Although any government can claim jurisdiction to a crime committed on the high seas, regardless of the nationality of culprit, the international response to piracy has been largely confused and ineffective.
Pirates have been the scourge of mariners since ancient times, and locations as widespread as the Caribbean, the Barbary Coast, and even the western seaboard of India have been known, historically, for their depredations. Contrary to the romantic, swashbuckling image projected by Hollywood, pirates were actually ruthless renegade cut-throats whose motivations were entirely mercenary.
Little has changed with time. Piracy had always tended to impact negatively on seaborne trade and commerce, but with the modern day grid-locking of international markets, and the utter dependence of economies on steady energy supplies, the effect of maritime perturbations such as the recent upsurge in piracy off Somalia can become exponentially magnified.
Dominated by the Horn of Africa (HoA), the Gulf of Aden forms a funnel for 24,000 merchant ships annually transiting the Suez Canal carrying energy and raw material to Europe and finished goods to Africa and the Middle East. The abjectly poor Somali Republic, which occupies most of the Horn, has been in a state of turmoil for nearly two decades, and is only notionally governed by a Transitional Federal Government.
The rich Somali fishing grounds have for many years been ruthlessly exploited by foreign poachers, and this is adduced as one of the reasons for deprived local fishermen taking to the lucrative occupation of piracy. Adding to their sense of grievance is the belief that Somali waters are also being used for dumping toxic wastes originating in Europe. Somalia may be a failed state, but there is certainly some cause for introspection by the international community here.
From just 10-15 incidents in 2004, the waters of the Gulf of Aden saw acts of piracy and hijacking spiraling rapidly to 80 in 2008, and growing increasingly audacious in nature. In an attempt to tackle this menace, the UN Security Council first adopted Resolution 1816 in June 2008, authorizing nations to deploy warships for counter-piracy operations in Somali territorial waters. This was followed by Resolution 1838 in October 2008 urging all maritime states to despatch naval units to fight piracy, off the HoA.
Despite two NATO and EU naval task forces (and recently one each from the PLA and Russian Navies) and many individual warships having been deployed, piracy continues unabated, leading to great unease amongst seafarers world-wide. Should this trend persist, shipping companies and marine insurers will be forced to hike up their rates. This could deal a further blow to the tottering world economy, and India will suffer too. According to U.S. Navy sources, about 30% of the hijacked vessels are dhows, either registered in Gujarat or carrying Indian crews. Furthermore, as a major maritime nation in the Indian Ocean, India is expected to uphold law and order in its neighbourhood.
India has had encounters with piracy earlier, but like other maritime nations, she has been very reluctant to take resolute action against Somali pirates, despite the persistent urgings of the Indian Navy. Perhaps this has something to do with the complexities of legal, jurisdictional and sovereignty issues, as two examples will show.
In October 1999 the Japanese owned & manned bulk carrier Alondra Rainbow plying under the Panamanian flag was hijacked in Indonesian waters. Having set the master and crew adrift, the pirates changed the ship’s name to Mega Rama and set sail westwards for the open waters of the Indian Ocean with $14 million worth of cargo. The Singapore piracy reporting centre raised an alarm and the disguised vessel was sighted in Indian waters off Kochi. After a dramatic high seas chase involving first the Indian Coast Guard and then the Indian Navy, the vessel was captured and the pirates brought to justice. However, six years later, the pirates were set free by an Indian court for technical lacunae in the prosecution case.
In February 2006, it was learnt that an Indian dhow named Bhakti Sagar registered in Porbandar had been hijacked by Somali pirates while on passage to Kisamayu, and 25 Indian crew members had been held for a large ransom. Fortuitously, an Indian destroyer had just sailed for home from the Omani port of Salalah, and the Indian Navy’s instinctive reaction was to divert the warship to the Somali coast. It was suggested to the Government that on arrival the warship could remain outside Somali territorial waters and await developments in the expectation that her presence would have a salutary effect on the ongoing negotiations with the hijackers. However, the External Affairs Ministry was most apprehensive about the fall-out of such “gunboat diplomacy.” While the issue was being debated in New Delhi, the dhow owner was able to secure the release of his vessel and crew after negotiating a “reasonable” ransom, and our destroyer was recalled.
The more recent episode involving 22 Indian crew members of MV Stolt Valour being released after long captivity upon payment of a huge ransom to Somali pirates was a little different because the vessel happened to be foreign owned. But the fact remains that we are still not quite sure how to deal with this menace. There was a great deal of fumbling and groping in the corridors of power before we could formulate a delayed response.
As a sovereign democracy, India has a clear moral obligation to ensure that not only her 8 million GRT of national merchant shipping and energy lifelines but also a hundred thousand Indian seafarers plying on the high seas under different flags are accorded protection, wherever possible, from pirates and hijackers. Recently, the Captains of two Indian warships, the frigate Tabar and the destroyer Mysore, sank pirate vessels threatening our merchant ships. By their bold and resolute actions they sent out a clear message to the outlaws: “do not mess with Indian ships.” This was in the best traditions of navies and has sent a positive message of reassurance to Indian and other seafarers who continue to brave the pirate infested waters off the HoA.
A Coordinated Response
In the old days, pirates or buccaneers led heady but precarious lives. Once captured by a warship, the Captain could dispense summary justice in the form of flogging, keel-hauling or, in extremis, hanging from the ships yardarm by hemp rope (known in macabre maritime parlance as “dancing the hempen jig”). Given today’s legal, jurisdictional and humanitarian considerations, apprehending the miscreants (be they pirates, maritime hijackers or kidnappers) could only be the start of a major headache for the Commander of a Task Force or Captain of a warship.
Modern warships are not equipped to retain custody of prisoners for extended periods and trial in the home country would, in any case, be impracticable for want of evidence and/or witnesses. Most neigbourhood maritime states would be very reluctant to take pirates into detention unless it could be proved that their own nationals or assets were involved. Some nations are known to accept custody of pirates only to execute them summarily, leaving the warship Captain (and the flag state) to carry the burden of guilt.
While individual nations have been forced by pressure of domestic public opinion to despatch warships to the Gulf of Aden, there are limitations to what they can do, within the bounds of international maritime and other laws, to combat piracy. This menace is obviously here to stay for some time, and such muscle-flexing exercises are no substitute for well-considered, coordinated and legally justified action, preferably under the aegis of the UN.
In my opinion, the most practical and expeditious way of countering this burgeoning threat to the safety of international shipping and lives of mariners would be for the international maritime community to rally together in a manner suggested some years ago by Admiral Mike Mullen (the current Chairman of the Joint Chiefs of Staff of the united States) in a concept called the “1000 Ship Navy.” Except in this case I think the UN should take the initiative and:
- Authorize the formation of multi-national anti-piracy maritime task forces flying the blue UN ensign.
- Frame certain rules of jurisprudence (using the assistance of the World Court if required) for the trial of individuals apprehended while committing acts of piracy on the high seas or territorial waters of un-governed nations like Somalia.
- Constitute special international courts to undertake the expeditious trials of these culprits. The courts should assemble in the nearest littoral state or at least within the region to facilitate easy production of evidence and witnesses.
The UN already has tremendous experience in the field of multi-national military operations for peacekeeping world-wide and a well-oiled organization to support them. Constituting and operating an anti-piracy maritime task force should not present any great problem.
Admiral Arun Prakash (Ret.) is a former Chairman of the Chiefs of Staff of India. He is currently the Chairman of the National Maritime Foundation of India.