PIRACY | Legal uncertainty emboldens pirates

John Drake and Shane Farrell – LLOYD’S LIST

PIRATE activity may decline slightly over the coming month as international naval patrols in the Gulf of Aden drive Somali pirates further out into the Indian Ocean while weather conditions deteriorate towards the end of May.

The weather makes it difficult for pirates to board vessels as choppy conditions mean they cannot mount their ladders against the hull.

However, conditions will improve again towards the end of September, after which point pirate activity may surge again as it did in 2009 and 2008.

In the face of this, the international community is attempting to take legislative action to tackle the problem. Some countries remain intent on trying pirates in courts of law.

However, the impact of this will likely remain limited. Somalia itself does not possess the legal frameworks to try pirates, so they have to be prosecuted elsewhere. Many have been tried in Kenya, but a significant proportion are released on a lack of evidence.

Also, Kenyan prisons do not have the capacity to accommodate more pirates, so even in the event that more are successfully tried there is little that the Kenyan authorities can actually do to punish them. Legislation is being updated in a number of other East African and Indian Ocean states but this may take months, if not years, to be implemented. It may take longer still before new laws and subsequent legal sentences actually deter Somalis from engaging in piracy.

At the same time, European states appear unwilling to try Somali nationals caught at sea because of issues relating to cost, legal complexity and asylum. In many cases, captured pirates have subsequently been released without trial.

The Danish navy arrested 10 suspected pirates off the coast of Somalia in January 2009 after they had allegedly attacked a series of merchant ships. Since Danish law did not have the national criminal jurisdiction over pirates who attacked non-Danish vessels or citizens, the pirates subsequently had to be released — and Denmark is not the exception.

Pirates were recently apprehended by a Russian warship during a bold rescue mission which saw the Moscow University aframax tanker freed from its captors a day after it was hijacked.

In this case, however, the Russian authorities ordered the release of the 10 pirates because of apparent inconsistencies in international law.

UN Secretary General Ban Ki-moon has been asked by the UN Security Council to produce a report on suggested methods of prosecuting pirates. This is due later this year.

However, it will remain to be seen how effective any recommendations and subsequent policy implementations will be.

Even if a comprehensive legal framework was established which ensured a larger number of pirates were tried and convicted, the potential benefits of a successful ransom settlement will continue to outweigh the risks involved in hijacking a vessel.

Current ransom settlement averages range from $25,000-$3.5m, according to AKE’s First Quarter 2010 kidnap and ransom report. For impoverished and often uneducated Somalis, with few economic options at their disposal, piracy will understandably remain an extremely attractive option.

According to John Chase, the head of Crisis Response at AKE, legal action is unlikely to deter Somali pirates. “What could ultimately alter piracy activity would be if Islamist or other substantial forces were able to make lasting inroads and occupation into the northern areas where pirates currently operate and control unopposed,” he said.

If you ask Somali pirates what they are afraid of, they will likely tell you “nothing”. However, pirates recently fled the harbour settlement of Xarardheere, which had previously been a hub of their illegal activity. In their escape they were seeking to avoid confrontation with the Islamist group Hizbul Islam, which subsequently entered the town.

Hizbul Islam is a Somali insurgent group intent on creating a hard-line Islamic state in the country, one which endorses Shari’ah law and takes a firm stance on crime — including piracy. Like the leading Somali insurgent group (al-Shabaab) Hizbul Islam is alleged to have links to al-Qaeda. However, despite their ideological similarities, both groups have been fighting over control of Somali provinces, especially in south and central regions of the country.

For now, the incursion of the group will not threaten local pirates, who have already moved further north. Syndicates remain strong in other coastal towns such as Hobyo, Eyl and Bossasso. Nonetheless, the development offers a possible example of how pirate activity could be suppressed in Somalia in the future. Monsoon weather and naval patrols may hamper the pirates, but only political and military developments on the ground will truly be able to suppress and eradicate pirate activity.

The way to solve the issue is through preventive measures rather than retributive action. Nation building in a tumultuous and divided country such as Somalia will be tedious, costly and undoubtedly long-term.

However, this appears to be the only realistic solution to dissuade Somalis from engaging in piracy. Success will more likely come from the eradication of poverty and provision of political stability. If piracy is to be tackled it must be on land and not just at sea.

John Drake is a senior risk consultant at AKE and Shane Farrell is a research assistant. AKE specialises in country risk analysis, intelligence, kidnap and ransom trends. Contact: john.drake@akegroup.com

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