Somali Piracy Conference
Hosted by National Maritime Intelligence Center and Office of Naval Intelligence
April 7, 2009
Rise of Piracy and Other Maritime Insecurity in Somalia
Remarks by Amb. David H. Shinn
Adjunct Professor, Elliott School of International Affairs
The George Washington University
Let me begin with two caveats. First, all of my information comes from open sources; those of you with access to classified information on this subject may be disappointed with some of the lacunae in my presentation. The best open source reporting I have seen on this topic comes from Jane's Intelligence Review. Second, I am not a lawyer and my analysis may run roughshod over some of the legal nuances of the problem, which are important, but which should also yield to common sense. I apologize in advance to those of you familiar with inside information about Somali piracy and to the lawyers in the audience. I will be provocative.
Dangers along Somali Shores
Maritime travel along the Somali coast has long been a dangerous business. My own official connection with Somalia began in 1969 as the State Department desk officer for Somalia. For the next two years I spent about a quarter of my assignment supporting the U.S. embassy in Mogadishu in obtaining the release from Somalia's Siad Barre government of two American flagged vessels that had been captured in separate incidents off the Somali coast on the grounds that they were spy ships. In fact, they were privately owned geophysical research ships that had finished their oil prospecting work in the Persian Gulf area and were returning to the United States. It took months to convince the Somali government to release the ships and their crews. This was not piracy, but it provides an early example of the hazards of sailing along the Somali coast.
Piracy has been a problem in the waters off Somalia for at least ten years.
Between 2003 and 2007, there were about fifteen successful or attempted pirate attacks off Somalia and in the Gulf of Aden each year. In 2008, the number of attacks jumped to well over 100; different sources use different numbers based on differing interpretations of pirate attacks. At least forty of the attacks in 2008 involving about 800 crew members were successful. This dramatic increase attracted the attention of the international community. The seizure of a Ukrainian vessel transporting $30 million worth of T-72 Russian tanks, grenade launchers and ammunition and a Liberian-flagged tanker carrying $100 million worth of Saudi oil to the United States underscored the concern. The pirate attacks shifted from the Mogadishu area to the Gulf of Aden at the end of 2007.
Estimates on the amount of ransom money collected by the pirates in 2008 range from $30 million to $120 million. This may not sound like a lot as the United States distributes bail out money, but it is huge sum for impoverished Somalia. In addition, piracy has caused insurance premiums for a single transit through the Gulf of Aden to rise from as low as $500 to as much as $20,000.
The Legal Background
The United Nations Convention on the Law of the Sea defines piracy as any illegal acts of violence, detention or depredation committed outside territorial waters for private (rather than political) ends by crew or passengers of a private ship or aircraft against another ship, persons or crew. On the high seas or in any other place outside the jurisdiction of a state, any nation may seize a pirated ship, arrest the pirates, and seize the property on board and submit the matter to its civil and criminal courts. Only warships and military aircraft or vessels in government service may exercise this authority.
In 2001, the International Maritime Organization adopted a code of practice for investigating piracy and armed robbery against ships. President Bush signed in 2007 a comprehensive and sweeping policy governing diplomatic and legal action to fight piracy. The policy emphasized collaborative strategies by states and the maritime industry to prevent pirate attacks and other criminal acts of violence against U.S. vessels, persons and interests. In 2008, the UN Security Council passed a resolution calling on all states to cooperate in counter-piracy actions off the Somali coast. It authorized operations inside Somalia's territorial waters to deny that area as a safe haven for pirates who operate outside the 12-mile limit.
At the end of 2008, the United States sponsored a UN Security Council resolution that authorized countries to "take all necessary measures ashore in Somalia, including in its airspace" to capture those persons using Somali territory for piracy. Defense Secretary Gates quite properly poured cold water on this initiative by pointing out that the international community does not have adequate intelligence to carry out land-based seek and destroy missions against pirates. The U.S. Fifth Fleet commander echoed this view. While there is no harm in having this UN resolution on the record, since its passage I don't believe it has ever been used.
In January 2009, the United States and the United Kingdom signed a memorandum of understanding with Kenya that permits them to hand over to Kenyan authorities captured pirates for prosecution. Kenya emphasized that this should not constitute an open door for dumping pirates onto Kenyan soil. It remains to be seen ho effective this collaboration will be.
Also in January 2009, nine countries - Djibouti, Ethiopia, Kenya, Madagascar, the Maldives, the Seychelles, Somalia, Tanzania, and Yemen - signed an agreement to cooperate in preventing ship hijackings and apprehending pirates for arrest and prosecution. Known as the Djibouti Code of Conduct, it allows one signatory country to send armed forces into another signatory country's territorial waters to pursue pirates and, in some cases, to jointly conduct anti-piracy operations. The fact is, however, that all of these countries have extremely limited capacity to deal with pirates and the code is largely meaningless.
Somalia is not party to most of the relevant international treaties and does not have any counter-piracy legislation. Because no central authority controls Somalia, however, the point would be moot even if it had counter-piracy legislation. The Somali Transitional Federal Government did concur with the UN Security Council resolution that allows foreign forces to engage in hot pursuit of pirates on Somali territory.
Who Are the Somali Pirates?
The pirate groups cut across Somali clan lines and tend to live along the coastline. The number of Somalis involved in piracy has been estimated as high as 1,500. The unit operating out of Kismayu in southern Somalia comprises pirates from the Hawiye, Darod and Bantu clans. One of the senior commanders is a Marehan while the Bantu are former fishermen. Pirates operating out of Harardheere north of Mogadishu are dominated by the Suleiman sub-sub clan. They use El Dere and Hobyo as supply bases and the inland towns of Galkayo and Garowe in Puntland as logistical and financial hubs. According to Jane's, Pakistani and Sudanese nationals help plan the piracy operations out of Harardheere. There are regular contacts between the pirates in Kismayu and Harardheere. Darod groups have a base further up the Indian Ocean coast at Eyl and at the major Gulf of Aden port of Bosasso.
Somalis are exceptionally entrepreneurial. Piracy is a way to make money. There is no evidence that piracy is directly linked to international terrorism, although many Somali groups get a cut of the ransom money. Jane's has identified a close link between the pirates and the extremist al-Shabab group, which says it has links to al-Qaeda. The pirates in Kismayu coordinate with the al-Shabab militia in the area, although al-Shabab apparently does not play an active role in the pirate attacks. Al-Shabab requires some pirates to pay a protection fee of 5 to 10 percent of the ransom money. If al-Shabab helps to train the pirates, it might receive 20 percent and up to 50 percent if it finances the piracy operation. There is increasing evidence that the pirates are assisting al-Shabab with arms smuggling from Yemen and two central Asian countries. They are also reportedly helping al-Shabab develop an independent maritime force so that it can smuggle foreign jihadist fighters and "special weapons" into Somalia. A link with terrorism is worrisome, but the alliance between the pirates and al-Shabab is fragile.
Pirate Modus Operandi
Although Somali pirates operate from a variety of bases, their methodology is similar. The attack boats are small wood or fiber-glass fishing skiffs of twenty to sixty feet outfitted with dual engines of up to 85 HP. They are often carried and launched by "mother ships," usually fishing trawlers or dhows that were commandeered or purchased by the pirates. They use GPS devices, satellite phones and some have acquired equipment that enables them to pick up Automatic Identification Signals (AIS) required by commercial vessels. Each skiff contains three to seven pirates. If the attack occurs in the Gulf of Aden, the skiffs overnight off the coast of Yemen and attack when morning arrives at speeds of up to 30 knots in groups of two or three. They often fire automatic weapons and RPGs at the vessel. Ships that stop are more likely to be captured. The pirates use grappling hooks and ladders to board.
Pirates then force the vessel to one of the pirate bases at Bargaal, Eyl, Hobyo, Garaad or Harardheere where they make a ransom demand. The going rate is $1 to $2 million, depending on the ship and crew. The pirates normally receive cash at the point where the ship is being held but sometimes accept payment to a trusted third party outside Somalia. Pirates have always released the ships and the crew after payment of the ransom and have not recaptured the same ship.
The International Naval Response
The sharp increase in pirate attacks in 2008 resulted in the arrival of additional naval vessels from about two dozen countries, most of which are more dependent on shipping through this area than is the United States. Some, such as those from China, Russia and India, operate under their own command but coordinate with other naval forces. Ships from the European Union operate under the command of EU NAVFOR, which began operations in December 2008 to protect humanitarian aid shipments. Combined Task Force 150 (CTF-150) has had responsibility since 2002 for counterterrorism operations off the Horn of Africa. In order to free up CTF-150 for counterterrorism responsibilities, the Combined Naval Forces established Combined Task Force 151 (CTF-151) in January 2009 specifically for counter-piracy operations in and around the Gulf of Aden, Arabian Sea, Indian Ocean and Red Sea. U.S. Navy Rear Admiral Terence McKnight is the commander of the new task force. There are currently only four ships assigned to CTF-151: USS Boxer and USS Gettysburg from the United States, HDMS Absalon from Denmark and TCG Giresun from Turkey. It is impossible for such a small force to operate effectively beyond the Gulf of Aden.
Writing in Stars and Stripes, James Warden has done some excellent reporting recently on CTF-151. He explained the operation as follows. When American forces in the Gulf of Aden find a suspected pirate skiff, the first people to confront the suspected pirates are members of a Coast Guard Law Enforcement Detachment. The U.S. military is handling Somali piracy as a criminal problem, not a military one. The goal is successful criminal prosecution in Kenyan courts, and that requires a team of legal and law enforcement personnel. CTF-151 focuses on criminal prosecution instead of offensive operations. A team boards suspected pirate vessels with the goal of preserving evidence. Any member of the team may be called to testify in Kenyan courts and must be trained in how to testify and what types of evidence those courts are looking for.
The pirates are taken back to the USS Boxer if the task force commander determines that there is enough evidence to detain them. U.S. personnel do not interrogate the suspects because the Kenyans only accept confessions done in front of Kenyan magistrates. The teams do not try to uncover the piracy networks. Their job is only to collect evidence and let the Kenyans get confessions. The USS Boxer acts like a county jail and a moving holding facility.
This approach deserves a chance to succeed and there is one precedent that suggests it might work. In 2006, Somali pirates captured an Indian dhow in international waters. The USS Churchill was in the vicinity, seized control of the vessel and detained the pirates. Kenya eventually agreed to try the pirates, who were convicted and sentenced to seven years in prison. This is certainly a better solution than the more common one of capturing Somali pirates and releasing them on the shores of Somalia. This practice virtually guarantees the pirates will be back in business within days. But the Kenyan option needs to be watched closely. How many pirates is Kenya willing to accept? How many will be convicted and held a full term? If the number of captured pirates increases significantly, is the international community prepared to pay the costs of the Kenyan trials? I would also note that Kenya's record in the successful prosecution of persons linked to international terrorism is poor.
If it becomes apparent that the Kenyan courts are unable or unwilling to deal with the Somali pirate problem, then it is time to confront piracy more forcefully. The U.S. Navy handed over seven suspected Somali pirates to the Kenyan police in March. How Kenya deals with them may be telling. At the same time, there must be a few cases where there is incontrovertible intelligence that certain Somali vessels are operating as mother ships for pirates. One of the U.S. ships in CTF-151 is reported to have a Scan Eagle UAV system to hunt pirate vessels. It can relay detailed pictures that recognize the flags flown on fishing boats. It takes still photos and videos that are instantly sent to the host vessel. With this kind of information, what prevents the international community from sinking a mother ship? That would send a powerful message that piracy is dangerous and expensive. There was one report early this month that an unidentified naval vessel in the Indian Ocean actually sank a mother ship. The U.S. Fifth Fleet command said it had no information about the incident.
It is my understanding that the United States has placed special teams on ships contracted to haul cargo through the Gulf of Aden for the U.S. Navy. When unidentified skiffs approach one of these vessels at a high speed in open water, the response is to fire flares to ward off the skiffs. While this works well for the ship with special teams on board, it simply alerts the pirates that they need to seize another ship. Using live ammunition against fast approaching skiffs in the open ocean would send another powerful message. The pirates will understand this kind of response. Dropping them off along the Somali coast is no deterrent and even leaving them in the hands of Kenyan courts may be insufficient. On two occasions, France successfully captured Somali pirates and brought them to Paris to stand trial. The United States has been unwilling to use this method. But the French navy also reportedly turned over forty-five pirates to local authorities in Puntland. This is tantamount to release. A March 2009 UN report expressed concern about complicity between members of the Puntland regional government and pirate activities.
CTF-151 has no authority to operate on land; it is strictly a maritime force. Bureaucratically, it falls under the U.S. Central Command while Somalia is under AFRICOM, which has responsibility for the Combined Joint Task Force-Horn of Africa (CJTF-HOA) based in nearby Djibouti. CJTF-HOA has no anti-piracy responsibility and apparently does not conduct operations inside Somalia. There seems to be a bureaucratic disconnect here. Rear Admiral McKnight commented to Stars and Stripes that pirate attacks can be stopped purely from the sea with enough ships. While this may be true in a technical sense, it is unrealistic because all the world's naval forces do not have enough available ships to protect the 20,000 vessels that pass through the Gulf of Aden annually and the wider 2.5 million square miles of ocean where Somali pirate attacks have occurred in recent years.
Pursuant to a UN resolution, the Contact Group on Piracy off the Coast of Somalia held its first meeting in New York in January. Its goal is to facilitate discussion and coordination of actions among states and organizations to suppress piracy off the coast of Somalia. It welcomes participation by any nation or international organization making a tangible contribution to the counter-piracy effort, or to any country significantly affected by piracy off the coast of Somalia. Representatives of twenty-four countries and six organizations attended the first meeting.
There are also important issues on the Somali side.
There is a long history of illegal fishing in the rich waters off Somalia, especially by European and Asian vessels. The international community has never taken the issue seriously and Somalia has been incapable of dealing with the problem since the central government collapsed in 1991. One of Somalia's political leaders complained in 1992 to the government of Italy that unlicensed Italian trawlers were destroying marine resources and the ecosystem. It is generally agreed that foreign fishing vessels made indiscriminate use of prohibited methods of fishing including drift nets, under water explosives, killing of endangered species and destruction of reefs, biomass and fish habitats. Somali fishermen appealed without success to the UN and the international community to help them rid the country's shores of foreign ships.
The Kenya-based Seafarers Assistance Programme reported in 2006 that hundreds of illegal fishing boats were in Somali waters at any one time in a $90 million a year business. Somalia's minister of fisheries and marine resources stated this month that an estimated 220 foreign-owned vessels were engaged in unlicensed and illegal fishing in Somali waters. While it is difficult to envisage these ships plying Somali waters today in view of the threat of piracy, the international community should take steps to ensure this practice does not return once the threat of piracy is over.
Allegations of toxic waste dumping, oil spills and nuclear waste dumping along the Somali coast are more difficult to prove and seem to date back to an earlier period. A former executive director of UNEP charged in 1992 that Italian companies were dumping toxic waste along the Somali coast. Recent evidence of toxic waste dumping is sketchy, although the statement released in January by the Contact Group on Piracy off the Coast of Somalia referred to "the prevalence of illegal fishing and toxic waste dumping" off the coast.
Other negative developments related to piracy in Somali waters, in addition to the smuggling of arms that I have already noted, include human trafficking, migrant smuggling and the narcotic trade from Afghanistan. Somalis die routinely as they try to make their way to Yemen. Any international effort that focuses exclusively on ending piracy against foreign ships will receive little Somali support unless it also makes a serious effort to stop these activities that harm Somali interests.
The first three months of 2009 witnessed a decrease in the number of successful pirate attacks, especially in the Gulf of Aden. By one account, the pirate success rate fell from a high of 50 percent to about 30 percent. At the peak of pirate activity off Somalia, seventeen vessels were being held. By the end of March, there were only nine vessels and 153 crew held by pirates. This was probably due to a combination of more effective counter-piracy efforts and rough seas that made it more difficult for the pirates to operate. Nevertheless, the International Maritime Bureau reported forty-five attacks in 2009 as of early March.
Since the beginning of April, there has been an increase in attacks. Many of them have occurred hundreds of nautical miles from Somali shores. There was even an attempt on a bulk carrier some 900 nautical miles from the coast. There has been a cluster of attacks about 400 nautical miles southeast of Mogadishu. The most recent successful attacks occurred near the Seychelles Islands in the middle of the Indian Ocean. Somali pirates seized a yacht and then an oceanographic research cruiser near the island of Assumption. The latter reportedly is being taken to Harardheere on the Somali coast. Somali pirates captured a German container vessel about 400 miles off the southern Somali coast between Kenya and the Seychelles. A Yemeni tugboat, Taiwan fishing trawler, French yacht and British cargo ship have also fallen prey in recent days.
More attention needs to be given to the role of Yemen in the attacks that take place in the Gulf of Aden. The majority of the attacks occur closer to the Yemeni coast than the Somaliland and Puntland coasts. U.S. Admiral Mark Fitzgerald, who is assigned to NATO, commented at a recent naval conference in South Africa that Somali pirates are obtaining fuel and engine parts from individuals, not the government, in Yemen. A Yemeni coastguard official quickly denied the allegation. Logistical support for Somali pirates in Yemen should come as a surprise to no one.
The reaction to Somali piracy from the shipping community has been interesting. According to Jane's, the pirate attacks in the Gulf of Aden in 2008 impacted less than one-half of one percent of total shipping. Because of the relatively low risk that a vessel will be captured, many of the shipping companies are just not willing to pay the cost of meaningful security. They are inclined to play the odds rather than increase their overhead. A few shipping lines have rerouted certain ships around the Cape of Good Hope, thus avoiding the Suez Canal and Gulf of Aden. This adds significantly to the cost of shipping as it increases by 38 percent the distance between Rotterdam and Singapore.
There is also some ambivalence about the efficacy of current protection measures. In late January, pirates captured a German liquefied-gas tanker. When attacked, the vessel had been part of a convoy in the Gulf of Aden and was transiting the designated security corridor with a number of other ships and an Indian warship. It had even delayed its transit through the Gulf of Aden by sixteen hours in order to travel with a convoy. Events moved so quickly, however, that the Indian warship was unable to protect the German tanker before pirates boarded the vessel.
Nearly everyone who has studied this problem has concluded that the only way to substantially eliminate Somali piracy is to establish an effective Somali national government that is committed to ending piracy and has the land-based and maritime resources to accomplish the task. There is no prospect this will happen soon, although there is positive movement in this direction. It is equally essential to take into account Somali grievances such as illegal fishing by foreign vessels in Somali waters.
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