An overview of catch-and-release, counter-measures, trends, ransoms, hostages and proposals for the future
No early solution
The decisions announced in March 2012, first by NATO and then by the EU, to extend their naval operations off Somalia until at least December 2014, were intended to send a clear message of a continued commitment to fight piracy off the Horn of Africa. When, additionally, in light of an understanding reached with Somalia’s Transitional Federal Government, the EU announced that the rules of engagement applying to its forces were to be extended to allow for activity against Somali coastal territory and internal waters, it was taking an inevitable step which acknowledged that piracy cannot be eradicated by action at sea alone.
Catch-and-release
If the London Metropolitan Police encounter a suspicious person at night who, without proper justification (e.g. he is not a locksmith on call), is carrying lock-picks or other tools used in burglary, it is inconceivable that the person would be offered refreshments and returned home in a police car. Yet this in principle is what has often happened off Somalia. Given sufficient political appetites, ways could be found to avoid the scandalous waste of resources, and missed opportunities, associated with the mis-named but descriptive catch-and-release “practice” followed at times by so many nations, whether operating independently or within NATO or EU taskforces. The practice has ensured that well over a thousand pirates and suspected pirates have been set free without trial, and have sometimes been returned to Somali beaches (1).
When such releases occur, they stem partly from shortcomings in some national laws (which the UN Office on Drugs and Crime (“UNODC”) is helping to resolve (2)), but mostly from a lack of political will to address the problem. Often the persons have been detected actually attacking, or even trying to board, merchant ships; and often, in addition to the testimony of witnesses, there is photographic evidence of their doing so. Typically, skiffs are found to contain firearms such as automatic rifles and rocket-propelled grenades; large amounts of ammunition; hand grenades; improvised explosive devices; long ladders with hooks suitable for use in climbing on board a ship; a large quantity of fuel; GPS equipment which often shows that the craft has been present at the location of previous attacks; Automatic Identification System (“AIS”) equipment which receives information broadcast by ships in the vicinity; satellite telephones; and, crucially, no fishing equipment which could support the occupants’ claims to be fishermen. One can imagine the frustration of a warship’s personnel if they are obliged for whatever reason to release such persons (3).
The definition of a pirate ship under Article 103 of the UN Convention on the Law of the Sea (“UNCLOS”) includes a ship “intended by the persons in dominant control to be used for the purpose of committing” an act of piracy. Accordingly, given adequate national laws, countries detaining or subsequently receiving persons falling within the scope of the UNCLOS definitions should in principle be able to prosecute where piracy was attempted, or even where there is merely evidence that piracy was intended. Within English law, s.26(1) of the Merchant Shipping and Maritime Security Act 1997 provides, “for the avoidance of doubt”, that for the purpose of any proceedings before a court in respect of piracy, certain provisions of UNCLOS (including the definitions in Art.103) “shall be treated as constituting part of the law of nations”. Comparable provisions exist within some other national laws (4).
Counter-measures
In conjunction with the deployment of warships, surveillance aircraft, and support services by many nations, other measures being taken against piracy off Somalia include efforts by an increasing number of shipowners to harden merchant vessels against attack (including the provision of citadels), although there is still much more that could be done to achieve this; the use of military or private armed guards on board some merchant ships or on escort vessels transitting the Indian Ocean; a trend towards re-routing vessels close to the western coast of India, instead of by a more direct route or around the Cape of Good Hope; the apparent intent of the Puntland authorities, now under an international spotlight linked to the provision of aid, to take more effective action against pirates operating from their territory; and the increased willingness of a number of nations to accept captured suspects for trial.
Hijackings – the trend
These measures, combined with more robust action from counter-piracy patrols, and the fortuitous increase in periods of rough weather in the Indian Ocean during the latter part of last year, have had the effect of reversing a trend in the number of successful hijackings off Somalia, which had peaked in 2010. In 2011 there was a drop of almost 40 per cent from the average number of hijackings that had occurred during each of the previous three years, with a further reduction so far in 2012 (5).
Two noteworthy, related developments are that up to April 2012 there has been only one hijacking by Somali pirates when a vessel had been protected by armed security guards (6); and that an increasing number of vessels have been boarded off Somalia but have not been hijacked, partly attributable to the use of citadels, and partly to early intervention from naval forces (7). The number of such incidents is put by the IMB at 16 for 2010, and 20 for 2011, compared with a total of 4 during the whole of the period 2006-2009. Additionally, there has been a marked increase in the number of attempted but unsuccessful boardings, rising from 10 in 2006 to 79 in 2011.
The causes of the increase in the number of unsuccessful boarding attempts are mixed, and include improved compliance by shipowners with the Best Management Practices (now in version 4), albeit with some shipowners still acting irresponsibly; more robust action taken by naval forces, combined with better routing of merchant ships; and a greater tendency for pirates to travel large distances in search of suitable targets, leaving themselves vulnerable to a shortage of fuel and provisions if they are unsuccessful, thus encouraging them to attack, even in unfavourable situations. A further factor in some recent months has been rougher than usual weather.
Ransom payments
But although the number of successful Somali hijackings was lower during 2011 than at any time since 2007, individual ransom payments, and the time taken to negotiate them, steadily increased over the same period. Evidence presented to the House of Commons Foreign Affairs Committee, and published in their January 2012 report “Piracy off the Coast of Somalia” (8), was that whereas in 2007 ransom payments were in the order of US$600,000 for each merchant vessel, four years later the average payment was closer to US$5 million (9).
Some individual payments have been much higher, with ransoms for at least two vessels being reliably put at over US$10 million each (10). One Earth Future Foundation, in their working paper “The Economic Cost of Somali Piracy 2011”, put the total amount of ransoms paid during the year 2011 at US$160 million, representing only 2 per cent of the Foundation’s estimate of the total direct economic cost of Somali piracy during the year. Their overall estimate for the year 2011 approached US$7 billion (compared with their annual estimate of US$7-12 billion made a year earlier), with 80.5 per cent falling on the private sector. The largest portion, amounting to US$3.296 billion, related to extra costs caused by faster steaming and the re-routing of merchant ships.(11)
Hostages and their treatment
As a result of the reduced number of vessels hijacked off Somalia during 2011, fewer seafarers were captured. The number captured during 2011 was nearly 48 per cent lower that the average of the previous three years, but it still amounted to as many as 470 persons. During the same period typical ransom negotiations increased in length from approximately 7 weeks to 26 weeks, with a corresponding increase in the periods for which seafarers have been and are being detained, although some vessels and crews still detained were captured in 2010 (12). There have also been increasing numbers of reports of mock executions, beatings, torture and other inhumane treatment of captured crews. Long gone are the days when pirates were said to treat hostages respectfully because it was in the interest of their business plan to do so.
In contrast to the early days of hijacking when Somali pirates were generally fishermen or persons concerned with environmental damage, nowadays they are likely to display the attitude of ruthless criminals. Maj. Gen. Buster Howes, Operation Commander of EU NAVFOR Somalia from June 2010 until July 2011, reported during his period of command that pirates had tied hostages upside down and dragged them in the sea, locked them in freezers, beaten them and used plastic ties around their genitals. Some hostages have been keel-hauled; in at least one instance, pirates attempted to hang a crew member; and on many occasions pirates have used captured seafarers as human shields during rescue attempts (13). In December 2011 EU NAVFOR Somalia cited an estimate that at least 60 seafarers had died as a result of their captivity in the hands of pirates, and that many more had suffered abuse. And in a trial in Norfolk, Virginia, evidence was given by a crew member of the German chemical tanker Marida Marguerite, hijacked on 8 May 2010, that pirates threatened to execute him at knifepoint, suffocated him by placing a plastic bag over his head, and led him to believe the ship’s captain had been killed during his eight-month ordeal (14).
Rescue by intervention
Some successes have been achieved by naval and special forces of several nations in freeing hostages held either on board captured merchant vessels or on land within Somalia, and on a few occasions captured crews have managed to escape by their own endeavours (15). However, although great care is exercised in the planning and execution of rescue missions there have been failures, resulting in the deaths of the very persons whose lives such missions were intended to save (16).
It is to be expected that if individual missions have unpredictable results, the prospects of success would be negligible for any attempt at synchronised, multi-national rescue operations aimed at freeing several hundred captives held at a multitude of locations, some on board ships and some on land. Indeed, on 26 March 2012 Rear Admiral Jorge Manso, the then Force Commander of EU NAVFOR Somalia, reportedly dismissed the feasibility of mass rescue attempts, saying: “The main concern is not to put lives at risk. A recovery operation is highly risky” (17).
Negotiated release
In light of these considerations, it is reassuring that a means is available for securing the release of hostages (and hijacked ships and cargo which can be valued at hundreds of millions of dollars) by negotiating the payment of a ransom. Under English law the payment of a ransom is not in itself unlawful – as confirmed by the Court of Appeal in 2011 in Masefield AG v Amlin Corporate Member Ltd (18), and as noted with approval in the House of Commons Foreign Affairs Committee’s report mentioned above. On the subject of ransoms the Committee concluded that “the Government should not pay or assist in the payment of ransoms but nor should it make it more difficult for companies to secure the safe release of their crew by criminalising the payment of ransoms.” Broadly similar views were expressed in the House of Lords EU Committee’s July 2009 report “Money Laundering and the Financing of Terrorism”.
Current developments
However, not everyone holds these views, and there is currently a public perception of a concerted drive by some governments to strongly discourage the payment of ransoms to Somali pirates, with the intent of removing the incentive for hijackings, with a view to reducing or eliminating them entirely. This is not a new aim, and reflects an approach which has been advocated for some time by the US Department of State (19).
With effect from 13 April 2010, the US Government, by Executive Order 13536, sought to prevent American involvement in payments and the transfer of assets to certain named terrorists and other persons, including some known Somali pirates (20). However, in the same month the UK used a blocking mechanism known as a technical hold, when the US sought to impose an absolute ban on payments to two named Somali pirates by adding their names to the list of people subject to sanctions under UN Security Council Resolution 1844. Significantly, and consistently with HMG’s position that the payment of ransoms, although publicly discouraged, is not prohibited under English law, the names of the persons in the US order who are known to be pirates were not included when HM Treasury issued a Financial Sanctions Notice relating to Somalia on 28 April 2010 (21).
The rationale for what is perceived as a renewed drive by the US against the payment of ransoms to Somali pirates was explained by Andrew J. Shapiro, Assistant Secretary at the US Bureau of Political-Military Affairs, during an address to the U.S. Chamber of Commerce on 13 March 2012. He said:
“The U.S. government is acutely aware of the dilemma that ship owners face when ships and sailors are taken hostage. While the safety of the crew is critical, industry must face the fact that submitting to pirate ransom demands only ensures that future crews will be taken hostage. A vicious cycle has formed where ever-rising ransom payments have not just spurred additional pirate activity, but have also enabled pirates to increase their operational capabilities and sophistication.” (22)
Particularly in light of the UK’s traditional attitude towards ransoms, mentioned above, a disturbing development was the announcement, made by Prime Minister David Cameron in his final speech at the 2012 London Conference on Somalia, of the proposed creation of “an international task force to discourage the payment of ransoms to pirates and other groups to eliminate the profit motive…” (23).
Because of uncertainty as to the precise intention behind that remark, the announcement has created deep concern among the shipping community over the fate of the present hostages, and any future hostages, held by violent criminals in Somalia, where life has little value. Additionally, there are concerns over the likely adverse commercial and environmental effects; and the devastating impact on world trade if seafarers regard the risk and consequences of capture as unacceptable (24).
It appears, however, that the real objective, although not the means by which it could be achieved, has been clarified by additional remarks made by the Government in the following month:
“Ransom payments are the key driver in pirate business models and thus encourage further piracy activity. If we are to tackle piracy at its root, then it is important that we develop a greater understanding of ransom payments and explore what action can be taken to curtail ransoms and, ultimately, shut them off” (25).
The no-ransom drive appraised
In a perfect world one would not wish ransoms to be paid, for reasons, among others, as summarised by Mr Shapiro (26). But in a perfect world there would be no hijackings or kidnappings. What are needed are solutions for an imperfect world. In an imperfect world, unless there is the final resource of meeting a pirate’s demand for money, one could easily be faced with the prospect of mass torture, mutilations or slaughter on a scale which no elected government would be able to ignore, particularly if its policies had contributed to such a tragedy.
As there are estimated to be 200 or more seafarers (27) and others currently being held as hostages in Somalia, and as mass rescue attempts are not feasible, a policy aimed at stopping ransom payments is equivalent to saying that uncertainty over the welfare and the lives of the hostages is a price that has to be paid. But is that a realistic and sustainable policy? Nowadays, national policies can be influenced by public response to disturbing events as much as by the events themselves. One has merely to recall the reaction to the sad deaths of 19 American soldiers in Mogadishu in October 1993, which directly led to the withdrawal of US and UN troops from Somalia. It is inconceivable that the fact that most of the present hostages are from so-called developing countries would cause their deaths to be viewed as any less of a tragedy (28).
This points to a weakness in the argument that discouraging the payment of ransoms will in itself lead to the end of hijackings. A main failing of the argument is that it ignores the low value placed on life by pirates and other lawless elements in Somalia. In setting out on a voyage of potentially 1,500 miles across the Indian Ocean, the typical Somali pirate is gambling his future on the possibility of obtaining more money than he would otherwise receive during his entire lifetime (29). He is willing to risk his life not only from the hazards of crossing an ocean in a frail craft, but also from the dangers inherent in seeking to board a moving ship, and from hostile encounters with warships and armed security guards. It is thought that many hundreds of Somali pirates and potential pirates have died at sea (30). Some pirates have said, and all have shown by their actions, that for the prospect of a fortune they prefer to gamble their freedom, and even their lives, rather than accept the low standard of living to which they have been accustomed (31).
Commentary
As pointed out by the International Maritime Organisation’s Secretary-General Koji Sekimizu after the London Somalia Conference: “While addressing the root causes of piracy, we must not forget the seafarers currently held hostage by pirates. It is imperative that they are released and returned safe to their families” (32).
Given that the deteriorating situation in Somalia was, until recently, virtually ignored by the rest of the world, with aid agencies being left for much of the time to provide help almost on their own, it is little wonder that some of the Somali population, having little or no prospects for traditional employment, have turned to crime. Over one-third of the population lives on less than one dollar a day (33). If concerted international action had been taken at an early stage, aimed at providing political and economic stability, employment opportunities, and education within Somalia (where adult literacy in less than 40 per cent); and if Somalia’s oft-heard complaints about illegal fishing and toxic waste dumping (allegedly by, among others, some of the nations now engaged in counter-piracy activity) had been investigated and addressed, a policy which in effect seeks to prevent ransom payments would not now need consideration (34).
A more practical and humane way forward would be to give further encouragement to the Puntland authorities to develop efficient security forces on land and at sea, supported by a reliable intelligence network, perhaps based on the Somaliland model (35). In such an endeavour a key feature, lacking in the past, would be the establishment of rigorous procedures and audit trails to minimise the risk of aid funds being diverted, and which guaranteed that the members of such forces would receive regular payments, thus avoiding a repetition of earlier problems when many defected (36).
When added to the current international efforts to secure stability within Somalia, including, in particular, the substantial aid programmes, and the energetic drive to eradicate terrorism posed by insurgents such as al Shabaab, such measures as these would go a long way towards removing the conditions in which piracy thrives.
Additionally, greater thought should be given to ways of motivating the minority of shipowners who are not complying adequately with the Best Management Practices or taking comparable precautions, to harden their ships against attack and to coordinate with the MSCHOA and UKMTO reporting centres; and more countries, including the UK, should be encouraged to accept suspected pirates for trial in suitable cases (37).
John Knott
Shipping Consultant at Holman Fenwick Willan
This article was initially published by Holman Fenwick Willan and is reproduced with their permission
Footnotes
(1)The situation has improved somewhat since Jack Lang, Special Adviser to the Secretary-General of the United Nations, reported in January 2011 that more than 90 per cent of captured suspects would be released without trial, allowing repeat offences. Somaliland is now helping to address the shortage of detention facilities by accepting, for imprisonment, pirates convicted in the Seychelles.
(2)The significant achievements of UNODC in helping to establish regional support for measures against piracy are summarised in the February 2012 issue of their Counter-Piracy Programme, available at http://www.unodc.org/easternafrica/en/piracy/index.html.
(3)On 8 April 2012 The Independent on Sunday reported (“Navy frees four out of five suspected Somali pirates”), Ministry of Defence figures revealing that since the start of Operation Atalanta in 2008 the Royal Navy had boarded 34 vessels suspected of piracy off Somalia and that “on all but six occasions, the gangs rounded up were taken to the nearest beach and released – despite often being caught with equipment including guns and ladders.” Of 279 suspects captured, 229 were released. On 7 April 2012 The Telegraph reported that after Royal Marines on the Royal Fleet Auxiliary vessel Fort Victoria captured 14 suspects in January 2012, the Seychelles agreed to take the suspects for trial, only “after days of negotiation, with Fort Victoria drifting around the Indian Ocean, its engines switched off.”
(4)UNCLOS came into force in 1994 and binds 162 nations and the EU. It is not yet ratified by the US.
(5)From January to March 2012 there were 9 Somalia-related hijackings and 1 boarding; 12 incidents when vessels were fired upon or a boarding was attempted; and 152 seafarers were taken hostage. During the 1st Quarter of 2011 there were 15 hijackings and 9 more boardings;72 incidents where vessels were fired upon or boardings were attempted; and 299 hostages were taken. (IMB Reports.)
(6)On 1 January 2011, the tug Tiba Folk, with an armed security team on board, and towing the unmanned Barge DN127 loaded with dredging equipment, was attacked on two separate occasions by pirates in the Indian Ocean. During the second incident, in order to escape, the tug released the barge, which the pirates later towed to Somalia using the captured gas tanker York. This incident is often overlooked in the context of the effect of having armed guards on board ships. (Main details from IMB reports.)
(7)There have been reports that on at least three occasions Somali pirates have set fire to boarded ships when they have been unable to take control of the vessels. (IMB reports relating to the cargo ship Beluga Fortune, boarded 24 October 2010; the tanker Brilliante Virtuoso, boarded 6 July 2011; and the cargo ship Pacific Express, boarded 20 September 2011.)
(8) HC 1318.
(9)Subsequently, there have been unauthenticated reports of some ransom payments at much lower figures: e.g., Lloyd’s List reported on 13 April 2012 that the RoRo Leila (reported by ONI as hijacked on 15 February 2012), was released after intervention by Somali tribal elders, on a payment of US$250,000. Significantly, the vessel was reported as trading to Somalia.
(10)“The Human Cost of Somali Piracy”, report by Oceans Beyond Piracy, 6 June 2011.
(11)Some industry sources regard the estimates, even the reduced figures for 2011, as high, particularly in relation to additional insurance costs: Lloyd’s List, 20 February 2012.
(12)The IMB’s piracy report for the 1st Quarter of 2012 gives the number of vessels held by Somali pirates at 31 March 2012 as 15, with 253 crew members held on board as hostages, with an additional 49 crew members being held as hostages on land. The US Office of Naval Intelligence (“ONI”), in their report dated 19 April 2012, listed 9 vessels still detained after being hijacked by Somali pirates, including 4 vessels held since 2010. The 9 vessels comprised 1 RoRo, 2 chemical tankers, 2 bulkers, 1 oil tanker, 1 container ship and 2 fishing vessels. Recently, some vessels have been released after relatively short periods of captivity, which may account for part of the difference between the two sets of figures. An additional factor may be that the IMB figures include some dhows and other small vessels not taken into account in the ONI report.
(13)“The attacks are more ruthless, more violent and wider ranging. Hostages have been tortured and used as human shields and blowtorches have been used to open safe haven areas on ships in order to seize crews, and hold them for ransom.” Andrew J. Shapiro, Assistant Secretary at the US Bureau of Political-Military Affairs, during remarks to the International Institute for Strategic Studies on 30 March 2011.
(14)Associated Press report, 19 April 2012: “Torture by Somali pirates detailed at Va. trial.”
(15)Among recent incidents, were the release of an Indian dhow by German naval forces (EU NAVFOR Somalia report 2 March 2012); the release of the Chinese-operated dry cargo ship Xiang Hua Men by Iranian naval forces (Shanghai Daily report, 7 April 2012); the release of an Iranian-flagged dhow by Danish naval forces (NATO Operation Shield report dated 12 April 2012); and the release of a Yemeni dhow in an operation involving Spanish naval forces (EU NAVFOR Somalia report, 20 April 2012).
(16)A striking example was the unsuccessful US effort to release four Americans captured on the yacht Quest, which resulted in their deaths during negotiations: The New York Times, 22 February 2011. Other incidents have involved the yacht Tanit, whose skipper was shot when French forces recaptured the vessel and freed four other hostages: BBC News, 11 April 2009; and more recently a pirate “mothership” on which two of the 18 hostages held by pirates died during a rescue operation undertaken by the Danish warship Absalon: The Telegraph, 28 February 2012.
(17)Philippines News Agency report, 26 March 2012.
(18)[2011] EWCA Civ 24; [2011] 1 Lloyd’s Rep. IR 338; confirming the decision of Mr Justice David Steel at [2010] EWHC 280 (Comm); [2010] 1 Lloyd’s Rep. IR 345.
(19)“There are probably some activities which should be criminalised that are not … such as the facilitation of the payment of ransom.” US Counter-Piracy and Maritime Security Coordinator Donna Hopkins, interviewed by Lloyd’s List, as reported by Lloyd’s List on 22 February 2011; “One of our big problems is that a lot of major shipping companies in the world think it’s the price of doing business. They pay a ransom and they just go on their merry way. That has been a huge problem.” US Secretary of State Hilary Clinton, in testimony to the Senate Appropriations Committee, 2 March 2011, as reported by Reuters; “We are working diligently to discourage other governments and private entities from paying the escalating ransoms that enable the pirates’ predatory behavior.” Kurt Amend, Principal Deputy Assistant Secretary, US Bureau of Political-Military Affairs, in a Statement before the House Committee on Transportation and Infrastructure’s Subcommittee on Coastguard and Maritime Transportation, 15 March 2011.
(20)The Order, stated to be effective for two years, was renewed for a further one year by Presidential Notice dated 10 April 2012: “Continuation of the National Emergency with Respect to Somalia.”
(21)The two named pirates have subsequently been reported captured. The more recent reported capture, involving Iranian forces, had not been authenticated at the time of writing.
(22)The full text of Mr Shapiro’s remarks is available from the Department of State website at: http://www.state.gov/t/pm/rls/rm/185697.htm
(23)SaveOurSeafarers’ press release, 24 February 2012. US Secretary of State Hilary Clinton echoed these words in remarks she made at the conference: “We welcome the UK’s initiative to create an international task force to discourage the payment of ransoms to pirates and other groups…” IIP Digital transcript, 23 February 2012.
(24)A ban on the
