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Somali Based Piracy - What has happened to our Friend Common Sense?

4 January, 2011

Having removed it in during 2007, by an almost unanimous vote, on 22 December 2010, the French National Assembly returned the crime of piracy back into the statute books of France. The law gives its naval forces wide ranging powers to arrest pirates regardless of their nationality or the nationality of their victims. It provides for French forces to have universal jurisdiction to apprehend pirates for trial in French courts. However, capture must be affected by French personnel. Thus handing over of suspects by other nations would be fruitless. French naval commanders now have the same powers enjoyed by the French police officers in charge of criminal investigations.

France has once again given teeth to its obligation under the United Nations Convention on the Law of the Sea (UNCLOS) that it agreed to in April of 1996, which defines piracy in article 101 as follows:

(a) 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, and directed:

(i) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) Any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

This is a very welcome development in the battle against seaborne criminals; however, if prosecutions are carried out; only time will tell. Equally it remains to be seen if those found in possession of piracy paraphernalia, obviously intent on committing acts of attempted or successful piracy will be caught and held in the net rather than being let go for “lack of sufficient evidence” as is generally the case.

This is not to single out France.

All states that have ratified, acceded or succeeded to UNCLOS have a duty under article 100:

ؠto cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State

A pirate vessel under UNCLOS 103 is:

ؠA ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.

All States under UNCLOS 105can:

ؠOn the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

Under UNCLOS 107 entities that can affect seizure of a pirate ship are:

ؠA seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

What then are the problems, perhaps one is UNCLOS 106?

ؠWhere the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

ؠCould it be that skiffs used by pirates are not classed as ships? Yet they, and the larger whalers used by some as mother ships are destroyed by naval vessels.

But enough of semantics, the work of politicians and lawyers who have seen to it that in most countries it is illegal for their merchant vessels to arm themselves to fend off simple attacks that are wreaking havoc in the lives of innocent seafarers and their dependants.

However, politicians of many nations are seemingly content to squander millions of euros, dollars or whatever, of their taxpayer’s money by providing naval protection. It undoubtedly helps but only in small measure and certainly, it does not make commercial sense. It is admitted openly that with the vastness of the ever-increasing area where attacks are perpetrated, deployed naval vessels simply cannot cope. The view of naval power is that the merchant vessels are in the best position to defend themselves and cite the employment of the much-vaunted “Best Management Practice.” Undoubtedly, BMPs can be very effective but they are not an absolute answer.

The answer we are told is a stable situation ashore in Somali and after 20 odd years of being allowed to fester, sadly this is nowhere on the horizon. The African Union Military Mission on Somalia (AMISON), currently some 8,000 strong is the only thing between Somalia and its total decimation. AMISON is being allowed to surge to 12,000 yet Uganda says that 20,000 are needed to create the conditions needed to allow some stability and at least a form of democratic cohabitation of its peoples.

It is patently obvious that there will be no stability let alone the infrastructure ashore anytime soon. In the meantime, those on whom the world depends to feed and water it will continue to face the risk of being taken hostage, disabled or killed while politics pontificates and procrastinates.

More and more owners, officially or otherwise are placing private armed escorts on board to ensure the safe passage of their vessels and those sailing them. Certainly, they will be held to account should a shooting match result in the death of poor innocent pirates. They are told from all sides that they must do more to protect the seafarers. Like the naval personnel, their hands are pretty much tied behind their backs. Holding the high and moral ground, a couple light machine guns firing tracer rounds in the direction of attacking skiffs would see them about turn in pretty short order.

It is a pity there is no Sea Shepherd prepared to take on task of providing a truly safe passage through this ocean as there is in the southern one looking after whales who also cannot shoot back.

It does not need deep reflection on how this has arisen as Common Sense tells us it is ineffective politics that has brought this about.

Jim Nicoll.

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