Piracy off Somalia: Can Naval Patrolling be the ‘Antidote’?

Since 2005, the ‘centre of gravity’ of Asian piracy has clearly shifted westwards from Southeast Asia to the western Indian Ocean. The Somalia-based pirates are on the rampage, capturing vessels of all sizes ranging from yachts to super-tankers and their crew for ransom. This is hardly surprising, considering that the writ of Somalia’s Transitional Government (TFG) does not even run on the entire Somali land territory, and much less on its adjoining seas.

The pirate attacks were initially confined to the Somali Territorial Waters (within 12 nautical miles of the coast), but as the criminals gained both the nautical expertise and the money to afford better boats and even ‘mother-ships’ to increase their endurance, their activities witnessed a significant expansion to the international waters as far away as 100nm up to the international shipping lane (ISL) of Gulf of Aden. The current international maritime legal regime – UNCLOS (1982) – considers piracy a Crime Jure Gentium (crime against humanity) and thus provides for the maritime force of any country to seize a pirate vessel in international waters and even prosecute the pirates in accordance with its domestic law. This provision has often been used to apprehend and punish pirates, as best exemplified by the capture of the Japanese vessel Alondra Rainbow in November 1999 by Indian maritime forces.

The approach being adopted by most countries to respond to piracy off Somalia is to institute naval patrols along the Gulf of Aden ISL. India has recently despatched its warships for the purpose. The European Union has also decided to institute a combined task force in November 2008. Resort to such patrols is however far from being an antidote to the problem, at least in a comprehensive sense. Naval patrols by the US-led coalition forces and the Maritime Security Patrol Area (MSPA) specifically instituted by America along the Aden ISL in August 2008 have not helped. The coordination of patrols by Indian, EU and Coalition warships in the coming months may be a force multiplier and an effective deterrent, but may not suffice either. The swath of piracy-affected area adjoining the Somali seafront is too large to be kept under surveillance by a dozen warships with their integral helicopters. Besides, the high density of shipping and other maritime activity in the Aden ISL would make it extremely difficult for the warship commanders to distinguish pirate vessels from benign shipping activity. Furthermore, the victim vessels do not remain in international waters for long. The pirates force the crew to dock or anchor the vessels in Somali Territorial Waters.

This implies that the international community would need to prepare for a naval action in Somali Territorial Waters. (Assuming of course that payment of ransom is not a solution, since it would not only encourage, but also ‘nourish’ the pirates). Until recently, pursuing pirates into Territorial Waters was not an option for a foreign navy since it would violate both Somalia’s sovereignty and international law. US warships for instance have often chased the Somali pirates from seawards, but the pursuit has invariably been terminated at a distance of 12nm from the Somali coast. UN Security Council Resolution 1816 (UNSCR 1816) passed on June 2, 2008 with the consent of the Somali government has however overcome this legal constraint for a period of six months. It provides that “the States cooperating with the country’s (Somalia’s) transitional Government would be allowed…to enter the territorial waters of Somalia and use all necessary means to repress acts of piracy.” (emphasis added)

The word “States” refers to the US-led coalition (albeit implicitly) and, therefore, UNSCR 1816 does not apply to countries like India, even when these have major stakes in shipping and seafarers passing through the area. It was on the basis of this “legal constraint” that the Indian government declined to give its navy a ‘blanket’ approval to act on a case of piracy within Somali territorial waters involving Indian interests. This is however hardly a legal constraint. Nothing in UNSCR 1816 prevents India from reaching a government-level agreement with Somalia. In fact, India ought to have been proactively forging cooperative security relationships with Somalia and all other littoral countries of the Indian Ocean, which lie in the primary area of its strategic interest.

A few countries like Denmark, France and the US have already made use of the new provision under UNSCR 1816 for commando action, which has led to rescue of hostages and capture/elimination of pirates. However, some other countries, like India for instance, have vacillated on this issue. There are many possible reasons for such hesitation. One could be the fear of failure. The probability of damage or sinking of a ship carrying sensitive/inflammable cargo may be quite unnerving to any policy-maker. In addition are the international ramifications of the death of a foreign national among the multinational crew onboard. During a recent incident when the French Navy chased and killed Somali pirates over land, the Somali government alleged that five innocent civilians were also killed in the operation. What would be the legal implications of violation of Somali sovereignty or the death of innocents in such cases?

While such fears are valid and these tricky situations need to be dealt with caution, little choice exists in terms of other options. Furthermore, one needs to understand that the words ‘legal’ and ‘legitimate’ are not synonyms. At times, to secure its vital national interest, a country needs to adopt a course that may not be legal in the strictest sense, but it is nonetheless legitimate. This rationale usually suffices for the country to handle any adverse reactions from a few sections of the international community.

To an extent, inter-state cooperation may be necessary to deal with the issue. The navies involved could coordinate their patrols and share the operational surface picture. While Indian warships are deployed in the Aden Gulf, these could also provide security cover to important vessels/cargo of friendly countries, which may not have the means for ‘self-help’. Recently, for instance, a Malaysian Admiral advised state-owned shipping companies “to invest more on security (self-defence) rather than depend on the navy for safety of commercial vessels passing through Gulf of Aden since the operational cost was high.” However, such cooperation is also beset by major constraints, and may not be able to bear fruit in case of actions within Somali Territorial Waters. Besides, each country has its own set of laws. For example, while all 12 pirates captured by the French Navy this year have been sent to France to face prosecution, the Danish Navy could only disarm the apprehended pirates and set them free on the Somali coast. The Rules of Engagement (RoE) and operational practices of various navies also differ considerably.

Notwithstanding the aforesaid, the issue of piracy off Somalia needs a macroscopic view and a three-tier response. The first tier would encompass measures towards politico-economic stabilisation of Somalia, which would also create greater employment opportunities for its people. The second tier would encompass assistance to Somalia to build its maritime forces. This would help regulation of activities in Somali maritime zones, which is currently non-existent. The void is so conspicuous that the pirates consider themselves to be performing the role of Somalia’s navy. Such capacity-building assistance for maritime law-enforcement would also need to be extended to the adjoining countries. It is well-known that no navy or coast-guard worth its name exists anywhere along the entire East African coast between Egypt and South Africa. The value of these two tiers lies in the fact that these address not the symptoms but the causes of the problem. However, owing to the considerable lead time involved in yielding favourable results, the third tier involving capable naval forces of major powers would be indispensable.