Published 23 Apr 09
by J. Peter Pham, Ph.D.
World Defense Review columnist
Pondering Somali Piracy
When I wrote in this column three weeks ago that "the Somali pirates have hardly been cowed by the international naval presence" in the Gulf of Aden and "have simply shifted their operations to areas which they know are not being patrolled, with strikes increasing taking place on the high seas," little did I know how quickly events would confirm my analysis. On April 8, four pirates hijacked the Norfolk, Virginia-based MV Maersk Alabama, while the boat was some 240 nautical miles of the Somali coast en route to Mombasa, Kenya, with humanitarian supplies for Kenya, Somalia, and Uganda. Although the crew eventually managed to regain control of the ship, its captain, Richard Phillips, was taken by the marauders as a hostage when they fled in one of the covered lifeboats, precipitating a standoff that lasted until April 12, when the United States Navy SEALs operating from the Arleigh Burke-class guided missile destroyer USS Bainbridge shot and killed three of the pirates and took the fourth one prisoner. However, as I wrote last week in an invited commentary for the online edition of Foreign Policy magazine, while "the incident highlights what the world's best trained military can accomplish under the right conditions," the string of attacks which followed the failed seizure of the Maersk Alabama also "underscores the limits of force in the face of a seemingly intractable challenge posed by the Somali pirates."
Before outlining the elements of an effective approach to the problem – the subject of my column next week – it would be helpful to review a few factual and conceptual points with an eye to better appreciating the complexities actually involved in this confronting this challenge.
The Myth of the "Good Pirate." As I made the round of media appearances and interviews in the wake of the Maersk Alabama, one of the most annoying canards which I repeatedly encountered was the line, propagated by pundits in the West who for the most part knew nothing about Somalia until the country's pirates began to lead the news cycle, that the marauders were modern-day Robin Hoods defending Somali waters from reported incidents of illegal commercial fishing and toxic waste disposal. At one point, I was so vexed by the mantra that I was quoted by William Eagle in a Voice of America (VOA) report as calling one such apologist "woefully misinformed."
Aside from the fact that the pirate gangs are highly-organized criminal enterprises and not just spontaneous groups of unemployed fishermen, most of the attacks nowadays are taking place well beyond not just the limit of 12 nautical miles which the United Nations Convention on the Law of the Sea (UNCLOS) fixes for any country's territorial waters, but also the 200 nautical miles from shore which the treaty allows for a state's exclusive economic zone. Last Wednesday, for example, the French Navy's Floréal-class light surveillance frigate FS Nivôse, participating in the European Union's counter-piracy Operation Atalanta, thwarted an attack on the Liberian-registered cargo ship MV Safmarine Asia and captured eleven pirates 550 nautical miles east of Mombasa.
Moreover, if their motivation was to protest alleged abuse of the Somali environment by outsiders, the pirates certainly have a strange way of pursuing about their purported objectives. Earlier this week, for a ransom payment reported to be just over $ 2 million, they finally released the Filipino-flagged chemical tanker MV Stolt Strength which, along with its crew of twenty-three, had been held since it was seized November 10, 2008, while sailing through the Gulf of Aden from Dakar, Senegal, to Kandla, India, with a load of phosphoric acid. During the months it was held off the pirate base of Xarardheere on the central Somali coast, the Stolt Strength ran out of fuel for its generators and thus could not keep the corrosive cargo circulating. The danger was that the flammable hydrogen gas created could have exploded if ignited, spewing tons of toxic phosphorous oxides into the air and, eventually, into the seas. As the weeks go by and their fuel supplies run out, the dozen and a half hijacked vessels still being held off Xarardheere, Eyl, and other Somali ports by the pirates likewise represent a growing threat to the Somali shore should they become unmoored and run aground – an ecological disaster of unthinkable magnitude courtesy of the supposedly environmentally conscientious raiders conjured up in the minds of "politically correct" members of the Western commentariat.
Ransoms and Insurance. In a Center for Strategic and Budgetary Assessments paper published earlier this week, my colleague Dr. Martin Murphy succinctly summarized the distinguishing characteristic of Somali piracy: "Somali pirates are very different: in their model it is the crew who are valuable not the ship or its cargo; their aim is to exploit the difference between the marginal value placed on human life in Somalia and its value in the outside world." Clearly, with ransoms rising in the past few years to their current levels well in excess of $1 million even as the Somali economy continues to languish, individual Somalis do not need much persuading to embark on careers in piracy.
The ship owners, however, are in an impossible position. On the one hand, every one of the executives I have spoken to over the course of the last year is fully cognizant of the fact that the payment of ransom, whether by a hijacked ship's owners or insurers, encourages further acts of piracy. On the other hand, as the chief executive officer of one firm asked me recently, "What can we do? If we don't pay and a prolonged hostage situation ensues, we face unrelenting pressure from families, politicians, and media." The only solution would be for governments to ban the payment of ransoms – and to enforce that prohibition. It is the classic "tragedy of the commons" in which the incentives are almost irresistible for any single firm absent legally binding and enforceable norms imposed by higher power. For firms with links to the United States, for example, the report last month by United Nations Secretary-General Ban Ki-moon that government officials in the northeastern Somali region of Puntland as well as those in the "Transitional Federal Government" (TFG) of Somalia are complicit in piracy and the fairly clear indications that al-Shabaab, an al-Qaeda-linked Somali group that was formally designated a "foreign terrorist organization" last year by the U.S. Department of State, is getting at least a part of the ransom proceeds in exchange for allowing the pirates to operate in areas it controls, a case could be made that the payment or handling of ransom would fall under the Foreign Corrupt Practices Act as well as laws covering financial and other material support for terrorism. Such a move may not be popular, but if it were implemented, it would certainly transform the calculus of the pirate gangs.
One reason that cutting off ransom payments has not been much discussed as a possible measure, however, is that the companies selling insurance to ship owners are quite comfortable with the status quo. Consider that insurance rates for the approximately 20,000 ships transiting each year through waters now threatened by Somali piracy have been subjected to a risk premium of between $20,000 and $30,000 per trip. The insurers are thus collecting between $400 million and $600 million in surcharges annually. However, although they are guarded about how much they have actually paid in ransoms, the consensus in the shipping industry is that the total ransom payments last year were no more than about $100 million. At those rates, the insurers can effectively count on enjoying a windfall profit of between $300 million and $500 million as long as the threat endures – a sobering thought.
Muddled Legal Waters. The opera buffa episode last Saturday wherein Dutch marines boarded a Yemeni fishing boat captured earlier by pirates, freed the hostages, but then, misinterpreting the applicable legislation, let the marauders go, serves as a reminder of the confused state and other inadequacies of the legal framework for dealing with the challenge of Somali piracy. Meeting with Foreign Minister Maxime Verhagen of the Netherlands on Monday, Secretary of State Hillary Rodham Clinton characterized the lackluster action as one that "sends the wrong signal." Hugo Grotius, the Dutch father of modern international law and author of the classic treatise Mare Liberum ("the free sea") which pioneered the concept of the oceans as international territory, must be spinning in his grave in the Nieuwe Kerk in Delft. The fact is, however, that while article 101 of the UNCLOS provides a legal definition for piracy as a international crime on the high seas and the Rome Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) supplements it by addressing other forms of violence on the waters, most countries have not enacted the provisions into their domestic legislation.
On this matter, as my fellow senior fellow at the Foundation for the Defense of Democracies (FDD), Andrew McCarthy, observed earlier this month, American law, as articulated Section 1651 of Title 18 of the U.S. Code is "refreshingly short and sweet":
Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.
Nonetheless, the arraignment before a federal magistrate in Manhattan on Tuesday of Abdiwali Abdiqadir Muse, the one surviving pirate from the gang of four who tried to take the Maersk Alabama, is just the beginning of what promises to be a long legal process where the defense will undoubtedly try to play equally on Western guilt and gullibility in the midst of what could be the first trial for piracy in the United States in more than century. The media coverage will be a problem, if the Associated Press report on the captured brigand's arrival in New York is any indication. AP correspondent Virginia Byrne ignored various contradictions in her own story. While faithfully parroting the family's assertions of its dire circumstances, it apparently never dawned on Ms. Byrne to question how supposedly a supposedly "penniless" household in a place like Somalia had telephones from which the defendant's parents conducted separated interviews with her AP colleagues in East Africa. If anything, the family's electronic connectivity seems to confirm prosecutors' claims that he had bragged of participating in earlier hijackings. Prominent New York civil rights attorney and activist Ron Kuby, who has graciously had me on his Air America radio show twice in the last two weeks to spar over Somali piracy, has already announced that he is forming a legal team to defend Abdiwali and intimated that part of the stratagem may be to muddle the issues before the jury by raising points like whether the accused was seized while he was allegedly parleying under a flag of truce. To add insult on injury, should Abdiwali's lawyers convince jurors to acquit him in the federal court of the Southern District of New York, he may well manage to stay on in the United States by claiming that conditions in Somalia – a situation by no means ameliorated by the activities of his ilk – are such that he cannot be returned to the country.
If trying the pirates in the domestic courts off the United States and its European allies is a challenge, the options for trying them in the Horn of Africa are either nonexistent or not sustainable. The criminal justice system in Somalia itself is in shambles along with the rest of the accoutrements of a functioning national government, notwithstanding the brave front put up by the TFG's current head, Sheikh Sharif Sheikh Ahmed, and attempts to shore him up by visitors like the chairman of the Africa subcommittee of the U.S. House of Representatives, Congressman Donald Payne, who travelled to Mogadishu to see him the day after Easter. While functioning legal institutions exist in the northwestern Republic of Somaliland, perversely the international community has thus far failed to recognize the achievements one functioning part of the former Somali Democratic Republic. Likewise, Puntland, while not as developed politically as Somaliland, has some potentially promising structures being erected. As Brett Schaefer correctly notes in his Heritage Foundation memo last week on Somalia, America and its partners need to "use nascent governments and authorities to expand and improve governance in Somalia" and "reward these authorities with the same benefits other governments receive." However, until that happens and/or something resembling an effective government develops out of the TFG, there is no real possibility of trying captured pirates before Somali tribunals.
This leaves the possibility of hauling the prisoners before the courts of a willing third-party state like Kenya, which has signed memoranda of understanding with the United Kingdom, the United States, the European Union, and the People's Republic of China to receive and prosecute suspected pirates. As Professor James Thuo Gathii of Albany Law School details in a recent Social Science Research Network working paper, the Kenyan parliament has voted through a new Merchant Shipping Act that delineates the jurisdiction of the country's courts over extra-territorial acts of piracy and brings its norms up to date with international standards. Unfortunately, the bill, which was in February still languishes on President Mwai Kibaki's desk, yet another casualty of the poisonous partisan politics which have continued to bedevil Nairobi even after a government of national unity was installed in the wake of last year's tragic post-electoral violence.
In any event, while Kenya might serve as a convenient forum for adjudicating the occasional maritime brigandage such as the ten Somalis which the Arleigh Burke-class guided missile destroyer USS Winston Churchill dropped off in 2006, all of whom were tried, convicted, and sentenced to seven years in prison, the East African country's judiciary is simply not capable of processing the large number of pirates currents being captured: just this week the French navy dumped the eleven pirates apprehended by the frigate Nivôse off at Mombasa, the largest single batch of maritime brigands ever turned over to the custody of the Kenyan police, while the trial of nine pirates captured earlier by the German navy opened. Even if the Kenyan courts were able to cope with all the new cases, the country has its own restive ethnic Somali and Muslim populations whose preexisting sense of alienation from the rest of the body politic is hardly going to be assuaged by a seemingly endless parade of accused Somalis. And, trying large numbers of Somalis in the courts of a neighboring country might well permit the pirate syndicates, who have shown themselves quite clever in their use of public relations, to wrap themselves up in the mantle of Somali nationalism and thus broaden their base of support beyond the thousands of individuals already benefiting, directly or indirectly, from the extensive economic networks which make up the piracy business (for an example of the impact of piracy on ordinary Somalis, see Stephanie McCrummen's Washington Post report Monday on "Somalia's Godfathers: Ransom-Rich Pirates").
The Specter of Islamism. Alongside nationalism, historically the other great rallying point in Somali politics has been the Muslim faith. The two causes, nation and creed, have often been hitched to each other whether in the jihad of the "Mad Mullah" (wadaad waalan) Sayyid Muhammad ‘Abdallah al-Hasan against the British and their Somali allies at the beginning of the 20th century or the challenge of the Islamic Courts Union to the Ethiopian-backed TFG at the beginning of the 21st century. As I noted in this column two months ago, to date there has yet to be "evidence of anything other than opportunistic instances of cooperation between Somalia's Islamists and pirates – the latter have played no small role in the ferrying of the estimated 1,500 non-Somali jihadists into the country – the ongoing ascendancy of al-Shabaab and its allies does not bode well for efforts to stem the contemporaneous rise of the pirates." While that analysis still largely holds true, it does not mean that it will always be the case. As another one of my FDD colleagues, Dr. Walid Phares, pointed out earlier this week, the Somali pirates could easily be transformed into the tip of a far wider jihadist thrust in a geopolitically sensitive region, a move that, as I reported last month, Usama bin Laden, among others, earnestly seeks. Thus, recognizing the deadly potential of a common cause between the pirate gangs and al-Shabaab and other Islamist militants, American and international counter-piracy operations must avoid driving the former into the arms of the latter.
Regarding the relationship between pirates and Islamists, another canard that needs to be refuted is the mantra that, when the Islamic Courts Union briefly held power in most of Somalia in the second half of 2006, it fought piracy. There is only one instance where the Islamist forces did anything that could even remotely be characterized as a counter-piracy operation. On November 8, 2006, Islamic Courts Union militia stormed the United Arab Emirates-registered cargo ship MV Veesham I, which had been hijacked off Adale, north of Mogadishu on the Somali coast, and arrested its captors. The boat had been hauling a load of charcoal from El Maan, Somalia, to Dubai when it was attacked by pirates. The operation, however, had little to do with any principled opposition to piracy and quite a bit to do with the fact that the owner of the Veesham was one of the key financial backers of the Islamist movement and that his contribution to its coffers would be affected if he lost a fortune to the pirates.
Undoubtedly, Somali piracy is complex, multifaceted phenomenon. However, grasping these subtleties is the first step towards comprehensively engaging and eventually overcoming the challenge.
— J. Peter Pham is Director of the Nelson Institute for International and Public Affairs at James Madison University in Harrisonburg, Virginia. He is a Senior Fellow at the Foundation for the Defense of Democracies in Washington, D.C., as well as Vice President of the Association for the Study of the Middle East and Africa (ASMEA). In addition to the study of terrorism and political violence, his research interests lie at the intersection of international relations, international law, political theory, and ethics, with particular concentrations on the implications for United States foreign policy and African states as well as religion and global politics.
Dr. Pham is the author of over two hundred essays and reviews on a wide variety of subjects in scholarly and opinion journals on both sides of the Atlantic and the author, editor, or translator of over a dozen books. Among his recent publications are Liberia: Portrait of a Failed State (Reed Press, 2004), which has been critically acclaimed by Foreign Affairs, Worldview, Wilson Quarterly, American Foreign Policy Interests, and other scholarly publications, and Child Soldiers, Adult Interests: The Global Dimensions of the Sierra Leonean Tragedy (Nova Science Publishers, 2005).
In addition to serving on the boards of several international and national think tanks and journals, Dr. Pham has testified before the U.S. Congress and conducted briefings or consulted for both Congressional and Executive agencies. He is also a frequent contributor to National Review Online's military blog, The Tank.
© 2009 J. Peter Pham
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