Contemporary Piracy and Maritime Terrorism

The Threat to International Security

Martin N. Murphy

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781134975525
• Edition: 1
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

Do piracy and maritime terrorism, individually or together, present a threat to international security, and what relationship if any exists between them? Piracy may be a marginal problem in itself, but the connections between organised piracy and wider criminal networks and corruption on land make it an element of a phenomenon that can have a weakening effect on states and a destabilising one on the regions in which it is found. Furthermore, it is also an aspect of a broader problem of disorder at sea that, exacerbated by the increasing pressure on littoral waters from growing numbers of people and organisations seeking to exploit maritime resources, encourages maritime criminality and gives insurgents and terrorists the freedom to operate. In this context, maritime terrorism, though currently only a low-level threat, has the potential to spread and become more effective in the event of political change on land. It is only by addressing the issue of generalised maritime disorder that the problems of piracy and maritime terrorism may be controlled in the long term.

Chapter One
Contemporary Piracy

Piracy occurs in several parts of the world and, though the phenomenon has a significant international dimension in some cases, it does not currently represent a problem on a global scale.

Definitions

Piracy is, very simply, unlawful depredation at sea. While not politically motivated in itself, it has invariably been linked to prevailing political conditions and the expression of state power or, more commonly, state weakness. This connection has meant that common notions of piracy have rarely been applied uniformly or unambiguously, as activities that are called piracy in one place at one time perform 'legitimate' functions for states at others, as in the case of privateering.

For the British jurist C.S. Kenny, piracy was 'any armed violence at sea which is not a lawful act of war'.¹ Kenny's definition was echoed by J.L. Anderson, who characterised piracy as a 'subset of violent maritime predation in that it is not part of a declared or widely recognised war'.² The IMB defines piracy pragmatically as:

An act of boarding or attempting to board any ship with the intent to commit theft or any other crime and with the intent or capability to use force in the furtherance of that act.³

The United Nations Convention on the Law of the Sea of 1982 (UNCLOS), however, is more circumscribed. Article 101 describes piracy as:

1. any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
   1. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
   2. against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
2. any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.⁴

This narrower definition is used by the United Nations' shipping regulator, the International Maritime Organisation (IMO). Because UNCLOS restricts piracy, and thus law-enforcement action against it, to the high seas (the area beyond territorial waters, which extend twelve nautical miles (nm) from the shore), pirates have in many cases evaded capture by sailing from the high seas to the territorial seas of jurisdictions that are ill-equipped to combat maritime crime, thereby putting themselves beyond the reach of international and domestic law. In addition, states typically resent, and therefore try to prevent, entry into their jurisdictions by foreign navies and coast guards, and pirates exploit this by crossing into another country's waters if discovered and pursued by the first state they enter.⁵

The UK's House of Commons Transport Committee in its June 2006 report on piracy observed that 'the absence of a single definition means that the classification of violent maritime incidents can become a matter of dispute and confusion'.⁶ Drafters of laws and governments in affected areas have tended to pay scant attention to the difficulties caused by this confusion. By contrast, the naval officers, police and coast guards charged with suppressing piracy almost certainly favour the simpler, broader definition, as do pirates' victims. For them the distinction between an act of piracy, which under current international law can only occur on the 'high seas', and 'armed robbery at sea', which occurs only within territorial waters, is of little relevance.

Reasons for piracy

Piracy is a low-risk criminal activity that pays well. It occurs for one overriding reason: opportunity. Poverty is often cited as the main motivator, but this is simplistic. Certainly diversions of trade flows away from particular regions have in the past caused affected groups in those regions to resort to piracy; equally today, changes in financial circumstances will encourage some to try their hand, but economic necessity is not a first cause.⁷ In most eras and in most places piracy has been dominated by organised gangs that have treated it as a business.⁸ Seven major factors enable piracy to flourish:

• Legal and jurisdictional weakness
• Favourable geography
• Conflict and disorder
• Under-funded law enforcement/inadequate security
• Permissive political environments
• Cultural acceptability
• Promise of reward

Legal and jurisdictional weakness

The legal and jurisdictional difficulties that law enforcement agencies face help to reduce the risks run by pirates.⁹ The most significant obstacle is state sovereignty; states typically allow external coast guards and police to operate in their waters to counter a common threat only with the greatest reluctance. In some jurisdictions, for instance India and Japan, piracy is not even a crime. In order for the problem of pirate impunity to be overcome, uniform domestic anti-piracy legislation across states needs to be coupled with a demonstrable willingness on the part of all states to prosecute and extradite perpetrators, not simply deport them.

There have been some attempts to tackle this problem. In 1992 the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) came into force, having been signed by 126 countries. While it was designed to deal with politically motivated violence at sea,because it addresses acts such as ship seizure and violence on board and damage to ships and cargo, it could also be applicable to piracy where violence is involved.¹⁰ SUA applies everywhere at sea, including in territorial waters, providing the ship under attack is coming from or proceeding to an international destination. Its provisions state that parties must enact domestic legislation to make convention offences punishable under domestic law. The main aim of the agreement is prosecution, not prevention; its central purpose is to ensure that states either prosecute or extradite. There are, however, limitations to SUA that mean it does not pose a serious challenge to maritime violence: it cannot be invoked if the violence on board is insufficient to compromise maritime safety, and it is not applicable to the intra-state coastal traffic that accounts for so much movement in the territorial and archipelagic waters where the majority of pirate attacks take place. Furthermore, many of the states in Asia where the piracy problem is most acute are not signatories.¹¹ The result has been that — apart from in one minor case in US waters — SUA has never been invoked.

International law on piracy, in the form of UNCLOS, also has serious limitations:

• The restriction of the definition of piracy to 'private', as opposed to 'public' or 'political' acts, excluding terrorists and insurgents
• The geographical restriction of piracy to the high seas
• The absence of a mechanism to ensure that hot pursuit into a state's territorial waters is not prevented by that state
• The 'two ship requirement' that excludes internal seizure from the definition of piracy
• The absence of a requirement that states enact domestic anti-piracy laws
• The absence of a requirement that states cooperate in anti-piracy measures
• The absence of a mechanism for penalising states' failure to discharge agreed responsibilities in relation to combating piracy
• The absence of a disputes procedure

Favourable geography

Piracy is only sustainable in places that offer a combination of rewarding hunting grounds, moderate levels of risk and proximate safe havens.¹² A popular image of a pirate attack is of a fast ship bearing down on a slow, lonely merchantman on the high seas. In reality, for the most part, piracy has historically taken place close to coasts or in narrow seas such as the Caribbean, the Mediterranean, the English Channel and the South China Sea. This is still the case: contemporary piracy is land-based and concentrated in a limited number of areas, principally Southeast Asia, the Bay of Bengal, Somalia and Tanzania, the West African coast (especially off Nigeria) and parts of South America, in narrow seas and close to the shore.

When ships are under way, attacks generally take place in straits, bays, estuaries and archipelagos, where vessels are forced to move close to shore for navigational or commercial reasons and which therefore offer pirates the best opportunities. Narrow seas are also generally more crowded than the high seas, which means more targets. Crowded seas also force large ships to move slowly, making them easier to board and less able to take evasive action such as fishtailing to destabilise the pirate vessel or speeding up to lose it.

Conflict and disorder

Piracy — and criminality at sea generally — can thrive when coastal regions are troubled by war or civil disturbance, or their aftermath, as the absence of law-enforcing authorities and desperate circumstances combine to draw people towards criminality. Lebanon became a haven for criminal activity during its civil war from 1975 to 1990 and 'unofficial' ports sprang up along the coast to handle stolen cargo and refit stolen ships.¹³ Similarly the sundering of Somalia into warring fiefdoms following the collapse of the Siad Barre dictatorship in January 1991 appears to have triggered the country's piracy problem.¹⁴

Under-funded law enforcement

Inadequate state funding and training of police, coast guards and navies allows pirates the freedom to operate. Many states cannot afford the personnel, equipment or organisational resources needed to tackle the problem successfully, and/or they direct resources towards other priorities, as in the case of Indonesia.¹⁵

Law enforcement at sea is expensive; there are huge sea areas to be protected. It requires boats well equipped with radar, communications and, most importantly, well-trained and honest crews who have sound knowledge of the local waters and weather. It also requires shore-based command and control facilities with access to dependable information about ship movements and cargoes, and reliable intelligence about pirate activity. To be truly effective, surface search and interdiction also needs air support for surveillance and, if necessary, the deployment of police or marines.

For many states, such levels of security are unsustainable. In 1992, Indonesia, Malaysia and Singapore adopted a policy of aggressively patrolling the Malacca Strait, resulting in the virtual elimination of pirate activity. Despite its success, the policy had to be abandoned after six months because it was so expensive.¹⁶ The Asian financial crisis of the 1990s also meant that regional states were forced to reduce the resources they made available for surveillance. The problem became worse after the 11 September attacks, as attention was focused on security measures on land, leaving countries such as the Philippines and Indonesia with even fewer resources to spend at sea.¹⁷

Permissive political environment

To flourish, piracy requires lax, as well as under-resourced, law enforcement.¹⁸ Such laxity is almost always the consequence of state weakness. In the absence of a hegemonic power, a widespread unwillingness to take action against piracy has formed the typical backdrop to events at sea.

Where permissive environments exist within states and their territorial waters, they generally come about either because the political environment is corrupt locally or nationally, or because law enforcement is under-funded. Often, of course, both conditions apply. Where police are underpaid, they typically connive with criminals in order to make a living. Many pirates depend on a supportive criminal infrastructure to supply them with intelligence and equipment and to dispose of stolen goods, even entire cargoes, if necessary. Such an infrastructure can have connections to corrupt law enforcers.¹⁹ The most notorious example of the connivance between the authorities and pirates took place in the Gulf of Thailand after the end of the Vietnam War, when the exploitation of thousands of Vietnamese refugees by pirate gangs took place with, despite the efforts of the UNHCR, the inaction of the world community, and the full knowledge, not only of local police, but of littoral governments.²⁰

The chronic piracy problem in Indonesia has been fed by Jakarta's indifference. Elements in the Indonesian police and navy have allegedly been involved in piracy for years, but the central authorities have ignored the problem.²¹ On the island of Belakang Padang off the coast of Batam, near Singapore, pirates' identities are well known locally, but the police have no interest in arresting them. On the contrary, they are, according to French maritime security researcher Eric Frécon, 'not only tolerant of the criminal activities of the pirates but [they are] also accomplices and act as bodyguards'.²²

While every state has the right to arrest pirates on the high seas and arraign them under its own domestic laws, few do. Even a strong state such as the United States has found legal and practical impediments have limited its ability to prosecute pirates. When American forces arrested pirates off the coast of Somalia in 2006, the US was reluctant to try them domestically because...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Glossary
• Introduction
• Chapter One Contemporary Piracy
• Chapter Two Maritime Terrorism
• Chapter Three Assessing the Threat
• Notes