In 2009 over thirty countries contributed warships to protect vital tankers and cargo ships sailing around the Horn of Africa. While these navies have indeed reduced the number of successful hijackings per 100 attacks, the pirates doubled the number of attacks, vastly increased the area where they can mount assaults, and succeeded in hijacking forty-seven ships in 2009 — five more than they seized in 2008. Despite the presence of a multi-billion dollar armada, merchant ship crews face an increasingly dangerous situation.
Naval commanders, such as the UK’s First Sea Lord, Admiral Mark Stanhope, admit “We are not going to eradicate piracy… While navies will do their very best …we will never solve the problem that is causing it.” The problem the Admiral refers to is the lack of a functioning and national government in Somalia, despite fourteen failed state building attempts by the United Nations and various international powers.
That leaves two choices for suppressing piracy in the region. Rely upon a “surf and turf” approach whereby an international force systemically destroys pirate ports; or change the “low-risk, high-reward” business model that currently exists for pirates through changes in international maritime law.
Sending Marines to raid pirate ports, in order to destroy boats, fuel supplies, and weapons has too many costs to be a workable option. Such an option requires that the international community at least temporarily occupy seventy or more pirate capable ports in Somalia. This occupation undoubtedly would infuriate the local and regional populations, reduce the chance of establishing a Western leaning Somali Government for decades, and create an unnecessary humanitarian crisis. In sum, this method might eliminate piracy from Somali waters but only at the cost of being engaged in another war in an Islamic country involving thousands of Western troops.
There is a better option. One of the great difficulties facing the naval fleet is its limited options for detaining and prosecuting suspected pirates. A robust international legal framework already exists for prosecuting piracy, but it works poorly around Somalia. Under the U.N. Convention on the Law of the Sea a pirate ship is defined as a vessel operated with the intent to commit piracy and a pirate as one who crews such a ship. But a prosecutable definition of intent is not in the treaty and has never been formally expressed. That renders the crime non-prosecutable.
This forces navies to employ a “catch and release” policy sustaining one side of the attractive low-risk, high-reward piracy model. Changing this incentive structure requires eliminating the economic incentives that make piracy attractive. Surprisingly, this war-averting policy option is relatively easy to do.
Our solution resides in updating modern maritime equipment laws and providing a viable judicial system. Just as the 19th century suppression of the slave trade required laws making the presence of leg irons and wooden racks proof of the intent to be a slaver, so too today must we make heavy weapons, excessive horsepower, grappling hooks, and boarding ladders proof of intent to commit acts of piracy. Notably, such changes can be made by the U.N. Security Council or any national government.
Secondly, the world needs a venue for such prosecutions. Any individual state can and should incorporate piracy equipment laws into the jurisdiction of its national courts to make the crime prosecutable. Some East African courts, like Kenya, are making a commendable attempt to prosecute pirates, but lack the capacity to do so and cannot accept new suspects.
An attractive alternative might be India. Piracy attacks are spreading closer to India, and Indian ships or seafarers have been victims in over thirty percent of hijackings. For these and other national security reasons India – supported by the international community – should have an interest in providing the robust legal capacity needed to prosecute a thousand or more suspected pirates on equipment charges proving intent. Armed with the ability to detain pirate boats and a place to deposit crews for prosecution, the navy fleet off Somalia and in the Indian Ocean could effectively sweep the seas clean of pirate vessels. Prospective pirates would quickly learn that the risks have become substantial, and a reward unlikely
Compared to going it alone, a legal, prosecutorial response upholds international law in cooperation with established and emerging powers. It is an opportunity for this administration to demonstrate that a cooperative foreign policy can be more effective at creating security for merchant ships and it might even make our homeland more secure.
One Earth Future Foundation
Captain Norman W. Lemley (USCG, Retired)
A Maritime Security Expert who represented the United States at International Maritime Security Negotiations for over 26 years.
One Earth Future is a not-for-profit, non-governmental ‘Think and Do Tank’ founded in 2007 to confront seemingly intractable threats to global peace and security by developing new and effective systems of governance. The Think Tank side supports the work of the Do Tank by incorporating cutting edge theories, research, analysis and prior experience into the design of the governance structures it develops to address specific threats. One Earth Future’s commitment to implementation ensures that these structures successfully address the current threats and eventually result in an Earth beyond war —hence our tagline, Peace Through Governance.