Feature: pirates are ‘masters of the ocean’ – and what to do about it

As the world faces the prospect of the worst ever year for piracy, the United Nations has admitted that pirates are becoming masters of the ocean and that 90% of suspected pirates that are captured are released again.

Jack Lang, the United Nations Special Advisor on Somali Piracy and former French Culture minister said that “there is this race between the pirates and the international community, and progressively that race is being won by the pirates.”

“Piracy still increases,” Lang told the UN Security Council last month. “Nine out of ten pirates captured by naval forces are freed, despite efforts by many states to have a single jurisdiction,” Lang says, and adds that, "this impunity encourages piracy". Indeed, naval forces have released between 500 and 700 pirates over the last three years – some pirates have even been arrested several times, the Economist reports. 

In January this year there were 35 attacks on ships, with seven of them being successful, giving the pirates a further 148 hostages, according to the International Maritime Bureau (IMB). The situation will worsen in March when the monsoon abates and the Arabian Sea grows calmer - experts predict 2011 will be the worst year of Somali piracy. The IMB also reports that 1 016 sailors were taken hostage off Somalia last year and 49 ships hijacked, while 28 ships with 638 crewmembers are currently being held. 

According to Lang, “Piracy has created an economy with a level of sophistication. At first it was artisan, now it has taken on an industrial scope.” The rapid sophistication of its methods, organizational structures and resources have allowed pirates to demand high ransoms and launder money similar to the operation of a mafia. Ransom costs have increased markedly of late, amounting to US$238 million last year, or an average of US$5.4 million per ship, compared with US$150 000 in 2005 and $3.5 million at the end of 2009. The South Korean oil tanker Samho Dream set a new record when it was released for US$9.5 million in November last year.

“There are 1 500 [pirates] who are defying the world, defying the UN. We must act now, quickly and firmly,” Lang said. “So do we do nothing, or do we try to find more effective solutions?”

In a report delivered to the UN last month, Lang calls for a multi-dimensional approach to the issue: economic, security, and judicial or penitentiary. He stressed the need for effective specialised courts to prosecute captured pirates and equally the facilities to imprison them. He recommended the international community work towards “Somaliasation” of responses to piracy by setting up courts and prisons in Somaliland and Puntland in Somalia as well as in the Tanzanian town of Arusha. The Somali courts would operate under Somali jurisdiction and laws.

Lang called for a modest US$25 million special funding, in order to better coordinate and empower the fight against piracy. In comparison, the report estimates piracy costs the world economy $7 billion. The US$25 million would be used over three years.

In April last year, the UN Security Council called on all states to criminalise piracy under their domestic laws and urged Secretary-General Ban Ki-moon to consider setting up a regional or international maritime piracy tribunal.

Some 700 suspected and convicted pirates are now in detention in 12 countries, more than half of them in Somalia, according to Yury Fedotov, executive director of the UN Office on Drugs and Crime. 

At the moment very few countries are prepared to hold and prosecute pirates, while lawlessness in Somalia makes trials there practically impossible. Somalia has not had a central functioning government since the civil war that erupted following the overthrow of former president Mohamed Siad Barre in 1991. “The problem in Somalia is there is no state; this has been the case for twenty years,” Lang stressed, adding that political instability and poverty are rife, although the region of Somaliland is relatively stable and prosperous. 

Somalia’s neighbour Kenya has become the lead prosecutor of suspected pirates, after persuasion from the West. In 2009 The European Union, United States, United Kingdom, Canada, China and Denmark signed anti-piracy agreements with Kenya, the BBC reports. Eighteen Somalis are currently serving long prison sentences in Kenya, according to the Economist, and 130 suspected pirates captured since 2008 are currently being held by the country. 

In exchange for its help, the European Union invested roughly US$3 million in the country’s judicial system through the UN Office on Drugs and Crime, some of which went on building a special court for piracy trials. However, with its legal system already overloaded, the government is reluctant to take any more. In November last year a Kenyan High Court judge ruled in a case that the country had no jurisdiction over piracy committed in international waters, the BBC reports.

Meanwhile, the Seychelles has said it will host a second UN-supported centre to prosecute suspected pirates seized by foreign navies. It has amended its criminal code to enable it to prosecute them under universal jurisdiction, according to the BBC.

Despite the agreements with Kenya, suspected pirates have been taken to the Untied States, France, Yemen, Germany and the Netherlands, among others, for prosecution. In the first case to come to trial in Europe, a Dutch court sentenced five Somali men to five years in prison for attacking a Dutch Antilles-flagged cargo ship in the Gulf of Aden in 2009.

The International Maritime Bureau has said that the logistical and legal burdens involved in transporting pirate suspects to Western countries could be expensive and time-consuming. Another issue is if the pirates are set free, the prosecuting country has to deal with them and possibly grant them asylum - pirates captured by South Korea said they were liking their time in prison and had even asked to stay in the country, Reuters reports. The pirates were captured by South Korean commandos during a raid to free a hijacked chemical tanker on January 21. South Korean maritime police have formed a team of 50 officials to deal with the country’s first legal attempt to punish foreign pirates in a move that will be closely watched by other countries dealing with piracy.

The United Nations Convention on the Law of the Sea (UNCLOS) allows sovereign nations to seize and prosecute pirates but nations are often frustrated by cost, rules of engagement and politics. Whether a country wants to prosecute arrested pirates depends on its own law.

In their article, Fighting Piracy (which appeared in the February 2009 Armed Forces Journal), Commander James Kraska and Captain Brian Wilson state: "On the high seas or in any other place outside the jurisdiction of a state…pirated ships may be boarded, the pirates can be detained and the property on board the vessel can be seized and submitted to admiralty and criminal courts. The registry or 'flag' of the attacked vessel, the state of nationality of any of the victims or crew, the nationality of the on-scene warship, and, in some cases, coastal and port states, all have a valid basis for asserting jurisdiction. But it can take weeks or months to sort out these logistics and legal issues."

“If we do not act quickly, we will reach a point of no return,” Lang warned. “We can not spare our spending here.” Piracy costs between US$5 and US$9 billion a year, with a knock-on effect of increasing prices and reducing activity in the fishing and tourist industry, Lang said.

The UN and other organisations agree that solving piracy involves solving the issue on land, and not at sea, by creating economic prosperity, a functioning legal system and a stable government. 

So far no nation, not even the United States, has seriously contemplated fighting piracy on land by destroying pirate bases, according to the Economist. Instead, the international community runs several seaborne anti-piracy missions off North Africa, with the European Naval Forces Operation Atalanta, NATO-led Operation Ocean Shield and Combined Taskforce 151 led by Americans. Atalanta was originally set up to safeguard the United Nation’s World Food Programme aid deliveries to Somalia but has expanded to take on a general anti-piracy role. Other nations like South Korea, China, Japan, Iran, Russia, Saudi Arabia and India also have ships off the East African coast.

Although waters in the Gulf of Aden are now safer, the international efforts have pushed pirates move farther offshore, even going as far as India and Mozambique. Colonel Richard Spencer, the British chief of the EU’s naval force, told the Economist that policing this enlarged area would require five times as many warships as the international task forces can muster. According to Lang, “There are numerous gaps in the counterpiracy effort.”

While piracy off the Somali coast is most often in the spotlight, it is also a big problem in the Malacca Strait and the Caribbean, according to the International Maritime Bureau (IMB).

Pirates used to be most active in the Malacca Strait but piracy has been alleviated there through a successful campaign of patrolling, arresting, prosecuting and imprisoning pirates. Conditions onshore improved with a peace settlement among rebels in Aceh, which led to economic development and improved living conditions, Gulf News reports.

As the prospect of improving conditions in Somalia remains elusive, ship owners are exploring a variety of options to defend against piracy. BAE Systems, for example, recently demonstrated a prototype laser beam capable of “providing a visual warning to pirates at distances greater than 2 kilometres, and of disorientating attackers sufficiently at lesser distances so that weapons cannot be targeted effectively” at commercial vessels.

Italio-British company Selex Galileo has developed a detector, able to provide 2D and 3D imaging capability from a single laser illumination pulse (BiL) to give sailors enhanced recognition and identification capability, day and night.

In January Samsung Heavy Industries rolled out a system that alerts the crew to an approaching vessel and enables sailors to remotely fire water cannons at the attackers. Mace Personal Defence recently announced it had joined with Shipboard Defence Systems to create an anti-piracy device that would spray Mace pepper spray at boarders. Other anti-piracy systems work by using strobing lights to disorient attackers or firing a rope across the water to entangle propellers. 

Another device is the Long Range Acoustic Device (LRAD), which works at distances up to 300 metres by disorienting attackers with high energy sound. It was used in November 2005 when pirates attacked the Seabourn Spirit, and in November 2008 when the MV Biscaglia was attacked. The pirates failed to board the Seabourn Spirit but captured the Biscaglia.

Another solution is to have a protected ‘citadel’ or safe room from which crewmembers can safely steer the ship even with pirates aboard, until being rescued by naval forces. However, pirates are using explosives and cutting torches to breach some of these ‘citadels’.

Increasingly, ships are carrying private armed security guards - the German Ernst Komrowski shipping company said it will now have its 20 ships protected by armed guards and the Hamburg-based Offen shipping company says it will also put armed guards on ships passing through the pirate zone, Der Spiegel reports.

The problem with employing armed guards provokes a more brutal response from pirates while applying the historic cure for piracy – exemplary violence – would lead to many more dead hostages, the Economist reports. However, experts like US author Ralph Peters suggest that only when groups like pirates become exceedingly violent will the international community make a concerted effort to stamp out the problem. 

Meanwhile, ships sailing in risky waters have been given guidelines to maintain a high cruising speed (travelling at 18 knots or more makes it almost impossible for pirates to board), erect physical barriers and use hoses and foam to deter pirates.

Historically, piracy has been stopped by hunting down and destroying pirate ships and bases. Many pirates, such as William ‘Captain’ Kidd (1645-1701) and ‘Calico Jack’ (Jack Rackham – 1682-1720), were hanged in the 17th and 18th centuries. Indeed, there was a time when "to see to it that any man who sails under a pirate flag or wears a pirate brand gets what he deserves: a short drop and sudden stop" - a hanging - was not just Hollywood dialogue (in this case Lieutenant James Norrington in Pirates of the Caribbean). Captured pirates in previous eras were notoriously "hanged from the nearest yardarm." Indeed, the last pirate to be hanged was Nat Gordon in New York in 1862. 

Most studies of crime have concluded it is the certainty of capture and punishment (and not capture and punishment itself) that influences criminal behaviour. When nine out of ten pirates are released unpunished, it is hardly surprising that the IMB is predicting 2011 to be the worst year on record for incidents of piracy.