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"Taipan", a German container ship, is on its way from Djibouti to Mombasa on Easter Monday 2010. The sea of the Gulf of Aden seems calm: Best conditions for a vessel to travel – and for pirates to attack. Ten Somali pirates shoot with Kalashnikovs and an anti-tank missile.
"They can't stop us- we know international law"
(Jama Ali, Somali pirate)
This incident is nothing of a rarity. According to the International Maritime Bureau (IMB), maritime piracy has been rising and 26 cargo ships and 522 people are in the hands of pirates. German shipping companies suffer the most. "No other merchant fleet is being attacked more often than our ships", complains Max Johns, spokesman of the association of German shipping companies. Most of German goods are exported by cargo ships to reach their consumers. Pirates' attacks cause damage of seven to twelve billion US-dollars a year according to One Earth Foundation.
Abdiwali is one of the ten Somali pirates who attacked "Taipan". When he was four years old, his parents died. Two of his sisters died through an artillery shell. Abdiwali went to school for only two months because there was not enough money for education. Instead, when he was 13, he started to work for one dollar per night at the harbor where he learned how to navigate a fisher boat. The fish he caught was enough to survive for a week. One day, a man offered him 500 dollars for a better job. A typical background of a Somali pirate.
As a consequence of the fall of Siad Barres and the collapse of the Somali government in 1991, the coastguard broke down. More and more commercial fishing fleets from around the world plundered Somalia's tuna-rich waters. According to the Food and Agriculture Organization (FAO), they looted fish with the value of around 300 million US-dollars. Self-made coast guards started in the 90s to attack commercial fishing boats in order to scare them away. Then the pirates had the idea to introduce fishing tax and fishermen were willing to pay. "Some years later some Somalis had the idea to kidnap small boats in order to demand ransoms and it worked. That is how the business started and later turned into an organized crime", explains Michael Stehr, lawyer and author of the book Piraterie und Terror auf See ("Piracy and Terror on Sea").
Between 1500 and 2000 people live on piracy in Somalia. According to a study of Geopolicity, a consulting firm, a pirate can earn 150 times more than most of his fellow countrymen. High profits with low costs and little risk of consequences ensure that Somali pirate groups do not lack recruits and support.
According to the Maritime Administration of the U.S. Department of Transportation, shipping interests typically pay ransoms in cash ranging from 500,000 to 2 million US dollars. The money earned can be used for buying faster boats and fancier navigation equipment. Wouldn't piracy be reduced if we stopped paying ransoms? „This is just out of question. Imagine your brother or sister is being kidnapped by a pirate. Wouldn't you do anything? We feel responsible for our seamen and try to get them out of there as soon as possible. There is no alternative", affirms Max Johns. "Some experts assume that insurance companies could be pulling the strings," adds political scientist Benjamin Hecker. "Insurance fees are very high for ships to pass the Suez Canal which is considered a high risk zone."
On the "Taipan", the bullets destroy windows but the crew does not get hurt. While the pirates board the ship with ladders and ropes, the crew escapes and hides in a security room. The crew gets lucky, the Dutch frigate "Tromp", currently under the EU mission "Atalanta", is patrolling the coast of Somalia. Its mandate is to protect vessels and to prevent and repress acts of piracy and armed robbery and monitor fishing activities off the coast of Somalia. 33 warships are controlling the coastline of Somalia within the "Atalanta" operation.
As defined in the UN Convention on the Law of the Sea (UNCLOS), piracy is "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." It clarifies piracy as a crime and subject to prosecution and incarceration. Within this resolution the UN Security Council authorizes action against Somali pirates, both at sea and in sovereign Somali territory – this is the basis for combating piracy by means of international law.
From the Dutch frigate a helicopter appears and elite soldiers jump on the "Taipan" to rescue the crew. It is a lucky situation because the pirates are caught in action. "If pirates are not being caught red-handed, problems with evidence can appear. Pirates often claim that they are fishermen and needed weapons for self-defense", explains Professor Doris König from Bucerius Law School Hamburg, specialized in sea and international law. Navies must stop pirates in the narrow window when they speed toward a vessel and have not yet taken the ship and its crew hostage. However, under international law pirates are considered civilians. Human rights and humanitarian law prohibits extrajudicial killing of civilians except in self-defense. So, except in situations of immediate self-defense, naval forces are not allowed to kill pirates.
Furthermore, in the case of Germany, there is political fight about competence. In German basic law rights, there exists a law that strictly separates the responsibility of police and military. Due to national law, the competent jurisdiction of piracy belongs to the national police. The German police would be responsible for the protection against pirates but it does not have proper tools and staff. "The German Marine had tools and staff but is not allowed to because it is only responsible in the case of self-defense which implies an already ongoing attack," adds Doris König. "Sooner or later, the German constitutional court has to make a decision to clarify who should do which task."
Given that combat operations against pirates are unlikely, judicial remedies seem the most promising alternative. A major problem in the current international legal regime is an enforcement deficit. States have the power to put pirates on trial because piracy occurs on the high seas where every state has the right to prosecute, but the vast majority of pirates never face prosecution. The United Nations Security Council reports that 90 percent of pirates that are captured by international navies are released. Why?
First of all, a single attack often affects the interests of numerous countries, including the flag state of the vessel, various states of nationality of the seafarers taken hostage, regional coastal states, owner states, cargo owner, transshipment and destination states. The "Taipan" for example was driven under the German flag by the Hamburg ship company called "Komrowski". Its crew was international but the rescue team was Dutch. The most obvious nation to transfer captured Somali pirates to would be Somalia. However, most countries do not see this as an option, because of the lack of a functioning central government.
The Dutch government did not want to take care of the ten Somali pirates that were arrested. Normally, in this case the pirates would have been transferred to neighboring Kenya. There, they would have been prosecuted under universal jurisdiction. The proceedings were relatively speedy. Foreign countries paid to take care of the trials, but recently, the Kenyan government decided to cancel the agreement. Germany, among other states, now has to take care of pirates by its own. "Taipan" is German, so the German court is responsible for the trial.
Once the ten Somalis arrive in the Netherlands, they are handed over to Germany. "This means every single witness and victim has to be brought to court in person," illustrates Doris König the dilemma. "This is not only pretty expensive but also extremely difficult. By the time the trial starts, the crew may be scattered around the world and simply unavailable." Lawyer Michael Stehr points out the problem of asylum for pirates: "After the ten pirates served their sentences, the German court can't just get rid of them and send them back because of the disastrous situation in Somalia. They will stay in Germany. It won't be a problem with ten men but what should we do if there were hundreds of them?"
As a consequence of all these obstacles, pirates are often not held accountable for their crimes and quickly make their way back to the Somali coast where they continue their piratical activities. "I don't support this so-called catch-and-release-practice", claims Kerstin Petretto from the Institute for peace research and security policy of Hamburg University. "Whoever sends its marine to the Gulf of Aden in order to reduce piracy also has to be ready for the second step."
Naval deployments like the "Atalanta" mission are one way how to protect vessels from attacks. Nevertheless, according Kerstin Petretto, this can only be a short-term solution. "Pirates are adopting fast. They have widened their perimeter and are now operating in an area where the marine can't reach them because the area is too big." Roger Middleton from the British think tank Chatham House recommends creating an internationally administered coast guard for Somalia, run by the African Union or the United Nations. "Navies are not designed for dealing with criminals, they are designed for fighting wars" he states in his report. "In the absence of a police force inside Somalia, this might be the most effective way of doing it."
Individual ships have adopted rudimentary measures such as fire hoses, deck patrols or nonlethal electric screens with a loudspeaker system that emits a pitch so painful that it keeps pirates away. Those ships willing to spend more to protect their cargo employ private security guards onboard, "which is connected to some legal risks because the legal situation of these private guards is not yet clear", explains Doris König.
Why not just take another route then? According to Max Johns, spokesman of the association of German shipping companies, this will not do any good. "Many of the ships passing the Gulf of Aden are responsible for the commerce and supply for the whole African continent. If you avoided this area, you would cut off Africa from trading."
All experts agree that the most powerful weapon against piracy would be peace and life perspectives in Somalia, combined with an effective and reliable police force and judiciary. "It is important to work together with Somali people and to gain their trust", says Benjamin Hecker. "Pirates often have a good reputation among their community because they bring money," add Stehr. "It is difficult to cooperate if local authorities and the people are against you." According to Benjamin Hecker, a first step is the Djibouti Code of Conduct led by the International Maritime Organization (IMO), which envisions co-operation between and among states, regions and organizations in reducing the risk of attacks on ships through information-sharing, coordination of military and civil efforts, as well as development and implementation of regional initiatives.
Capturing pirates contains many legal problems. If prosecution appears to be an unsuitable option, states must then figure out what to do with them. The failure of the international response shows the limits of international law.
The ten pirates finally made the long way from the Somali coast to the regional court of Hamburg. Abdiwali will be sent to prison for some years. Was he unlucky because he belongs to the ten percent that are been held accountable? "He will have good medical care and will not have to worry about food. Basically his life will be better than back home", believes Doris König. Whether arrested or released – it seems like a pirate's paradise. Wouldn't you act the same if you had nothing to lose?