The Return of the Pirates

Stephen DeAngelis

December 31, 2008

Since the events of 9/11, governments, port operators, and shipping firms have been trying to figure out to make the global supply chain more secure without impeding the flow of international goods. The primary focus, of course, was on terrorism. A new threat, however, has begun to grab headlines — piracy. For decades, piracy (in terms of financial losses) was a tiny blip on the screen compared to losses from fraud. But Somali pirates have ratcheted up the attention paid to the problem with their seizing of ship carrying Soviet-era arms, a Saudi supertanker, and an attempted seizure of a luxury liner. Pirates will find this attention most unwanted. One of Enterra Solutions product lines deals with Global Supply Chain Management and Fusion Centers. Piracy is one of the data sets likely to be shared by future fusion centers. There are already organizations tracking and reporting such data.

Pirates have historically been considered criminals, but some analysts believe they are better labeled terrorists [“Piracy Is Terrorism,” by Douglas R. Burgess, Jr., New York Times, 5 December 2008]. In today’s world if you want to get someone’s attention, you label a group terrorists. Burgess argues that in the case of piracy, however, labeling them terrorists is more than headline grabbing semantics:

“The golden age of piracy has returned. Just as Henry Every and William Kidd once made their fortunes in the Red Sea, a new generation has emerged, armed with grenade launchers and assault rifles, to threaten trade and distract the world’s navies. With the recent capture of the Saudi supertanker Sirius Star, a crime that once seemed remote and archaic has again claimed center stage. And yet the world’s legal apparatus is woefully confused as to how to respond to piracy. Are the Somali pirates ordinary criminals, or a quasi-military force? The question is not insignificant. It has virtually paralyzed the navies called to police the Gulf of Aden. The German Navy frigate Emden, on patrol this spring to intercept Qaeda vessels off the Somali coast, encountered pirate vessels attacking a Japanese tanker. But since it was allowed to intervene only if the pirates were defined as ‘terrorists,’ the Emden had no choice but to let the pirates go. Currently, 13 vessels are held by pirates in the Gulf of Aden, while the navies of a dozen nations circle almost helplessly.”

The challenge, Burgess argues, extends beyond the capture of pirates. You can’t simply dispense with swift and sure justice by stringing the pirates from the yardarm and unceremoniously dumping their bodies into the sea. You must retain them, transport them, provide them with a defense, and, when convicted, incarcerate them. Few countries apparently want the bother of all that.

“In theory, any nation can shoulder the burden of prosecution. In fact, few are eager to do so. Prosecuting pirates puts enormous strain on a country’s legal system. A state whose ship was not attacked, and whose only involvement with the incident was as rescuer, might balk at being asked to foot the bill for lengthy and costly proceedings. Yet it might find itself forced to do so, if neither the victim’s nor the pirates’ state is willing. As Somalia has not had a recognized government since the early 1990s, the situation is all the more precarious for would-be capturers. The result is that ship owners, knowing that no rescue is imminent, pay the ransom. This emboldens the pirates further, and the problem worsens.”

Burgess argues that by defining pirates as terrorists you make them an international problem and thereby lay the responsibility for prosecuting and incarcerating them on the international community rather than a specific nation-state.

“The solution to piracy lies in the very nature of piracy itself. The Roman lawmaker Cicero defined piracy as a crime against civilization itself, which English jurist Edward Coke famously rephrased as ‘hostis humani generis’ — enemies of the human race. As such, they were enemies not of one state but of all states, and correspondingly all states shared in the burden of capturing them. From this precept came the doctrine of universal jurisdiction, meaning that pirates — unlike any other criminals — could be captured wherever they were found, by anyone who found them. This recognition of piracy’s unique threat was the cornerstone of international law for more than 2,000 years. Though you wouldn’t guess it from the current situation, the law is surprisingly clear. The definition of pirates as enemies of the human race is reaffirmed in British and American trial law and in numerous treaties. As a customary international law (albeit one that has fallen out of use since the decline of traditional piracy) it cuts through the Gordian knot of individual states’ engagement rules. Pirates are not ordinary criminals. They are not enemy combatants. They are a hybrid, recognized as such for thousands of years, and can be seized at will by anyone, at any time, anywhere they are found. … Recognizing piracy as an international crime will do something else: It will give individual states that don’t want to prosecute pirates an alternative — the international court. If pirates are recognized under their traditional international legal status — as neither ordinary criminals nor combatants, but enemies of the human race — states will have a much freer hand in capturing them. If piracy falls within the jurisdiction of the international court, states will not need to shoulder the burden of prosecution alone.”

Although Burgess is undoubtedly hoping that his op-ed piece will stimulate book sales (he is the author of The Pirates’ Pact: The Secret Alliances Between History’s Most Notorious Buccaneers and Colonial America), he makes a strong argument. He reminds us that “in a trial before the Old Bailey in 1696, Dr. Henry Newton, the Admiralty advocate, declared, ‘Suffer pirates and the commerce of the world must cease.’ More than 300 years later, the world is suffering again. Fortunately, this time we have the answer.” Another author hoping his op-ed piece generates book sales, John S. Burnett — who the author of Dangerous Waters: Modern Piracy and Terror on the High Seas and who is working on a book about the hijackings off the Somali coast — offers another solution to the Somali piracy problem: help create a viable Somali government [“Grand Theft Nautical,” New York Times, 5 December 2008]. He writes:

“Given the failure to stop the pirates, shipping companies are now diverting their fleets — instead of sailing through the Suez Canal and the Gulf of Arden, tankers and other merchant vessels are forced to travel around the tip of South Africa to get from the Middle East to Europe and the United States, all of which adds weeks to the passage and increases the cost of delivery. But this is merely a short-term solution. The only long-term fix has to take place on shore, in Somalia. Somalia has not had a recognized functioning government since 1991. Law is dispensed through the barrel of a gun.”

Burnett notes that the closest Somalia has come to establishing a peaceful regime was when the Islamic Courts Union were in control in 2006 and imposed Sharia law. “Though there were cruel tradeoffs,” Burnett reports, “the Islamists virtually eradicated piracy. (The crime was a capital offense punishable by beheading.)” The thought of a fundamentalist regime with loose ties to al Qaeda establishing itself in the Horn of Africa was unthinkable to the Bush administration and it supported a Somali intervention by Ethiopian forces that “replaced the Islamists with an ineffective transitional government.” The result, Burnett notes, was the return of piracy “with an intensity not seen since the 17th century.” Somalia is much like Afghanistan, Burnett argues. Historically no one has been able to impose their will on numerous tribes found within its borders.

“If the West really hopes to eliminate the scourge of piracy in these strategic shipping lanes, then it should consider involving the courts union, the only entity that has proved it could govern the country, and its militant wing, Al Shabaab, in a new government. If there is movement to talk to the Taliban in Afghanistan, then there should be some effort to talk to the fundamentalists in Somalia. If the Islamists were permitted to form a viable, functioning and effective government, this shattered land might be able to return to the community of nations — and supertankers will be able to deliver oil to the United States without fear of getting hijacked.”

I suspect that recommendation is too radical for most politicians and security analysts. Perhaps Burnett has forgotten the terrible conditions imposed by the Taliban in Afghanistan under the guise of Sharia law. The conditions were particularly abhorrent on women and girls. Trading one evil for another is not the answer. Burnett is right that the answer in Somalia is helping create a viable central government; but one based on liberal democratic principles rather than Sharia law. In the meantime, Burgess’ solution is a much better alternative. The UN Security apparently agrees [“UN Strips Pirates of Somali Haven,” Mclatchy -Tribune News Service, 4 December 2008].

“The UN Security Council has passed a resolution permitting member countries to enter the territorial waters of Somalia to fight piracy. The U.S.-sponsored resolution, passed unanimously by the Security Council on Dec. 2 [2008], is valid for 12 months. It welcomes the recent initiatives taken by countries like India, Canada, France, Russia, Britain and the U.S. to counter piracy off Somali coast. The Security Council resolution is expected to come as a big help to countries like India that are fighting Somali pirates. Under international laws, naval ships are free to patrol international waters. Indian naval vessels and those from the other countries were constrained so far to enter the territorial waters of Somalia, a situation the pirates have taken full advantage of. The resolution also makes very clear the support for the European Union mission that is about to be launched and welcomes the North Atlantic Treaty Organization initiative to escort World Food Programme shipments until the EU mission is up and running.”

Later the U.N. Security Council authorized attacks on Somali pirate bases [“Security Council approves attacks on Somali pirate bases,” The Kansas City Star, 16 December 2008].

“The U.N. Security Council voted unanimously … to authorize nations to conduct land and air attacks on pirate bases on the coast of Somalia. … The council authorized nations to use ‘all necessary measures that are appropriate in Somalia’ to stop anyone using Somali territory to plan or carry out piracy in the nearby waters traversed each year by thousands of cargo ships sailing between Asia and the Suez Canal.”

Peter Fromuth, a lawyer who served at the State Department and the U.S. Mission to the United Nations during the Clinton administration, notes that the earlier Security Council vote directs the UN to come up with an international strategy for dealing with pirates [“Pirates, Again,” Washington Post, 4 December 2008].

“The Security Council gave Secretary General Ban Ki-moon 90 days to come up with [a strategy]. The usual nostrums do not look promising. Late last month, for example, the council adopted a British plan for travel and financial sanctions against the pirates’ leading lights. That’s fine, but the pirates seem to have their own means of travel and finance, including million-dollar bounties that fall from the sky in suitcases — and no one seems to know who the leaders are anyway.”

Fromuth notes that several groups have offered suggestions for dealing with piracy.

“The Organization of African Unity wants a U.N. peacekeeping force to tame Somalia, but the United Nations has sought recruits for months without success. Private security guards will shoot it out with bandits for $5,000 to $20,000 a day, but many ships carry flammable cargos, so seaborne firefights between thugs and testosterone-soaked mercenaries are best avoided. The global shipping association wants to seal off Somalia with a blockade. Since the country has the longest coast in Africa, that’s a little ambitious.”

You don’t have to blockade the entire coastline, Fromuth point out, just the sections capable of supporting piracy.

“Somali pirates need havens that have water deep enough not to run trophy ships aground yet that are close enough to towns for resupply. From the capital, Mogadishu, north around the Horn of Africa into the Gulf of Aden, Somalia has only a few suitable places: Eyl, Hobyo and Haradhere on the Indian Ocean; Bosaso on the Gulf of Aden; Mogadishu itself; and possibly one or two more. Separate the pirates from those havens, and their cost-risk ratios may once again favor fishing. At each of those ports, cooperating naval vessels could establish a sort of police line to challenge, board and inspect suspicious craft, both leaving and returning. Evidence of piratical acts or intent would trigger confiscation of their boats, weapons and materials and the detention of crews for prosecution. One small naval ship per port, equipped with a helicopter and smaller boats, would suffice. The dozen ships patrolling these waters could handle this task with ships to spare for pirate duty farther out at sea.”

Fromuth agrees with Burgess that sufficient legal precedent already exists to conduct such operations. He laments, however, that the international community doesn’t seem willing to take up the challenge.

“The concept of a blockade was rejected last month by a NATO spokesman as something not ‘contemplated’ by the Security Council. Now, though, it should be. Trillions of dollars in commercial cargos transit the sea lanes annually; so long as they do, thugs in boats will prey on them. The world has a chance to shut down the Somali pirate franchise. Let’s not squander it.”

The Economist argues that letting the Horn of Africa remain a vast lawless expanse “threatens to transmit shockwaves through a seam of fragile and strife-torn African states from Sudan to the Congo” [“The Lawless Horn,” 23 November 2008 print edition]. The magazine agrees with Burnett that the Ethiopian option supported by the United States “backfired.” It also agrees that the solution requires negotiating, but with moderate Islamists if any can be found.

“A long-term solution demands … establishing stability inside Somalia itself, depriving the pirates of a sanctuary, and preventing the jihad-tinted anarchy there from spilling over Somalia’s borders. But since there are no serious military forces available to defeat the insurgents, a proper answer will entail reshaping the country’s politics and stepping up attempts to woo the more biddable Islamists—if there are enough left and a deal with them is still possible.”

I’m generally an optimist; but it is difficult to find anything about Somali too be optimistic about (see my post Somalia — Poster Child of Failed States). There is one bright note; the piracy situation there has drawn China into closer cooperation with the rest of the international community [“China to Aid in Fighting Somali Pirates,” by Maureen Fan, Washington Post, 18 December 2008]. The piracy situation in Somalia underscores why it remains an important international security objective to strengthen failed and failing states so that they can join the international community as contributors to the common good. That road begins with security and, as Fromuth notes, the ranks of countries volunteering to help create a security there is short (Ethiopia to be exact — and it had ulterior motives and will soon be leaving). An international response to piracy provides an opportunity to address Somalia’s security situation beginning from the sea and working inland. I suspect, however, that it will be a long time before the international community moves beyond the “at sea” phase.