Piracy and safety of sea traffic

Dr Ruwantissa ABEYRATNE

In November last year, fishing boats Lakmini-3 and Lakmali left from the Beruwela fishing port and were captured by Somali pirates on November 28, 2010. Two fishermen on board were kidnapped by the pirates and later released. They and their boats were brought to Miniko Island off India by the Indian Coast Guards and arrived later in Sri Lanka.

In the 21st Century so far, waters off the Indian Ocean coast of Somalia have proved to be a dangerous area that threatens the shipping industry with the offence of piracy. Somali waters have far overtaken traditionally dangerous areas such as the Straits of Malacca in the South East Asia and the waters of Nigeria and Iraq with the recent spate of piracy off the Somali coast.

UN report

The pirates carry out daring thefts of goods or food aid with the use of speedboats, frequently extending their illegal activity to impounding ships for ransom.

The International Maritime Organization recorded that by November 2008, there had been 92 attacks on ships in the year, 36 of which ended in successful hijackings. During the same period 14 ships had been held, along with 268 hostages. A UN report recorded that 44 ships were seized by pirates in 2008, with more than 600 sailors held for ransom. The report further stated, that in the first nine months of 2010, 34 ships were hijacked and in excess of 450 seafarers were taken hostage.

It was reported in early March this year that Somali pirates had threatened to kill a Danish family whose yacht has been seized by them in the Indian Ocean if there is any attempt to rescue the family. On board were also two deck hands, both Danes, helping the family sail from the Maldives in the Indian Ocean.

The declaration came almost back-to-back with the kidnapping of four Americans who were gunned down by pirates the week before.

In December 2010, a Thai-owned cargo ship with 27 crew were hijacked by Somali pirates approximately 450 nautical miles North East of the island of Socotra in the Indian Ocean.

Earlier in October a South Korean fishing vessel suffered the same fate. There is simply no question that an act of piracy is an act of terrorism. One interpretation of terrorism given by the courts is that terrorism does not violate international law on the grounds that accusations of terrorism are often met not by a denial of the fact of responsibility but by a justification of the challenged actions.

Act of terrorism

This judgment clearly shows that there is no consensus among the world community that terrorism is an offense against established principles of law.

It also infuses to the heart of the offense a core of legitimacy that is often considered incontrovertible, giving rise to the dichotomy that the need for a solution does not arise in the absence of a problem.

Use of violence

There is ostensibly a flavour of this attitude in Somalia, where gangs of thugs have descended to the vicinity of the hijacked oil tanker with a view to grabbing a share of the ransom demanded. The term terrorism is seemingly of French origin and is believed to have been first used in 1798.

Terrorism gave connotations of criminality to one’s conduct and was later explicitly identified with the reign of terror of the French Revolution.

It is now generally considered a system of coercive intimidation brought about by the infliction of terror or fear.

The most frustrating obstacle to the control of terrorism is the paucity of clear definition of the offence itself.

Many attempts at defining the offense have often resulted in the offense being shrouded in political or national barriers.

In 1980, the Central Intelligence Agency of the United States of America adopted a definition of terrorism that stated that terrorism is the threat or use of violence for political purposes by individuals or groups, whether acting for or in opposition to established governmental authority, when such actions are intended to shock, stun or intimidate victims.

Terrorism has involved groups seeking to overthrow specific regimes, to rectify perceived national or group grievances, or to undermine international order as an end in itself.

This all-embracing definition underscores the misapprehension that certain groups etched in history, such as the French Resistance in Nazi-occupied France during World War II and the Contras in Nicaragua, broadly fall within the definitive parameters of terrorism. In fact, this formula labels every act of violence as being terrorist, engulfing in its broad spectrum such diverse groups as the Seikigunha of Japan and the Mujahedeen of Afghanistan, although their aims, modus operandi, and ideologies are different.

Communication systems

The offense of terrorism has also been defined as one caused by any serious act of violence or threat thereof by an individual, whether acting alone or in association with other persons, which is directed against internationally protected persons, organizations, places, transportation or communication systems or against members of the general public for the purpose of intimidating such persons, causing injury to or the death of such persons, disrupting the activities of such international organizations, of causing loss, detriment or damage to such places or property, or of interfering with such transportation and communications systems in order to undermine friendly relations among States or among the nationals of different States or to extort concessions from States.

Pirates are considered by international law as common enemies of all mankind. The world naturally has an interest in the punishment of offenders and is justified in adopting international measures for the application of universal rules regarding the control of terrorism. The common understanding between States has been that pirates should be lawfully captured on the high seas by an armed vessel of any particular state and brought within its territorial jurisdiction for trial and punishment.

Humanitarian crisis

It is worthy of note that under the rules of customary international law, the international community had no difficulty in dealing with acts of terrorism consisting of sea piracy. Due to the seriousness of the offense and the serious terroristic acts involved, the offense was met with the most severe punishment available, death. In late 2009 United Nations Secretary General Ban Ki-moon intimated that new international antipiracy operations off Somalia’s coast were effective in that they had led to a decline in the number of successful ship seizures in the region. In a report to the UN Security Council The Secretary General stated that the deployment of navy vessels and aircraft was playing a critical role in stabilizing the situation at sea and had considerably reduced the number of successful incidents of piracy and armed robbery at sea, especially in the Gulf of Aden. There are two aspects that make the eradication of piracy in and around Somalia difficult. The first is that since 1991, Somalia has had no stable government and therefore cannot be held accountable for ensuring that ships pass through without let or hindrance.

Recent military gains made by the Transitional Federal Government (TFG) with support from African Union troops have been at best fragile and the country is facing a critical humanitarian crisis. However the acts of piracy bring to bear the issue of State responsibility under the principles of public international law. Somalia, although besieged by domestic strife, is nonetheless a de jure country with the TFG as the recognized central government and is the internationally recognized as the government of the Somali Republic. The republic is a member of the United Nations, which makes it an internationally recognized sovereign state. As such, all duties and responsibilities as may accrue under international law to any other member of the United Nations apply also to the Somali Republic and its government.

Occupational hazard

The second is that companies which own and operate the ships that are hijacked seem to readily cough up ransom money, considering the piracy scourge as an occupational hazard. It was reported that in January of this year, a Russian frigate, the Neustrashimy, started a patrol mission in the pirate-infested area off the Horn of Africa and the Gulf of Aden. The ship started its mission to protect shipping routes and fight piracy and successfully escorted a convoy of commercial vessels through the dangerous areas of the Gulf of Aden and the Horn of Africa.

Eventually it is this kind of measure on a larger scale launched internationally that might eventually eradicate this threat.