Coalition Strategy and the Pirates of the Gulf of Aden and the Red Sea

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1 Comparative Strategy ISSN: (Print) (Online) Journal homepage: Coalition Strategy and the Pirates of the Gulf of Aden and the Red Sea James Kraska To cite this article: James Kraska (2009) Coalition Strategy and the Pirates of the Gulf of Aden and the Red Sea, Comparative Strategy, 28:3, , DOI: / To link to this article: Published online: 22 Jul Submit your article to this journal Article views: 1298 View related articles Citing articles: 7 View citing articles Full Terms & Conditions of access and use can be found at Download by: [ ] Date: 08 January 2018, At: 04:03

2 Coalition Strategy and the Pirates of the Gulf of Aden and the Red Sea JAMES KRASKA U.S. Naval War College Newport, RI, United States Introduction The April 2009 seizure of the U.S.-flagged Motor Vessel Maersk Alabama and its twenty American crew members off the coast of Somalia should signal a change in counterpiracy strategy, away from a focus on major warship deployments by distant state major maritime powers, and toward development of a regional maritime security force constructed around numerous smaller patrol craft. Outside powers should focus on further advancing new international law and policy frameworks, which have become the most significant force multipliers for developing maritime security and offer the most effective approach to counterpiracy in the Horn of Africa. Complementing this effort will require a long-term program of regional maritime-security capacity building to support implementation of the new law and policy approaches. Piracy flourishes at the seams of globalization because jurisdiction is unclear and pirates exploit the inherent isolation of individual vessels and nations. Regional powers in the Horn of Africa have underdeveloped law enforcement and judicial systems and suffer from a severe lack of resources. In this setting, global and regional legal and policy frameworks in the areas of operational maritime security, judicial institutions, and law enforcement will be more effective in addressing piracy than adding another warship from an outside naval power to the equation. This article suggests that developing workable legal and policy solutions provides the basis for a coalition strategy against piracy in the Horn of Africa that is more effective than a reliance on dozens of large warships from distant states. Crushing poverty and a virtually lawless environment in Somalia over the past fifteen years failed to do what pirates did there in 2008: trigger sweeping enforcement action in the region by the United Nations (UN) Security Council, resulting in the deployment of perhaps the most eclectic and diverse armada of naval firepower ever assembled. These transformative events represent a promising and ambitious, albeit initial, effort at providing stability, accountability, and order to the beleaguered country by galvanizing attention to address the anarchy offshore. Maritime piracy is launched from coastal towns such as Eyl and Haradhere along the shore of Puntland, and the prospect for a long-term reduction in attacks will require that recent initiatives, which emphasize collaboration, remain aligned and become institutionalized. In the past, coalition strategy against piracy unfolded in an ad hoc and reactive manner but recent efforts hold promise for implementing a more effective and lasting multilateral approach. The international laws and policy that connect the many nations and international organizations into a common enterprise to repress maritime piracy are the keys to addressing the crisis off the coast of Somalia. First, the article assesses the dramatic rise in maritime The views expressed are those of the author and do not reflect the official policy or position of the Navy or the Department of Defense. 197 Comparative Strategy, 28: , 2009 Copyright 2009 Taylor & Francis Group, LLC /09 $ DOI: /

3 198 J. Kraska piracy in the Horn of Africa the number of attacks doubled from 2007 to There were 141 attacks in the area last year. By June there were already 135 attacks for 2009, and Copenhagen-based Risk Intelligence estimated during the summer that the total number of piracy attacks for 2009 would exceed 300. Moreover, the trend is for motherships to launch attacks in new locations, including the Red Sea and closer to the high-profile transit corridor used by very large crude carriers (VLCCs) and liquefied natural gas carriers leaving the Gulf. 1 Next, attention turns toward the operational response, which is composed of a large number and of warships patrolling the western Indian Ocean. Despite naval force deployments by some thirty nations, military presence has been unable to deter the attacks. In the third part, the article analyzes the regional and global efforts, and how these networks can align regional initiatives with action by states from outside the area. With such varied interests converging to address piracy, ensuring there is a unity of effort, effective communication and strategic coordination and support for prosecuting pirates are critical to reducing the threat. 2 In order to contain, and begin to eliminate, the threat of piracy, collective action also should connect the efforts of private industry with those of governments and international organizations, and encompass political, military, financial, and legal support for operations, logistics, and criminal investigations. Toward this end, in the fourth and final section, this article assesses the regional and global actions taken to deter and defeat Somalia s organized maritime bandits, and offers recommendations on how to improve counterpiracy diplomatic efforts to produce a more effective counterpiracy strategy. TheThreatofSomaliPiracy While the incidence of maritime piracy is declining in most areas of the world in recent years due to cooperation among littoral states and the international community, 3 the threat has rapidly increased along the coast of East Africa. 4 In 2008, Somali pirates attacked 141 vessels in the Gulf of Aden and western Indian Ocean. 5 By mid-2009, that number had already been matched, and analysts expect an estimated 314 piracy attacks this year. 6 Somali piracy became the epicenter for maritime crime, in part, due to economic desperation and a virtually lawless environment, all within close proximity of one of the globe s most lucrative trade routes. Thirty-three thousand ships transit the Gulf of Aden annually including some 6,500 tankers carrying seven percent of the world s daily oil supply. 7 The strategic area links trade between the East and West through the neighboring Strait of Bab el Mandeb and into the Suez Canal. Piracy is also occurring in Southeast Asia, off the African west coast, and in the Caribbean, but it was the violence in the Horn of Africa that had global reverberations and forced international action. The proliferation of piracy is wreaking havoc on commercial shipping, just as the global economy collapses in slow motion. 8 Before 1990, piracy in the region was a fairly insignificant occurrence, but a more structured form of maritime piracy emerged in the mid-1990s when armed groups patrolled the exclusive economic zone of Somalia, claiming they were the authorized coast guard charged with protecting Somalia s fishing resources. Conditions on the ground during this period were horrible. A UN peacekeeping operation in 1993 that involved approximately 30,000 soldiers and civilians failed to provide stability, despite great optimism at the time. The U.S. Representative to the UN, Ambassador Madeleine K. Albright, remarked that the 1993 UN Resolution authorizing the force was an unprecedented enterprise aimed at nothing less than the restoration of an entire country as a proud, functioning and viable member of the community of nations. 9 Violence in Somalia and off its coast continued.

4 Pirates of the Gulf of Aden and the Red Sea 199 The coast guard began to attack vessels poaching Somalia s rich fishing grounds, holding the ships and crew for ransom. Soon it became impossible to distinguish between vessels that were seized for illegally fishing, and vessels that were simply seized. In any event, the forceful response was unlawful and a violation of the rules set forth in the Law of the Sea. These practices slowly expanded after 2000, around which time any vessel that sailed near Somalia was at risk of being hijacked. By 2005 the actions of the Somali coast guard reached outlandish proportions, with ships being attacked seemingly at random. 10 Moreover, the pirates gradually extended their reach farther out into the ocean so that they now operate effectively at distances greater than 400 nautical miles from shore. Today the threat of maritime piracy exists in the Horn of Africa because of the dire situation in Somalia, which includes a devastated economy and the lack of the rule of law ashore. In an area where one attack can yield $10,000 for a working-level pirate, such criminal activities have flourished. It would take five years, perhaps considerably longer, for a Somali to earn that much cash. As many as 1,400 Somalis men are now actively engaged in piracy and their ill-gotten revenue is fueling a mini-construction boom along the coastline of the Puntland. 11 The total payoff for hijacking a single ship typically amounts to $500,000 to $1 million, which must be paid in cash prior to the release of the vessel and crew. Some ships and crew fetch as much as $3 million in ransom. Most of the money is siphoned off to organized crime kingpins living in Puntland and who, more recently, have seen fit to retire to elaborate luxury compounds in the exclusive neighborhoods of Mombassa, Kenya. The annual haul for Somali pirates was $30 million in 2008; some estimates place the figure at more than $100 million. 12 The money collected in ransom revenue exceeded the entire budget of the Puntland government for the year. 13 The International Maritime Bureau (IMB), a division of the International Chamber of Commerce, reports that the number of piracy attacks in the Gulf of Aden and off the coast of Somalia doubled from 2007 to 2008, and about one-third of the piracy incidents worldwide occurred in the region last year. 14 To some surprise, the incidence of piracy in the region accelerated in the first half of Somali pirates have become increasingly sophisticated in their methods and operations. They approach merchant ships in small fast boats and are armed with Kalashnikov assault rifles, rocket-propelled grenades, global positioning devices, and walkie-talkies. 15 While the treatment of hostage seafarers spans the spectrum from relatively benign treatment to cruel and horrific, most crew members are not harmed. Hostages have, however, been injured or even killed during piracy attacks. 16 The modern marauders have hijacked a variety of vessels, with slower ships with low freeboard at greatest risk. The Faina was hijacked in 2008 as it was transporting 33 Russian armored battle tanks to Kenya; the very large crude carrier (VLCC) Sirius Star was hijacked as it carried two million barrels of crude oil, valued at more than $100 million, to the United States. The 25 seafarers on board the Sirius Star were held for ransom for three months. The chemical tanker Golden Nori was seized in October 2007 and held for seven weeks, raising concern that the Japanese ship, laden with highly flammable benzene, would be used as a floating bomb. Almost every nation was affected by the Somali attacks in 2008; even those states that did not suffer a vessel hijacking paid more for oil, consumer, goods, and industrial products as a result of increased insurance premiums and cargo risk surcharges, and the added cost of bypassing the Suez Canal and transiting around the Cape of Good Hope. Private shipboard security now can cost as much as $60,000 for a single transit, and transit insurance has risen from $500 to $20,000 for some vessels. Overall transit costs from alternate routes could top $30,000 a day. 17 As insurance costs skyrocket, shipping companies have incentive to conduct the transit uninsured or underinsured.

5 200 J. Kraska Whether occurring in the Caribbean Sea in the 18th century or in the Gulf of Aden in the twenty-first century, nothing is as inimical to piracy as peace, good government, and the rule of law. 18 Piracy endangers sea lines of communication, interferes with freedom of navigation and the free flow of commerce, and undermines regional stability. 19 Maritime piracy has a vicious history, undermining the shipping network essential for maintaining global communications, trade, and political stability. 20 The devastating effect of this loathsome activity 21 goes beyond the immediate threat to seafarers, cargo and ships. As piracy spirals out of control off the Somali coast, concern has grown about the threat to global trade as well as the effect of millions of dollars in ransom flowing into the hands of piracy clans and warlords operating from the Puntland region of Somalia. Wherever piracy occurs, it is frequently emblematic of more systemic problems that need to be addressed. Ultimately, the best way to halt the attacks off East Africa is to increase governance and the rule of law in Somalia, as the country lacks the capacity to patrol its own waters. 22 General John Craddock, NATO Commander, who also serves as the Commander, U.S. European Command, stated, You don t stop piracy on the seas. You stop piracy on the land. 23 The problem of piracy raises, once again, the critical need for a political, economic, and governance plan to stabilize Somalia. Regional states should step forward to provide the key leadership. Current Efforts In response to these threats, strengthened relationships have emerged among states in East Africa, the major maritime powers, and the largest shipping nations. Globally focused international organizations, including the UN, the International Maritime Organization (IMO) in London, and the European Union (EU) and North Atlantic Treaty Organization (NATO), have aggressively supported piracy repression efforts. Collective efforts include a campaign to deter and defeat the crime of sea piracy, interception of money transfers involving ill-gotten ransoms and, as displayed by French commandos to recapture the French sailing yacht Tanit in April 2009, forced-entry or noncompliant boarding. After the U.S.-flagged M/V Maersk Alabama was seized with twenty American crew members on board, patience began to wear thin amid calls for expeditionary military action in select coastal towns and villages in the Puntland state of Somalia to decapitate the maritime gangs. On the operational end, a host of nations, including France, Denmark, Malaysia, India, and Russia, have sent warships to the area. Combined Task Force 151, a multinational coalition established in January 2009, coordinates with the U.S. Navy s Fifth Fleet and operates in the Horn of Africa to fight piracy. Several nations, including Turkey, support Task Force 151. Comprehensive working groups developed at the UN have also emerged in recent months under a Contact Group for Piracy off the Coast of Somalia. The EU response includes deployment of naval vessels and surveillance planes to the Horn of Africa under Operation Atalanta. 24 Belgium, the United Kingdom, France, Germany, Greece, the Netherlands, Spain, and Sweden have made contributions to the EU effort. 25 Other nations are heeding the call, including Switzerland, Iran, Japan, South Korea, and China. The landlocked Swiss, who do not operate a single warship, plan to deploy thirty personnel to support piracy repression operations. Iran sent its warships 4,000 miles to the area to protect its flagged vessels, many of which are transporting oil. Following considerable debate, Japan ordered assets from its Maritime Self-Defense Force to the region in what officials in Tokyo describe as a police action. The Japanese government has adopted an antipiracy bill in the Diet to authorize its warships to use force to disrupt piracy, rather than relying solely on the inherent right of selfdefense. The resolution accompanying the Japanese bill indicates that the deployment is authorized to protect Japanese lives and

6 Pirates of the Gulf of Aden and the Red Sea 201 property and to ensure public security and order on the high seas. China s deployment of two destroyers and a supply ship to the region marks Beijing s first operational naval mission beyond East Asia in four hundred years. Sailing from Hainan island, the task force consists of 800 sailors. More than 1,200 Chinese vessels, comprising one-third of the country s seabound trade, annually transit the Gulf of Aden and are at risk while operating in the region. Counter-Piracy Regimes International collaboration is particularly vital for securing the maritime domain, a global common in which all nations may exercise community rights in the peaceful uses of the oceans. The seas are subject to a unique but well-developed combination of flag state, port state, and coastal state regimes of jurisdiction. These interlocking, complementary regimes delineate jurisdictional rights, duties, and responsibilities exercised by nations at sea. Nations with vessels licensed in the state and registered under the national flag of registry are called flag states. Flag states normally have exclusive jurisdiction over vessels flying the flag. Nations geographically situated on or along the shoreline of the sea are coastal states, and they (coastal states) may assert sovereignty, or certain designated sovereign rights and jurisdiction in ocean space adjacent to the coastline. Coastal states also may elect to develop areas of their shoreline with features and construction designed to accept international shipping commerce, thereby acquiring the status of a port state. Port states inure associated legal obligations and duties of operating shipping and port facilities, as well as assume privileges inherent in port state control for regulating activity on board vessels that call on the port. The Law of the Sea Convention balances the rights and duties of flag, port and coastal states, so the entire architecture of oceans law represents a package deal that distributes authority among the three types of states. Furthermore, a nation may simultaneously function as a port state, a coastal state, and a flag state. Most of the oceans and airspace above the seas lay beyond any coastal state s jurisdiction, so cooperation with flag states which typically exercise exclusive jurisdiction over their vessels at sea is essential for effective action. Along with tremendous challenges are unprecedented maritime partnering opportunities. Achieving success in repressing piracy requires a strategic vision, bold national commitments, integrated regional action, and longterm international support. In an intimately interconnected world [in which] the problems faced by nations are... complex and trans-boundary in nature, remarked Teo Chee Hean, the Singaporean Minister of Defense,... it is clear that problems can no longer be solved by a single power or even a small group of powers in concert. 26 In support of the multinational effort, Singapore also deployed a warship to the Horn of Africa. Maritime piracy is a violation of international law as well as a universal crime. The legal regimes for countering piracy emerged from customary international law, the 1958 Convention on the High Seas, and the 1982 United Nations Convention on the Law of the Sea. 27 Maritime piracy occurs on the high seas or in any other place outside the jurisdiction of a state, such as an ungoverned area like Somalia s territorial sea. Customary international law provides that any nation may assert jurisdiction over piracy, including the state of registry of the attacked vessel, the nationality of any of the victims on board the vessel, and in some cases coastal and port states. This longstanding norm is reflected in the Law of the Sea, and article 100 requires states to cooperate in the repression of piracy outside of any state s territorial seas. Piracy is defined as any illegal act of violence, detention, or depredation committed for private (rather than political) ends by crew or passengers of a private ship or aircraft against

7 202 J. Kraska another ship, persons, or crew. 28 For a violent act to meet the definition of piracy, it must be committed outside of a state s territorial waters. Inside territorial waters, such crimes constitute armed robbery at sea and are the responsibility of the coastal state. Armed robbery at sea in territorial waters can, a few meters away, be considered piracy. More precisely, the Law of the Sea defines piracy as consisting of the following acts: a) Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or private aircraft, and directed i) On the high seas, against another ship or aircraft, or against persons or property on ii) board such ship or aircraft; Against a ship, aircraft, persons or property in a place outside the jurisdiction of any state; b) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of the facts making it a pirate ship or aircraft; c) Any act of inciting or intentionally facilitating an act described in subparagraph (a) or (b). 29 For statistical purposes, the IMB has adopted a broader approach by combining the terms piracy and armed robbery at sea into a single term, piracy. For the IMB, piracy is an act of boarding or attempting to board any ship with the apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in the furtherance of that act. 30 The Baltic and International Maritime Council (BIMCO), the world s largest ship owner s association, has suggested ocean shipping would be made more secure by including piracy in statistics collected for marine cargo theft, maritime drug smuggling and human trafficking, as well as maritime terrorism, creating a single omnibus category, maritime crime. The Law of the Sea also contains provisions relating specifically to maritime security. Article 99 pertains to trafficking in human slaves, articles address piracy, and article 111 contains provisions for hot pursuit from the high seas into a coastal state s territorial sea. International maritime drug trafficking became more prevalent during the decade of negotiations for the treaty and the convention also provides for the control of the illicit traffic in narcotic drugs in article 108. Article 110 incorporates the customary norm in international law that warships may approach commercial vessels in order to determine their nationality. The convention also permits a right of visit or boarding on the high seas by warships of all nations, even without the consent of the flag state, for the purpose of disrupting certain universal crimes, such as human slave trafficking and maritime piracy. This peacetime right of approach and visit is separate from the belligerent right of visit and search of neutral vessels in the law of war. Approach and visit provides authority for warships to make inquiries of merchant ships at sea in order to ascertain certain basic information and to determine whether the vessel is involved in piracy. The belligerent right of visit and search is restricted to wartime settings, and authorizes belligerent parties to board merchant ships in order to ensure that the vessel and cargo are not providing support to the enemy. 31 Article 92 of the Law of the Sea Convention indicates that vessels normally are subject to the exclusive jurisdiction of the flag state on the high seas. If a vessel claims to sail under the flag of two states, the ship may be assimilated to a ship without nationality, in which case any nation may take enforcement action against it. There exist a few narrow exceptions to exclusive flag state jurisdiction. The challenges of maritime security and safety have led some analysts to suggest that states should expand the narrow exceptions to exclusive flag state jurisdiction. 32 Proposals to weaken flag-state jurisdiction, however, should be

8 Pirates of the Gulf of Aden and the Red Sea 203 rejected. Enforcement and compliance are most effectively accomplished in port and with the collaboration of all interested parties, with the flag-state playing the central role. In addition to flag-state consent under articles 92 and 94 and port-state control measures under article 25 of the Law of the Sea, there already exist ample legal authorities for boarding vessels, including invitation of the master of the vessel and pertinent UN Security Council enforcement action. Ultimately, if a vessel presents a case of armed aggression against a state, a threatened state may conduct a boarding based on the inherent right of individual and collective self-defense under article 51 the UN Charter. Furthermore, all states are authorized to take action against maritime piracy because it is a violation of international law and a universal crime. The status of piracy as a universal crime makes it an important exception to the norm of flag-state jurisdiction. For many states, however, criminal law does not apply beyond the edge of the territorial sea. In such cases, even though all states may take action, if a particular state does not have domestic criminal codes proscribing the conduct, it will most likely not be able to initiate prosecution. 33 Difficulty associated with prosecuting maritime piracy has led states to avoid the courtroom. In one case in 2008, Denmark simply released Somali pirates after capturing them. 34 The Danish government was not convinced it could convict the pirates, even though the men had been found with assault weapons and handwritten notebooks outlining how to split the spoils of their crime among the warlords. 35 In that case, the ship and its crew were released, but it was a troubling outcome to many, including the commanding officer of the Danish vessel involved: We catch them, confiscate their weapons, and then we let them go... it s frustrating. The policy has been criticized as catch and release, and in addition to Denmark, Germany and France have released pirates and the Foreign Ministry in London warned the Royal Navy that if it brought Somali pirates into the country, the individuals could be granted political asylum. The landscape is changing, however, as Paris is poised to prosecute Somali pirates in French court and the British, as well as the United States, have signed prosecution support accords with Kenya. As the specialized international agency for maritime matters, the IMO has been the most active and effective multilateral institution in creating awareness, support, and frameworks for combating piracy. 36 The IMO, which consists of 167 member states, works extensively with nongovernmental organizations and the cargo and shipping industry. Since the international organization is funded by member states in accordance with a formula based on the size of their shipping registry, the states with the largest open registries Panama, Liberia, and the Bahamas fund more than thirty percent of the budget of the IMO. Because of this funding formula and shared responsibility for maritime security, the organization dispenses with much of the politics endemic in UN agencies and has an admirable history of accomplishment. Since 1998, the IMO has conducted an antipiracy project consisting of a number of regional centers and workshops, with participants coming largely from piracy-infested areas of the world. The project included a number of evaluation and assessment missions to areas particularly affected by piracy. The goal of the meetings and assessment missions was to foster greater integration of regional antipiracy efforts. In missions were held in Jakarta, Indonesia, Singapore, Guyaquil, Ecuador, and Accra, Ghana. 37 A multilayered regional approach to piracy in the Straits of Malacca and Singapore has led to significant reductions in maritime piracy in Southeast Asia. Under the leadership of Japan in 2004, sixteen nations signed the Regional Agreement on Combating Piracy and Armed Robbery (ReCAAP) against ships in Asia, the first treaty dedicated solely to combating piracy. 38 The treaty, which entered into force in 2006, established an Information Sharing Centre in Singapore to share and coordinate piracy-related information among

9 204 J. Kraska member states. This ambitious endeavor has better equipped states to communicate and respond. The Information Sharing Centre s Executive Director, Yoshiaki Ito, stated that the organization enables parties to attain greater operational coordination and efficiency. 39 In part, this is accomplished through information sharing, but the pact also focuses on capacitybuilding initiatives and establishing cooperative arrangements with interested parties. 40 The ReCAAP program is an effective regional approach that could serve as a model for the Horn of Africa. ReCAAP requires member states to designate representatives to act as conduits for decisions and to pass information to other countries. Each ReCAAP signatory has an assigned a point of contact to represent the government in coordinating piracy responses with other member governments. The responsibilities of each ReCAAP focal point member includes authority for managing and coordinating all incidents of piracy and armed robbery against ships within their jurisdiction. The focal point is also the lead within the government for acting as a conduit for the exchange of information, facilitating national country law enforcement investigations, and coordinating counterpiracy surveillance, and is available any time of day or night and every day of the year. 41 In November 2007, IMO Resolution A.1002(25) called upon regional states in East Africa to conclude an international agreement to prevent, deter, and suppress piracy. 42 Seeking to replicate the success of ReCAAP, the IMO sponsored meetings from in Yemen (Sana a Seminar), 43 Oman (the Oman Workshop), and Tanzania (Dar es Salaam), 44 to reach agreement among regional states developing a treaty against piracy in the western Indian Ocean. These efforts were focused on opening up the possibility of regional international agreements to implement antipiracy measures. 45 A final meeting in Djibouti in January 2009 produced a regional agreement to facilitate cooperation in the prosecution and repatriation of captured Somali pirates. The agreement includes the concept of a Regional Maritime Information Centre or System that would serve the same function as ReCAAP s Information Sharing Centre. 46 The regional pact is not legally binding, however, and the states should revisit the issue and cement their relationship through a legally binding obligation. The obvious difficulty with the states of East Africa creating a regional counterpiracy center is that they lack the capacity to carry out the Djibouti mandate independently. In order to effectively implement the Djibouti Code, the Arab and African state parties will have to obtain funding for construction of a counter-piracy center, and technological systems for managing information-sharing and possibly maritime security command and control. In this regard, front line states in the region such as Saudi Arabia, which has suffered piracy attacks against oil tankers, and Egypt, which has seen traffic through the Suez Canal plummet, might be considered prime candidates for sponsoring implementation of the Djibouti Code of Conduct by funding a counter-piracy center. The U.A.E. also has a stake in reducing piracy in the region and likely could serve as a sponsor for the project. The regional model that may be most promising for the Gulf of Aden is one that could be borrowed from the other side of the continent of Africa the Gulf of Guinea. The Maritime Organization of West and Central Africa (MOWCA) was created in 1975 but initially enjoyed an unremarkable record. Like the progressive city of Abidjan, Cote d Ivoire, in which it is headquartered, however, MOWCA is experiencing a renaissance. The forum is helping the member states cooperatively manage all matters of a maritime character port and vessel security, maritime constabulary functions, and safety of navigation, and environmental protection. The network has launched several programs to enhance collaboration in the international shipping transport sector, strengthening maritime security throughout the West Coast of Africa. In 2006, MOWCA conducted a forum in Dakar, Senegal in conjunction with the IMO for establishing an integrated coast guard network. The Dakar meeting led to a

10 Pirates of the Gulf of Aden and the Red Sea 205 Memorandum of Understanding in July, 2008 to establish a Sub-regional Coast Guard Network for the West and Central African region. The comprehensive agreement creates an institutional framework for close cooperation on suppression of piracy and armed robbery at sea; countering terrorism at sea; illegal, unreported, and unregulated (IUU) fishing; drug trafficking; fuel theft; and smuggling and pipeline security and maritime accident response. The agreement also provides guidelines for coastal surveillance, maintaining presence in the exclusive economic zones, and enforcement of international treaties, especially the Law of the Sea and related IMO instruments. It is remarkable that of the twentyfive MOWCA states, five are land-locked, demonstrating that all states concerned with facilitating international trade and enhancing regional stability have a stake in maritime security. 47 The IMO was involved in yet another regional initiative that serves as important precedent for increasing maritime cooperation in the Horn of Africa. In 2005 more than twenty-five user states and the littoral states of Malaysia, Indonesia, and Singapore met in Jakarta to develop a framework for improving maritime safety, security and environmental protection in the Straits of Malacca and Singapore. 48 The Jakarta Initiative began a series of meetings and increased cooperation among the littoral and states using the straits and the international shipping industry. 49 The meetings have been effective in facilitating an increase in maritime patrols by the straits states and toward focusing user states on assisting with capacity building. The negotiations were continued in Kuala Lumpur in and in Singapore in At the Singapore meeting, states signed the Cooperative Mechanism, an agreement that provides for user states to help littoral states develop maritime security capacity for the management of the straits. The Cooperative Mechanism marked the first time that littoral and maritime states have worked together to ensure the safety and security of an international strait, as envisaged in Article 43 of the Law of the Sea. A similar agreement could be reached between Yemen and Djibouti to manage the Strait of Bab el Mandeb, and more broadly as a model for regional states to cooperate to patrol the dangerous Gulf of Aden. The Singapore meeting also recognized the contributions of the straits states in the development of Malacca Strait security initiatives. The successes of ReCAAP and the Jakarta Initiative illustrate how multilateral institutions can serve as a basis for meaningful cooperative responses to maritime piracy in narrow seas. An early lesson that may be derived from both experiences is that building partnership capacity, along with a strategic vision, is a prerequisite for developing greater cooperation and coordination for maritime security at the regional level. The regional efforts have effectively improved maritime governance by institutionalizing the development of strategy, integration of effort, and focus in the fight against piracy and maritime crime. The United Nations Security Council took historic action against Somali piracy by adopting four resolutions in 2008 to enhance collaboration, strengthen operational capabilities, remove sanctuary, expand legal authorities, and support prosecution efforts. The resolutions were decided under chapter VII of the UN Charter, which authorizes all necessary means, and the instruments are legally binding on all states. First, the Security Council adopted Resolution 1816 in order to obtain greater international cooperation against Somali piracy. 52 Prior to adoption of Resolution 1816 last summer, pirates had eluded capture by boarding parties from warships operating in international waters by fleeing into Somalia s twelve-nautical-mile territorial sea. 53 Resolution 1816 closes that sanctuary by authorizing, for a period of six months, entry into Somali s territorial waters. The resolution, which since its adoption has been extended, also sought to build greater international assistance for disposition and logistics of persons under their

11 206 J. Kraska jurisdiction and control obtained as a result of counterpiracy operations, including victims, witnesses, and suspected pirates. This is particularly important since several persons were captured and then remained on board U.S. warships for an extended period of time in 2006, an occurrence that can have a chilling effect on naval suppression. The resolution emphasized logistics and prosecution collaboration by calling on states to cooperate in determining jurisdiction, and in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia. Resolution 1816 also encourages states to increase and coordinate their efforts to deter acts of piracy in conjunction with the Transitional Federal Government (TFG) of Somalia, one of the ruling authorities inside the fractured state. Since Resolution 1816, the UN Security Council has repeatedly recognized the authority of the TFG as the governing body in Somalia. If indeed the world intends to recognize the TFG as the lawful government, then the international community should do more to ensure that the organization is successful in governing and maintaining the rule of law. The resolution further called on states, the IMO, and other international organizations to build a partnership to ensure regional coastal and maritime security. The TFG has no maritime law enforcement capability, and the resolution makes clear that states should support the ability of Somalia to patrol its near shore environment. There has been some movement toward responding to the needs of Somalia. A UN-EU donor s conference in Brussels in April 2009 set out to raise $166 million in support to help bring stability to the war-torn country; instead, the conference collected $250 million in pledges from the three dozen participating nations. 54 Next, the Security Council adopted Resolution 1838 in October 2008, expressing its grave concern, by the recent proliferation of acts of piracy and armed robbery at sea against vessels off the coast of Somalia, and by the serious threat it poses to the prompt, safe and effective delivery of humanitarian aid to Somalia, to international navigation and safety of commercial maritime routes, and [fishing] The resolution called upon states to take part in actively fighting piracy by deploying naval vessels and aircraft. Further, the resolution urged states to promulgate IMO-developed guidance to their ships regarding precautionary measures to protect vessels from attack when sailing in waters off the coast of Somalia. 56 On December 2, 2008, the Security Council adopted Resolution 1846, which significantly broadened the international political support and legal capabilities to combat piracy off the Somali coast. 57 European Union President Jean-Maurice Ripert commended the Security Council resolution at the time of the adoption of the resolution, stating,... [b]y adopting Resolution 1846, the international community is sending a very strong signal, of its determination to deal with piracy. 58 Resolution 1846 suggests that the 1988 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) may be used by states to cooperate in the extradition and prosecution of pirates. The 1988 SUA Convention emerged from the tragic attack on the Italian cruise liner Achille Lauro, and the treaty provides a mechanism for states to cooperate in investigation, extradition and prosecution of persons who have hijacked or attacked a vessel. 59 States that want to prosecute maritime piracy but do not have national laws proscribing the crime could prosecute under legislation that implements SUA commitments. The challenge of holding pirates accountable through criminal prosecutions has been repeatedly cited as the one of the most vexing in containing piracy. The Security Council urged the 149 state parties to SUA to fully implement their obligations to build judicial capacity for the successful prosecution of persons suspected of piracy and armed robbery at sea off the coast of Somalia. Some have raised doubt regarding the number of states parties that have actually enacted such legislation, however. 60

12 Pirates of the Gulf of Aden and the Red Sea 207 A key SUA offense is to unlawfully and intentionally seize or exercise control over a ship by force or threat or other form of intimidation. The treaty provides that state parties shall either prosecute a violation or extradite the offender. Further, the treaty requires state parties to make SUA offenses punishable by penalties that take into account their grave nature. In 2005, SUA was amended with two protocols that promulgate a new legal framework to combat the proliferation of weapons of mass destruction and their delivery systems on board vessels and platforms at sea. 61 The revised treaty obligates state parties to criminalize attacks against vessels and establish jurisdiction over such offenses for ships flying their flag. Leveraging states SUA obligations in conjunction with existing international law against piracy provides an effective legal framework to deliver an endgame. 62 Until regional and bilateral agreements are executed, along with more structured coordination, disposition and logistics issues associated with persons picked up during counterpiracy operations will persist. In part, this is because piracy prosecutions involve cases with suspects from one country and witnesses and victims from others. The vessel likely is registered in yet another state, and is transporting cargo owned by corporations from one or more additional countries. In addition, the flag state of the warship that conducts the interdiction could be from a distant state and on a deployment in the region. In the past, coordination on Somali piracy disposition and logistics issues was ad hoc, but the Security Council provides the ideal opportunity to institutionalize collaboration. Particularly with the large numbers of warships operating in the area, the international community should work to develop a single regional counterpiracy center that can coordinate and deconflict naval operations. On December 16, 2008, Security Council Resolution 1816 authorized all necessary measures to fight piracy, and authorized military operations on Somali soil by the international community to subdue piracy base camps and shore-based operations. At the time of its adoption, some diplomats expressed concern over the authorization to enter Somalia, and the potential impact that the decision might have on state sovereignty in other venues. The Indonesian Foreign Ministry s Director General for Legal and International Treaties, Arief Havas Oegroseno, considered the resolution too loosely worded, raising fears it could be generalized in future for application in other jurisdictions. 63 This concern repeated a longstanding hesitancy by Indonesia for the Security Council to authorize international action in Somalia s waters, a position that was evident from the beginning of the discussion on Resolution Jakarta initially was uncomfortable with Resolution 1816 because Jakarta struggles to maintain adequate maritime patrols throughout its vast archipelago, making Indonesia especially sensitive to calls for the UN to authorize member states to intervene in ungoverned maritime space. Mr. Oegroseno s comments also reflected Jakarta position regarding the three earlier UN resolutions because they could serve as precedent for the Security Council to intervene in the Straits of Malacca and Singapore, the Lombok Strait, and the Sunda Strait three of the world s thirteen major straits. 64 To eliminate ambiguity regarding the nonapplication of the resolution beyond Somalia, the final draft contained a provision indicating that it applies only with respect to the situation in Somalia and that it does not establish new customary international law. 65 In November 2008, a UN-sponsored working group met in Nairobi, Kenya to consider new legal and political approaches to combating piracy. 66 Commissioned by Ambassador Ahmedou Ould-Abdallah, the Special Representative of the Secretary General of the United Nations to Somalia, the group produced the most thorough UN study to date of the legal and policy issues associated with Somali piracy. Experts from private industry, diplomats, military, humanitarian and peacekeeping sectors met for eleven days to produce the

13 208 J. Kraska comprehensive report, which spans almost 100 pages. The group examined what already has been done to repress piracy, including efforts at the local, regional, and international levels, along with recommendations on additional steps that should be taken. Several operative paragraphs of UN Security Council Resolution 1851 reflect recommendations made by the group, so the report stands as an authoritative and unparalleled source for understanding the context and background of the problem of maritime piracy in the Horn of Africa. The Nairobi Report describes Somalia s descending trajectory and how the situation there has become a global imperative. For nearly twenty years, Somalia has been a failed state, a virtual black hole in the international community, and an area divorced from the world economy, regional and global institutions, and the rule of law. 67 So long as the problems of Somalia were confined within its borders, global attention was focused elsewhere. 68 The report concluded that piracy could not be curbed off the Somali coast without establishing minimum law and order in Puntland and the other coastal areas of Somalia. Stability on land must be complemented with the disruption of the illicit revenues from maritime piracy, and implementation of vessel security measures to minimize the risks of new attacks on ships at sea. 69 Providing stability on the ground is difficult because the three Somali governments all struggle with governance systems, human resources, and delivery of public services that are inadequate and overwhelmed. These problems are exacerbated by a decrepit physical infrastructure. 70 The underlying economic and political challenges include crushing poverty, widespread unemployment, environmental hardship, a reduction of pastoralist and maritime resources due to drought and illegal fishing and a volatile security and political situation. 71 The confluence of these factors keeps the country on a downward arc and contributes to the rise and continuance of piracy in Somalia. The Nairobi Report recommended that states should monitor the Somali coast through manned or unmanned airborne surveillance. 72 There are several useful systems to enhance maritime domain awareness. A ship outfitted with Automatic Identification System (AIS), for example, is able to display similarly equipped vessels or shore receives information such as vessels size, heading, and speed. Based on the VHF band, AIS allows ships to transmit their location and other data to other nearby vessels and port facilities, providing a degree of transparency at sea. But operation of AIS both increases maritime security and at the same time raises security concerns because information is broadcast and made available to anyone, including, potentially, pirates or terrorists. Likewise, the report recommended that states should establish a shore monitoring system using local communities to look out for boats suspected to be involved in piracy, illegal fishing, or illegal dumping. 73 Other Nairobi Report recommendations include developing new approaches to disrupt the source of income from piracy through a consistent response to ransom demands. The decision not to pay a ransom demand (or indeed to authorize an attempt to release a ship by military force) is almost always a decision that is too big for ship owners and even governments to take on their own. 74 It is axiomatic that when ship owners and governments pay ransoms, they unintentionally place at risk other future seafarers and vessels. Nevertheless, it may be impossible to ignore calls from the ship owners, family members of seafarers, the general public, and media. Somali pirates regularly force crewmembers to telephone family members at home to inform loved ones that they are about to be killed or tortured if ransom is not paid. The families bring pressure on companies and governments, often through the media, in order to whip up public interest and pressure. 75 One of the best ideas to reduce the payment of ransoms has been proposed by Professor John Norton Moore, Director of the Center for Oceans Law & Policy at the University of Virginia School of Law. Professor Moore has suggested that the IMO develop a new treaty that requires countries to make the practice of payment of ransom illegal. Although this would not stop