Pirates of Somalia (22 page)

Second, if help does not arrive soon, the pirates may try their hand at cracking the safe room using the only tools they have available. “There was an incident some time back in which there was a crew in lockdown and the pirates started firing, and a couple of bullets went through the bulkhead and injured a few crew members,” said Mody. “That is one scenario; the other scenario is that the shooting causes a fire to break out. What happens then? There has to be an escape route for the crew.”

In spite of these potential risks, the turtle method has been effective even when a warship was not in the immediate vicinity. In a May 2010 incident, the Russian destroyer
Marshal Shaposhnikov
was over twelve hours away from the oil tanker
Moscow University
when her crew went into lockdown. For unknown reasons, the pirates remained aboard for an entire day as the
Shaposhnikov
bore down on their position, then engaged the Russian special forces in a suicidal shootout while the crew was still safely out of harm’s way. Whether stubborn or reckless, the pirates paid for their error in judgment; after killing one pirate during the rescue operation, the Russian commandos probably summarily executed the remaining hijackers, later concocting a story that they had perished at sea.
¹⁰

* * *

With $1–$1.5 billion per year being spent to clamp down on a piracy “industry” worth not more than $90 million, it is hard to argue that the international naval armada has provided a good return on investment. When hijackings fail (60–70 per cent of the time), it is usually because of early detection, increased speed, and evasive measures—not because of warships or navy helicopters saving the day. In 2009,
fewer than one in six
unsuccessful pirate attacks were stopped by the direct intervention of coalition forces, with only two of these rescues occurring in the Indian Ocean (out of fifty-three failed attacks).
¹¹
All told, in 2009 the coalition probably saved the world something in the range of $80–$100 million in potential ransoms—less than one-tenth its operating budget.
¹²

But to judge the effectiveness of the naval forces based solely on the number of attacks prevented is not entirely fair, as the statistics do not reflect the coalition’s multifaceted deterrent effect. First, the forces indirectly prevent attacks (for instance, pirates breaking off pursuit because they fear a response from a warship). Second, they reduce the overall number of attacks by maintaining the Gulf of Aden safety corridor, by interdicting pirate groups before they have a chance to carry out hijackings, or by simply discouraging potential pirate recruits from taking up the trade in the first place. But the failure of the coalition forces to react to actual attacks in progress is disappointing. Though their numbers have mounted steadily since 2008, the warships are still spread far too thin—particularly in the vast Indian Ocean—to consistently respond in a timely manner.

Despite hundreds of millions of dollars in annual net operating losses, the international fleet is unlikely to sail away anytime soon. The naval presence is a classic exercise in defence theatre; for political and humanitarian reasons, home governments must demonstrate that they are making an effort to protect their own nationals, as well as to safeguard international commerce. The optics, in short, are more important than the results. Meanwhile, the vast majority of masters and crews charting the boundless reaches of the Indian Ocean will remain on their own, with only their own vigilance and courage to save them from becoming the latest victims of the Somali pirates.

10

The Law of the Sea

T
O DATE, CAPTURING PIRATES HAS PROVED FAR EASIER THAN
deciding what to do with them afterwards. The laws of foreign nations have treated Somali pirates as another group of “boat people,” that is to say, illegal migrants. The largely Western countries that patrol the Gulf of Aden and the Indian Ocean understandably desire to avoid the costs associated with transporting captured offenders and processing them in domestic courts. In some nations, such as the United Kingdom, arrested pirates would even be within their rights to claim asylum (the UK Foreign Office has voiced concerns that the pirates may face the Islamic punishments of beheading or amputation should they be returned to Somalia).
¹
Although in rare instances national pride has prevailed over fiscal sense—Boyah’s six unfortunate compatriots, for instance, as well as five pirates turned over to Dutch courts by the Danish navy in January 2009—prosecuting pirates through Western institutions is not a feasible long-term solution.

So labyrinthine is the legal maze that many foreign navies have opted simply to release suspects after confiscating their weapons and destroying their ships, thereby drawing attacks from media outlets. Such criticism is not entirely fair. Pirates operating out of a failed state are unprecedented in modern times, and the existing international legal machinery is simply not suited to handle them. International law, fortunately, is continually being reinvented as needs dictate, and in no case is this fact better demonstrated than in the legal dilemma posed by the Somali pirates.

* * *

Since ancient Rome, pirates have been labelled as
hostis humani generis—
“enemies of all mankind”—and piracy has been considered a crime of universal jurisdiction, giving states the right to arrest and prosecute suspected offenders outside national boundaries, such as the high seas. Two principal instruments of modern international law define the procedures for exercising this jurisdiction: the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention). Of the two, the SUA Convention is considered to be the more robust, as it contains a broader definition of piracy and includes explicit instructions for extraditions amongst its signatories. In practice, this permits the master of a ship to deliver captured pirates to another state party, thereby theoretically allowing nearby acceding countries like Kenya, Djibouti, Yemen, and Tanzania to prosecute offenders.

However, the SUA Convention is unsuited to the Somali pirate situation for two reasons. First, the terms of the convention permit only the arresting state party—or another state with a demonstrable interest in the offence (for example, if its own citizens are the victims)—to assume jurisdiction over the accused. As a result, the home government of a given warship should usually be stuck with the responsibility of prosecuting. In theory, this obstacle could be overcome through the use of “shipriders,” officials from a third state brought on board a foreign warship in order to conduct the arrest and subsequent judicial process under the laws of their own country. This arrangement, which would legally authorize neighbouring countries (such as Kenya) to step in as the prosecuting authority, has yet to be put into practice.

Second, as an international treaty the SUA Convention applies only to the high seas and has no effect in the territorial waters of a state, which extend twelve nautical miles from its base shoreline.
²
Somalia has no functioning government to administer justice in its seas, but the state remains a legal entity, and its phantom rights persist; by entering Somali waters, foreign navies are technically in breach of international law. In an effort to address this problem, in June 2008 the UN Security Council passed Resolution 1816, a stopgap attempt to use the moral stature of the United Nations to patch the obvious cracks in the existing legal structure. The resolution decreed that states authorized by Somalia’s figurehead Transitional Federal Government (TFG)—a collection of former warlords and self-styled moderate Islamists controlling a few checkpoints in Mogadishu—would be allowed, for a period of six months, to enter the territorial waters of Somalia and use “all necessary means” to repress acts of piracy and armed robbery at sea.
³
The token permission of the TFG was allegedly granted through a letter delivered to the Security Council by the UN permanent representative to Somalia, Ahmedou Ould-Abdullah, though this mysterious document was never made public.
⁴
In reality, Resolution 1816 merely legitimized the status quo, wherein foreign navies routinely violated Somali waters when necessity demanded (on occasion, states have sought the TFG’s explicit permission, as when French forces pursued Boyah’s gang inland following the
Le Ponant
hijacking). Six months later, Resolution 1851 went as far as to authorize the use of ground forces on Somali soil; not surprisingly, no country has volunteered its troops.

In a world without failed states, any Somali caught in the act of piracy—whether in international or Somali national waters—would be handed over to the government of Somalia for prosecution. As noted in earlier chapters, many piracy suspects
are
turned over to the government of Puntland, and occasionally that of Somaliland. Yet, for just cause, international actors doubt the will and capacity of these makeshift governments to seriously prosecute the offenders; furthermore, there is the problem of what to do with suspects originating from southern Somalia, who would undoubtedly go free if returned home.

Since late 2008, the long-term solution has been, in effect, to “rent out” the Kenyan justice system in order to process the backlog of pirate detainees captured by Western warships. In December 2008, Kenya signed a memorandum of understanding (MOU) with the United Kingdom to receive and prosecute pirate suspects apprehended on the high seas, and it entered into a similar agreement with the European Union in March.
⁵
In the same month, American forces handed over seven pirate suspects to the Kenyan authorities, inaugurating a bilateral pact signed two months earlier.
⁶
In essence, these agreements amounted to extradition treaties where there existed no legal reason why the capturing states could not prosecute offenders in their own court systems.

With one of the most overcrowded prison systems in the world and institutional problems ranging from underpaid personnel and staff attrition to a lack of cooperation between the police and prosecutors, Kenya’s legal system may seem a strange choice to assume the complicated burden posed by Somali piracy.
⁷
However, following the refusal of Mauritius to lend its soil to an EU-funded prison, as well as the hostility of Somalia’s other neighbours to the concept of local trials, Kenya, in the words of E. J. Hogendoorn, the International Crisis Group’s Horn of Africa director, was “the last country standing.”
⁸
Nonetheless, Kenyan minister of foreign affairs Moses Wetangula made it clear in a statement that the MOU was not “an open door for dumping pirates onto Kenya [
sic
] soil because it will not be acceptable.”
⁹

The problem was that it was not clear whether Kenyan law allowed the country’s courts to try non-nationals for crimes committed extraterritorially, and pirates’ attorneys were quick to argue that it did not. A test case had occurred in 2006, when ten suspected pirates were arrested by the US Navy three hundred kilometres off the coast of Somalia and turned over to Kenyan authorities. In the country’s first piracy trial, a Mombasa court convicted the accused of hijacking the Indian trading dhow
Safina Al Bisaraat
on the high seas, and each was sentenced to seven years in prison. Subsequent to this ruling, the pirates’ defence lawyer filed an appeal, which was ultimately rejected, arguing that Kenyan courts had no jurisdiction over crimes committed by non-nationals on the high seas.
¹⁰

In the maximum security prison at Naivasha, a booming town on the very edge of Kenya’s Rift Valley, I managed to track down four of the ten men convicted in the
Al Bisaraat
incident. Shackled in irons and dressed in black-and-white striped jumpsuits reminiscent of an old convict movie, they shuffled in silently and took their seats across the wooden table in front of me. Hassan, an abrasive early-thirtysomething with yellowing teeth, sat directly opposite me, assuming the role of the group’s mouthpiece; the other three stared despondently at their handcuffs, occasionally rousing themselves to shout an answer in Hassan’s direction. Though their broken English testified to the language lessons they had been receiving at the prison school, a Somali-speaking Kenyan inmate acted as our interpreter. The meeting took place in the officer’s lounge, and it quickly became clear that Naivasha’s governors had no intention of relinquishing their territory; the prison’s entire senior staff sat in a row over my left shoulder, overseeing the meeting like diligent chaperones.

The hijacking of the
Al Bisaraat
was one of the best-documented early cases of a pirate band seizing a dhow to use as a mothership. On January 16, 2006, two days after loading its cargo at the southern port of Kismaayo, the
Al Bisaraat
was attacked by three small speedboats carrying the ten hijackers, members of Afweyne’s pioneering Harardheere-based pirate group, the Somali Marines.

After assuming control of the vessel, the pirate leader ordered the crew of the
Al Bisaraat
to take the group’s attack skiffs in tow and set a course for the open sea, towards the international shipping lanes. For the next three days, the pirates took the
Al Bisaraat
and her crew on a hunting spree, unsuccessfully attempting to hijack a container ship and a tanker, and registering a direct rocket-propelled grenade (RPG) hit to the bridge of one of their fleeing victims in the process. The gang’s third target, the Bahamian bulk carrier MV
Delta Ranger
, proved to be their downfall; responding to the
Ranger
’s report to the International Maritime Bureau, the destroyer USS
Winston Churchill
was dispatched to the area. After shadowing the pirates with one of its attack helicopters, the
Churchill
twice fired warning shots at the
Al Bisaraat
, following its failure to respond to hails. A three-hour standoff ensued, at the end of which the hijackers panicked and initiated standard pirate operating procedure when faced with superior force: some threw their weapons overboard, while others, strangely, decided to hide them on the ship itself. Shortly afterwards, US naval personnel boarded the
Al Bisaraat
and arrested the pirates.