community.
A report published in 2013 by the United Nations Conference on Trade and Development (UNCTAD) stated that the cost of piracy is uncertain due to existing assessments providing divergent estimates and conclusions. The US think tank RAND institute and IMB (International Maritime Bureau) estimated piracy costs to range from 1 billion to 16 billion USD a year. The One Earth Future Foundation (OEF) estimated piracy off the coast of Somalia cost 7 to 12 billion USD in 2010, 6.6 to 6.9 billion USD in 2011 and 5.7 to 6.1 billion USD in 2012.
The current state of piracy (seen in the chart below) off the coast of Somalia has been taken from the EU Naval Force Atalanta (EU NAVFOR), setup within the framework of the European Common Security and Defence Policy (CSDP) and in accordance with relevant UN Security Council Resolutions (Resolution 1816 (2008), 1838 (2008), 1846 (2008), 1851 (2008), 1897 (2009), 1918 (2010), 1950 (2010), 1976 (2011), 2015 (2011), and 2020 (2011). It is a good indication that collective efforts are working to combat piracy.
What is the problem with Somalia?
A hotspot of piratical activity lies off the coast of Somalia. When looking at modern day piracy, a large portion of the world’s pirates today are from Somalia. The below map provided by the International Chamber of Commerce shows piracy and armed robbery incidents reported to the International Maritime Bureau in 2018.
Somalis are facing a multitude of challenges. From extreme poverty, lawlessness, anarchy, corruption, terrorism (from groups such as Al Shabaab) and piracy. The world cries out for a peaceful, stable Somalia. Piracy has flourished in Somalia mainly because of the state. It hasn’t had a functional government for two decades, and organised crime has stepped in its place. Most people of Somalia are poor, and subject to starvation and drought. Off the coast of Somalia was once rich in fishing, and since the fish has dried up, people are looking at piracy. The NGO Transparency International in its 2017 Corruption Perception index report rated Somalia to be the most corrupt country in the world. There is much work needed to be done in Somalia.
In 2013, a United Nations Assistance Mission in Somalia (UNSOM) was setup in support of the government of Somalia, mandated by UNSC Resolution 2102 for peace building and state-building in the areas of governance, security sector reform, rule of law (including disengagement of combatants), development of a federal system (including state formation), constitutional review, democratisation and coordination of international donor support.
In September 2017, Somali Prime Minister Hassan Ali Khaire spoke at the United Nations General Assembly. He did not mention the word piracy at all, although he did state that “Terrorism remains one of our pressing challenges, with its repercussions felt globally. As such, our unity in addressing this scourge, collectively and sustainably, is critical.”
Legal definition of piracy
According to UNCLOS, the United Nations Convention for the Law of the Sea, piracy is defined in Article 101 by its acts, which are:
Shortening this, it essentially means any illegal acts of violence committed by private ends by a ship on the high seas against another ship.
Furthermore, Article 105 states that any state may seize a ship (or aircraft) taken by pirates and arrest them. The pirates can be subject to the courts of the State which captured the ship.
This means, even if the crime of piracy wasn’t committed on the state’s territory, even if no nationals of the state was involved and no attacks were directed towards them, even if the perpetrators have never been to the state’s territory before, the courts of the state can still prosecute them. The laws are clear; pirates can be arrested and prosecuted under universal jurisdiction.
The way it is clarified, it clearly indicates that pirates are against all humankind. This is a good thing.
There are three courts dedicated to piracy. In Kenya, Mauritius and the Seychelles. The United Nations have funded these three courts, equipping them with adequate facilities and technology. The incidents of piracy are starting to go down.
There are however some problems with the UNCLOS definition of piracy. In 1985, the vessel Achille Lauro was hijacked by four Palestinians associated with the Palestine Liberation Front demanding the release of Palestinian hostages in Israel. They did not hijack the ship from another ship. They came onboard posing as staff of the cruise ship and then hijacked it. Many countries felt that this act does not fall under the UNCLOS definition of piracy, because the definition of piracy states it has to be an attack from one ship to another ship. From this hijacking, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (also known as the SUA) was formed in 1988, with 166 states party to the convention, representing 94.5% of the worlds merchant fleet. It was negotiated under the IMO (International Maritime Organisation) and amongst other things, it criminalised the seizure of a ship by force or threat of force, committing an act of violence onboard if it endangers the safety of the ship, and criminalises placing a device on the ship likely to cause damage to the ship.
Another concern with the legal definition of piracy surrounds the location of the acts committed. It has to occur on the high seas or on a location "outside the jurisdiction of any state". Some pirates never go off into the high seas or veer away from Somali territory. These are usually the ones with the power and authority, and ought to be prosecuted. They are the holders of the hostages, the recruiters of the pirates, the financiers, the preparers of the vessels, those that process the ransom money and negotiate the releases.
If the definition of piracy is only something that happens on the high seas, how is it possible to prosecute them in court? This is an issue that courts are litigating around the world to decide if piracy and conspiracy to commit piracy should include those on dry land. The Somalian government need to focus on this issue.
To pay a ransom or not?
It is against international law to give material support to terrorists. It is against the International Convention for the Suppression of the Financing of Terrorism (1999) which states:
"Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part (for the purposes of terrorism)"
There is no such convention for providing material support to pirates (i.e paying ransoms). Pirates take hostages. Hostage taking covers one of the international terrorism conventions (1979 International Convention against the Taking of Hostages), but pirates cannot be called terrorists, as the hostage taking is not for political ends. The pirates take hostages for private ends, i.e money. It is a criminal act, but not a terrorist act.
How much is usually the ransom? The sizes of ransoms is not something that is widely disclosed, but evidence has been presented in an English court that in the 12 months from November 2008, 30 vessels were seized and released upon payment of over US$60 million.
Under the International Convention against the Taking of Hostages it states: "any person who seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostage within the meaning of this Convention."
Whether or not to pay a ransom to pirates is a subject that has been discussed in governments from across the world. The business model of hostage taking for ransom has been successful, as the insurance companies are the ones paying for it.
There are two ways of looking at it:
-It would be against public policy to say go ahead and kill our hostages. If we could save their life we should.
-If you want to stop piracy, you must make it illegal to pay pirate ransoms.
The decision to pay a ransom raises a philosophical question rather than a legal one, if you could save someone’s life but in order to do so you must facilitate those who will do it again, would you pay the ransom?
In the case of Masefield AG v Amlin:
- Masefield AG owned a cargo of biofuel carried from Malaysia to the Netherlands on board a vessel named Bunga Melati Dua.
- Amlin was the insurer of the cargo under an open cover policy (any physical cause other than those specifically excluded). Piracy was not disputed.
- In August 2008, Bunga Melati Dua was seized by Somali pirates in the Gulf of Aden. One crew member died during the seizure.
- Within days a dialogue occured between the owner of the vessel, Malaysia International Shipping Company (MISC) and the pirates about the negotiation of a ransom to be paid for the safe release of the vessel, crew and cargo.
- It is usual practice for the vessel owners to negotiate with the pirates. The cargo owners (Masefield AG) did not participate in ransom negotiations. This is because it keeps cargo interests out of such negotiations.
- After negotiation, a ransom was paid by MISC. The vessel, crew and cargo were safely released.
- The cargo had not been physically damaged, but its value on the market dropped due to market fluctuations.
- Despite the cargo being retrieved, Masefield AG claimed insurance costs from Amlin.
- The judge said of the ransom payment that: "so far as harm is concerned it is true that payments of ransom encourage a repetition, the more so if there is insurance cover: the history of Somali piracy is an eloquent demonstration of that. But if the crews of the vessels are to be taken out of harm’s way, the only option is to pay the ransom. Diplomatic or military intervention cannot usually be relied upon and failure to pay may put in jeopardy other crews."
By making ransom payments illegal, it would eradicate piracy. People will die in the short term, but in the long term it would not occur. I believe there is another way of eradicating piracy, which is addressing the root cause of it: state-building in Somalia. If the state of Somalia was well developed, with functioning and capable institutions, with the support of UNSOM and the international community, the pirates of Somalia would turn their attention away from risking their lives for money. This does not mean a settlement for peace; but a quest for justice by courts: those responsible for piracy must be held accountable.
*One Earth Future Foundation, https://oneearthfuture.org/videos/somalias-forgotten-hostages
Michael Sharf - Professor of Law and Associate Dean for Global Legal Studies, Case Western Reserve University