Aiding and abetting: a critical loophole in the fight against maritime piracy

Recent statistics from the International Maritime Bureau confirm that maritime piracy in Somalia is on the decline.  From the 237 incidents reported in 2011, there were only 15 attacks in 2013.  In May 2012 the MT Smyrni, a Greek-owned tanker, became the last merchant vessel captured and ransomed by pirates off Somalia until now.

However, this success comes at considerable cost: an intense international naval deployment, Operation ATALANTA, spanning 2,000,000 square nautical miles – an area 1.5 times the size of mainland Europe; application of Best Management Practices, and the use of private security on ships in the region, which together cost the international community and the shipping industry billions of dollars a year to maintain.  Over $1 billion per year is spent on the naval operations that patrol the Gulf of Aden, and in 2012, Ocean’s Beyond Piracy estimated that between $1.15 and $1.53 billion was spent on armed guards in the Gulf of Aden that year, and these are being deployed in 50 per cent of shipping vessels.

But for how long is this level of expense sustainable?  A decision is expected in the coming week whether the EU will continue to finance ATALANTA.  The Shipping Industry has already been very vocal about the unsustainable expense of the costs of private security, on top of the already significant costs of re-routing and additional insurance to sail through piracy risk regions.

A more durable response is required, and a recent joint conference of the EU and INTERPOL proposed that it is time to apply a more focused approach to breaking down the piracy business model: by applying money laundering analysis and asset seizure instruments to create financial disincentives.

This will entail a significant shift in approach for the international community. Thus far, there has been little effort to go after the true profiteers of piracy. Considerable investment has been made on strengthening criminal justice capacity, including in Somalia itself, but this has proved to be of little deterrent to pirates. This is arguably for two reasons: firstly the failure of international cooperation to be able to take out the pirate organisers and kingpins who are resourcing and coordinating the criminal activities; secondly to the paucity of legitimate livelihood alternatives offered to lower ranking pirates, and thus the sheer numbers of available recruits into the piracy trade.

But in fact the physical act of piracy or robbery at sea is only the first step in a criminal economy chain that has a long reach. The acts of piracy may be largely concentrated in three key regions: the Western Indian Ocean; the Gulf of Guinea and in South East Asia, but piracy organisers and financiers reside and launder their profits far more broadly.  And it is here where the true profits, and thus motivation, are realised.  The findings of “Pirate Trails: Tracking the Illicit Financial Flows off the Horn of Africa” a seminal study by the World Bank, INTERPOL and the UNODC, revealed that less than 2% of profits from a successful piracy attack will go to the pirates that board the ship; whereas the financiers who remain firmly on land will take between 30—50%.

Collectively, there is much that is now known about kingpins and organisers, and the modus operandi of pirates. Yet only in one or two isolated incidents has effort been made to leverage this information to capture high value targets, and as yet, there have been no prosecutions of the bosses who have financed pirate enterprises.

In this regard, however, the international community is hampered by a major loophole in the international legal framework: the lack of legislation that criminalises as piracy the aiding and abetting of pirate attacks. Without this, it becomes challenging to target financiers and the on-land supporters and instigators of piracy. Despite an intense effort by the international community under the auspices of the Contact Group Group on Piracy off the Coast of Somalia, which met in NY last week, this critical issue appears to have been overlooked. In the one case where this indictment has been tried, the case of Somali ransom negotiator in 2013, the pre-trial judge concluded that the prosecution was “over-reaching” in trying to get a piracy charge to stick.

The United Nations Convention on the Law of the Sea (UNCLOS) uses two terms to capture this type of conduct: “international facilitation” or “indictment” to piracy, which are accessory crimes. In most cases, national legislation covers acts of maritime crime through reference to UNCLOS, this is the primary legislative framework that will govern piracy, and UNCLOS only comes into force for acts that are committed on the high seas. Thus, the ability to apply this to “piracy on land” is questionable.

Furthermore, If criminal organisers are not prosecuted, their crimes will proliferate into new markets, even as piracy attacks are falling, e.g. with increasing controls at sea, the threat of Somali piracy has been displaced by land-based kidnapping for ransom of foreign workers. The two Kenyan engineers kidnapped by armed gunmen and transferred to Harardhere in January 2014, are an example.  It is clear that piracy will continue, in Somalia or elsewhere, for as long as those who profit are left to pursue their criminal enterprises with impunity.  Therefore the international community needs to move swiftly to close this loophole.


Original Article