Piracy

10th February 2020 Scott Edwards Crimes against mobility No Comments

Introduction

There is a significant body of work discussing what constitutes contemporary piracy.¹ Under the UN Convention on the Law of the Sea (UNCLOS), piracy is defined as ‘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’ against another ship on the high seas.²

Two aspects of this definition are noteworthy. The first is the high seas requirement, which means that attacks on ships that take place in spaces other than the high seas (such as the territorial waters of states) do not fall under the UNCLOS piracy definition. Such incidents are referred to as ‘robbery at sea’ rather than piracy for this reason.³ The distinction is important because of the different legal regimes which apply in each case. Piracy on the high seas falls under UNCLOS provisions, while robbery in the sovereign waters of states constitutes an offence under the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention), and falls under national legal jurisdictions.⁴

The second contention centres on the ’two-ship’ requirement, which requires that one vessel be attacked or boarded by another to count as piracy under UNCLOS.⁵ Often anchored ships are attacked by armed robbers using small boats, meeting this requirement, but other incidents may include armed robbery taking place in ports where armed robbers can approach on foot.⁶

Not all organisations follow the UNCLOS definition. For example, the International Maritime Bureau (IMB) defines piracy as ‘an act of boarding or attempting to board any ship with the apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in the furtherance of that act’.⁷

On Saturday 18 January 2014, the French EU Naval Force (EU NAVFOR) Somalia Operation Atalanta flagship FS Siroco in cooperation with Japanese assets released the crew of a Dhow that was suspected to have been used as pirate mother-ship. By EUNAVFOR. Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0)

Characteristics

Hotspots

Contemporary piracy has been concentrated in three main regions of the world: the Western Indian Ocean (specifically off the coast of Somalia),⁸ the Gulf of Guinea,⁹ and Southeast Asia (specifically off the coast of Indonesia and Philippines).¹⁰

While there have been shifts in the intensity of pirate activities within and between these regions over time,¹¹ all three regions share features which make them conducive to pirate activities. These include proximity to busy shipping lanes and/or choke points, weak governance of long coastlines, and significant socio-economic challenges and/or political violence.¹²

Practices

Pirates and armed robbers commonly use a variety of means to gain entry to vessels. The simplest is to enter on foot when a ship is anchored.¹³ If close to shore, pirates and armed robbers have been known to use smaller boats that tend to be fast and stealthy.¹⁴ Attacks taking place away from the shore require more sophisticated logistics, with larger motherships launching smaller vessels towards the target.¹⁵

Targets also differ significantly. Some attacks aim to seize entire ships and crew for the purposes of ransom.¹⁶ Others target cargo or crew valuables, particularly those operating at anchorages where attacks appear to be more opportunistic in nature.¹⁷ Oil theft (see illicit bunkering & fuel smuggling) is a common feature of piracy in parts of the world, and particularly in Gulf of Guinea.¹⁸

Many pirate attacks involve violence. Ursula Daxecker and Brandon Prins in their Maritime Piracy Event and Location Dataset (1993-2016) report that 75% of attacks in Nigerian waters were violent in nature, as were 85% of attacks off the coast of Somalia.¹⁹

Organisation

Incidents of piracy and armed robbery and sea can vary widely in terms of their levels of organisation. At the lower end of the scale, theft from ships in port may be opportunistic or involve only a small network of local criminals.²⁰ Such attacks may be included in piracy recording statistics, but tend to invoke less significant or urgent responses from law enforcement actors.

Pirate attacks that aim to hijack vessels, kidnap crew or steal cargo tend to be more organised. Such activities require planning, discipline, and a strong network of collaborating actors to succeed.²¹ Pirate groups commonly include those who perpetrate the attacks at sea, as well as those engaged in facilitating activities such as looking after hostages, financing, providing inside information on the targets to be attacked, or providing political or legal protection.²² These higher-scale attacks generally require some degree of support from coastal communities or local government actors, as well as the presence of an organised black market through which stolen goods can be sold and profits laundered.²³

Root Causes

Much of the current work on piracy seeks to better understand its root causes, with a focus on socioeconomic conditions and governance issues.²⁴ Evidence suggests that piracy flourishes in areas that are beset by problems that reduce socioeconomic opportunity.²⁵ Opportunistic piracy, for example, has been linked to declines in fish stocks in countries such as Indonesia. These have impacted fishers’ livelihoods and encouraged them to look for other (in this case illicit) forms of income.²⁶

Similar pressures have been associated with more organised forms of piracy too. The rise of Somali piracy in the late 2000s for example has been linked by some to industrial fishing activities (and hazardous waste dumping) by international vessels in Somali waters. Sumaila and Bawumia has argued that this led to the depletion of fish stocks and local economic distress, and provided a recruitment pool for the emergent pirate networks.²⁸

Piracy is also linked to issues of weak governance and development, and particularly states’ capacities and willingness to police their own waters and littoral regions.²⁹ Piracy is associated with conflict zones and contested peripheral spaces (as is the case in the Philippines),³⁰ and also to state collapse (as was the case in Somalia).³¹

Research also suggests that a certain minimal threshold of governance and infrastructure is necessary for piracy to flourish, in order to facilitate market access, the processing of stolen cargos/goods and local protection for criminal activities (i.e. actors who can prevent enforcement against criminals, usually due to corruption)³²

Securitization

The United Nations Security Council has repeatedly framed piracy as a threat to international security, primarily due to its disruptive impact on global trade routes (see Impact section below),³³ but also because pirate activities have been linked to conflict and terrorism. This high level of securitization has led to significant international naval and other responses discussed in further detail section below.³⁴

Scope

There is a relatively good understanding about the scope of piracy, as numerous of organisations collate and report this data.³⁵

This includes actors with a global focus, including the IMB,³⁶ the International Maritime Organisation (IMO),³⁷ and the US’s Office of Naval Intelligence.³⁸ The IMB Piracy Reporting Centre for example received 132 incidents of piracy and armed robbery against ships in 2021.³⁹

Data is also collected by regional organisations. Examples include the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) and the Information Fusion Centre (IFC) in Southeast Asia,⁴⁰ the Regional Maritime Information Fusion Centre in the West Indian Ocean,⁴¹ and Marine Domain Awareness for Trade in the Gulf of Guinea (MDAT-GoG).⁴²

All collate reports and distribute information publicly. Large datasets of pirate activities have been constructed on the basis of this reporting, including the Maritime Piracy Event and Location Dataset which recorded 8,900 piracy events between 1995 and 2017.⁴³

Despite the relative strength of the data collated and distributed, however, there remain some obstacles to fully understanding the entire scope of piracy. First, pirate incidents may be defined differently between organisations according to the various criteria outlined at the Introduction above. This can lead to discrepancies in reported figures between organisations.⁴⁴ A second issue is underreporting.⁴⁵ Third, recorded figures tend to focus primarily on commercial vessels, while attacks on local traffic are less well documented. Conversely, there is the potential for overreporting for fraudulent purposes.

Despite issues of accuracy and consistency in mapping rates of piracy, available resources do allow for a reasonable assessment of the fluctuation of incidents.

Impact

There is a strong body of evidence on the impacts of piracy and armed robbery.

Economic

Piracy has a negative impact on the global economy in various ways. These include direct costs incurred from hijackings, the theft of cargo, and ransom payments which while direct, can be difficult to quantify due to a lack of transparency.⁴⁶ Indirect costs include those relating to increased insurance rates, the rerouting of vessels, increased ship security, increased fuel costs and cost naval or other security responses.⁴⁷

Losses to regional trade can also be significant, as vessels avoid high risk zones, though it is unclear the extent to which these are due to piracy specifically or its facilitating conditions.⁴⁸

Sociopolitical

Piracy has social and political consequences, particularly in those areas with high concentrations of pirate activities. Impacts include the furtherance of corruption, weakening governance and even conflict exacerbation.⁴⁹ Piracy has been described as a problematic spiral, whereby many of these conditions facilitate piracy but then piracy itself exacerbates those conditions further.⁵⁰

Well-being

Finally, piracy poses significant risks of harm to seafarers themselves. Even those who do not suffer attacks have been shown to exhibit higher degrees of anxiety when transiting areas with high incidents of piracy and armed robbery.⁵¹ When attacks happen, seafarers can experience physical injury, including systematic torture, or death.⁵² Attacks can lead to high degree of psychological injury, with some seafarers – particularly those kidnapped and held for long periods – suffering from Post-Traumatic Stress Disorder (PTSD) and other related psychological disorders.⁵³ For example, in 2011 the average length of detainment for the 1206 captured seafarers was 8 months.⁵⁴

Linkages & Synergies

Piracy is linked to other forms of maritime criminality. Piracy has been seen as caused in part by IUU fishing in some cases, but there are also links between IUU fishers and armed groups engaged in piracy – with some pirates disguising their motherships as fishing vessels.⁵⁵ Armed groups engaged in piracy have been linked to smuggling and trafficking, with arms and drugs trafficking, as well as charcoal smuggling, being particularly prevalent off the coast of Somalia.⁵⁶ Financial flows from ransoms have also been linked to funding these activities.⁵⁷

Responses

Legal Regimes

Significant international efforts have been directed towards the clarification of legal regimes for counterpiracy. As mentioned above, there has been debate around the efficacy of UNCLOS in dealing with piracy, due to the Convention’s emphasis on the high seas criteria.⁵⁸ Bateman for example has argued that UNCLOS made counter-piracy more difficult, due to the introduction of different jurisdictional zones.⁵⁹ This impacted states’ obligations to engage in counter piracy, as well as creating confusion around the right to hot pursuit.⁶⁰

Even so, international legislation has generally coalesced into a common understanding based in UNCLOS, but augmented by approaches from other bodies too. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), for example, sought to refine the issues of jurisdiction, allowing countries to prosecute pirates who committed acts against a ship flying their flag and allowing for acts within territorial waters to be recognised as piracy.⁶¹ It also obliged states to enact domestic laws to address issues of piracy, in an attempt to create some degree of legal standardisation.

The counterpiracy legal regime has been refined further in 20 plus resolutions produced by the United Nations, largely in reference to the specific problem of piracy off the coast of Somalia.⁶² Examples include the legalization of pursuit both into Somali territorial waters and even onto land.⁶³

New fora have also been established to coordinate between different counterpiracy actors and responses. Some of these are focused on naval responses, such as the Shared Awareness and De-confliction (SHADE) mechanism for the Western Indian Ocean, while others have a wider focus.⁶⁴ For example, the Contact Group for Piracy off the Coast of Somalia (CGPCS) was created in 2009 to foster cooperation between international actors and organisations, regional states and other stakeholders such as the shipping industry in the fight against piracy in that region.⁶⁵ The Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden’ (Djibouti Code of Conduct, DCOC) was also established in 2009 to manage disputes between stakeholders, ensure national compliance with the counterpiracy legal regimes, and to encourage practical measures to protect ships and supress pirate activities.⁶⁶

Similar coordination mechanisms have been created in Southeast Asia and the Gulf of Guinea. ReCAAP and the IFC for example focus on facilitating information sharing between actors, including providing piracy incident alerts and guidance for vessels transmitting the region.⁶⁷ In the Gulf of Guinea, the Yaounde Code of Conduct fulfils a similar role to both the CGPCS and DCOC in the Western Indian Ocean, on which it was modelled.⁶⁸

Increasingly, such fora have expanded their activities to issues of maritime security beyond piracy. The DCOC for example introduced the so-called Jeddah Amendment in 2017 to wider their remit to other forms of crime too.⁶⁹ The CGPCS was renamed as the Contact Group on Maritime Illicit Activities in the Western Indian Ocean (CGMIA-WIO) in 2022 for similar reasons.⁷⁰

Multinational Naval Responses

Perhaps the most high profile international counterpiracy response has been the deployment of multinational naval forces to police piracy hotspots. Prominent examples include the European Union Naval Force Somalia (EUNAVFOR) Operation Atalanta,⁷¹ the Combined Maritime Forces (CMF),⁷² and the Malacca Straits Sea Patrols (MSSP).⁷³

These Naval interventions have sometimes been accompanied by the creation and management of new maritime security zones in piracy hotspots where transiting vessels are advised to take extra precautions to guard against pirate attacks. Examples include the Internationally Recommended Transit Corridor (IRTC) in the Gulf of Aden which is patrolled by warships,⁷⁴ and the High Risk Areas (HRAs) in the Gulf of Aden and Gulf of Guinea.⁷⁵

There is a large body of work analysing the effectiveness of such missions. Overall, there is a broad consensus that, in combination with other measures, such deployments have been effective in suppressing piracy.⁷⁶ Even so, some have criticised the expense of these missions, the intentions behind them, and their long-term efficacy given that, on their own, they do little to address the root causes of the problem.⁷⁷

Capacity Building

Another category of counterpiracy responses comprises capacity building. Capacity building programmes focus on assisting regional states to strengthen their maritime law enforcement.⁷⁸ Capacity building efforts may focus on the provision of training and material, on the promulgation of best practices through joint exercises and other initiatives, on infrastructure development such as buildings or dock facilities, as well as on shared regional capacities such as maritime domain awareness systems.⁷⁹

More widely, capacity building efforts may include efforts to strengthen criminal justice structures, such as legal regimes and court and prison systems, and even (though more rarely) on coastal community livelihoods and infrastructures in order to address the root causes of piracy.⁸⁰

Many different actors are involved in maritime security capacity building, including international organisations such as the UN Office on Drugs and Crime (UNDOC) and EU, regional organisations such as the CGPCS/CGMIA-WIO and DCOC, and national states such as the US and UK.

Industry

There has also been a diffusion of counterpiracy best practices on an international level, largely driven by the shipping industry. These are referred to as Best Management Practices (BMP) to deter piracy.⁸¹ Issued in collaboration international shipping organisations such as the Baltic and International Maritime Council (BIMCO), the BMP outline a set of measures that ships should have in place to prepare for and react to piracy attacks. These are primarily security focused, including practices such as risk assessments, methods of hardening the ship against attack (for example by instituting passive defence measures such as razor wire), and the heightened surveillance of surrounding waters by crew members.⁸² The BMP also outline recommended reporting mechanisms and distress signal protocols in the event of an attack.⁸³

Two further measures adopted by some shipping companies have been more controversial: the use of private armed guards on ships, and the payment of ransoms. The employment of private military and security company (PMSC) personnel to guard ships during transit through known pirate waters has become an increasingly common practice.⁸⁴ Such practices appear to have been successful, with no vessel protected in such away having been successfully pirated.⁸⁵

However, some have raised ethical concerns around the potential for the disproportionate use of force, the potential displacement of attacks to unprotected vessels, and the potential problems that the presence of so-called floating armouries (established to supply and resupply such activities) may pose.⁸⁶ Ransom payments are controversial because, while they may facilitate the return of crews, some suggest they also serve to encourage further acts of piracy.⁸⁷

Summary

Taken together, these efforts have led to some significant successes in the fight against piracy, particularly in the Western Indian Ocean. Pirate activities off the coast of Somalia have largely been contained since 2013 for example. Elsewhere, regional counterpiracy structures have been strengthened, and successful piracy prosecutions have increased.

Even so, it is widely recognised that counterpiracy responses have been more successful in suppressing pirate activities at sea rather than addressing their root causes on land. Concerns remain that in the absence of longer term solutions, the piracy will remain a threat to international shipping and seafarers for some time to come.

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