High Seas Piracy: Terrorists, Organized

High Seas Piracy: Terrorists, Organized

Crime, And Crimes Of Opportunity

Background and History of Maritime Piracy:

High seas piracy had a long and storied history throughout the late Middle Ages

and well into the 19th century before nation states began fielding large and powerful enough navies to eliminate the problem. Despite the fact that maritime piracy in the modern era is no longer a problem capable of threatening international trade and commerce on the large scale in the manner that it once did, the problem still persists.

This is particularly true in areas of the world where social, economic and political factors provide a motive and proximity to international commercial shipping lanes provides the opportunity.

Unfortunately, the prospect of effective anti-piracy enforcement is undermined by several conflicts between safety concerns, economic realities, and the inadequacy of existing international legislation. Today, piracy on the high seas is once again developing into a significant problem, which was already the case for much of the last decade despite the fact that, at least in the United States, only the publicity associated with the high-profile rescue of Captain Richard Phillips of the Maersk Alabama by U.S.

Navy SEALS from the U.S.S. Bainbridge.

Incentives for Piracy:

Deprivation, Desperation, and Crimes of Opportunity

One of the principal causes of modern piracy is the economic destitution and the resulting desperation on the part of impoverished societies in various coastal areas adjacent to international commercial shipping lanes and port facilities (Banker, 2003).

Ironically, many of the acts of piracy committed in these parts of the world have targeted vessels engaged in humanitarian missions to provide food, medicine, and other essential supplies for some of the same areas (or those within the same region) by pirates from those same communities. This is particularly true in the case of the Somali coast and its relative proximity to Kenya and Nigeria where a substantial portion of Western

humanitarian aid has been suspended out of concern for increasing maritime piracy throughout the Gulf of Aden. In general, approximately one-third of all international commercial shipping must pass within range of pirates now operating of the African

coast (Banker, 2003).

In Somalia, the collapse of formal government, pervasive civil war, crime, and the dominance of local war lords has allowed the evolution of entire coastal communities now financed and supported by the proceeds of high seas piracy (Burnett, 2002;

Caldwell, 2009). In an otherwise impoverished region, some of these communities have been completely revitalized economically by the infusion of illicit gains, a portion of which, by all indications, seems to be shared with whatever local government authorities remain in operation (Gettleman, 2008).

Ironically, at least in this region, many of the pirates were actually engaged in the legitimate protection of their national territories before they turned to piracy after realizing how easy and lucrative that manner of earning a living is. In that regard, the collapse of the formal government in Somalia and other war-torn coastal African areas in the vicinity of the Cape Horn precipitated the perpetual violation of territorial waters by international fishing fleets. Similarly, commercial and industrial vessels began dumping

waste products, including highly-toxic and even radioactive waste within what had formerly been territorial waters of Somalia (Banker, 2003). Without any means of protecting their waters from depletion by unauthorized international fishing vessels, local fisherman began patrolling their territorial waters defensively for the legitimate purposes of preserving their natural resources and their environment from pollution (Banker,

2003).

Financial Gain and Organized Crime

In due course, the same fisherman from African coastal areas realized that the same tactics they used to harass and turn away vessels engaged in illegal fishing and dumping off their coast could be used for financial gain that far surpassed what they could possibly earn from their traditional occupations in their impoverished countries.

Meanwhile, in the coastal waters in the vicinity of Malaysia, Indonesia, and Singapore

have also become increasingly targeted by Southeast Asian pirates, many of whose operations are so sophisticated that it suggests the obvious involvement of organized crime (Langewiesche, 2004).

In that regard, both African and Asian maritime piracy have been greatly

facilitated by the widespread availability of global positioning systems (GPS) and microwave communications equipment (Burnett, 2002). However, the most recent advances in the tactics and technology available to maritime pirates now includes real-time access to shipping and port schedules allowing many attacks to be planned and coordinated very precisely in advance (Burnett, 2002). Moreover, the fact that some high seas hijackings of large commercial vessels and oil supertankers in which the vessels were not held for ransom but taken outright indicates that these instances of piracy involve organized crime and possibly even high-level government involvement

(Langewiesche, 2004).

The logistics of offloading and transporting massive quantities of goods and natural resources from large commercial vessels and tankers by land is far beyond the capabilities of the pirates themselves. The mere efficiency with which such large quantities of stolen goods are offloaded and redirected into various international black markets strongly suggests that many of the most significant instances of major maritime piracy have been orchestrated by sophisticated organized crime entities. Just to successfully negotiate international port facilities and the territorial waters of foreign nations after their capture requires equally sophisticated means of forging shipping documents, licenses, and bills of lading that could never be accomplished by small groups of pirates (Langewiesche, 2004).

Political Motives and International Terrorism

The deadly terrorist attack via an explosive-filled suicide swift boat on the U.S.S.

Cole in Yemeni waters in 2002 followed a very similar al- Qaeda plan that had been cancelled at the last minute that had sought to target the U.S.S. Sullivans in the same manner in late 1999 (Langewiesche, 2004). Both instances demonstrate the dangerous connection between the tactics and equipment used for modern maritime piracy and international terrorism and political opposition.

In fact, the history of piracy for political purposes goes back to the First World

War (Dershowitz, 2002). However, the most notorious case in recent history of piracy for the purposes of geopolitical extremism was that of the hijacking of the passenger ship

Achille Lauro by agents of the Palestine Liberation Front in 1985 in Egyptian waters. In that episode, hijackers murdered Leon Klinghoffer, an elderly wheelchair-bound Jewish

American and tossed his body into the sea (Dershowitz, 2002).

Today, the prospect of international terrorism perpetrated through high seas piracy is a distinct threat (Banker, 2003; Maxwell & Blanda, 2005). That is especially true with respect to the piracy practice of commandeering entire vessels, particularly those filled with millions of tons of highly volatile cargo such as petroleum products or natural gas. By murdering the crew and forging documents or even repainting entire vessels to disguise them and give them new identities, international terrorists could conceivably transform a supertanker into a tremendously powerful weapon of mass destruction (WMD) capable of incinerating crucial port facilities for international trade or for perpetrating large-scale terrorist attacks in the nature of those of September 11, 2001.

Likewise, commercial vessels carrying nothing more than toxic waste could also be used for nefarious purposes, especially in connection with radioactive nuclear waste and other highly toxic materials that could cause ecological and commercial disasters in addition to loss of human life (Maxwell & Blanda, 2005).

Legal and Economic Issues of Anti-Piracy Measures and Law Enforcement:

Statutory Definitions

One of the most significant obstacles to effective criminal enforcement of anti-piracy is the antiquated manner in which existing international anti-piracy legislation was

drafted (Langewiesche, 2004). Specifically, according to both the 1958 Geneva

Convention and the 1982 United Nations Law of the Sea (LOS) Convention, piracy is defined as an act that is (1) perpetrated for monetary gain, and also (2) takes place in international waters (Dershowitz, 2002; Langewiesche, 2004).

Under that statutory definition, politically-motivated piracy and terrorism perpetrated through piracy tactics, regardless of how violent or ruthless, are not considered piracy under international law. The significance and practical effect of that statutory definition is that international law allows any nation to apprehend and prosecute piracy under its sovereign laws, but many of the signatories to those LOS Conventions

maintain no criminal laws pertaining to piracy (Dershowitz, 2002; Schoenbaum, 2004).

Moreover, the 1958 LOS Convention increased the internationally-recognized territorial waters of sovereign nations from the traditionally-enforced three nautical miles to twelve nautical miles (Schoenbaum, 2004). Therefore, under the international definition of piracy, in fact, none of the recent highly-publicized instances of piracy, such as those off the Somali coast even constitute piracy under it formal international definition, because unlike the piracy of the 17th, 18th, and 19th centuries, the modern form

of piracy occurs almost exclusively within the territorial waters of sovereign nations

(Burnett. 2002).

Certainly, in the U.S. all of the individual component crimes perpetrated by pirates are prosecuted under applicable criminal statutes pertaining to those crimes.

Nevertheless, even in the U.S., the current prosecution of the sole surviving Somali pirate responsible for ransoming Captain Richard Phillips is the first prosecution specifically for piracy under U.S. law dating back to 1819 in more than a century (Gettleman, 2008).

Right of Innocent Passage

The other significant complication for enforcement action against maritime piracy arises in connection with the economic realities of maritime insurance and the concept of the right of innocent passage through sovereign territorial waters (Langewiesche, 2004).

Under the United Nations LOS, unarmed commercial vessels are permitted into the sovereign waters of signatory nations as necessary for reasonable access to established commercial shipping lanes. Those rights are predicated on the assumption that

commercial ships are unarmed and therefore pose no risk to the national security interests of sovereign nations (Langewiesche, 2004). The prospect of arming commercial vessels to safeguard them against piracy is a fundamental violation of current international law and exposes such vessels to denial of entry and even to hostile boarding and seizure by the navies of sovereign nations (Schoenbaum, 2004).

Economic Factors Militating Against Arming Commercial Vessels

Perhaps even more significantly, in terms of its effect on deterring the arming of commercial vessels, is the economic reality in the realm of insurance against loss at sea

(Langewiesche, 2004). Various commercial enterprises do offer protective services for commercial vessels navigating dangerous waters. However, the cost of protecting a typical commercial voyage in this manner is approximately $100, 000 per trip.

Meanwhile, the actual risk of piracy is still comparatively small in relation to the large numbers of commercial voyages undertaken.

Furthermore, the price of equipping commercial vessels with an armed crew of trained anti-piracy teams is approximately the same as the total amount of ransom typically paid to secure the release of captured ships and crew in the event of hijacking at sea. Purely from an economic standpoint, arming commercial vessels in this fashion is

much less feasible than simply factoring the cost of paying ransom in the occasional event of an act of piracy (Langewiesche, 2004).

Finally, the solution of arming the crews of commercial vessels to enable them to protect themselves without the necessity of hiring professional armed paramilitary security professionals raises other issues that are economically prohibitive. Specifically,

the increase in the cost of insurance against loss and liability for bodily injury and death to crewmen and to others arising from any use of deadly force against pirate attacks is prohibitively expensive and not feasible at all without changes to the prevailing concepts of legal liability and vicarious responsibility as they pertain to maritime shipping

(Langewiesche, 2004).

Future Implications

Given the current status of international law, the formal definition of piracy, the complete lack of uniformity with respect to the criminal laws of sovereign nations

responsible for prosecuting pirate-like crimes perpetrated within their territorial waters, it is difficult to imagine how modern piracy can be effectively redressed. The vast majority of piracy is perpetrated for financial gain, but because it occurs within the internationally recognized twelve-mile limits of territorial waters of sovereign nations, it does not meet the statutory definition required for international enforcement (Langewiesche, 2004).

Likewise, because financial motivation is a prerequisite for the definition of hostile pirate-like criminal acts, those precipitated by political motivation or purely for terrorism are also exempt from any formal designation of piracy (Banker, 2003).

In that regard, the modern practice of commandeering and permanently seizing entire commercial vessels together with their contents instead of holding them for ransom raises significant concerns about the possible collaboration of pirate networks and international terrorists. The increasing sophistication of pirate attacks using advanced electronic GPS and communications equipment together with real-time information available via the internet only exacerbates the problem and suggests that it will continue to rise in frequency of pirate attacks on commercial vessels. Similarly, there is substantial evidence of the apparent involvement of sophisticated organized crime entities in the planning of piracy and in the training, logistics, coordination of markets for the illicit sale of seized cargo, and the establishment of new identities for captured commercial vessels.

This only further increases the likelihood that well-funded terrorist entities such as al-

Qaeda and other factions loyal to Osama bin Laden will eventually collaborate with those entities to use piracy as a new form of international terrorism with very dire consequences (Maxwell & Blanda, 2005).

Unfortunately, the economic realities of jeopardizing the right of innocent passage through sovereign waters and the relative cost of providing professional armed security forces to protect all commercial vessels in potentially dangerous waters is prohibitive.

Similarly, arming commercial vessel crews is no more feasible for the same reason, by virtue of the exorbitant insurance costs associated with that option. As a result, commercial vessel crews have few options to defend themselves beyond fire hoses and purely defensive equipment such as ballistic bullet-resistant vests (Caldwell, 2009;