Arming crew members makes violence more likely. And killing pirates can lead to reprisals, warns James Clarke.
Piracy on the high seas is not new. But it has come to the forefront of the international media in recent months due to the increased number of attacks off the coast of Somalia. The number of such incidents doubled in 2008 and is expected to continue to rise in 2009. One of the most high profile cases of recent times was the seizure of the US flagship, the Maersk Alabama, the 67th such attack recorded by the International Maritime Bureau in 2009.
Before we solve the piracy problem we need to understand why it has become such an issue. The definition of piracy (provided by the United Nations) is based on the assumption that each country is equipped with the ability to deal with it. Whilst it is true that some countries may be able to, countries such as Somalia are not. They lack the appropriate systems to deal with the policing, patrol and persecution of the perpetrators. Despite this, the international community has attempted to provide a concerted response to the increased activities of pirates in the Gulf of Aden.
The “John Wayne” approach adopted by the US to the situation does not necessarily make it the most effective way forward. In following this approach and arming crew members, there is an increased likelihood of the pirates themselves turning their firearms on foreign ships and their crew. The arming of crewmembers also has significant commercial and legal effects for ship owners, including increased insurance premiums. The legal problems stem from the fact that civilians are not legally able to carry lethal weapons when entering ports of foreign countries. The use of force in defending
vessels by their crew is an issue, which can only be answered by reference to the law of the Flag State. Under English law, the question will be answered by looking at whether or not there is a threat, and whether the use of force in response, is lethal or proportionate to the threat.
A further legal minefield is what to do if you capture a pirate. For example, last year the Danish captured ten pirates but six days later they had to be freed back to Somalia as Danish Law did not permit them to be tried before a Danish court. This has been slightly helped by an agreement that Kenya will put captured pirates on trial.
Following the killing by US Navy officials of three bandits responsible for the kidnapping of Richard Phillips the captain of the Maersk Alabama, attacks against US vessels have increased as demonstrated by the recent attack on the Liberty Sun. This pattern of reprisal attacks is well documented and supported by the Somali pirate reaction to French military action in September 2008. It is important to bear in mind that the Somali pirates believe their acts of piracy are a justified means of protecting their coastline and that the ransoms represent compensation for the depletion of fishing stocks in the Indian Ocean.
What recent events have shown us is that the long term solution to the piracy problem is the establishment of a competent Somali government, which will not be achieved overnight. Therefore in the medium term it is necessary to continue under the authority of the United Nations to maintain and increase the presence of foreign warships in those areas most at risk. It is important that in the absence of a Somali coast guard for countries to work in conjunction with Somali authorities to assist with the blockades, ship recoveries and hostage search and rescues. Whilst the arming of crew members is unlikely to resolve the situation a constructive show of force as outlined above in the areas most affected may have the effect of deterring the pirates. What is required above all else is countries working together to establish a competent Somali government.
James Clarke is Solicitor at els International Lawyers