Piracy & Maritime Terrorism: A 35 Year Retrospective

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. This is the final installment in this series, previous chapters of which can be found on the web atwww.pmmonlinenews.com/2013/02/piracy-series.html.

The unfortunate events of 9/11 seem to have captured the world maritime community’s interest that, in fact, the phenomenon of “maritime terrorism” was something more than an academic legal theory, a feature film plot, or an unthinkable event. (Prior to 9/11, terrorism insurance was issued without additional charge in 70 percent of all insurance policies.) IMO’s Safety of Life at Sea (SOLAS) members met and began creating an international treaty framework for vessel and port facility security. The result was the globally applicable International Ship and Port Facility Security (ISPS) Code and the US domestic version codified as the Maritime Transportation Security Act of 2002 Act (MTSA), P.L. 107-295 of November 25, 2002 with implementing regulations at 33 CFR Subchapter H. (It is worth noting in passing that the instrument prepared by SOLAS as a response tracks with an ironic pattern. SOLAS generated its first treaty involving improved safety in the maritime regime in 1914, two years after the loss ofTitanic. In the time continuum that is our global maritime experience, there remains a reactionary mode to seaborne threats with scarcely ever a proactive look forward. An historical sine curve results with fairly long intervals between peaks of catastrophe.)

The ISPS Code is copyrighted by the IMO and the International Labor Organization, but a downloadable copy is available through either the Department of Homeland Security or US Coast Guard’s homepage if a credit card number is provided. The Code was implemented to: 1. Work through agreements between signatory nations referred to as “Contracting Governments” which gather, assess and exchange security data; 2. Maintain communication protocols for vessels and “port facilities” (the latter being defined as “a location, as determined by the Contracting Government or the Designated Authority, where the ship/port interface takes place…including areas such as anchorages, waiting berths and approaches from seaward, as appropriate.”); 3. Prevent unauthorized access to port facilities and restricted areas as well as prevent the introduction of unauthorized weapons, incendiary devices and explosives; 4. Establish an alarm system for security threats and incidents; 5. Require port facility security plans based upon security assessments; and 6. Conduct training through drills and exercises.

The MTSA mimics the ISPS Code with domestic security-oriented planning and regulatory requirements. The Transportation Worker Identification Credential or TWIC card, the personal identification card for waterfront accessibility in the Post-9/11 world, was also a product. The Coast Guard also used its legal authorities to cut 50 percent of substandard vessels from calling at US ports and deployed additional administrative remedies to detain, expel, deny entry, and publicize poor performance of vessels. The Coast Guard’s MTSA/ISPS Help Desk number is (877) 687-2243.

Hardware changes at port facilities (such as the nuclear carwash for container traffic) and, more importantly, improved security practices around the world wrought by ISPS and MTSA are beyond the scope of a legal retrospective on maritime terrorism. However, it is perfectly in-scope to continue to sound the alarm that a sensible maritime future demands that the US squarely address the legal malaise and obfuscation inflicted by inertia, antiquated authorities, and parochial legal positions.

Let me conclude my legal retrospective by challenging the mainstream conclusion that piracy and maritime terrorism are independent performers on the vast stage of the ocean. As one recent study hypothesized, the ship’s crew that has been overcome by intruders, tied up, and left aboard the plundered vessel with the autopilot set to ramp up RPMs for sea speed in a heavily trafficked, narrow international ship channel with navigational and environmental consequences a certainty, probably won’t be inclined to split legal hairs over whether financial gain or political statement was the underlying impetus.

Former Chief of Naval Operations Admiral Gary Roughead warned in 2006 (while still Commander of the Pacific Fleet) that a terrorist attack in the Malacca Straits would impact the world economy. His announcement was the first time in my memory that a public figure didn’t automatically equate the Malacca Straits with piracy in the same sentence. His warning “got it right” and linked vessel attacks with maritime terrorists irrespective of the red herrings of motive, gain, and artificial demarcations.

Current international maritime law literature regularly features articles that assert piracy is maritime terrorism while giving equal time to those that attempt to distinguish between the two, e.g ., it is perfectly legal for ship owners to pay ransoms to pirates to repatriate vessels and crews which, of course, would be unlawful if the pirates were terrorists, etc. The legal maze presented by some writers purposefully draws it with narrow blind alleys going nowhere whereas others reach a more summary conclusion, e.g ., both groups are “enemies of the human race”; neither are sponsored by a nation-state as they have no national allegiance; they form extraterritorial outposts; and both terrorize civilians through death and destruction for private (non-public) ends.

These seesaw legal debates will persist, yet became moot, in my opinion, with a simple “connect the dots” exercise. Several responsible and reliable media reports in 2009 documented the call by al-Qaeda spokesmen for Somali pirates to attack international shipping to disrupt the international supply chain. (Remember, Somalia has the longest coastline in mainland Africa.) Evidence further indicates that ransom money received by Somali pirates is, in part, being used to underwrite al-Qaeda. (Realize too that $300 million was paid in ransoms in 2010; the average being $5.4 million; individual vessel ransoms were in the $10 million range; and a total of $3 billion in insurance claims were made to cover Somali piracy alone. The continued funneling of these ransom monies is a potential al-Qaeda windfall.)

This vicarious link to underwriting terrorism with ransom money is, however, no more frightening than the statistic that 20 percent of all ransom money received is re-invested by pirate groups into better boats, GPS systems, satellite phones, and payments to informants working in the Middle East. By the way, the existing system of informants appears to work well, providing advance notice to pirates about which vessels carry armed guards and which vessel owners have the financial ability to pay ransoms. Using the services of ransom negotiators generally results in new and better intelligence being passed along to pirates in Somalia and at least one ransom “negotiator” has been tried as a pirate.

At this time, it cannot be reported that a comprehensive legal definition linking piracy and maritime terrorism has been adopted by the US or the world community. Congress could act in this regard without creating any clear conflicts in American legal precedent or the Nation’s international commitments. Another possible initiative awaiting American leadership is to seek expanded jurisdiction over piracy and terrorism in the International Criminal Court at The Hague. Although the pattern of America is to eschew international tribunals and obligations in favor of parochial procedures and domestic legislation, the international war on terrorism and interdicting historical enemies of all mankind should force a much-needed sea change in our legal thinking and global response.

In the meantime, I will continue to advocate that nations, companies, and individuals at all levels quit making piracy pay. Raise the ante; raise the risk to pirates and terrorists; raise the risk of business as usual; and I predict that participants will find another calling. Tribute was routinely paid to pirates in ancient times until Julius Caesar made an early career reputation by annihilating them. Our own national history includes a determined President Thomas Jefferson taking the war against piracy to the Barbary Coast with good results. An equally resolute Presidential successor, Andrew Jackson, when taking military action against the pirate enclave of Quallah Battoo (Kuala Batu) on Sumatra, which had executed American sailors, reminded the world “the Flag of the Union is not to be insulted with impunity.” It should not be the common commercial practice nor acceptable to pay ransoms to pirates.

With the link well established to terrorism, I will continue to claim that they are both the same phenomenon, but, if you care to distinguish, then it may be asserted that when you pay pirates you aid international terrorism. I’m gratified to say having lived long enough to have challenged the maritime officials of Malacca Strait nations in print who claimed they were unable to do anything about piracy (even in their own national waters), that today those same nations actively intervene against pirates through integrated merchant vessel tracking, deploying viable local coast guards, and utilizing naval and air forces to escort vessels and interdict criminals at sea.

One other weapon brought to bear is the use of real time intelligence generated by IMB’s Piracy Reporting Center in Malaysia and Singapore’s Information Sharing Center. The welcome comprehensive result, of course, is that pirate attack statistics are measurably down in the region.

To quote Theodore Roosevelt (who admittedly was not speaking to piracy but also did not suffer the kidnap of Americans by foreign bandits), “In any moment of decision, the best thing to do is the right thing. The worst thing you can do is nothing.”

I believe there are several channels, legal and operational, for doing the right thing relative to piracy on the world’s highway. Collectively, the modern response to date is a failing grade for doing nothing at all or proceeding with a reluctant, legally-confused attitude and a tepid, half-hearted response. The professional mariners of the world deserve better.

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. This is the final installment in this series, previous chapters of which can be found on the web atwww.pmmonlinenews.com/2013/02/piracy-series.html.

The unfortunate events of 9/11 seem to have captured the world maritime community’s interest that, in fact, the phenomenon of “maritime terrorism” was something more than an academic legal theory, a feature film plot, or an unthinkable event. (Prior to 9/11, terrorism insurance was issued without additional charge in 70 percent of all insurance policies.) IMO’s Safety of Life at Sea (SOLAS) members met and began creating an international treaty framework for vessel and port facility security. The result was the globally applicable International Ship and Port Facility Security (ISPS) Code and the US domestic version codified as the Maritime Transportation Security Act of 2002 Act (MTSA), P.L. 107-295 of November 25, 2002 with implementing regulations at 33 CFR Subchapter H. (It is worth noting in passing that the instrument prepared by SOLAS as a response tracks with an ironic pattern. SOLAS generated its first treaty involving improved safety in the maritime regime in 1914, two years after the loss ofTitanic. In the time continuum that is our global maritime experience, there remains a reactionary mode to seaborne threats with scarcely ever a proactive look forward. An historical sine curve results with fairly long intervals between peaks of catastrophe.)

The ISPS Code is copyrighted by the IMO and the International Labor Organization, but a downloadable copy is available through either the Department of Homeland Security or US Coast Guard’s homepage if a credit card number is provided. The Code was implemented to: 1. Work through agreements between signatory nations referred to as “Contracting Governments” which gather, assess and exchange security data; 2. Maintain communication protocols for vessels and “port facilities” (the latter being defined as “a location, as determined by the Contracting Government or the Designated Authority, where the ship/port interface takes place…including areas such as anchorages, waiting berths and approaches from seaward, as appropriate.”); 3. Prevent unauthorized access to port facilities and restricted areas as well as prevent the introduction of unauthorized weapons, incendiary devices and explosives; 4. Establish an alarm system for security threats and incidents; 5. Require port facility security plans based upon security assessments; and 6. Conduct training through drills and exercises.

The MTSA mimics the ISPS Code with domestic security-oriented planning and regulatory requirements. The Transportation Worker Identification Credential or TWIC card, the personal identification card for waterfront accessibility in the Post-9/11 world, was also a product. The Coast Guard also used its legal authorities to cut 50 percent of substandard vessels from calling at US ports and deployed additional administrative remedies to detain, expel, deny entry, and publicize poor performance of vessels. The Coast Guard’s MTSA/ISPS Help Desk number is (877) 687-2243.

Hardware changes at port facilities (such as the nuclear carwash for container traffic) and, more importantly, improved security practices around the world wrought by ISPS and MTSA are beyond the scope of a legal retrospective on maritime terrorism. However, it is perfectly in-scope to continue to sound the alarm that a sensible maritime future demands that the US squarely address the legal malaise and obfuscation inflicted by inertia, antiquated authorities, and parochial legal positions.

Let me conclude my legal retrospective by challenging the mainstream conclusion that piracy and maritime terrorism are independent performers on the vast stage of the ocean. As one recent study hypothesized, the ship’s crew that has been overcome by intruders, tied up, and left aboard the plundered vessel with the autopilot set to ramp up RPMs for sea speed in a heavily trafficked, narrow international ship channel with navigational and environmental consequences a certainty, probably won’t be inclined to split legal hairs over whether financial gain or political statement was the underlying impetus.

Former Chief of Naval Operations Admiral Gary Roughead warned in 2006 (while still Commander of the Pacific Fleet) that a terrorist attack in the Malacca Straits would impact the world economy. His announcement was the first time in my memory that a public figure didn’t automatically equate the Malacca Straits with piracy in the same sentence. His warning “got it right” and linked vessel attacks with maritime terrorists irrespective of the red herrings of motive, gain, and artificial demarcations.

Current international maritime law literature regularly features articles that assert piracy is maritime terrorism while giving equal time to those that attempt to distinguish between the two, e.g ., it is perfectly legal for ship owners to pay ransoms to pirates to repatriate vessels and crews which, of course, would be unlawful if the pirates were terrorists, etc. The legal maze presented by some writers purposefully draws it with narrow blind alleys going nowhere whereas others reach a more summary conclusion, e.g ., both groups are “enemies of the human race”; neither are sponsored by a nation-state as they have no national allegiance; they form extraterritorial outposts; and both terrorize civilians through death and destruction for private (non-public) ends.

These seesaw legal debates will persist, yet became moot, in my opinion, with a simple “connect the dots” exercise. Several responsible and reliable media reports in 2009 documented the call by al-Qaeda spokesmen for Somali pirates to attack international shipping to disrupt the international supply chain. (Remember, Somalia has the longest coastline in mainland Africa.) Evidence further indicates that ransom money received by Somali pirates is, in part, being used to underwrite al-Qaeda. (Realize too that $300 million was paid in ransoms in 2010; the average being $5.4 million; individual vessel ransoms were in the $10 million range; and a total of $3 billion in insurance claims were made to cover Somali piracy alone. The continued funneling of these ransom monies is a potential al-Qaeda windfall.)

This vicarious link to underwriting terrorism with ransom money is, however, no more frightening than the statistic that 20 percent of all ransom money received is re-invested by pirate groups into better boats, GPS systems, satellite phones, and payments to informants working in the Middle East. By the way, the existing system of informants appears to work well, providing advance notice to pirates about which vessels carry armed guards and which vessel owners have the financial ability to pay ransoms. Using the services of ransom negotiators generally results in new and better intelligence being passed along to pirates in Somalia and at least one ransom “negotiator” has been tried as a pirate.

At this time, it cannot be reported that a comprehensive legal definition linking piracy and maritime terrorism has been adopted by the US or the world community. Congress could act in this regard without creating any clear conflicts in American legal precedent or the Nation’s international commitments. Another possible initiative awaiting American leadership is to seek expanded jurisdiction over piracy and terrorism in the International Criminal Court at The Hague. Although the pattern of America is to eschew international tribunals and obligations in favor of parochial procedures and domestic legislation, the international war on terrorism and interdicting historical enemies of all mankind should force a much-needed sea change in our legal thinking and global response.

In the meantime, I will continue to advocate that nations, companies, and individuals at all levels quit making piracy pay. Raise the ante; raise the risk to pirates and terrorists; raise the risk of business as usual; and I predict that participants will find another calling. Tribute was routinely paid to pirates in ancient times until Julius Caesar made an early career reputation by annihilating them. Our own national history includes a determined President Thomas Jefferson taking the war against piracy to the Barbary Coast with good results. An equally resolute Presidential successor, Andrew Jackson, when taking military action against the pirate enclave of Quallah Battoo (Kuala Batu) on Sumatra, which had executed American sailors, reminded the world “the Flag of the Union is not to be insulted with impunity.” It should not be the common commercial practice nor acceptable to pay ransoms to pirates.

With the link well established to terrorism, I will continue to claim that they are both the same phenomenon, but, if you care to distinguish, then it may be asserted that when you pay pirates you aid international terrorism. I’m gratified to say having lived long enough to have challenged the maritime officials of Malacca Strait nations in print who claimed they were unable to do anything about piracy (even in their own national waters), that today those same nations actively intervene against pirates through integrated merchant vessel tracking, deploying viable local coast guards, and utilizing naval and air forces to escort vessels and interdict criminals at sea.

One other weapon brought to bear is the use of real time intelligence generated by IMB’s Piracy Reporting Center in Malaysia and Singapore’s Information Sharing Center. The welcome comprehensive result, of course, is that pirate attack statistics are measurably down in the region.

To quote Theodore Roosevelt (who admittedly was not speaking to piracy but also did not suffer the kidnap of Americans by foreign bandits), “In any moment of decision, the best thing to do is the right thing. The worst thing you can do is nothing.”

I believe there are several channels, legal and operational, for doing the right thing relative to piracy on the world’s highway. Collectively, the modern response to date is a failing grade for doing nothing at all or proceeding with a reluctant, legally-confused attitude and a tepid, half-hearted response. The professional mariners of the world deserve better.