Wednesday 3 February 2010
Trouble at sea - Neil Hodge
Marine piracy is increasing at an alarming rate and with no international legal system for accused, prosecution is difficult.
Marine piracy is big business. In some areas, it seems the rewards outweigh the risks. While there are no accurate figures for how much pirates received in ransom demands for the return of ships, cargoes and crews, it is was estimated to be between US$150 million and US$250 million last year alone. The cost to insurers and the shipping industry is at least double that, say experts.
Hard to prosecute
Punitive action, such as imprisonment, has failed to deter attacks in the highest-risk areas, such as the Gulf of Aden, off the Horn of Africa. This is simply because policing is inadequate. The geographical area is too big (some attacks have taken place up to 600 nautical miles from shore). Many jurisdictions do not actually have a law against piracy or a legislature that is capable of prosecuting a case, and most attacks take place in international waters anyway, making prosecution difficult.
Last year pirates hijacked 49 ships, took 889 crew members hostage and fired on another 46 vessels, according to the International Maritime Bureau’s (IMB) Piracy Reporting Centre, with 111 incidents taking place in the Gulf of Aden off the coast of Somalia. Furthermore, the types of attack have changed, with pirates – more heavily armed than in previous years – attacking larger ships and going further out to sea. The number of incidents in 2008 represents an 11 per cent increase over 2007 and in the first quarter of 2009 the area accounted for 61 out of 102 attacks.
A dramatic increase in attacks by Somali pirates has led to a near doubling in the number of ships attacked during the first quarter of this year compared with the same period in 2008. According to the IMB, 102 incidents were reported to the Piracy Reporting Centre in the first three months of 2009 compared to 53 incidents in the first quarter of 2008. The quarterly report also said attacks increased by almost 20 per cent over the same period last year.
Some countries have made great strides in reducing piracy risk, owing mainly to improved policing and greater collaboration between neighbouring states. Indonesia, which held the record for the highest number of piracy attacks between 2003 and 2007, saw only one incident reported in the first quarter of 2009, compared to five incidents in the corresponding period in 2008. The Malacca Straits – a major strategic trade route and another former piracy hot-spot – has reported only one incident this quarter. The situation has also improved in Bangladesh (Chittagong) and Tanzania (Dar es Salaam). ‘Piracy risk has moved from Far and South East Asia to Somalia and the Gulf of Aden’, says Ralf Zibell, marine risk consultant at Allianz Global Corporate & Specialty, a marine insurer. ‘Malaysia and Singapore have worked well with the Indonesian authorities to cut down on piracy around Indonesia and the Malacca Straits’.
However, he suggests that such cooperation does not appear to be an option in the Gulf of Aden and Somalia. ‘As Somalia is virtually lawless and without an effective government, there are no agencies there that are prepared to police against pirate attacks’, Zibell says. As a result, we can only foresee a worsening situation in the area.’
Nevertheless, the impetus for improved policing and regional collaboration has gathered momentum though. On 26 January 2009, 17 states from the Western Indian Ocean, Gulf of Aden and Red Sea areas adopted an International Maritime Organization (IMO)- sponsored code of conduct – known as the ‘Djibouti Code’ as that was where it was signed – whereby signatories will cooperate in the arrest, investigation and prosecution of pirates, seize suspect ships and the property on board, as well as rescue ships, their crews and cargoes in accordance with international law. The code also covers the possibilities of shared operations, such as nominating law enforcement or other authorised officials to embark on the patrol ships or aircraft of another signatory.
‘Somalia is virtually lawless... we can only forsee a worsening situation in the area’
Allianz Global Corporate & Specialty
Strength in numbers
Furthermore, each signatory intends to review its national legislation with a view to ensuring there are laws in place to criminalise piracy and armed robbery against ships, as well as adequate guidelines for the exercise of jurisdiction, conduct of investigations and prosecution of alleged offenders. The code is open for signature by the 21 countries in the region, of which nine – Djibouti, Ethiopia, Kenya, Madagascar, Maldives, Seychelles, Somalia, United Republic of Tanzania and Yemen – have already signed.
‘The adoption of this instrument shows that countries in the region are willing to act concertedly and together’, says IMO Secretary-General Efthimios E Mitropoulos, ‘contributing to the ongoing efforts of the broader international community to fight the scourge of piracy and armed robbery against ships in the area.’
Mitropoulos stresses that, while the agreed contribution of the states in the region was hugely important, the long-term solution to the problem still lay onshore, within Somalia itself. Nevertheless, he remains upbeat, likening recent developments to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), which was concluded in November 2004 by 16 countries in Asia. ‘I have every faith that the Code of Conduct will prove to be the starting point for successful cooperation and coordination in the region, which will bear fruit in the suppression of piracy and armed robbery against ships’, he says.
The UN Security Council’s resolution 1816, adopted on 2 June 2008, states that, following consent from Somalia’s Transitional Federal Government (TFG), countries cooperating with the TFG would be allowed, for a period of six months, to enter the country’s territorial waters and use ‘all necessary means’ to repress acts of piracy and armed robbery at sea ‘in a manner consistent with relevant provisions of international law’.
Six months later, on 2 December 2008, the UN Security Council passed resolution 1846, which extended the six-month mandate for another 12 months. On 16 December 2008, the UN Security Council adopted resolution 1851, which introduced the concept of special arrangements among states permitting ‘shipriders’ (or law enforcement officials) to embark on ships to facilitate the arrest and subsequent prosecution of suspected pirates. That resolution further envisages that, also for a period of 12 months and subject to appropriate consents, states may undertake all necessary measures that are appropriate in Somalia – on land and on sea – for the purpose of suppressing acts of piracy and armed robbery at sea.
But as long as Somalia continues to exist without an effective government, many believe lawlessness within the country and off its lengthy coast will only grow. Some countries have tried to take matters into their own hands. While there is no international legal system for people accused of piracy, some states have started to put pirates on trial, such as in Kenya and France. The United States, while also threatening pirates with criminal prosecution, has started to meet the problem with force. When the Maersk Alabama was captured in April and the ship’s captain was held for ransom, US Navy Seals intervened and shot dead three pirates. Most lawyers and maritime experts believe that such intervention was ‘a mistake’.
Instead, lawyers hope that the Djibouti Code will show results, but few are holding their breath. Linda Jacques, shipping partner at law firm Lester Aldridge Marine, says that the code has its problems. For example, its success depends on the political will of the countries involved and the initiative needs the appropriate level of resources and manpower to be effective. However, she adds that countries such as the US, UK and France will be keen for it to work.
‘France and the US have tried prosecuting pirates and it has thrown up a lot of legal headaches, such as complying with human rights legislation. For example, many of these pirates that are captured are below the age of 18, or claim to be, which means that they are not adults and cannot be tried for the crimes they are accused of in such jurisdictions’, says Jacques.
Jacques also points out that there are jurisdictional issues about where these pirates were seized. ‘If these pirates were seized in international waters, then it is possible for foreign jurisdictions to try them in their own courts’, she says. ‘But in many cases, they are often captured trying to return to shore, which means that they might have entered a national jurisdiction. As a result, countries like the US and France have no legal right to prosecute them in their own courts.’
Anthony Rogers, senior lecturer in Law at City University London and director of the LLM Maritime Law course in Piraeus, Greece, agrees that trying to prosecute pirates in other jurisdictions is problematic. ‘Trying people for crimes with different penalties in foreign jurisdictions that are thousands of miles from where the offences took place is not going to be easy, particularly with human rights legislation’, he says. ‘There is also a whiff of “rendition” about the whole process of sending people to the “politically friendly” state of Kenya for trial for piracy offences. Kenya’s human rights record is not exactly unblemished and I would be very uncomfortable about the increased possibility of sending children to stand trial in a foreign jurisdiction. If you want to go down that route, you might as well send them to China where there is no messing about – pirates are simply executed.’
Toby Stephens, a partner at Holman Fenwick Willan, an international law firm specialising in shipping and transport, suggests that in many respects, it makes more sense for pirates to be prosecuted in Kenya than in their own countries. ‘Piracy attacks often happen in international waters and a large number of the boats that are targeted are from countries without sophisticated legal systems capable of carrying out such trials, like Panama and Liberia, for example’, he says.
But Stephens says that there are drawbacks. ‘If pirates are captured in the Gulf of Aden, it can take up to four days for a warship to transport them to Kenya. That means that the shipping lane is not protected for all that time. Therefore, the logistical arrangements of prosecuting them in Kenya are a nightmare and may bring justice at too high a price’, he says.
Lawyers are waiting to see how the Djibouti Code works in practice, and whether there will be any other long-term legal ramifications as a result of sending pirates to a neighbouring jurisdiction to stand trial. ‘There are bound to be several issues that will cause problems and may slow the process down, but it is really a case of “wait and see”,’ says Stephens.
Neil Hodge is a freelance journalist specialising in legal and business issues. He can be contacted by e-mail at firstname.lastname@example.org.
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