James Kraska & Brian Wilson: Fighting Pirates — The Pen and the Sword, Part II

By James Kraska & Brian Wilson

In our article, “Fighting Pirates: The Pen and the Sword,” which appeared in the winter “Dear Mr. President” issue of World Policy Journal, we asserted that greater collaboration, increased prosecutorial capacity, and the creation of a network among concerned states were the most promising approaches to address the spike in piracy off the Somali coast. In the past two months, all three have occurred, and there has been an accompanying sharp drop in the number of successful attacks. While ships are still vulnerable, the political environment has improved.

In December 2008, the United Nations Security Council adopted two resolutions, numbers 1846 and 1851, to encourage prosecutions, support enhanced partnering, and authorize land-based military operations. In quick order, a “Contact Group” was established to address maritime piracy, meeting for the first time in January 2009 with representatives from 24 nations.

To increase accountability and the rule of law, Kenya has signed a bilateral accord with the United Kingdom to prosecute suspected pirates, and Kenya and the United States could sign a similar deal by the end of January, 2009. Two coalition military commands, the European Union’s Operation Atalanta and U.S. Fifth Fleet’s Combined Task Force 151, were launched to expand capacity and focus anti-piracy efforts. Moreover, Japan, Spain, and South Korea are poised to deploy naval forces to the region.

This collective action is having a positive effect: in January 2009, only 2 of 16 attacks by Somali pirates resulted in a successful boarding. In 2008, about a third (or 42 of the 111 attacks) were successful, with 815 mariners taken hostage. The threat of attack so concerned the shipping community that some companies altered their routes; others avoided the area completely.

As a result, the Suez Canal experienced a $35 million drop in revenues for 2008 and tuna catches in the Indian Ocean, a $6 billion industry, fell by 30 percent. One other factor has played in favor of fewer attacks—it is monsoon season in the Indian Ocean. High seas are restricting the pirates to the shores, reducing the number roving throughout the Arabian Sea.

Collaboration is ongoing and it is working. The European Commission hosted a piracy seminar in Brussels in January 2009 which included representatives from the maritime sector, governments, and military officials. Even more partnerships are in development: a piracy and drug trafficking conference, hosted by Yemen in collaboration with the United Kingdom, is slated for February.

The legal component of repression has been turned in the right direction over the past two months. Holding pirates accountable has been a tremendous challenge in anti-piracy operations. Many states either don’t have laws on their books enabling prosecutions or don’t desire to assert jurisdiction, convene a trial, and detain pirates. Thus, even though piracy is a universal crime allowing any state to prosecute, as a practical matter, piracy trials infrequently occur.

Several times in 2008, after hijackings were thwarted by warships, pirates were simply released, losing only their weapons.

Of note, Kenya and France are set to prosecute pirates. Seeking to remedy this situation, UN Security Council resolution 1846 urged states to develop and apply domestic criminal legislation enacted in implementation of a 1988 maritime treaty in order to bring pirates to trial. The 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA), which has 149 states’ parties, was negotiated in response to the Achille Lauro attack, and the treaty proscribes conduct that endangers the safe navigation of ships.

The Contact Group that met at the United Nations in January—if it continues to secure state support and commitment—will be a positive force in 2009. At the first meeting, representatives discussed ways to improve operational intelligence for counter-piracy operations, the establishment of a formal counter-piracy coordination mechanism, the strengthening of judicial frameworks for arrest, and the prosecution and detention of pirates. Conversation also focused on building commercial shipping self-awareness and other capabilities, pursuing improved diplomatic and public information efforts, and disrupting pirates’ financial operations. The group meets next in March 2009.

With the development of different resources to confront piracy, a new challenge will be to avoid duplicating effort and creating unnecessary bureaucracy. Progress against piracy is beginning to occur because of impressive national, regional, and international partnering.

The positive trends will be fleeting, however, without sustained attention on piracy—as well as addressing the problems on the ground in Somalia.

What is sorely needed now is capacity building for the states in East Africa, so that they can more effectively participate in the new counter-piracy initiatives.

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James Kraska is a member of the faculty of the International Law Department at the Naval War College and previously served as oceans policy adviser for the Joint Chiefs of Staff. Brian Wilson is a senior Navy lawyer in Washington, DC, and previously served as oceans policy adviser in the Office of the Under Secretary of Defense for Policy. The views expressed are those of the authors and do not reflect the official policy or position of the Navy or the Department of Defense.

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