Tuesday, January 15, 2013

Piracy & Maritime Terrorism: A 35 Year Retrospective

By Captain Keith F Graham

Captain Graham began giving weekend seminars for the California Maritime Academy’s Continuing Education Department to those interested in the maritime matters in 1975, while on leave from the Navy to attend law school. The most popular topic over each sixteen-hour session on everything encompassed by international maritime law was “piracy”.

Over the intervening 35-plus years, the pertinent law has evolved in some respects and changed not at all in others. What follows is the second part of Captain Graham’s own legal “take”, his own opinions, his own view of this precinct of the maritime world. The previous chapters of this series can be found on the web at http://www.pmmonlinenews.com/2012/11/piracy-maritime-terrorism-35-year.html.

In addition to the failures and delinquencies of individual nations, described in previous installments, another legal impediment to expeditious interdiction of pirates is the lack of trust between neighboring countries. Although sharing a seaborne common scourge, coastal nations may default to enforcing their territorial sea claims by refusing to allow the military forces of another to chase and pursue pirates across a national maritime demarcation. There are ample contemporary illustrations where the presence of foreign naval vessels in another’s territorial waters is deemed more abhorrent than the pirates being chased.

As noted, at this time there is a multinational initiative among the world’s navies in fighting pirates. Squarely within their maritime mission and in the best tradition of sea power keeping the world’s sea lanes open, an international naval task force with 25 participating countries patrols in the Indian Ocean and the Gulf of Aden. It is a wonderful international cooperative venture. However, the insurmountable issue is that there are one million square miles of ocean for the 60-90 participating vessels. It may be a rhetorical and provocative question, but how long before the multinational parties now cooperating come to the same policy conclusion of India’s Navy, i.e ., it’s not worth the effort. With only 8 percent of India’s trade carried by Indian-flagged vessels, it’s a cost-benefit decision not to spend limited resources against pirates. With the US-flagged merchant fleet worldwide at only 191 vessels carrying 2 percent of the total world’s tonnage, no GAO-type “dollars and cents” decision would support our military effort to this end. Even though we don’t seem overly concerned about debt & military spending in this country, the fact remains that the United States doesn’t have many vessels regularly at risk off Somalia, and could very well look at India’s posture as a cue. While not meant to be mean-spirited or to offend members of the world’s uniformed sea services, the international naval task force as presently deployed is in my opinion a gesture only. (A thought I have been unable to transcend is why isn’t the international naval task force simply searching each and every vessel coming in and out of Somali waters thereby ultimately reducing the area needing to be patrolled?)

In the passionate legal opinion of one blogger in a New York Times debate, “…one of the oldest and most uncontested precedents in international law is that piracy is a hanging offense. This is a traditional legitimate means of reaction to piracy. All international powers connected with the Caribbean in the 1600’s and early 1700’s executed pirates… This is an example of concrete international law which solved a problem of lawlessness.” Summary execution of captured pirates would probably be the disposition of choice by most of the public. What has changed since the 1600’s? What legal impediments are influencing decision-makers? In short, why is summary justice a non-start?
Going back to UNCLOS III, Article 107 identifies vessels that are entitled to seize on account of piracy and states:

“A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.”
It is very clear that the world consensus on that point was that public craft, i.e ., warships and other military aircraft or vessels in government service, were solely sanctioned. Why? The answer involves several related issues. First, merchant vessels' crews are untrained to handle weapons, especially weapons capable of responding to sophisticated firepower brought to bear by pirates using ransom money to purchase weaponry like rocket-propelled grenades and AK-47s. Secondly, the worldwide merchant marine industry does not want their mariners to be armed, even if that would be the option most likely selected by the world’s thinly stretched navies and their commanders. People going to sea commercially want protection, not to become combatants themselves. Mariners are few in number aboard modern ships and the trend in manning is always to reduce, not add more to the ship’s crew complement. Next, arming merchant vessels arguably changes their status under international law. If serving as gun platforms, merchant vessels could assume the attributes of a warship in the perspective of an anxious coastal nation and might then jeopardize their sacred right of innocent passage through that nation’s territorial waters particularly if transit was interrupted to interdict pirates. Would such vessels also then be required to engage in hot pursuit of a pirate vessel or utilize the UN provided authority to go after pirates into the national waters of Somalia? Time is of the essence in all things in the merchant marine industry and performing some sort of transformation of all merchant vessels into warships does not contemplate the drivers of time and operating schedules that keep commerce in motion on the world’s highway. Constructing a state of the art brig within the limited operating space aboard a merchant vessel is unlikely for many reasons, not to mention the anticipated outcry from organized labor. The Masters of vessels may exercise great disciplinary authority over crews voluntarily on board, but that does not make them wardens empowered to operate a prison ship. Finally, and perhaps the most controversial point among mariners who have been on the business end of piratical activities, is that raising the threat bar by taking armed measures and exercising summary justice may cause pirates to become more brazen in attacking and more likely to use deadly force. While the policy of any impacted nation can be to out-terrorize the threat encountered, any policy involving active lethal force should be executed to that end by professional military and/or security forces.

There is legal precedent and a successful model for an embarked armed guard both in our national experience and in international law. Roughly one month before Pearl Harbor, the President of the United States decided that the safety of American merchant vessels required their defensive arming. German submarines by that time had already torpedoed US warships performing convoy duty, and, while neither President Roosevelt nor Adolf Hitler wanted to characterize such acts as constituting an act of war, the risk to unarmed commercial vessels was deemed too great not to defensively arm them in a time of peace. Under well-established law of war, a neutral may arm itself and take defensive measures when a viable, continuing threat has been established. Of course, when the US did enter WWII shortly thereafter, gun tubs were being manned by the US Navy Armed Guard. (The Armed Guard had a distinguished record in both theaters of the War and is particularly famous for successes in the Battle of the Atlantic.) As asserted, merchant mariners do not want to “fight the ship”, but if the cost of doing business can absorb the cost of their presence aboard, the lawful presence of a military armed guard may be more than a deterrent, save lives of those threatened, and actually reduce the threat in a real sense. (Paying for an armed guard option is certainly more palatable than a current proposal to levy a “piracy tax” on all goods being shipped by sea and then use the tax revenues to pay pirates not to attack maritime commerce, at best a repugnant maritime “social engineering” scheme condemned to abuse and failure.) If a routine, deadly threat to flag states is on-going, would not a contingent of armed guard aboard that nation’s vessels entering a dangerous travel corridor be more cost-effective than operating fleets of capital ships for long deployments, potentially patrolling a million square miles where pirates may simply not be operating at any given time? This historic model certainly deserves more dialogue than it has received to date.

I am personally a big fan of the armed guard approach and here is why. In 1982, I was assigned as the Navy JAG Reserve attorney for the Military Sealift Command, Pacific (MSC PAC). At that time, MSC ran special purpose vessels such as civilian manned transports for military cargo; communications and cable ships; observation vessels, etc. within the operating area of the Pacific Ocean, particularly the Western Pacific. These lumbering mostly white-hulled vessels made good targets for pirates in the straits & shallows of Asia. We had even re-designated their military hull types to our private amusement as “LSMTs”: Large Slow-Moving Targets. The then standing MSC protocol in essence directed that if boarded by pirates, the crew was all to go to a safe hold, chain themselves in, and let the pirates take anything they wanted aboard. Such an op order could also have been characterized as an open invitation for lawless sea rovers to plunder MSC PAC platforms. By 1984, MSC had been victimized enough and the institutional philosophy changed to having both uniformed and civilian ship’s officers trained with 9mm pistols and sawed off shotguns. This was supplemented by training crews to use high pressure fire hoses as an active countermeasure which in turn was supplemented by unofficial self–help measures, e.g ., nothing says deterrent like an empty beer bottle filled with sand (preferably wet) and dropped on the head of a pirate climbing up the line attached to the grapnel which was hooked over the railing. These and other physical countermeasures were certainly not rocket science, but they worked. Attacks against MSC PAC vessels dropped because there were other targets offering no resistance and PAC vessels now enjoyed the well-deserved reputation of taking on pirates.

Of course, the use of afloat private security forces hired by owners and operating companies has been going on for some years now. They have a very successful track record as a deterrent. In fact, statistically they are the best option at this point in time. As reported in the maritime press in October and December 2011, no merchant vessels with armed guards aboard have been overcome (as yet) by pirates. To my knowledge these statistics are still holding true. Who’s in the private armed guard trade already? There are Russians readily for hire and there are several “Beltway companies”. In fact, if an Internet search is made on the topic of armed guards, there will be many display as well as pop-up ads for companies in Maryland and Virginia. While not endorsing individual business entities, commercial vessels which employ effective passive anti-piracy measures designed to deter attacks through the presence of private armed guards (leaving active counter-measures to those military forces and vessels currently empowered by international law), will effectively reduce the threat and potential harm to persons involved in the business of going to sea.

One final point on the inability of the community of nations to exercise swift criminal justice is the “legal lifecycle”. A practical problem is that the justice system does not end with the appearance of pirate defendants at the bar of justice in most countries. Presuming the likelihood of convictions for murder, robbery, etc ., adjudged international felons will certainly receive sentences in the range of ten to twenty years. As international prisons are non-existent per se, will the reward for capturing a pirate be the legal obligation to accommodate convicted pirates in prison for decades? “Catch and release” sadly becomes a more fiscally sound option in a world of limited national resources.

It is the opinion of knowledgeable leaders, diplomats, and international commentators that legal measures and naval operations against pirates will not solve the specter of sea robbers off the Horn of Africa. The root causes of piracy in this hot spot can only begin to be addressed and abated by the restoration of strong, effective civil government, legitimate employment opportunities, humanitarian aid, social order, and domestic security. Similar to the likelihood of the lengthy prison sentences warranted by the crimes, the changes suggested are probably a 20-year minimum undertaking requiring concerted and coordinated international effort.

Next month I’ll address the connection between piracy and maritime terrorism, and how sovereign nations and the IMO are reacting.