AN ASSESSMENT OF THE CRIME OF PIRACY AND HIJACKING WITHIN THE CONTEXT OF INTERNATIONAL LAW
NWALA Paul, Ph.D
Department of International Law and Diplomacy
The West African Union University
Cotonou, Republic of Benin
Email: princepaulnwala@gmail.com
Abstract
Piracy and hijacking are now recognized as a critical security problem that attracts news coverage worldwide. The global damage caused by piracy and hijacking is estimated at $6.6 to $6.9 billion. However, limited research exists on the effectiveness of situational measures to curb this menace, and the few formal studies that do exist are said to not been able to capture the realities of how these measures are employed. This research study examines what the crime of piracy and hijacking is all about in terms of posing serious transnational security challenges on coastal water ways and its devastating effects on economy of nations where such crimes are being perpetrated, how international law can be applied to provide remedy for the prevention of the crimes of piracy and hijacking. This study also reviews the problems associated with piracy and hijacking, the major causes of piracy and hijacking and how international law is a remedy. It rounds up with proposals and recommendations as to the way forward in resolving the issues raised and examined in the work. Secondary sources of data collections and historical legal model were used to carry out this research work.
Keywords: Legal Examination, Crime, Piracy, Hijack, and International Law
Introduction
Piracy and hijacking could eb characterized as one of the oldest international crimes. In Ancient Rome around 60-70 BCE, Cicero declared pirates ‘’hostis humani generis’’, meaning ‘’enemy of all mankind’’. Though times have changed, but piracy still exists, posing a threat in a large scale. It is estimated that for the last decade, between € 340 million and € 420 million were claimed in ransom of price acts in the Horn of Africa. Because of human activities that go on at sea, it is important that order and security at sea becomes a priority in the world. Unfortunately, order and security at sea have been threatened by illegal and criminal activities among which have belonged to for centuries maritime piracy and hijacking of ships. In fact, piracy and hijacking of ships can be considered as a plague that has affected the maritime domain since seaborne trade occurred in the history of mankind.
According to International Law piracy takes place outside the jurisdiction of a state without state authority, and it is private not political, though acts of unlawful warfare, acts of insurgents and revolutionaries, and slave trading have been defined as piracy by national laws of various countries. Piracy has occurred throughout history and this has directly threatened the lives of seafarers and lives as a whole and has strongly had impacts on maritime activities as well as economic development. The global damage caused by piracy is estimated at $6.6 billion through commercial fraud, loss of cargo or delay.
Nowadays, piracy is a well-structured system, aiming at investing its income and proceeds with further money laundering. Pirate leaders invest money in their own militia, political influence, but also in criminal areas such as kidnapping, human trafficking, migrant smuggling and drug trafficking. Furthermore, intense connections with Al Shaabab and Al Qaeda prove that the proceeds from piracy are used for funding terrorist groups, while money are laundered through legitimate businesses such as real estate and khat.
CONCEPTUAL CLARIFICATION
According to the United Nations Convention on Law of the Sea (UNCLOS, 1982) Article 101, the term “piracy” is defined as any illegal acts of violence 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 to go against a ship, aircraft, persons or property in a place outside the jurisdiction of any state. Article 101 reveals that piracy has four main characteristics: The use of unlawful violence, detention, depredation. Usually, a subject of discussion is whether the use of firearms is significant to classifying an act as a pirate activity. A closer look to Article 101 reveals that the use of firearms is by no means defining whether an activity is of pirate character or not, but the use of violence itself is what is significant. As the unlawful use of firearms is always an act of unlawful violence, such acts will be classified as pirate activity.
Piracy activities are committed for private ends. No definition of the term “private ends” is given either by the Convention on the High Seas or by the UNCLOS. The term has been subject to discussion and two standpoints are mostly reasoned. Some authors claim that the term “private ends” should be viewed as the motivation of the actor of crime to receive financial gain from his or her activity. This view collaborates with the traditional doctrine for personal benefit, adopted by nearly every State’s Criminal Law. The other view on the term “private ends” is more suited to the nature of maritime piracy as an international crime – an act cannot be piratical if it is done under the authority of a state.
As noted in the definition, piratical acts must occur in the high seas or within the Exclusive Economic Zone of a State (EEZ). Any attack within territorial waters of a state cannot be classed as piracy. In accordance with Article 1 of the HSC the term “high seas” means all parts of the sea that are not included in the territorial sea or in the internal waters of a State. Article 86 of UNCLOS gives a further detail to this definition, providing that the term “high seas” applies to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State and does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone.
It can also be defined as the practice of attacking and robbing of ships at sea. Furthermore, According to Article 28A(5) of the protocol includes the crime of privacy within the jurisdiction of the court. In Article 28(f) piracy was given its definition as any act of voluntary participation in the operation of a boat, ship or an aircraft with the knowledge of facts making it a private boat, ship or aircraft.
“Hijack” on the other hand is an unlawful seizure of (an aircraft, ship, or vehicle) in transit and force it to go to a different direction or destination or use it for one’s own purposes. “Unlawful seizure” is the legal name that states at international level have given to aircraft hijacking. In response to the wave of hijacking that began in 1968, the 1970 Hague Convention for The Suppression of Unlawful Seizure of aircraft was concluded in an effort to prevent hijackers from finding immunity in any of the contracting states.
This research will however address the legal history underlying the issue of piracy and hijacking under international law, as well as the elements of the offense set out and finally, we would also consider some of the difficulties in interpreting and applying the present international legal framework set out to combat this menace and how they might be resolved.
SCOPE AND SIGNIFICANCE OF THE STUDY
A total of 1,845 actual or attempted acts of piracy were registered around the world between 2003 at the end of 2008, which equates to an average annual rate of around 352. The true figure is undoubtedly greater because in many cases (possibly as many as 50 percent) shipowners are reluctant to report attacks against their vessels out of concern that this will merely lead to increases in maritime insurance premiums and result in lengthy and costly post-incident investigations. The concentration of piracy is greatest around the Horn of Africa and the Gulf of Aden, which accounted for roughly 37 percent of all attacks reported in 2008 (111 out of 293). Other high-risk zones include Nigeria/Gulf of Guinea, Indonesia, India, Bangladesh and Tanzania, which collectively accounted for 59 percent of all non-Horn of Africa/Gulf of Aden incidents last year. The scale and sophistication of piracy has jumped markedly in recent years, especially in the waters of East Africa. Gangs now routinely hijack large ocean-going vessels and have exhibited a proven capacity to operate as far as 500 nautical miles from shore. There has also been a discernible spike in hostage-takings. In 2008, 889 crew members were abducted, the highest figure on record and a significant 207 percent increase on the total for 2007.
IS PIRACY AND HIJACKING A CRIME UNDER INTERNATIONAL LAW?
Public vessels of any state have been permitted to seize a pirate ship and to bring it into port to try the crew (regardless of their nationality or domicile), because piracy has been regarded as an offense against the law of nations and if they are found guilty, to punish them and confiscate the ship. The so called “Golden Age” of piracy occurred in the Caribbean and in the waters off the American colonies in the century after 1650. This was the era of legendary figures such as sir Henry Morgan and William Kidd (Captain Kidd) some scholars portrayed pirate culture as a genuinely subversive radical movement that defied the distinctions of class and the race and kept alive the dreams of 17th century political radicals long after they have been defeated in England .From the 16th to the 18th century after the weakening of Turkish rule had resulted in the virtual independence of the Barbary states of North Africa, Piracy became common in the Mediterranean, Morocco, Tunis and Tripoli so tolerated or even organized piracy that came to be called “Pirate States”. Although piracy declined dramatically in the 19th century, the practice of hijacking ships and airplanes developed into a new form of piracy in the late 20th century. The affinity between piracy and terrorism became of particular concern after the hijacking of the Achille Lauro Cruise Liner by Palestinian militants in 1985 and after agent of Al-Qaeda executed the September 11 attacks of 2001 in the United States. An upsurge of attacks in waters off the coast of Africa particularly Somalia, in 2008-2009 included the hijacking of ships belonging to several countries and led to the forcible intervention by warship of several navies .It negatively impacts regional stability and can, in certain circumstances, together with some other factors, create a threat to international peace and security.
International regulation of the crime has gone through several phases. Starting with tolerance of piratical activities, States began to prohibit piracy in their domestic legislation when they gained power and control over vast maritime areas. The prohibition of piracy was therefore as much the product of power and technology as of consensus on values and principles. The introduction of steel-hulled ships into national navies allowed States to exert more effective control over the seas, while at the same time pirate ships could not compete with the larger, stronger steel ships of modern navies. Multilateral antipiracy regime was first drafted in 1932, adopted in 1958 and confirmed in 1982.
The relatively narrow definition, as contained in the Article 101 of the United Nations Law of the Sea Convention, provides that piracy consists of 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: on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; or against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.
It is interesting to observe that at times the anti-piracy legal regime was being drafted the problem of piracy had not been in the forefront of the public. In the following years, the established regime, considered also as being part of customary international law, proved to be highly unworkable in practice. The methods employed by modern pirates significantly differ from those that were common in the early 20th century. They use sophisticated technology and are highly organized. Moreover, States mostly abstained from exercising universal jurisdiction over pirates and on the other hand were unable to protect themselves from terrorist attacks on the sea due to the exclusion of political acts from the definition of piracy.
The international community has at various occasions expressed its deepest concern in regard of the grave danger to life as well as the navigational and environmental risks which acts of piracy and armed robbery can amount to. Due to their almost identical characteristics, armed robberies in territorial waters are often referred to as piracy, although not falling within the scope of the international definition of the offence.
The International Maritime Organization (IMO), the United Nations, as well as regional organizations, including the European Union are today actively involved in confronting these global threats. A plethora of General Assembly’s resolutions and other UN documents call upon States to fully cooperate with IMO, a leading international maritime authority, in combating piracy and armed robbery against ships. IMO’s numerous legal documents urge governments to give the highest priority to taking all appropriate measures to prevent and suppress pirate activities in their waters. Some States incriminated and proclaimed strict sanctions for the crime of piracy and armed robbery in their internal laws. However, due to dramatic increase of piratical attacks in the recent decade, the States are more and more willing to agree to different forms of bilateral or multilateral cooperation in order to facilitate crime prevention and prosecution of pirates.
After decline of piratical attacks in the Malacca strait, following an establishment of successful regional cooperation mechanism, in 2008 the center of contamination became the waters off the Somali coast. In response, the United Nations Security Council adopted several resolutions encouraging States to take coordinated actions in suppressing piracy and armed robbery in the area, and, with the consent of Somali Transitional Federal Government, for the first time authorized the use of all necessary means in fighting this international menace, even in the territorial waters of Somalia. It is noteworthy that the Security Council, among other things, suggested to States to use the 1988 SUA Convention for cooperation in the extradition and prosecution of piracy. Moreover, it is reasonable to assume that these Security Council’s resolutions, which were all adopted under Chapter VII of the UN Charter and are therefore legally binding on all States, although dealing with the specific situation of Somalia had to certain extent paved the way for the future dealings of the Security Council with the cases of piracy. The evolution of modern piracy and explores the existing international legal regime for combating piracy and armed robbery at sea. While emphasizing its major inadequacies and shortcomings, it specifically focuses on recent responses of the international community to the increase of piratical attacks, most notably off the coasts of Somalia, and assesses their contribution to the development of new international norms aiming at effective dealing with and reduction of the threat of these heinous crimes. Piracy at Sea is typically directed against private vessels and therefore has significant effects upon private actors.
The 1982 Convention on the Law of the Seas allows exclusively pursuit against pirates by public vessels, such as military vessels and other vessels owned by the State and accomplishing a public service. The Commission might analyze the operation of such rules in the context of piracy and armed robbery at sea based on contemporary State practice, and consider whether the rules set forth in the 1982 Convention in this regard have the status of customary international law, binding upon all States. In fact, pirates committing crimes in the high seas know that by staying in the high seas or the exclusive economic zone, they may be pursued and captured by any state on the basis of universal criminal jurisdiction. To avoid that situation, they typically will quickly move, after an act of piracy, to the nearest territorial sea of a State to escape pursuit by foreign vessels. Moreover, the fact that many States do not have the capacity to control their territorial sea encourages pirates to move their operations in these waters by raiding and attacking ships waiting their turn to enter a port.
It was to solve this issue that the Security Council, on an exceptional basis, authorized foreign naval forces to engage in pursuing into the Somalian territorial sea from the adjacent high seas and exclusive economic zone for the purpose of capturing pirate vessels. Moreover, the Council also authorized foreign naval vessels, with the consent of the Government of Somalia, to enter into Somalia’s territorial sea for the purpose of capturing pirate vessels. In the same time, the Security Council made it clear that “the provisions of this resolution apply only with respect to the situation in Somalia and do not affect the rights and obligations or responsibilities of Member States under international law”, which means that these provisions should be enforced under the legal framework of the fight against piracy as established by the 1982 Convention on the law of the Sea and rules of customary international law.
State actions at sea, whether unilateral or multilateral, are limited in their ability to deal comprehensively and efficiently with maritime piracy, leaving private vessels vulnerable. That vulnerability has led ship owners to pursue their own maritime security often through contracts with security companies. Such private maritime security may consist of having armed security personnel on the private vessel, who may exercise lethal action when approached by other vessels. This phenomenon, in term of preventive measures, raises the questions of whether international law requires or should require the flag State, the State where the security company is incorporated, or other States to regulate such actions. Private vessels are not authorized under the 1982 Convention to engage in hot pursuit. Thus, a private ship that is the victim of piracy has no recourse to undertake enforcement action under the law of law of the sea. The Commission might consider the law and practice in this area to see if private vessels are prohibited from engaging in such action by international law and, if so, the line between such actions and defensive acts when attacked by maritime pirates.
With respect to the Rights of Alleged Offenders, persons who are alleged to have committed maritime piracy are entitled to fair treatment, including a fair trial, and full protection of his or her rights under national and international law as demonstrated by case law through domestic courts’ decisions and international courts’ rulings dealing with pirates’ prosecution. The operation of such rights in context of seizure of the person on the high seas and hence outside the sovereign jurisdiction of any State might be analyzed so as to clarify how such rights operate in this context.
THE ISSUE OF PIRACY AS A CRIME UNDER INTERNATIONAL LAW
Piracy as a crime under international law is an exception as there is much emphasis placed upon sovereignty and jurisdiction of each particular state within its own territory. The acts of piracy threaten maritime security by endangering, in particular, the welfare of seafarers and the security of navigation and commerce and these criminal acts may result in the loss of life, physical harm or hostage-taking of seafarers, significant disruptions to commerce and navigation, financial losses to shipowners, increased insurance premiums and security costs, increased costs to consumers and producers, and damage to the marine environment.
However, Pirate attacks can have widespread ramifications, including preventing humanitarian assistance and increasing the costs of future shipments to the affected areas. The Security Council has affirmed that the United Nations convention on the Law of the Sea 1982 (UNCLOS) provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110.
International law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (‘The Convention’), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities (Security Council resolution 1897 (2009), adopted on 30 November 2009). The General Assembly has also repeatedly encouraged States to cooperate to address piracy and armed robbery at sea in its resolutions on oceans and the law of the sea, also recognized the crucial role of international cooperation at the global, regional, sub-regional and bilateral levels in combating, in accordance with international law, threats to maritime security, including piracy.
According to the authors of the report Counterpiracy under International Law (see p. 23), “states have agreed that each state will have jurisdiction over piracy committed on the high seas, while the same acts committed in territorial waters will not attract such universal jurisdiction.” Indeed, piracy is the classic example of a crime subject to universal jurisdiction, meaning that states can exercise jurisdiction over pirates, even without a clear link with the prosecuting states, such as territoriality and the active/passive nationality principle. Jurisdiction based on the universality principle is thus based on the idea that the crime is so serious that any state has an interest in prosecuting it. The offense of piracy is of great concern to the international community as it has affected the economic activities and thus the economic well-being of many countries.
THE ISSUE OF HIJACKING AS A CRIME UNDER INTERNATIONAL LAW
Hijacking generally refers to the illegal seizure of a land vehicle, ship, or aircraft in transit and its forcible diversion to a new destination against the will of its crew. In international law, both the hijacking of a ship (Piracy) and an aircraft are recognized as international crimes without controversy. According to International Law, the aircraft crime is considered as one of the crimes against humanity. It is totally excoriated by the international community because the effect of this crime traumatizes the human values, endangers lives, and destroys possessions, goods and chattels. The intentions which highlight this crime may be derived from any personal motive, hostage taking, political and administrative reason etc.
According to Article 1 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970: “Any person who on board an aircraft in flight: unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or is an accomplice of a person who performs or attempts to perform any such act commits an offence”. In most of the cases hijackers intend to use the passengers as hostages, either for ransom or for some political or administrative purpose. Motives vary from demanding the release of certain convict, to crowning the injustice towards a particular community. The Hague Convention 1970 recognized the need to provide for appropriate measures for punishment of such offences and mentioned that hijacking of an international flight of a civilian aircraft comes under both the principles of International customary law and treaty law.
Up to 1960s, there was an absence of any international customary law in relation to the hijacking of aircraft. This is the reason why the international community was asked for any solution to this threat, which leads towards the Tokyo Convention on Offences and Other Acts Committed on Board Aircraft, 1963, and the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970. Two more conventions were adopted, namely The Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971; and The International Convention against the Taking of Hostages, 1979. The first three were evolved under the auspices of the International Civil Aviation Organization (ICAO) and the fourth was adopted by the U.N. General Assembly.
Aircraft hijacking must be dealt with on an international level because the act often involves more than one state’s territory, and because the effective solutions can only be achieved through international cooperation. Efforts made by the International Civil Aviation Organization, the Tokyo Convention of 1963, the Hague Convention of 1970, and the Montreal Convention of 1971 are noted.
It is noted that one of the problems is that the present conventions only apply to contracting states and that states defined to as havens for hijackers are not party to any of these conventions. A convention is needed which specifically defines aircraft hijacking as an international criminal offence, punishable and extraditable by all nations regardless of whether or not they are party to the convention.
EFFECT OF THE CRIMES OF PIRACY AND HIJACKING
For centuries, piracy has posed a threat to trade at sea. Setting to one side the romanticized image of pirates in fiction, modern day pirates are organized bandits that thrive in areas where law and order is weak, either because particular states provide safe havens or because of poor international cooperation to police them. Beyond the costs to people’s lives, this may have repercussions for worldwide trade.
Piracy directly threatens the lives and property of the crew. Recent piracy is mostly using piracy weapons such as submachine guns, grenade launchers or ammunition. This has led to a growing trend in violence at sea. They are piracy-ready when they are ready to use their weapons to suppress the crew and to kill people without fear when the crew members intend to protest .In addition to the risk of casualties, crew members who experience robbery can experience a mental disorder, many of whom are unrecoverable, many fear being removed.
Also, the cost of shipping costs, the cost of insurance for ships will increase. Parallel to rising transportation costs, maritime competition is likely to decline. In addition, high-capacity ship owners will not invest in upgrading their ships as piracy is on the rise. Instead, they will seek to sell their vessels in return for capital. This invisibility makes small shipping companies disappear, and instead, only the world’s major shipping companies are involved in shipping that monopolizes shipping.
Piracy reduces the ability of shipping countries to trade by sea for shipping. According to IMB calculations, annual piracy costs $13-15 billion globally. This is a big risk for international traffic and trade. If a well-known country is pirated shipping, it will adversely affect its trade so that the country can be ostracized by shipping.
Furthermore, pirates and hijackers cause political instability. Pirates and hijackers are the main cause of political instability in every country. A major corrupt state is responsible for the formation of ghost ships. That is why in South-East Asia, South America or Somalia are areas, where there are many pirates while developed countries like Russia and US are not pirates, are raging. And reported, the country of political instability will undermine the national flag-bearers.
Hijacking can also cause environmental hazards. In the case of piracy attacking ships carrying raw materials or oil, the consequences will be extremely unpredictable. The worst case is that the oil spill is not only polluting the marine environment, but also affecting the resources, marine resources, and coastal lowlands.
CAUSES OF THE CRIMES OF PIRACY AND HIJACKING
Piracy involves a range of actors, tactics, and motivations. At the subsistence level, poverty, unemployment, inadequate infrastructure and isolation from the state have rendered local populations vulnerable to the effects of overfishing, environmental degradation, war, and economic downturns, all of which are thought to contribute to the rise of piracy in a particular area. The established maritime traditions across the region have further facilitated the transition of many fishers into piracy as a means of survival. Piracy thus poses a growing threat to regional stability of a country. Originating in a context of poverty and unemployment, subsistence piracy initially thrived among the poor coastal and port security of Nigeria. As the state proved incapable of deterring these activities, piracy became more organized and increasingly threatened the growing volume of commercial shipping in and out of this country.
The Socio-Economic Module Report conceptualizes piracy as an economic crime, it also considers political, social, and historical facts associated with piratical activity. The global analysis of the root causes of piracy can be summarized as follows:
1) Economic Root Causes:
Piracy can be traced to the relatively high chances of substantial income. Perpetrators consider the acts as a high-income paying activity. Also, Pirates can carry out an attack with very minimal cost and expenses as there are less chances of direct confrontation. The economic risks are also low as well as opportunity costs.
2) Social Root Causes:
When Pirates take into consideration the weakness of the maritime capacity and tradition in a region, they take the opportunity to carry out their activities. The ability to gain social status through piracy is another cause of piracy. Pirates seek to earn recognition and popularity via their activities. Sometimes, the existence of grievances against explorers, merchants and the government can engender pirate activity. When there is a general existence of community support for piracy, this crime gains easy prevalence within that region.
3) Political Root Causes:
Like other crimes, Piracy can also be influenced by the existence of corruption within the state. Citizens take the political instability of the state as an opportunity to carry out this crime. The presence of multiple armed groups, rebel groups, vigilante etc. also create the atmosphere for piracy. When a state doesn’t have sufficient military and security capacity to withstand piracy, the crime continues to be perpetrated. Finally, the presence of regional disputes within a state provide easy grounds for this crime to be carried out.
According to Prins, who studies global piracy in partnership with the U.S department of defense, one of the major factor or cause of piracy is “weak states” or government that lack the resources necessary to effectively combat piracy. “Weak states,” according to Prins aren’t just associated with piracy, but also political violence, insurgencies, and terrorism like Boko Haram in Nigeria. “There’s probably a connection between individuals that are part of some kind of non-state violent groups, kind of rebellious groups or insurgent groups like those in the Niger Delta, and so members of those groups that are fighting against the state are also engaged in piracy as well,” Prins said.
Such states have a hard time addressing problems with piracy because they are economically weak and lack the resources necessary to adequately challenge pirate attacks. Furthermore, large populations of people suffer from poverty and joblessness, which often makes piracy one of the few economically viable lines of work. He also listed some other factors that contributes to piracy including economic weakness, poverty, joblessness, political violence, large populations, and proximity to major trade lanes which creates the opportunity for piracy.
Most of the hijacks use passengers as hostages in order to release comrades held in prison, for ulterior political motives or to acquire transport to a particular destination . Hijacking occurs because hijackers seek media attention, the security systems are vulnerable and also due to ransom. The causes of piracy and hijacking are not exhaustive and this chapter has highlighted few causes of piracy and hijacking.
INTERNATIONAL LAW AS A LEGAL REMEDY TO THE CRIME OF PIRACY AND HIJACKING
Several United Nations instruments address the problem of piracy, including the Convention on the High Seas, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), and the Convention on the Law of the Sea (UNCLOS). The United States is a signatory to the Convention on the High Seas and the SUA Convention, but not to UNCLOS. A “global diplomatic effort to regulate and write rules for all ocean areas, all uses of the seas and all of its resources” resulted in the convening of the Third United Nations Conference on the Sea in 1973 and the adoption of UNCLOS in 1982. UNCLOS generally incorporates the rules of international law codified in the Convention on the High Seas, but also comprehensively addresses the use of other areas of the sea including, for example, the territorial seas, natural resources, and the seabed. Although the United States is not a signatory to UNCLOS, it is generally viewed as a codification of customary international law. The Convention on the High Seas, to which the United States is a party, and UNCLOS both address piracy by stating that “[a]ll states shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”
The existing international law on piracy is found in the provisions of the United Nations Convention on the Law of the Seas 1982. However, that treaty regime was not the first attempt at making provisions on piracy. As early as 1924, during the era of the League of Nations, an attempt was made to provide an international agreement on the subject. But the effort fizzled out as it was thought that piracy was not an urgent problem then and that it was not likely that an agreement would be reached.
The United Nations was more successful with the adoption in 1958 of the Convention on the High Seas, which contained provisions dealing with piracy. When a more holistic law of the seas treaty was negotiated, the provisions of the Convention on the High Seas, as they relate to piracy, were adopted with minor changes. That more encompassing regime is the United Nations Convention on the Law of the Sea 1982 (UNCLOS). Although UNCLOS is a treaty and normally should be binding on only State parties thereto, in this case since the Treaty’s provisions are considered a codification of customary international law, the provisions are binding on every State including non-parties to the Convention.
The approach of UNCLOS is to stratify the waters of the earth into different juridical categories. Broadly, these are territorial waters, contiguous zone, exclusive economic zone and the high seas twelve miles into the sea, from the coast line of a littoral state, constitute its territorial waters. The littoral state exercises exclusive jurisdiction over its territorial waters, subject to the right of innocent passage vested in the ships or vessels of other states. The contiguous zone is twenty- four miles from the coastline, that is, twelve miles beyond the territorial waters. The coastal state may exercise control necessary to prevent violation of its custom, fiscal, immigration or sanitary laws or regulations within its territory or territorial sea and to punish any such infringement.
For the present purpose, the significance of the classification is that international piracy, to be such, must occur in the high seas. The provisions of UNCLOS dealing with piracy span Articles 100 to 107. These Articles start by enjoining all states to cooperate to the fullest extent possible in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state. The most important, and by far the most controversial, part is Article 101. Certain acts which would otherwise have been treated as piracy under international law, would not be treated as so under Article 101; however, it does not necessarily mean that those acts should go unpunished or without redress. For instance, if a foreign ship is attacked in the territorial waters of a State, the State, whose flag the ship is flying, is entitled, under international law, to demand that the other State, in whose territorial waters the act occurred, punish the perpetrators or otherwise redress the act. If the latter State does not redress the ship’s act, the State is in breach of its international obligation and a victim State would have the normal remedies available for such international delict. The universal jurisdiction is retained by Article 105 of UNCLOS, under which every State may seize a pirate ship or aircraft. However, the Article provides that the courts of the State that carried out the seizure may decide upon the penalties to be imposed. It has been suggested that this is a limitation on the universal jurisdiction and that it restricts the trial of pirates only to the courts of the States making the arrest .
Recently, the international community has been inundated, almost daily, with reports of piracy. While this rise is spread across the globe, two parts of the world have received the most focus: (1) the Gulf of Aden, off the coast of Somalia, and (2) the Strait of Malacca which is located within the territorial waters of the coastal States of Indonesia, Malaysia and Singapore.
The fact of the matter is that a situation where ships are being daily waylaid on the seas demanded a fairly robust and decisive action. It implicated international peace and security, and appeals to cooperate with the government of Somalia, which seemed not really in charge of anything, were not the best response. The deployment of an international force was called for, with a mechanism for trial and punishment of pirates. Although there is a coalition of navies led by the US, which has been patrolling the Gulf of Aden, the focus of the patrols has been to ward off the pirates rather than to pursue and apprehend them. The pirates were undeterred and even attempted to hijack a US ship .
In April 2009, pirates tried to hijack a US ship, the Maersk Alabama, but the captain and his crew thwarted their efforts because the captain surrendered himself to the pirates in order to safeguard his crew. The pirates fled with the captain to an enclosed lifeboat . However, US Navy Seals were able to rescue the captain and killed three of the four pirates in the process. The fourth pirate was arrested and brought to the US for trial.
Piracy is no longer a matter of antiquity or of historical interest, as modem piracy has assumed an alarmingly dangerous amount of currency. However, there are two major suggestions advocated. First, a more robust approach by the UN Security Council will deal with the immediacy of the problem and at least arrest the situation by deterring pirates. Second, a longer and more enduring solution will be to couple the international definition and prohibition against piracy with a meaningful judicial process, preferably within the structures of the international criminal court. By streamlining the judicial process, states would have an adequate alternative forum if they are unable or unwilling to prosecute pirates in their home countries. Therefore, by providing an international definition and ensuring an adequate forum, the international community would recognize that piracy is a criminal offense that is and this will subsequently ensure that piracy is treated as an international criminal offense which it is, and create the awareness of the opprobrium and condemnation with which mankind views piracy.
Judicial Case Laws On The Crime Of Piracy And Hijacking
The leading case involving piracy is that of the United States v. Smith. Smith and others had been part of the crew of the private armed vessel, the Creollo, commissioned by the government of Buenos Ayres, a colony which at the time was at war with Spain.
When the vessel was lying at the port of Margarita, Smith and certain others, all members of the vessel’s crew, mutinied, confined their officer, and finally abandoned the vessel. The mutinous crew then seized the Irresistible, a private armed vessel lying in that port, and commissioned by the government of Artigas, which was also at war with Spain. Smith and his fellow conspirators appointed officers and proceeded to sea without a commission from any government. In April, 1819, while cruising the high seas, the crew of the Irresistible committed the offense charged in the indictment; that is, they plundered and robbed a Spanish vessel.
This case was first tried in the circuit court of Virginia and brought up on appeal to the Supreme Court. United States v. Smith is still regarded as the leading Supreme Court decision upon the subject of piracy. In the case of United States v. Holmes” a vessel that was apparently Spanish was captured by two privateers out of Buenos Ayres, and a prize crew was placed on board. The defendants brought before the Court were members of that prize crew; one of them was a citizen of the United States and the others were foreigners. They were charged with the murder of the prize master of the captured vessel.
In United States v. Palmer, one John Palmer, with others, boarded a Spanish ship at sea and took certain valuable merchandise from her. The case was first brought before the circuit court for the Massachusetts district which proposed a series of some eleven questions which had to be answered before a decision could be made upon the facts in the case. In the case of the Brig Malek Adhel v. United States, decided by Justice Story, frequent references were made to the law of nations. According to the facts the ship in question sailed from New York bound to Guayman, in California, under the command of one, Joseph Nunez. Armed with a cannon and some ammunition, pistols, and daggers, it stopped several vessels upon the high seas, and at length put into the port of Fayal, where it remained for some days. In August, 1840, it arrived at Bahia, Brazil, where it was seized by the United States vessel of war, the Enterprise. A libel was there filed against the vessel and cargo upon several counts, all founded upon the act of Congress passed in order to protect the commerce of the United States, and to punish the crime of piracy.
In the case of the Palmyra: Escurra Master, an American vessel captured upon the high seas a Spanish privateer which had searched two American merchant vessels. The privateer was taken into an American port upon the charge of piracy. Justice Story, passing upon the facts in the case, upheld the judgment of the lower court restoring the vessel to the Spanish owners, but thought that no damage should be awarded because, under the circumstances, the captors should not be penalized for attributing a piratical character to the Spanish ship.
In United States v. Hasan, the United States successfully prosecuted five Somalis for piracy, among other offenses. The case involved an attack on the USS Nicholas, a U.S. Navy frigate, on April 1, 2010, on the high seas between Somalia and the Seychelles. The government alleged that the defendants, utilizing a large seagoing vessel and two small assault boats, approached and attacked the USS Nicholas, mistakenly believing that it was a merchant ship, with a rocket-propelled grenade and AK-47 assault rifles. The USS Nicholas returned fire, gave chase, and apprehended the defendants.
United States v. Said, 2010 case talks about pirates approaching the USS Ashland in a small skiff in the Gulf of Aden. The USS Ashland was shot by one of the pirates with the help of a firearm. The crew returned fire, destroying the skiff which led to the killing of one passenger. The pirates neither tried nor did they board the USS Ashland. They were taken into custody by the crew members. The pirates were indicted on multiple counts. They moved for dismissal of the count for violation of 18 U.S.C. § 1651. It was done on the ground that their act was not considered piracy since the boarding of the place did not take place and neither was the control of ASS Ashland taken by the pirates. The motion was granted by the district court. It was held that due process considerations did not allow construction of the piracy statute to include actions other than robbery or forcible depredations upon the sea. This was as per the guidelines and actions of the US v. Smith case and the definition of piracy given then.
Police v M A Abdeoulkader & Ors
On 5th January 2013, the MSC Jasmine, a container vessel was on its way from Salah, Oman to Mombasa, Kenya. At about 14.06 hours, it was at about 140 nautical miles (NM) off the Somali coast when it was attacked by a white skiff which bore some dark paint marks on its bow. On the skiff were about 6 to 8 persons. The attack was by gunshots and a rocket propelled grenade (RPG). From the container vessel, the Master, Captain Oleksandr Kopanoy sent an emergency signal by satellite. The attack lasted 40 to 50 minutes. The MSC Jasmine counter attacked. The skiff then left in the direction of the Somali coast in a west/north west direction at about 3 to 4 NM per hour. During the attack, Captain Kopanoy from the MSC Jasmine took photographs of the skiff. The photographs were produced at the trial.
Abuja, 20 July 2020 – On May 14, 2020, ten persons allegedly hijacked the fishing vessel Hailufeng 11. On May 16, 2020, the Nigerian Navy carried out a rescue operation 140 nautical miles south of the Lagos Fairway Buoy. The 18 crew members were rescued, and the ten suspects arrested.
On 13 July 2020, the suspects were arraigned at the Federal High Court in Lagos and the court case is progressing. This is the first ever trial of a piracy case in Nigeria, under the Suppression of Piracy and Other Maritime Offences Act of June 2019. This at a time when piracy and other maritime crimes continue to persist – even increase – in the Gulf of Guinea. Most attacks, nowadays, are kidnappings for ransom. A recent report by the International Maritime Bureau indicates a surge in kidnappings in the Gulf of Guinea, with the region accounting for 90% of the maritime kidnappings committed worldwide. Pirate groups involved have grown more sophisticated and are now capable to operate far off the coast and to project themselves across the entire Gulf of Guinea. A court in Nigeria has fined three men $52,000 (£40,000) each for hijacking a ship in March and securing a ransom of $200,000 for the release of its crew.
CASES OF PIRACY IN AFRICA
In 2018, there were 112 incidents of piracy in West African waters. It’s not just the huge tankers exporting oil and gas from Nigeria and Ghana that are targeted. Commercial ships from smaller countries are also in the sights of the pirates.
At a recent event in London, President Faure Gnassingbé of Togo a country sandwiched between these two regional giants highlighted his own concerns at the rise in attacks on regional shipping.
“Our region is distinguished by the resurgence of transnational criminality on the high seas in the Gulf of Guinea,” said Mr. Gnassingbé. Most of the attacks have been against ships involved in oil and gas transportation, such as tankers, bulk carriers and tugs. Fishing vessels have also been targeted. The coastline of Nigeria saw the most attacks in 2018. This is partly because of “Petro piracy”, targeting tankers from Nigeria’s rich oil and gas fields. There were also incidents reported at the loading and anchorage facilities in the Nigerian port of Lagos.
Piracy in the form of hijacking and kidnapping for ransom payments was also common off the coasts of Benin, Ghana, Nigeria, Congo-Brazzaville and Cameroon. Rich pickings at sea, political instability, the lack of law enforcement and poverty on land are all factors which have contributed to the increase in piracy. Most of the seafarers affected are not from the region. Around half are from the Philippines, followed by India, Ukraine and Nigeria. One of the reasons West Africa is now the number one spot for piracy is because of the downward trends recorded elsewhere. The East African shipping routes along the Somali coastline have been notorious for hijackings and robberies. But since peaking in 2011, rates of piracy there have fallen off dramatically in recent years. This is in large measure as a result of a successful multi-national effort to patrol these waters and take firm action against acts of piracy. Local efforts on land in Somalia to change attitudes towards permitting piracy and building legal capacity to prosecute criminals have also helped improve the situation. In Africa, while piracy in Somalia’s Gulf of Aden is currently on the decline, it has spread to West Africa. Although most attacks in the region take place in Nigeria’s Niger Delta region, there have also been attacks in Benin, Côte d’Ivoire, Ghana, Guinea and Togo, among others, according to the UN Office on Drugs and Crime (UNODC).
Reuters news agency reported that one such attack took place in October 2013 off Nigeria’s coast, where pirates attacked an oil supply vessel and kidnapped the captain and chief engineer, both American citizens. The report stated that “pirate attacks off Nigeria’s coast have jumped by a third this year as ships passing through West Africa’s Gulf of Guinea, a major commodities route, have increasingly come under threat from gangs wanting to snatch cargoes and crews .”
Unlike pirates along Somalia’s coast, who are often only after ransom, pirates in West Africa also steal goods, particularly oil. Many attacks end up with crew members injured or killed. But pirate attacks do not only result in killings and injuries, tragic as those are; they also damage the economy. In some cases, affected countries in West Africa have become less concerned with direct losses from piracy than with the ways in which these losses affect international insurance rates and other trade-related costs. In Benin Republic, for example, taxes on trade account for half of government revenue, and 80% of these are derived from the port of Cotonou, according to UNODC figures published in March 2013. The previous year, the spike in pirate attacks in West Africa led London-based Lloyd’s Market Association, an umbrella group of maritime insurers, to list Nigeria, neighboring Benin and nearby waters in the same risk category as Somalia, says Claims Journal, a magazine for insurance professionals. The result was a significant decrease in maritime traffic in the region, which meant a 28% loss in Benin’s government revenue. The decrease also affected the livelihoods of the country’s citizens, says UNODC, by increasing the cost of imports and decreasing the competitiveness of exports.
According to Reuters, though ships now speed with armed guards on board through the dangerous waters off Somalia and the Horn of Africa on the east coast of the continent, many vessels have to anchor to do business with West African countries, with little protection. This makes them a soft target for criminals, says Reuters, and jacks up insurance costs. Piracy tends to be conducted or supported by marginalized communities that have not been participating in economic development.
This appears to be the case for Nigeria, for example, where the majority of the recent African pirate attacks have occurred, driven mainly by corruption in the oil sector. Chatham House, a British research group, reported in September 2013 that “corruption and fraud are rampant in the country’s oil sector,” and “lines between legal and illegal supplies of Nigerian oil can be blurry.” In such a climate pirates have an incentive to steal oil, since they know that they will be able to sell it on the black market.
Piracy in the Gulf of Guinea affects a number of countries in West Africa as well as the wider international community. By 2011, it had become an issue of global concern. Pirates in the Gulf of Guinea are often part of heavily armed criminal enterprises, who employ violent methods to steal oil cargo. In 2012, the International Maritime Bureau, Oceans Beyond Piracy and the Maritime Piracy Humanitarian Response Program reported that the number of vessels attacks by West African pirates had reached a world high, with 966 seafarers attacked during the year. According to the Control Risks Group, pirate attacks in the Gulf of Guinea had by mid-November 2013 maintained a steady level of around 100 attempted hijackings in the year, a close second behind the Strait of Malacca in Southeast Asia. Piracy in the Gulf of Guinea continues to be a concern to the shipping industry, which is affected significantly. At the same time, governments in the region generally highlight that the fight against piracy requires a broad understanding of maritime security throughout the Gulf of Guinea.
Piracy off the coast of Somalia occurs in the Gulf of Aden, Guardafui Channel and Somali Sea, in Somali territorial waters and other surrounding areas. It was initially a threat to international fishing vessels, expanding to international shipping since the consolidation of states phase of the Somali Civil War around 2000.After the collapse of the Somali government and the dispersal of the Somali Navy, international fishing vessels began to conduct illegal fishing in Somali territorial waters. This depleted local fish stocks, and Somali fishing communities responded by forming armed groups to deter the invaders.
These groups, using small boats, would sometimes hold vessels and crew for ransom. This grew into a lucrative trade, with large ransom payments. The pirates then began hijacking commercial vessels. With the region badly affected by poverty and government corruption, there was little political motivation at the local level to deal with the crisis. Large numbers of unemployed Somali youth began to see it as a means of supporting their families.
CASES OF PIRACY AND HIJACKING IN ASIA
According to the report by the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), there were 50 incidents of piracy and armed robbery and one failed attempt in Asia from January to June 2020.It said there were 28 incidents – 25 actual incidents and three attempts – in the same period in 2019.This accounts for close to a two-fold increase in the total number of incidents reported during January-June 2020 compared to the same period in 2019. Of the 51 incidents, 49 were incidents of armed robbery against ships and two were piracy incidents.
It said more incidents were reported in Bangladesh, India, Indonesia, the Philippines, Vietnam, the South China Sea, and the Singapore Strait. The highest number of incidents were in the Singapore Strait, according to the report. The report adds that there was an improvement at the ports/anchorages in China during January-June 2020. Perpetrators were arrested at Chittagong anchorage in Bangladesh, off Gujarat and Alang in India, off Pulau Batam in Indonesia, and in the Singapore Strait. Piracy and armed robbery in the Singapore Strait, one of the world’s busiest commercial maritime routes, doubled from a 2019 to 16 incidents. Chinese ports recorded no such occurrence in the period versus three incidents last year. The 2016 figures for Asia remain grim but in fact reflect a mixed picture for security analysts.
Since 2015, greater efforts by Southeast Asian states like the Philippines, Malaysia, and Indonesia to decrease piracy and armed robbery incidents in Asian waters led to the creation of joint coordinated patrols and response teams to conduct counter-piracy operations. These have had some effect; there were 23 arrests in Asia for piracy in 2016, and a 35 percent fall in recorded piracy-related incidents compared with 2015. That year saw 199 such instances compared with 2016’s 129 recorded attacks. But while the fall in the number of overall incidents of piracy and armed robbery at sea collected by OBP in 2016 reflects well on the improved effectiveness of regional cooperation and information sharing mechanisms, it is not the whole story .
While the number of hijackings for cargo theft incidents recorded by OBP decreased from 12 in 2015 to just three in 2016, instances of kidnapping surged in their place. A total of 185 seafarers were taken hostage, in a trend linked by observers to the increased activities of Islamist insurgents in the southern Philippines. Partially due to increased law enforcement efforts, and partially because of the surge in attempted or successful kidnapping attempts in the Sulu and Celebes Seas, 2016 also saw a surge in lethal violence affecting the region’s seafarers. There were fewer victims of piracy in Asia in 2016 than in 2015 (just 2,283 seafarers in Asian waters experienced a pirate-related incident in 2016, compared with 3,674 seafarers the previous year) but deaths were up sharply .
In 2015 no seafarers died in Asia due to pirate attacks, but with the risk of detection by law-enforcement seemingly increased, violence at sea was much deadlier in 2016. Two seafarers were killed by their kidnappers last year, and another four died because of pirate-related incidents. It is partially thanks to the increase in deaths and kidnappings that Asia has recovered its unfortunate status as the principal threat to world shipping. That’s especially unfortunate as two-thirds of global shipping occurs within Southeast Asian waters.
In a bid to halt this new trend, Indonesia, Malaysia, and the Philippines agreed last summer to allow “hot pursuits” of kidnappers and armed robbers by each other’s maritime security forces into each country’s waters. Various other measures such as coordinated patrols in the Sulu-Sulawesi Seas (which just launched on June 19) and a hotline among the three countries have also been tried .
CONCLUSION
Countries have taken appropriate steps in cooperating to fight piracy, hijacking such as cooperation in information sharing against piracy, joint patrol and have certain results. However, in order to have comprehensive and specialized solutions in the field of fighting against piracy and hijacking in the coming time, countries need to further promote international cooperation to jointly develop legal framework and law enforcement capacity, organize joint patrols and seminars. A key component for the successful counter-piracy undertakings is the international cooperation among the States, the international and regional organizations, and the private sector. Due to the fact that the main participants – the navies, the law enforcement agencies, and the private sector are not accustomed to working together, the execution of a strategic partnership between them is vital for combating the maritime piracy. Such an effort should begin with a more clarified legal framework on the matter. States should cooperate to provide a more detailed legislative basis not only on terms, but also on jurisdiction and on means of prosecution. A better definition of piracy, avoiding the ‘two – vessel requirement’ as well as a clearer framework of territorial, flag state jurisdiction, and right of hot pursuit are vital for the efficient prosecution of crimes of pirate character.
We also believe that the states should cooperate and implement piracy acts as crimes in their Penal Codes in the unified definition of the term. Another problem is the existence of a large number of parallel functioning piracy databases which are not connected together. Successful prosecution of piracy suspects requires detailed evidence collection. There is an urgent need for specially trained evidence collection teams, knowledgeable in the maritime domain to be available to conduct forensic investigations promptly after the ships have been released by the pirates. Moreover, the participation of a person, representing the potential prosecuting authority, as a member of the crew would facilitate sufficiently eventual criminal proceedings and would serve as a guarantee for the protection of the fundamental human rights. Another main problem related to the piracy is the absence of international tribunal dealing with the cases of maritime piracy.
In conclusion, there has been piracy for as long as people and commodities have traversed the oceans. The belief that it had entered a period of terminal decline in the twenty-first century has been proved incorrect. Indeed, the recrudescence of piratical attacks has been rapidly over the past ten years. In order to successfully deal with maritime piracy, international efforts are required. The main among them are codified in the national legislations, improvement of the international cooperation in regards to the prosecution of piracy suspects and establishment of a united international criminal tribunal specialized in dealing with the cases of maritime piracy.
Recommendation
It is recommended that in order to have comprehensive and specialized solutions in the field of fighting against piracy and hijacking in the region, in the coming time, countries need to further promote international cooperation to jointly develop legal framework and law enforcement capacity, organize joint patrols and seminars to share experiences and explain issues that still exist many other views together. At the same time, the parties also need to improve their cooperation capacity in the protection of ships when being attacked and armed robbers, strictly controlling the source of labor and goods markets in regional countries.
Second, using legal and judicial measures, including extradition and mutual legal assistance. According to the ReCAAP, a contracting party must try to extradite pirates to other treaty-signing parties that have jurisdiction and provide legal support among members on criminal matters including submitting evidence related to piracy and hijacking at the request of the other signatory. However, all these efforts should be based on the national laws and regulations of the relevant signatories. Third, capacity building, including technical support as well as training and education programs to improve technical skills, combat coordination capabilities. Signatories should cooperate at the highest possible level in order to improve their capacity to prevent and suppress piracy and hijacking.
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