Interesting Reading on Law, Pirates and Private Maritime Security Forces

Worth reading the original to see part of the complexity the maritime community has to deal with in attempting to keep its ships safe and secure, here are selections from an article from Maritime Executive by Simon O.Williams, LLM dealing with  International Legal Framework Governing Maritime Security:

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While UNCLOS [United Nations Convention on the Law of the Sea] includes several articles regulating state responses against piracy (Articles 100 to 107 and 110), the Convention provides no foundation or guidance for private efforts in combating piracy. Instead, there are many fragmented treaties, conventions, legal principles and soft law instruments that supplement UNCLOS.
***
The Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) Convention and Protocol was designed to fill voids in international law necessary to combat other threats to human life and security of navigation and commerce at sea not fully prescribed under UNCLOS. It requires states to pass legislation making unlawful piratical and terrorist acts against navigation serious criminal offenses under their national laws.
***
In 2005 the 1988 SUA Convention and Protocol were amended to become the 2005 SUA Convention and the 2005 SUA Protocol. The 2005 SUA framework contains three new categories of offenses.

         - Using a ship as a weapon or as a means for committing terrorist acts.
         - Proliferation of weapons of mass destruction (WMD) on the high seas.
         - Transporting a person alleged to have committed an offense under other                  UN anti-terrorism conventions.
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SOLAS
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In relation to private maritime security, a main legal conundrum with SOLAS is whether employing armed security on board a vessel can deprive the ship’s Master of their overall responsibility to control all actions aboard their vessel, as required by SOLAS. If so, this would be in contradiction of SOLAS Reg 34-1 and Reg 8, Chapter XI-2.

Many coastal states have taken additional steps to clarify the relationship between Master and privately contracted armed security personnel (PCASP), amending national legislation to reaffirm the Master’s overall authority to authorize PCASP targeting, deployment and target engagement (specifically, weapons discharge of any-kind). In an effort to resolve this dispute, the largest international shipping association, the Baltic International Maritime Council (BIMCO), has released a commercial contract template, GUARDCON, which establishes this clear line of superiority with the ship’s Master remaining in command at all times.
***
U.N. Firearms Protocol

In addition to the Law of the Sea framework, maritime security providers must also navigate the complex international legal regime of the U.N. Firearms Protocol, a legally binding agreement which entered into force in 2005, currently signed by 109 states plus the European Union, to ensure armed security provider, or those importing/transporting weapons, carry the required port and transit state permits.
***

Making this matter more complicated in recent years, floating armories have emerged as offshore supply stores delivering weapons and crews to client vessels, circumventing port and coastal state regulations and bypassing the need for import/export compliance. Of course, this has opened a Pandora’s box in terms of unaccounted-for firearms. In other circumstances, PCASP have jettisoned weapons into the sea after completing missions in order to sidestep import/export regulations reaffirmed in the Protocol.

The Principle of Self-Defense

Of primary importance to the legal reasoning behind the private use of force at sea in counter-piracy is the principle of Self-Defense.
***
“Customary international law, among other legal authorities, provides that the use of force is restricted to cases of necessity or self-defence, i.e. cases in which there is no other way out and in which the requirements of necessity, reasonableness and proportionality are observed in connection with the use of force. Such customary international law is binding […] The use of force by private security guards must therefore be based on the general, internationally accepted principles of self-defence.”
***
Moreover, individual guards or any persons aboard a vessel, for that matter, have the right to self-defense of their person. This is a fundamental human right. If pirates or other assailants are directing weapons’ fire in their direction, for example, and they believe their lives to be in grave danger, the same right of self-defense for vessels applies at the personal level.

Doctrine of Necessity

After being discussed for decades in international law circles, the Doctrine of Necessity was finally incorporated into the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts.

Article 25 of this document provides that an otherwise illegal act, such as using force to neutralize a terrorist or pirate attack at sea, can be justified if it meets two criteria.
The act was the only means of safeguarding an essential interest of the state against a grave and imminent peril.

The act did not seriously impair an essential interest of the state toward which the obligation existed.
***

As with any set of laws meant to create order out of chaos, one question remains - who will enforce the law and by what means?  It's also worth noting that pirates seem to have little difficulty with the issues of the U.N. Firearms Protocol.

Trans-National Groups: Environmental Activists at Sea

Greenpeace photo © Will Rose / Greenpeace

Been keeping an eye on the Greenpeace "yacht" that carried activists who tried to board a Russian Arctic drilling rig. As you may recall, Russia has now charged "piracy".

Some background on the Greenpeace vessel at Maritime Professional here:

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While Greenpeace refers to the Arctic Sunrise as a research icebreaker, it is registered with the Government of the Netherlands as a sea-going motor yacht, thus avoiding certain technicalities. It has berthing space for up to 28 persons. The ship has been used in a number of high-visibility environmental and ecological protests, some endangering navigation.
***
Despite the lack of government approval, Arctic Sunrise most recently entered Russian waters of the Barents Sea and protesters attempted to board the oil and gas platform Prirazlomnaya. A Russian Border Guard vessel fired a warning shot over the bow of the Arctic Sunrise after it refused to heave to. The Greenpeace vessel and its personnel are now under detention and federal criminal charges of piracy have been initiated.

As noted before, the UNCLOS definition of piracy is:

''Piracy consists of any 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 a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) 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 facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).''

So, if the activists were just out to save the planet, how does that fall under the "committed for private ends" part of the definition? Isn't what they were doing a "public good" or at worst, trespassing?

Good question, and one that will have legal scholars arguing. As Maritime Law expert Eugene Kontorovich wrote at The Volokh Conspiracy,

The unusual piracy charges may well be inspired by a Ninth Circuit decision holding the Sea Shepherd’s “Whale Wars” against the Japanese whaling fleet could constitute piracy under the Alien Tort Statute, as OpinioJuris notes. I agreed with the Ninth Circuit in that case, against much protest. The question was whether piracy requires a motive to steal, and the Ninth Circuit held it does not. But the present matter is entirely different. Here it is Russia’s actions that violate international law.

The case cited by Professor Kontorovich is Institute of Cetacean Research v. Sea Shepherd Conservation Society, in which the Ninth Circuit overruled a U.S. District Court as the Ninth Circuit

"determined that 'private ends' should not be limited to individuals pursuing 'financial enrichment.' *** . . . the Ninth Circuit that 'private ends' includes those pursued on personal, moral or philosophical grounds." (from St.John's University School of Law Admiralty Practicum Summer 2013 edition)

Professor Kontorovich distinguishes the cases because (1) piracy requires an attack on a ship and an oil rig is not a ship and (2) no act of violence was performed by the Greenpeace activists.

Well, it will be up to a Russian court to sort all that out. However, it does point out that trans-national groups, even those allegedly having the best of intentions, may find themselves bumping against international law as well as the laws of sovereign states that they may not have fully comprehended.

Meanwhile, Greenpeace seeks support in setting "Free the Arctic 30". They also link to a number of legal "experts" who support their view here.

Perhaps they ought to be grateful that they didn't get the Russian "assistance" reportedly provided to suspected Somali pirates.

Note to St. John's Law - the link you cite to the Admiralty Practicum in your print publication is broken.

Somali Pirates: "Reformed" Pirate Arrested in Belgium

Well, last week we had a little fun with his conversion from pirate to "counter-pirate" in Somali Pirates: Stranger than fiction. Now, the pirate whose nickname is "Big Mouth" finds himself under arrest, as the BBC reports in "Prominent Somali pirate 'arrested in Belgium'":

A man alleged to be one of Somalia's most influential pirate leaders has been arrested in Belgium, media reports say.

They said Mohammed Abdi Hassan, also known as Afweyneh (Big Mouth), was held at Brussels airport after arriving on a plane from Kenya.
***He is believed to have earned millions of dollars in ransom payments as a result of acts of piracy.

The suspect is said to have been arrested at the same time as another alleged pirate; it remains unclear what the two men were doing in Belgium.
***
Belgian vessels have in the past taken part in international missions against piracy on the high seas off Somalia.

In a UN report leaked last year, it was alleged that Afweyneh was "one of the most notorious and influential leaders of the Hobyo-Harardhere Piracy Network".

Unstated in the article. of course, is the degree of effectiveness of the Kenyan airport security screening which let this guy get on an airplane.

I figure about 15 years in jail, but if any of the captive sailors from the hijacked ships testify, it could get worse. While the Somalis keep them alive (for the most part), the conditions are often not pleasant. Perhaps a term trapped on a ship anchored off Somalia with no functioning a/c, etc would be just the ticket.

Probably too cruel under Belgium law.

Eco-Pirates? "Russia to Investigate Seized Greenpeace Ship for Piracy"

Greenpeace photo

Russia to Investigate Seized Greenpeace Ship for Piracy:

Russian authorities said Friday that a seized Greenpeace icebreaker was being towed from the Arctic Pechora Sea to the port of Murmansk, where it will be investigated for “piracy” over its alleged attack on a Gazprom oil rig.

The Arctic Sunrise icebreaker “is being towed because the captain refused to steer it,” a spokeswoman for the Murmansk Region branch of the border guard service told RIA Novosti. The ship is expected to arrive in Murmansk by Monday or Tuesday, she said.
***
Two activists who had traveled to the Gazprom oil rig aboard the Arctic Sunrise were detained by border guards on Wednesday for trying to climb up the facility. A day later, border guards stormed the ship and took control of it, Greenpeace said, adding that the seizure was done at gunpoint.

The border guards believe that the attempt to scale the oil rig “bore signs of piracy,” Russia’s Investigative Committee said Friday, adding that it would be handling the check into the allegations.

Piracy is punishable with up to 15 years in prison, according to Russian legislation.

From the UN discussing the UN Convention on the Law of the Sea

The definition of the crime of piracy is contained in article 101 of UNCLOS, which reads as follows:

''Piracy consists of any 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 a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) 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 facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).''

See my earlier post on this Greenpeace misadventure here.

Piracy? Attempted piracy?

Simple trespassing?

I am glad I am not the Greenpeace defense counsel.

Sea Shepherds Get Tagged as "Pirates" - Remain Idiots at Sea

The up-to-now almost consequence free "international non-profit, marine wildlife conservation organization" Sea Shepherd International, better known on these pages as "Idiots at Sea" (see e.g, here), have a court decision identifying them as "pirates".

Which, in the great scheme of things, shouldn't be too surprising to the SSI, as it is a label they have long applied to themselves, see here, albeit as "pirates of compassion."

Did the 9th Circuit get it right? I think so. You can read about other views at Lawfare's Ninth Circuit Calls Sea Shepherd Actions “Piracy” and the links therein.

Oh, and "Captain" Watson - well, he is already on the run with two Interpol "Red Notices" against him (see Sea Shepherd leader arrested - attempted murder), as the SSI crowd seeks funding to find him a "safe haven":

There are two active Interpol Red Notices issued against Captain Watson at the request of Costa Rica and Japan. Underlying these notices are non-lethal acts in defense of marine life suffering from illegal shark fishing and whaling operations. The warrants are politically motivated.

You know, "attempted murder" is almost always "non-lethal" - otherwise the charge would be "murder."

Frankly, I have been surprised that the pursuit of this organization has not included charges of terrorism. Of course, that probably wouldn't go over well with some of the famous people who fund this piracy - since it could result in the seizure of their assets as supporters of terrorism (see here). Former Secretary of State Clinton suggested nabbing the assets of Somali pirates under some theory of law - one that could be applied to the assets of Sea Shepherds International, I suppose.

I wonder if SSI could be considered a "criminal enterprise?"

Even better is the possibility of civil law suits against SSI and its funders . . .

Paul Watson, Chief Idiot of the SSI, is unimpressed with the 9th Circuit ruling, as set out in 'Pirate' ruling irrelevant: Sea Shepherd:

SEA Shepherd founder Paul Watson has described a US judge's opinion that he is a "pirate" as one-sided and irrelevant.

Never heard the winner of a legal case complain like that.

The SSI press release on the ruling can be found here:

Clearly, this is a bad decision by the Ninth Circuit Court, but not unexpected,” said Scott West, Director of Intelligence and Investigations for Sea Shepherd U.S. “But it’s an opinion; everyone has one. We happen to agree with Judge Jones' very well articulated and reasoned opinion on the matter,” he stated.

“Beyond that, the vitriolic and grandstanding manner in which the Ninth Circuit rendered its opinion makes us seriously doubt their qualifications for making a just decision. This court is part of the problem, not the solution. Not only is there no room for such a biased and unprofessional legal opinion, they somehow have the audacity to throw a highly respected, honored judge — one of their own — under the bus in order to side with foreign interests. Is this a decision of an American court or have we somehow mistakenly landed in Japan?” West added.

Among other things, it brings up the "court of public opinion" always the last gasp of a loser. By the way, Scott West is an idiot - an appellate court opinion is not just like the opinion of the guy sitting on a bar stool next to you.

Fighting Pirates: A Lawerly Debate

From MaritimeTV, a couple of maritime legal thinkers discuss Armed Guards on Vessels. From May, 2012, and it seems a little OBE but still worth watching.

Hat tip to: The Marine Advocate Online.

You can order Defending Against Pirates here for $75 (downloadable pdf) or as a more expensive hard copy.

You might also be interested in a book to which I contributed, 
Maritime Private Security
Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century
Edited by Patrick Cullen and Claude Berube, available here or from Amazon here.

Law of Piracy: Broader Definition Under U.S. Law - Somalis Take a Hit

A three judge panel of the 4th Circuit out of Richmond, VA, is responsible for the news: "US appeals court clarifies piracy definition":

The court's ruling gives prosecutors wider latitude to go after people who attack U.S. vessels, U.S. Attorney Neil MacBride said. "For decades, the international community has considered violent attacks on the high seas as an act of piracy, and today's ruling will strengthen our ability to hold those who attack U.S. vessels by force accountable, regardless of whether they are successful or not," said MacBride, whose office handled both cases.

In one case, a lower court judge dismissed charges against five Somalis in an attack on the USS Ashland, ruling since the men had not taken control or robbed the ship their actions did not rise to the definition of piracy. The ruling sends that case back to U.S. District Court for trial, the government said.

In the other case, prosecutors convicted five Somali men who attacked the USS Nicholas. It was the first piracy conviction in a U.S. courtroom since 1819. The ruling by the three-judge panel of the 4th U.S. Circuit Court of Appeals upheld those convictions and the life sentences the men received.

You can take look at the decision by going here.

Or read them below:
US v. Dire and US v. Ali

US v. Said

"Expanding Private Sector Partnerships Against Piracy"

From the U.S. Department of State: "Expanding Private Sector Partnerships Against Piracy":

Yet we must also recognize that best management practices do not guarantee security from pirates. Pirates operate in too large of an area for naval forces to respond quickly. The reality is that international naval forces simply might not be there to respond. The problem of piracy is one that can’t simply be solved by national governments. Therefore, we have also supported industry’s use of additional measures to ensure their security – such as the employment of armed security teams. To date, not a single ship with Privately Contracted Armed Security Personnel aboard has been pirated. Not a single one.

These teams serve as a potential game-changer in the effort to counter-piracy. This is because – and as anyone in the Navy or Marines can tell you – one of the most difficult combat maneuvers to undertake is to board a ship when coming under fire. While many expected these teams to be made up of undisciplined “cowboys” that would increase the violence at sea, from what we have gathered and observed the opposite has happened. We have not seen cases of pitched battles at sea between armed security teams and pirates attempting to board under fire. In fact, in most engagements between armed security teams and pirates, the situation ends as soon as pirates are aware these teams are on board. We have found these teams to be highly professional. In most cases, as pirates approach a ship the armed security teams will use flares or loudspeakers to warn the pirates. If the pirates keep coming, they will fire warning shots. That is usually when the interaction ends. Pirates break off the attack and turn their skiffs around and wait for another less protected target.

At the State Department, we have encouraged countries to permit commercial vessels to carry armed teams. However, we do note that this is a new area, in which some practices, procedures, and regulations are still being developed. We are working through the Contact Group and the International Maritime Organization or IMO on these issues. For instance, we have advised that armed security teams be placed under the full command of the captain of the ship. The captain then is in control of the situation and is the one to authorize the use of any force. Last September, we were encouraged to see language adopted by the IMO that revised the guidance to both flag States and ship operators and owners to establish the ship’s master as being in command of these teams.

There have been some logistical and technical issues that have arisen with armed security teams – particularly relating to weapons licensing and the transit of these teams through third countries. The United States regularly works with other governments to help resolve questions on weapons licensing to facilitate compliance with the laws of individual port States as related to firearms transfer. We engage through the Contact Group and the IMO to encourage all port and coastal States to adopt legislation that is conducive to smooth, facilitated movements of security team firearms and equipment. Currently, some States present challenges in this regard by requiring transfer to a third party while a vessel is moored in a port. Others impose fee schedules that directly charge against the presence of these weapons. In response, we have demarched port and coastal States and let them know that U.S. vessels may have firearms onboard and we request that these teams and their firearms be facilitated under applicable laws. We have also worked with the Coast Guard and Department of Transportation at the IMO and through the Contact Group to further encourage port and coastal States to develop regulations that facilitate the use of these teams aboard commercial vessels. We are working hand in glove with industry in all these endeavors to ensure these teams are both properly regulated and properly equipped.

Brits worry about application of armed force by anti-pirate guards

Can a private security team shoot at these guys? Or does he need to wait until fired upon?

Reported at BBC News - Clarify "lethal force" piracy defence rules, say MPs, worry over "free fire zones at sea" prompts effort to have good rules for private armed security guards:

But Mr Ottaway said much more detail was needed on how UK-flagged vessels could respond, if confronted by pirates.

"The government's guidance on the use of force, particularly lethal force, is very limited and there is little to help a ship's master make a judgement on where force can be used.

"The question anyone would ask is that if a private armed guard on board a UK-flagged vessel sees an armed skiff approaching at high speed, can the guard open fire? The government must provide clearer direction on what is permissible and what is not."

Ok, we're talking British law (as it only applies to UK-flagged ships) but I would assume that once fired upon by an "armed skiff" a security team is justified in returning fire - unless there is some "you must retreat as far as you can rule" before shooting back rule. However, up the to the point of receiving fire there are a whole lot of scenarios that can arise - perhaps the private security teams need to have counsel present.

The pirates, on the other hand, don't seem to be troubled much by rules - or concerns about damage to innocent lives - being outlaws and all.

Update: You can find an excerpt of the House of Commons Foreign Affairs Committee report on "Piracy off the coast of Somalia" here:

We conclude that the guidance on the use of force, particularly lethal force, is very limited and there is little to help a master make a judgement on where force can be used. The Government must provide clearer direction on what is permissible and what is not. Guidance over the use of potentially lethal force should not be left to private companies to agree upon. We recommend that the change of policy be accompanied by clear, detailed and unambiguous guidance on the legal use of force for private armed guards defending a vessel under attack. This guidance should be consistent with the rules that would govern the use of force by members of the UK armed forces in similar circumstances, and should include:

• the circumstances in which private armed security guards faced with a clear threat of violence may respond with force, including lethal force, where proportionate and necessary, and
• examples of a "graduated response" to an attack, including confirmation that nothing in UK law or the CPS guidance requires a victim of pirate attack to await an aggressor's first blow before acting in self-defence.

We recommend that the Government take this forward as a matter of urgency, as we understand that private armed guards are already being deployed on some UK-flagged vessels.

Dutch Government Minister Warns Private Armed Guards On Dutch Ships Could Be Legal Violation

Reported as Armed guards on ships could be an offence, says minister:

Shipping firms which place private armed security guards on ships passing areas where pirates operate risk criminal prosecution, justice minister Ivo Opstelten said on Thursday evening.

Jumbo Shipping from Rotterdam and Vroon Shipping based in Breskens have both said they will carry armed guards while sailing under the Dutch flag.

Just one more complication in the battle against Somali pirates.

No wonder the Jolly Roger has a smile on his face. 

Catching Up

Having had a couple of days off, it's time to play "catch up"- let's start with an annoying BBC article BBC News - Somali pirates face hard time in US prison, in which the sympathy is entirely misplaced. Further, the article originally had a completely different title, which Lex captured as "Somali pirates face hell in US prison system." When I first saw the original headline, I wondered if the "hell" they will experience in U.S. prisons is even a vague shadow of the "hell" of a Somali prison or even daily Somali life for that matter. But the article is even more biased than its headline:

Federal prison is a frightening, perilous environment of intrigue, violent gangs, terrible food and severe isolation, even for the most hardened criminal.

For men from a faraway land with little or no English-language skills and no prior familiarity with American culture, it will be especially hard, say lawyers for the men, and experts in psychology and the criminal justice system.
***
On Monday, Muhidin Salad Omar and Mahdi Jama Mohamed were sentenced to life in prison after pleading guilty to their part in the hijacking in February of the yacht S/V Quest, in which pirates shot to death four American yachters as the US Navy sought their release.

On Tuesday, four more men are to be sentenced to automatic life terms in prison following their guilty pleas to piracy counts in the Quest case. More are to be sentenced in the autumn.
***
Language and cultural barriers will make it difficult for the men to form the support groups and informal social networks that lawyers and social workers say are necessary to get by in prison.

"They have all the stressors associated with prison," says Frederic Reamer, a professor of social work at Rhode Island College with extensive experience working in prisons and a member of the Rhode Island state parole board.

"But unlike most inmates, they cannot just go into the dining hall and sit at a table and start conversing with people with whom they have some shared cultural experience. They are likely to be isolated in every imaginable way."

God spare from bleeding heart professors of social work. I figure under some Somali law, we could have simply stoned these guys to death, as it seems to be a favored punishment. Read the part again about how these pirates "shot to death four American yachters."

Isn't it interesting that as the assertions of the world "running out of fossil fuels" continue to be heard that we keep finding more? Here's a report of a possible discovery off Sri Lanka -

While further drilling is required to determine the commerciality of the natural gas discovery, this is the first oil and gas well to be drilled in Sri Lanka in 30 years -- and the first hydrocarbon discovery ever in the country.

Which reminds me that the gas field off Cyprus continues to be a blip in international relations. The Turkish government has deployed a ship to "investigate" the waters off Northern Cyprus, as set out here. Saturn5 from Bosphorus Naval News has a series of posts on the topic, Part 1, Part 2 and Part 3. It's all about the gas and oodles of money. The Russians, the French and others are out there playing hard.

Somali Pirates Sliding Into Terrorism: The New Ploy - Pirate "Death Reparation" Claims

Lately, capturing ships at sea and holding the crews and ships for ransom is not the only line of business the Somali pirates pursue.

They now have taken that threatening the hostages they hold to influence the governmental policy of the nations fighting the pirates. See Somali Pirates Demand Compensation from South Korea :

A South Korean captain who is being held by Somali pirates says his captors are demanding that the South Korean government pay them compensation for pirates killed by its navy.

Captain Pak Hyeon contacted VOA by phone Friday, saying the pirates want Seoul to pay compensation for eight dead comrades and release another five held prisoner. He said the pirates have not named a price.

This is not the first threat of retaliation against the South Koreans. Back in January 2011, there was this:

Somali pirates threatened yesterday to kill any South Korean seamen they took hostage, in revenge for the killing of eight pirates by South Korean troops who stormed a hijacked vessel.

The claim for money in reparations for pirates killed by naval forces is simply an extension of that threat, as the implied threat is "pay up or else."

Previously, Somali pirates threatened the Indian government in a similar fashion:

A pirate in Somalia threatened Indian sailors and the government with targeted attacks in retaliation for the arrests.
***
A self-described pirate in Somalia who gave his name as Bile Hussein said the arrests will lead to "trouble" for Indian sailors and ships.

"They better release them, considering their people traveling in the waters, or we shall jail their people like that," he said. "We are first sending a message to the Indian government of releasing our friends in their hands or else they have to be ready for their citizens to be mistreated in the near future."

As the Somali pirates and their management begin to attempt to influence the policies of the governments that take action against their depredations, the pirates are sliding rapidly from illegal businesses that funnel some money to terrorist organizations into flat out maritime terrorist entities albeit of a semi-commercial nature.

After all, the basic definition of terrorism is "the use of violence and threats to intimidate or coerce, especially for political purposes."

The "political purpose" of the pirates? To be left alone to ply their trade without the threat of violence against them.

Of course, some of the lame justifications previously offered by the pirates for their actions also reach the "terrorist" threshold.

What next? A demand that armed guards be removed from merchant ships "or else hostages will die?" A demand that the escort navies withdraw? A demand for payments of tribute?

Will the world submit to this blackmail? Speaking of slippery slopes . . .

Maritime Counter Piracy Conference

 Coming to the UAE in Dubai a Maritime Counter Piracy Conference (18-19 April 2011) titled: "Global Challenge, Regional Responses: Forging a Common Approach to Maritime Piracy."

Features a raft of anti-piracy papers including one ("Defensive vs. Offensive Technologies and Public/Private Operations in Maritime Piracy") by Claude Berube, who teaches at the U. S. Naval Academy, a couple by Martin N. Murphy ("Future Scenarios and Future Threats: What Happens if Piracy is not Controlled, and How Might Manifestations Change?" and "Countering Piracy: The Potential of Onshore Development" with Joseph Saba) and one by the U. S. Naval War College's James Kraska ("Looking for Law in all the Wrong Places: Maritime Piracy as a Domestic Legal Problem"). All of which will keep me reading for some time, since I am unable to attend this event in person, as much as I wish I could.

The guest list is full of smart people and I look forward to reading their thoughts on this troublesome international war against pirates.

Somali Pirates Get Life Sentences in U.S. Court

Reported as US sentences Somali pirates to life :

Five Somali men, convicted of attacking a US Navy ship, have been sentenced to life in prison by a Virginia court.

Tuesday’s sentencing is the harshest yet for accused pirates as the US tries to halt piracy off Africa's coast.

The federal prosecution relied upon rarely-used 19th century maritime laws, and was the first piracy case to go to trial since the Civil War, when a New York jury deadlocked on charges against 13 Southern privateers.

The five Somali men were convicted on federal piracy charges on November 24 last year.

Prosecutors argued during trial that the five had confessed to attacking the USS Nicholas on April 1 after mistaking it for a merchant ship.

Defence lawyers had argued the men were innocent fishermen who had been abducted by pirates and forced to fire their weapons at the ship.

However, John S Davis, an assistant US attorney, had argued that three of the men were in a skiff that opened fire on the Nicholas with assault rifles, then fled when sailors returned fire with machine guns.

Davis said all the men later confessed to the attack in remarks to an interpreter on board the ship. He said they expected to make anywhere from $10,000 to $40,000 from the ransom, a comparatively small sum.

More here:

Somali pirates in action (not from the Nicholas case)

The sea brigands in March last attacked 'USS Nicholas' patrolling the east coast of Africa as part of an anti-piracy mission. But the warship's crew returned fire and captured the pirates after chasing down their vessel.

Presiding judge Mark Davis also sentenced them to an additional 80 years in prison for firearms charges in connection with the hijack attempt. The trial held at Norfolk, home port to USS Nicholas and one of the largest naval bases in the world, also witnessed the first-ever conviction by a U.S. jury in a piracy case since 1820.

Defense lawyers said they planned to appeal the conviction as well as the sentencing.

Attorney Neil MacBride told reporters that the sentence pronounced by the trial court was the longest ever in a piracy case. The buccaneer convicted in 1820 was executed. MacBride added that the punishment meted out to the five should serve as a deterrent to others embarking on the career beyond the law.
***
In November, the trial court had found the defendants guilty of the charges. However, the defense has maintained that the men had been abducted by Somali pirates who forced them to fire from their weapons.

Report of capture of pirates here. Report of original conviction here.

"Combatting Piracy in International Waters"

From the computers of James Kraska (U.S. Naval War College) and Brian Wilson (U.S. Navy Attorney) and found at the World Policy Institute blog: Combatting Piracy in International Waters:

We face an ocean of problems. Naval air and sea operations by even the most capable maritime powers have been unable to slow Somali piracy because they cannot prosecute the endgame. Piracy thus flourishes at the seams of globalization because jurisdiction is unclear and pirates exploit the inherent isolation of individual vessels and nations.
***
In this setting, international law is more important than adding another warship to the equation—it has become the most effective force multiplier for developing and maintaining maritime security. A truly international process would create a network of interested states that could begin to co- ordinate in real time, working effectively across legal and jurisdictional lines of demarcation to bring collective action against this threat. Long-term maritime security capacity building will make the coordination even more effective. Only greater collaboration and the rule of law will calm the dangerous waters off the Horn of Africa. In the words of Tony Blair: “Our ultimate weapon is not our guns, but our beliefs.” History tells us that piracy along the Somali coast will ultimately subside. Returning to these placid waters, however, requires adaptability, partnering, innovation, and leadership.

Yes, well, the biggest word in the English language is "if" and this article, while valuable, is another "if" effort.

"If" examples from the piece:

"While it is impossible to eradicate maritime piracy completely, the threat can be greatly reduced if we broaden efforts to work with international partners."

"The ability to deal successfully with Somalia’s maritime pirates would improve if the country is stabilized under a responsible government."

"If nations in East Africa develop the legal architecture to deal with piracy, including adequate lawyers, courtrooms, and confinement facilities, they will be more willing and better able to enforce the maritime rule of law in the neighborhood."

Such aspirations of international comity and cooperation always remind me of the problem of mice deciding they would be safe "if" only someone would agree to take the lead in "belling the cat.".

Oh, and, by the way, the Blackwater anti-pirate ship mentioned in the piece no longer exists. Blackwater is now "Xe" and the ship never found gainful employment. Not to fault the authors, because they may have written this piece some time before it was placed on the blog where it resides, but somebody should have fact checked a little.

Despite the demise of Blackwater and its ship, there are a number of active private security companies offering counter-piracy services in the Gulf of Aden/Indian Ocean area and another large number of enterprises offering various forms of defensive tools to ship owner/operators ranging from sonic pirate busters (LRAD) to barbed wire with which to "armor" a merchant ship. I think I've even seen an ad for some sort of boiling oil dispenser, but I might have that slightly wrong.

In any event, the authors raise many good points, full of hope that a coalition of willing pirate fighters might quell the threat raised by Somali pirates. Perhaps I am too cynical, but in my experience, the trouble with coalition warfare is a coalition does not always act like united command and coalition partners have a tendency to decline the hard jobs while being more than willing to accept "being there" as a substitute for "doing things."

The time is past for gathering everything into nice legal bundles.

The 25 to 40 warships bobbing about in the Indian Ocean need to move inshore to Somalia and blockade the pirate base ports (historically 4) and take steps to put a dent in the pirate operations. Cut off the pirate's access to too much ocean, as set out here.

Some countries - England, Turkey, Denmark, Spain, France and the Netherlands- have shown courage in attacking pirate craft inshore and at anchor- and others should follow their lead while acting in a coordinated manner.

Heck, the French took action to retake some ransom paid by actually landing a force to intercept the "getaway" vehicle of the pirates who had the money. See here.

The pirates depend on outboard motors to power their attack craft. How about putting an embargo on such motors heading to Somalia?

I'm for hunting pirates!

Let the Somalis know that every single boat that attempts to leave Somalia must report into a "control ship" for inspection and that failure to do so will result in instant sinking by gunfire. As I wrote earlier:

My own personal option is a blockade of known Somali pirate ports and an announcement of "no warning shots" by the various international naval units in the area if a small boat is found firing on a ship at sea. Aim for the motors on the boat and let the survivors drift home. They better have life jackets and oars.

In any event, the time is now to start shrinking the amount of sea space available to the pirates and begin to push them back to Somali home waters.

No "ifs" "ands" or "buts."

UPDATE: Pirates add ammo, men to ships after 4 US deaths:

Pirates in Somalia said Wednesday they are ferrying ammunition and men to the 30 hijacked vessels still under their control, and they threatened to kill more captives following the violent end to a hostage standoff that left four Americans dead.
***
A pirate in Somalia who gave his name as Adowe Osman Ali said fellow "soldiers" had ferried the reinforcements to hijacked ships in their hands on Wednesday in a bid to deter more hostage rescue attempts. He said after Tuesday's incident, captains of hijacked ships have been ordered to tell navies not to approach or hostages would be killed.

"In the past, 20 or so soldiers used to guard every ship but now the numbers are ranging between 60 and 70 soldiers," said Ali, a pirate in the coastal village of Gara'ad.

"We are more alert than anytime before," he said. "In the past, we allowed the foreign navies to approach us but now we have warned them to not get nearer to us."

Which may or may not be true, as given that they are holding 37 ships, that's army of over 2000 "ship guards" and must make for a pretty big logistics train to keep them in khat, food and water. Not to mention the portion of the cut of the ransoms these numbers will eat into.

No, I take this as a sign that the pressure by the various coalitions, no matter how uncoordinated, is eating at the pirates.

I don't really see these guys willing to devote months awaiting attacks that may or may not ever arrive.

In which case, more coordinated pressure, sooner rather than later, please.

Somali Pirates Kill American Hostages from Captured Yacht

Somali pirates reportedly have killed 4 Americans on hijacked yacht off Somalia:

The four Americans aboard a yacht hijacked by pirates off the coast of Somalia are dead.

Hijacked by Somali last Friday off Oman, the Quest was being piloted toward the Somali coast - and was being shadowed by a U.S. Navy warship.

CBS News national security correspondent David Martin reports that gunshots aboard the yacht were heard, and the warship took action.

All four Americans were dead, killed apparently by their captors. There were more than a dozen pirates on board, some dead and others captured, Martin reports

U.S. Central Command report:

At approximately 1 a.m. EST today, while negotiations were ongoing to secure the release of four American hostages, U.S. forces responded to gunfire aboard the pirated vessel (S/V) Quest. As they responded to the gunfire, reaching and boarding the Quest, the forces discovered all four hostages had been shot by their captors. Despite immediate steps to provide life-saving care, all four hostages ultimately died of their wounds.

“We express our deepest condolences for the innocent lives callously lost aboard the Quest,” said Gen James N. Mattis, U.S. Central Command Commander.

During the boarding of the Quest, the reaction force was engaged by pirates on board the vessel. Two pirates died during the confrontation and 13 were captured and detained along with two pirates already in US Forces custody. The US Forces also found the remains of two other pirates already dead aboard the Quest. In total, it is believed 19 pirates were involved in the hijacking of the S/V Quest.

USS Leyte Gulf

USS Enterprise

USS Bulkeley

USS Sterett

US Forces have been closely monitoring the S/V Quest for approximately 3 days, once it became known to be pirated. Four U.S. Navy warships comprised the response force dedicated to recovering the S/V Quest: the aircraft carrier USS Enterprise (CVN 65), the guided-missile cruiser USS Leyte Gulf (CG 55), the guided-missile destroyers USS Sterett (DDG 104) and USS Bulkeley (DDG 84). The ships are deployed to the region to conduct maritime security operations and to provide support to operations Enduring Freedom and New Dawn.

Piracy and murder trials will surely follow.
UPDATE2: More info from a press brief by Admiral Fox:

Vice Admiral Mark Fox, commander of the U.S. Navy 5th Fleet, told reporters at the Pentagon by telephone from Bahrain that the boarding party was U.S. special operations forces and they met no resistance at first. However, during the search of the vessel they killed two pirates, one in a knife fight and the other by gunshot, and they found two others already dead.
***
Fox said the pirates are in Navy custody and the plan is to bring them “to a judicial process and hold them accountable for their activities.”

The Navy has been tracking the pirated yacht since Feb. 18, when it was spotted by a Royal Danish Navy ship off the coast of Oman, Fox said. “We have seen a growing problem here in terms of the pirate activity off the coast of Somalia,” Fox said.

A knife fight? Transcript of VADM Fox comments here. You can download the audio here.

UPDATE: What law may apply?
It may depend on exactly where the deaths occurred. If in international waters, then international law of the sea (and the treaties, etc that compose that) may apply. While the United States is not a party to the United Nations Convention on the Law of the Sea, it is a signatory to the predecessor to that Convention - the 1958 Convention on the Law of the Sea. Article 15 of the 1958 Convention reads:

Article 15
Piracy consists of any of the following acts:
(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.

Under U.S. law, piracy is punishable by life imprisonment.

Murder, on the other hand, may be punishable by death.

It may depend on whether or not the boat was U.S. flagged. If it was U.S. flagged, U.S. law will apply. The FBI says

When a crime does occur at sea, several factors determine whether the U.S. has legal jurisdiction. A complicated weave of international law applies, but as a rule, the FBI leads investigations of the following scenarios:

If the ship is U.S.-owned, regardless of the nationality of the victim or perpetrator;

***

If it's an act of terrorism against the U.S.

UPDATE3: Looks like the FBI is involved.

There is a nice bit of legislation that may apply, US Code, Title 18, Ch. 111, Sec. 2280:

§ 2280. Violence against maritime navigation

(a) Offenses.—

(1) In general.— A person who unlawfully and intentionally—

(A) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation;

(B) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship;

(C) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship;

(D) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship;

(E) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such act is likely to endanger the safe navigation of a ship;

(F) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safe navigation of a ship;

(G) injures or kills any person in connection with the commission or the attempted commission of any of the offenses set forth in subparagraphs (A) through (F); or

(H) attempts or conspires to do any act prohibited under subparagraphs (A) through (G),

shall be fined under this title, imprisoned not more than 20 years, or both; and if the death of any person results from conduct prohibited by this paragraph, shall be punished by death or imprisoned for any term of years or for life.

(2) Threat to navigation.— A person who threatens to do any act prohibited under paragraph (1)(B), (C) or (E), with apparent determination and will to carry the threat into execution, if the threatened act is likely to endanger the safe navigation of the ship in question, shall be fined under this title, imprisoned not more than 5 years, or both.

(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a)—

(1) in the case of a covered ship, if—

(A) such activity is committed—

(i) against or on board a ship flying the flag of the United States at the time the prohibited activity is committed;

(ii) in the United States; or

(iii) by a national of the United States or by a stateless person whose habitual residence is in the United States;

(B) during the commission of such activity, a national of the United States is seized, threatened, injured or killed; or

(C) the offender is later found in the United States after such activity is committed;

(2) in the case of a ship navigating or scheduled to navigate solely within the territorial sea or internal waters of a country other than the United States, if the offender is later found in the United States after such activity is committed; and

(3) in the case of any vessel, if such activity is committed in an attempt to compel the United States to do or abstain from doing any act.(emphasis added)

Of course, some would rather see these pirates hanging from yardarms after a brief trial at sea.

Our ancestors had their own techniques for dealing with murder at sea:

In England in the 13th century it was enacted that anybody who committed murder on the king's ships would be tied to their victims body and thrown into the sea to drown.

Of course, we live in the 21st century. I'll bet some government lawyers are working overtime on this.

UPDATE4: Naturally, there are reports that it was all started by the U.S.. This report should be judged on the basis of the veracity of some unknown pirate accomplice who has no reason to portray the incident in any light unfavorable to his companions. Even if true, the U.S. did not pirate the boat and was not holding 4 people hostages. The U.S. would have been within its rights to kill all the pirates as they came into sight.

Remember that these pirates, who now range across the Indian Ocean, claim justification for their acts because of illegal fishing and dumping in Somali waters, neither of which the 4 Americans were involved with.

Somalia Pirates: Getting too big to avoid land action by anti-pirate forces?

Call for action against the pirates reported by Strategy Page in Somalia: Calls For Sending Commandoes Ashore:

So far it's all talk, but specific talk about going after the ability of the pirate gangs to function. The continued payment of large (average now about $5 million per ship) ransoms for insured ships, is attracting more warlords, who are forming more pirate gangs and sending more mother ships out than the anti-piracy patrol can handle. Thus the increased talk of commando raids.

How big is the problem? well, USA Today's Jim Michaels reports:

Two years after international forces dispatched a flotilla of warships to counter piracy around the Horn of Africa, attacks on merchant ships are rising again.

Last year, pirates captured 53 ships in the region, up from 51 in 2009, according to the Combined Maritime Forces, which oversees the operations. There were 160 attempted attacks in 2010, up from 145 the year before.

Pirates have shifted tactics so they can prey on merchant ships farther out at sea and evade an international flotilla that was dispatched to the Horn of Africa region to protect heavily used shipping lanes, according to the Combined Maritime Forces based in Bahrain.
***
Aldred said the naval force, with the help of merchant shipping companies, has been successful in reducing piracy from 2008 levels when a spike in attacks led to the creation of the international force.

He also said naval forces are disrupting more attacks. Last year 169 attempts were disrupted, up from 62 the year prior.

The shift in tactics has showed the resiliency of pirates, who have made millions of dollars from ransoms.

Pirates are now using "mother ships," which are able to travel thousands of miles before finding a target and then launching smaller skiffs that pirates use to board merchant ships, said Eric Thompson, an analyst at the Center for Naval Analyses. "That magnifies the challenge of covering that territory," he said.

Yep, when you put the squeeze on one part of a bag of goo, the goo in the bag oozes to another part of the bag. In this case, the pirates, squeezed in the Gulf of Aden, move to the northern Arabian Sea, Madagascar Strait or off the west coast of India.

The shift causes them to need larger, more sea-worthy ships, which they procure by pirating them, giving them a low-overhead system of ship acquisition. When such a ship is used up (out of fuel and food), it is anchored off Somalia to await ransoming by its owners. Another ship is taken to replace it. The pirates have low maintenance costs, too. It's a clever business model.

Anti-piracy forces are reluctant to force their way onto these captive pirate vessels for fear of causing injury to the captive crews of innocent merchant sailors.

So far the problem is tiny in comparison to the volume of shipping involved but, as we have seen, it is expanding and the current methods of squeezing the pirate "bag" is just moving the pirate area of operations away from the convoys and other military efforts.

Some of the better options to fight the pirate expansion are coming off the board as the pirates aggressively use hostages to protect themselves from the counter-piracy forces.

The treatment of this as a purely "law enforcement" problem has proven to be something of a problem - and not very effective. "Catch and release" of captured pirates doesn't deter very much and the costly trials result in more of a hassle for the countries holding them then the deterrent value of facing criminal charges.

Someone is going to have to break some eggs to solve this problem and those eggs that matter are all land-based.

Then there is this problem:

LONG ago, the mice had a general council to consider what measures they could take to outwit their common enemy, the Cat. Some said this, and some said that; but at last a young mouse got up and said he had a proposal to make, which he thought would meet the case. “You will all agree,” said he, “that our chief danger consists in the sly and treacherous manner in which the enemy approaches us. Now, if we could receive some signal of her approach, we could easily escape from her. I venture, therefore, to propose that a small bell be procured, and attached by a ribbon round the neck of the Cat. By this means we should always know when she was about, and could easily retire while she was in the neighbourhood.”

This proposal met with general applause, until an old mouse got up and said: “That is all very well, but who is to bell the Cat?” The mice looked at one another and nobody spoke.

The moral?  "It is one thing to propose, another to execute."
Attributed to Aesop.