THE GROWING THREAT OF PIRACY TO REGIONAL AND GLOBAL SECURITY

CIVIL DIMENSION OF SECURITY 023 CDS 09 E Original: English NATO Parliamentary Assembly THE GROWING THREAT OF PIRACY TO REGIONAL AND GLOBAL SECURITY DRAFT GENERAL REPORT LORD JOPLING (UNITED KINGDOM) GENERAL RAPPORTEUR* International Secretariat 5 April 2009 * Until this document has been approved by the Committee on the Civil Dimension of Security, it represents only the views of the Rapporteur. Assembly documents are available on its website, http://www.nato-pa.int

023 CDS 09 E i TABLE OF CONTENTS I. INTRODUCTION...1 II. UNDERSTANDING AND ASSESSING THE THREAT OF PIRACY...1 A. DEFINING PIRACY... 1 B. GLOBAL TRENDS... 2 C. CASE STUDY: SOMALIA... 3 D. SOMALIA AS EVIDENCE OF AN EVOLVING THREAT... 4 E. PIRACY IN SOMALIA: A MULTI-FACETED THREAT... 6 III. ENHANCING THE GLOBAL RESPONSE... 7 A. THE EXISTING LEGAL FRAMEWORK AND ITS LIMITS... 8 B. SOMALIA: THE LEGAL RESPONSE... 9 C. SOMALIA: THE INDUSTRY AND STAKEHOLDERS RESPONSE... 10 D. SOMALIA: AN UNPRECEDENTED MILITARY RESPONSE... 10 IV. LESSONS LEARNED AND RECOMMENDATIONS FOR THE FUTURE... 13 APPENDIX 1: MAP OF SOMALIA (SOURCE: UNITED NATIONS)... 16 APPENDIX 2: INCIDENTS OF PIRACY AND ARMED ROBBERY BY REGION... 17 2008 (IMB DATA)... 17

023 CDS 09 E 1 I. INTRODUCTION 1. The past year has seen a significant increase in the number of acts of piracy, particularly off the coast of Somalia. The situation in that region has led to a re-evaluation of the nature and scale of the threat posed by piracy, as well as of the international response. 2. Pirate attacks in Somalia have become bolder and more sophisticated, and have been directed against a broad range of targets. In 2008, Somali pirates attacked, among others, deliveries of humanitarian assistance, private sailing ships, a supertanker, and a freighter carrying weapons. 3. While the threat was previously considered mostly a regional problem requiring a regional response, the situation in Somalia has led to an increased international response, including through military means. Both NATO and the EU have deployed anti-piracy operations to Somalia and are now considering their potential role in the longer term in fighting piracy on the world s seas. 4. The situation in Somalia has also highlighted the shortcomings of the international legal framework, raising questions regarding the definition of piracy, and the authority to arrest and prosecute pirates. 5. This report aims to assess the current threat posed by piracy in the light of recent developments in Somalia and suggest ways to enhance international anti-piracy efforts. A more detailed report will be prepared for the NATO Parliamentary Assembly s Annual Session in November 2009. Special attention will be paid to the potential added value and the limits of NATO and the EU s contributions to these efforts. II. UNDERSTANDING AND ASSESSING THE THREAT OF PIRACY A. DEFINING PIRACY 6. The traditional definition of piracy can be found in article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) of 1982: Piracy consists of any of the following acts: (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). 7. An attack on a ship is thus considered an act of piracy only if it takes place on the high sea 1 or in a place outside the jurisdiction of any state. If the attack occurs in the territorial waters of a state or in a port, it is considered armed robbery, and a different legal regime applies. 8. The recent increase in attacks on ships off the coast of Somalia has brought the usefulness of this distinction between piracy and armed robbery into question, as many attacks have taken place in Somalia s territorial waters. Additionally, as will be discussed below, this distinction means 1 The high sea is defined as the area beyond 12 nautical miles of a state s coastline. The exclusive economic zone is assimilated to the high sea for the purposes of the anti-piracy provisions of UNCLOS.

023 CDS 09 E 2 that a foreign warship engaging a pirate ship in the high sea will have to stop its pursuit if the latter enters territorial waters. 9. By contrast, the definition used by the London-based International Maritime Bureau (IMB), a specialised division of the International Chamber of Commerce (ICC), which acts as the main focal point for reporting incidents of piracy worldwide, encompasses both legal categories of piracy and armed robbery in the following broad definition: 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. This report will generally use this broader definition. B. GLOBAL TRENDS 2 10. Piracy is obviously not a new phenomenon, but the scale of the problem and the perception of the threat it poses to merchant shipping have fluctuated throughout history. In modern times, international awareness and concern of the growing number of pirate attacks developed at the end of the 1970s and the beginning of the 1980s, leading to the codification, in UNCLOS, of the international legal framework relating to piracy, and to the adaptation of existing international maritime institutions. The establishment, in Malaysia, of the IMB Piracy Reporting Centre (PRC) in 1992 was another important step towards promoting a better understanding of the scale of the challenge, and enhancing international prevention and response efforts. The PRC s main objective is to act as the first point of contact for the shipmaster to report an actual or attempted attack. 11. The data compiled by the PRC since its creation shows an overall increase in the number of incidents (attempted and actual attacks) over the past 15 years, with peaks in 2000 (469 incidents) and 2003 (445 incidents). Current levels remain below these peaks. However, IMB data shows a regular increase over the past three years, from 239 incidents of piracy and armed robbery in 2006 to 293 in 2008. 2008 saw an 11% increase in the number of incidents of compared to 2007. Evolution in the number of incidents of piracy and armed robbery worldwide 1993-2008 (IMB data) 500 450 Number of Attacks 400 350 300 250 200 150 100 50 0 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Year 12. It should be noted however, that these numbers may not necessarily reflect the exact scale of the challenge. The IMB data relies on the reporting of incidents by shipmasters. Yet, for various 2 Most of the data in this section is taken from the IMB annual report for 2008.

023 CDS 09 E 3 reasons fear that the shipment might be delayed for investigation and legal procedures, potential impact on insurance premiums -, it is likely that not all incidents are reported, and that actual numbers are therefore higher. 13. The increase in the overall number of incidents over the past three years is primarily due to the proliferation of pirate attacks off the coast of Somalia. In contrast, the number of incidents decreased in other regions of the world, notably in South East Asia, which until recently was the area most affected by piracy. After Somalia, Nigeria saw the second highest number of serious attacks in 2008. 3 The IMB received 30 reports of actual attacks and 10 reports of attempted attacks in Nigeria, but the organisation believes that many more incidents are not reported. Attacks take place primarily in Nigeria s territorial waters, around Lagos, the country s economic capital and along the Bonny River in the southern Niger Delta, and are largely targeted at the oil industry. It is thus widely believed that piracy in Nigeria is largely politically motivated, and connected with insurgent movements of the Niger Delta. Incidents also tend to be quite violent; 39 crew were kidnapped in pirate attacks in Nigeria in 2008. C. CASE STUDY: SOMALIA 14. Since the collapse of Mohamed Siad Barre s rule in 1991, Somalia has had no effective central authority. The Transitional Federal Government (TFG), established in 2004 and recognised by the international community as the legitimate state authority, controls only parts of the country, principally around Mogadishu. More than 90% of Somali territory is dominated by armed opposition groups. In 2006, the TFG was overthrown by the Islamic Courts Union (ICU), a loose network of sharia courts supported by radical Islamist militia groups. The TFG retook control after only a few months thanks to the intervention of Ethiopian forces with foreign backing. The ICU was hit hard, but its remnants formed new opposition movements, mainly the Alliance for the Re-liberation of Somalia (ARS), which only recently joined the governing coalition, and the radical Al-Shabaab movement, which arguably represents the strongest armed opposition to the TFG today. Further adding to the weakness of central institutions, the Puntland region and the selfdeclared Republic of Somaliland in northern Somalia have established their own autonomous institutions. Map of Somalia 15. This situation has allowed numerous criminal (Source: The Economist) organisations including pirate networks to develop and operate throughout the country, while weak local and central law enforcement authorities have been unable to respond effectively. Already at the turn of the Millennium, several studies noted with concern a sharp increase in pirate attacks off the Horn of Africa. 4 Concerns redoubled in late 2005 after a failed pirate attack on Seabourn Spirit, a Bahamas-flagged, US-operated, cruise liner. The short rule of ICU provided a brief relief, as the new rulers actively cracked down on piracy. 16. 2008 saw the sharpest increase in the number of attacks in recent years, from 44 incidents in 2007 to 111, or a 250% increase. The IMB has already reported some 30 attacks from January to mid-march 2009, but only a handful was successful. 3 4 See the map of incidents of piracy and armed robbery in Appendix 2. See for instance: Peter Chalk, Africa Suffers Wave of Maritime Violence, Jane s Intelligence Review, 1 April 2001, available at: http://www.rand.org/commentary/2001/04/01/jir.html (accessed 16 March 2009).

023 CDS 09 E 4 Incidents of Piracy and Armed Robbery in Somalia / Gulf of Aden 2003-2008 (IMB data) 120 Number of attacks 100 80 60 40 20 Somalia Gulf of Aden 0 2003 2004 2005 2006 2007 2008 Year 17. It is difficult to identify with certainty the exact causes of the recent piracy boom in Somalia. It is widely acknowledged that many pirates are connected with the fishing communities. The Somali fishing industry has greatly suffered over the past decade from illegal, unreported and unregulated fishing by foreign vessels in the region. Pirate networks may thus have been at least partly inspired by a desire to seek redress for the damage done by foreign overfishing. 5 In a country where extreme poverty is widespread, piracy provides an attractive source of income. However, piracy could not have thrived in Somalia without the favourable political environment characterised by widespread lawlessness and weak governance. D. SOMALIA AS EVIDENCE OF AN EVOLVING THREAT 18. Besides the sheer increase in the number of attacks, the situation in Somalia illustrates an evolution of the threat that piracy poses to international shipping. First, the geographical location of attacks has shifted from southern Somalia (around the port of Mogadishu) to the narrow corridor of the Gulf of Aden, where ships tend to be more vulnerable. The Gulf of Aden separates Somalia from Yemen by 170 nautical miles at the widest point and as little as 100 nautical miles at other points. Because of the geography of the Gulf and its importance for global maritime flows, attacks there also have a greater disruptive effect. 19. Evidence shows that the multiplication of attacks is connected to an increase in the number of pirates, from a dozen in 2006 to an estimated 1,000-1,500 today. 6 Experts have identified two main networks of Somali pirates. One is based in Puntland, and operates mainly out of Eyl. A second traditional pirate network has its roots in Central Somalia around Harardheere (Xarardheere). 7 According to the UN Monitoring Group on Somalia, which oversees compliance with the arms embargo established by the UN Security Council in 1992, both networks tend to overlap and co-operate to some extent. 5 6 7 See for instance the report of the Monitoring Group on Somalia to the United Nations Security Council (UNSC) of November 2008 (S/2008/769), par. 125: Most prominent pirate militias today have their roots in the fishing communities of the Somali coast, especially in north-eastern and central Somalia. Over the past 18 years of conflict and absence of effective central Government, the ecology and economy of these areas have been adversely affected by years of illicit overfishing by foreign vessels and the dumping of toxic waste into Somali territorial waters. Genuine economic hardship, whether directly related to these factors or not, and a sense of grievance against foreign exploitation of Somalia s maritime resources, not only inspire many pirates, but also serve to legitimize their activities in the eyes of their communities. Report of the Monitoring Group on Somalia to the UN Security Council, S/2008/769, November 2008. See the large map of Somalia in Appendix 1 for exact locations.

023 CDS 09 E 5 20. Attacks follow an increasingly similar pattern. The IMB reports that all attacks and attempted attacks in 2008 were carried out against steaming ships, and the data below shows that the main purpose of the attacks is to hijack the ship and take the crew hostage with a view to obtaining a ransom for their liberation. Incidents of piracy and armed robbery in the Gulf of Aden / Somalia in 2008 by type of attack (IMB data) Actual / successful attacks Ship boarded (no hijack, pirates abandon ship after attack) Attempted attacks Ship hijacked Ship fired upon Attempted boarding Gulf of Aden 2 32 31 27 Somalia 0 10 8 1 Total 44 67 Incidents of piracy and armed robbery in the Gulf of Aden / Somalia in 2008 by type of violence to crew (IMB data) Crew taken hostage Crew injured Crew killed Crew missing Crew kidnapped Gulf of Aden 629 2 3 14 0 Somalia 186 0 1 0 3 Total 815 2 4 14 3 21. The capture of a ship is usually conducted by groups of 10-20 pirates aboard speedboats. The pirates board the ship using grappling hooks and aluminium ladders. Once boarded, the ship is led to a safe port Eyl, Hobyo and Harardheere are the main bases and kept there awaiting payment of a ransom. 22. The pirates methods and equipment have been perfected. They make greater use of modern technology, including GPS and satellite phones, and of sophisticated weapons, such as Man Portable Air Defence Systems (MANPADs) and Rocket Propelled Grenades (RPGs). While attacks used to be carried out from small fishing ships, Somali pirates increasingly use so-called mother ships, i.e. larger ships which can carry smaller ones, and launch them whenever a target has been identified. These mother ships can travel longer distances and have allowed pirates to carry out bolder attacks farther at sea. A highly publicised incident was the capture of the Saudi supertanker Sirius Star in November 2008 some 450 nautical miles off the Kenyan coast. Another serious incident was the seizure, in September 2008, of the Ukrainian ship Faina, its crew of 21 sailors and its load of tanks and weapons for an estimated value of USD 30 million. 23. These big catches have also caused an inflation in the sums paid for the liberation of hijacked ships. Ransoms have shot up to USD 1 million and more in the highest profile cases from only tens of thousands USD a few years ago. It was reported for instance that a ransom of USD 2 million was paid for the liberation of the French yacht Le Ponant captured in April 2008. The Sirius Star, whose value was estimated at USD 100 million, was released in January 2009, reportedly after payment of a USD 3 million ransom. Release of the Faina, in February 2009, over four months after its capture, also reportedly followed payment of a ransom exceeding USD 3 million.

023 CDS 09 E 6 24. All these elements point to a shift towards a longer-term, more organised, and more aggressive threat. 8 There are clear indications that pirates benefit from the support of corrupt local officials, and are connected to larger organised crime networks, which help finance operations, procure equipment, and deal with the proceeds of ransom payments. This does not mean, however, that pirates have become some kind of professional criminal organisation. The November 2008 report of the UN Monitoring Group on Somalia makes it clear that pirate militias remain for the most part loosely organised and poorly trained, and that their membership is fluid. 9 E. PIRACY IN SOMALIA: A MULTI-FACETED THREAT 25. Traditionally, piracy has been considered mostly as a local or regional problem, requiring regional solutions. Developments in Somalia have highlighted the potential threat that piracy can pose to international security, on several accounts. 26. First, piracy poses a threat to the shipping industry and to maritime trade. It is estimated that 90% of the world trade is transported by sea. The Gulf of Aden and the Somali coast are part of one of the most important routes for global maritime traffic. Some 20% of world trade and 12% of the world production of crude oil 10 are transported on this route. This represents some 20,000 to 30,000 ships passing through the area annually. 27. In terms of sheer numbers 111 out of 20,000 ships were attacked in 2008 the impact of piracy on maritime traffic in the Gulf Aden / Somalia can seem minimal. However, the cost of piracy can be measured through several other indicators. First, of course, is the immediate cost of ransom payments for companies whose ships are hijacked. Second, reports indicate that insurance premiums for commercial shipping in the Gulf of Aden have increased tenfold over the course of the past year 11, and that shipping companies are already considering re-rerouting ships to the Cape of Good Hope, which would increase transportation costs, and also affect the price of transported goods. The capture of the Sirius Star also demonstrated the potential cost of attacks directed against oil tankers, and by extension the specific threat that piracy can pose in terms of energy supply security; this single incident drove the price of crude oil up by 1.4%. 12 28. The Faina incident also highlighted the risk that dangerous material could fall in the hands of pirates, including military or even nuclear material. Additionally, the use of hijacking and kidnapping has compelled foreign governments to intervene to guarantee the safety and security of their citizens engaged in private or business activities in the region. 29. In the case of Somalia, the strong response by the international community was also initially prompted by the threat piracy posed to deliveries of humanitarian assistance. According to the United Nations, the number of people in need of humanitarian assistance in Somalia has increased to nearly 3.2 million people, representing some 43% of the Somali population. The World Food Programme (WFP) delivers food aid to over 2 million people in Somalia. Ninety per cent of this aid arrives by sea. Pirate attacks forced the WFP to suspend food deliveries by sea on several occasions, until military escorts started in November 2007. This illustrates the great disruptive impact that piracy can have on the distribution of international assistance to the populations in need, and how it can, by extension, worsen the humanitarian crisis in Somalia. 8 9 10 11 12 See for instance the November 2008 report of the UN Monitoring Group on Somalia, par. 122: Piracy in Somali waters has rapidly evolved over the past 12 months from a domestic nuisance, aimed mainly at illegal fishing vessels, into a sophisticated and well-organized industry, whose dramatic expansion poses a growing threat to international shipping. The extraordinarily lucrative nature of piracy has transformed rag-tag, ocean-going militias into well-resourced, efficient and heavily armed syndicates employing hundreds of people in north-eastern and central Somalia. Ibid., par. 131. Keynote address by Antonio Tajani, Vice-President of the European Commission, at the seminar Piracy and Armed Robbery against Shipping, Brussels, 21 January 2009. UN Monitoring Group report, par. 128; also Roger Middleton, Piracy in Somalia Threatening Global Trade, Feeding Local Wars, Chatham House Briefing Paper, October 2008. Tajani address at EC seminar (see footnote 10).

023 CDS 09 E 7 30. As mentioned above, the main networks of Somali pirates are widely suspected of links with local officials, and organised crime groups, particularly those involved in arms and human trafficking. In this sense, piracy feeds corruption and other criminal activities, and in turn benefits from the trafficking networks put in place by organised crime gangs. Altogether, they contribute to the broader political instability in the country. 31. A more controversial question is the existence of links between pirates and terrorist groups. This issue was briefly addressed by your Rapporteur in last year s report of this Committee on Energy Security: Co-operating to Enhance the Protection of Critical Energy Infrastructures [157 CDS 08 E]. As mentioned in this report, there is so far no clear evidence of a collusion between pirate and terrorist networks, in the sense that pirates would be recruited by terrorist organisations to conduct terrorist attacks at sea. Whereas such a scenario cannot be totally excluded in the future, a more immediate concern is the risk that the proceeds of piracy be used to finance terrorist organisations. According to Martin Murphy of the University of Reading (UK) the development of such indirect links between pirates and terrorist groups has been observed in South and Southeast Asia 13, and experts worry that similar contacts may be established between pirates and the Al-Shabaab movement in Somalia. 32. Al-Shabaab was originally established as the militant arm of the ICU, but has now evolved into an autonomous force and the strongest anti-government militia in southern Somalia. The group has developed the use of terror tactics, such as improvised explosive devices and suicide bombers, and started to target international peacekeepers and aid workers. The spokesman for the movement recently declared the group to be aligned with al Qaeda, although the exact nature of Al-Shabaab links with al Qaeda remains unclear. These developments have nevertheless raised growing international concern, and in March 2008, the US government designated Al-Shabaab as a terrorist organisation. Little is known about Al-Shabaab s relations with pirate networks in Somalia. However, the risk that proceeds from piracy could be used in part to finance Al- Shabaab s activities cannot be ignored. 33. In his study on maritime security, Martin Murphy notes that: Piracy might be a second-order problem on its own, but in its context of wider criminal networks, it is both cause and symptom of state weakness, which in turn helps terrorism and organised crime to flourish. 14 He identifies several conditions which, taken together, would justify qualifying piracy as an international threat: - the waterways concerned are crucial to international trade and/or particularly vulnerable to interruption of maritime traffic; - maritime traffic in the area includes vessels carrying oil and gas, nuclear material, and/or naval and military equipment; - pirate activities are highly organised, and benefit from a favourable environment, including a weak state, corruption, and the presence of other criminal networks. 34. As illustrated above, all these conditions are met in the case of Somalia. This situation has prompted the international community to recognise that piracy off the coast of Somalia requires a increased international response. III. ENHANCING THE GLOBAL RESPONSE 35. The international response to the growing threat of piracy off the coast of Somalia has been exceptional on many accounts. Developments in Somalia have highlighted the limits of the existing legal framework and of traditional international tools to combat piracy. The most visible part of the response has been the deployment of several military operations to the region. However, it should be clear that piracy requires a multi-faceted approach, of which military means are only one 13 14 Martin N. Murphy, Contemporary Piracy and Maritime Terrorism. The Threat to International Security, Adelphi Paper 388, International Institute for Strategic Studies, July 2007. Ibid, p. 86.

023 CDS 09 E 8 dimension. Other indispensable components include: addressing the roots of piracy through political means; building up local law enforcement capabilities; strengthening the international legal framework on combating piracy; and promoting industry best practices. A. THE EXISTING LEGAL FRAMEWORK AND ITS LIMITS 36. International law on piracy is based on rules of customary law, which have been codified in UNCLOS. The main provision is article 105, which states that: On 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. 37. Article 105 thus gives any state the authority to seize pirate ships and then to prosecute the alleged pirates, even if the state concerned has no link of nationality with the ship, the victims or the assailants. This is referred to as universal jurisdiction. States do not, however, have an obligation to exercise this authority. 38. Article 107 of UNCLOS defines the categories of ships or aircrafts entitled to seize pirate ships. It states: A 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. 39. This does not mean however that pirate attacks are considered acts of war. Although UNCLOS establishes an international regime for combating piracy, warships engaged in counter-piracy operations are treated as police or law enforcement forces. This means also that captured pirates are not considered prisoners of war, and should therefore be prosecuted in the regular court systems. 40. Military operations in Somalia have revealed the flaws and gaps of the legal regime established by UNCLOS. First, many pirate attacks have taken place in Somalia s territorial waters, where the provisions of UNCLOS are not applicable, and where therefore foreign navies would not normally be authorized to intervene. Second, the Constitution or legal provisions of several countries forbids the use of military power for law enforcement missions, or restricts it to specific cases. Finally, states have sometimes been unable to prosecute pirates because of the lack of adequate provisions in their national legislation. 41. These problems show that UNCLOS anti-piracy provisions can only be effectively implemented if the following two conditions are met: 1. the international legal framework needs to be complemented by adequate national legislation in all states concerned; 2. legal provisions need to be backed by effective enforcement capacity both for the arrest and for the prosecution of suspected pirates. The international response to events in Somalia has partly addressed these problems.

023 CDS 09 E 9 B. SOMALIA: THE LEGAL RESPONSE 42. The UNSC, which has closely monitored the political and security situation in Somalia since 1991, has led efforts to adapt the international legal framework to the specific challenges posed by the proliferation of piracy off the coast of Somalia. The Council agreed a series of resolutions in 2008 dealing specifically with this issue. All these were adopted under Chapter VII of the UN Charter which gives the UNSC extensive powers to respond to threats to international security. Indeed, these resolutions have introduced several exceptional measures. The UNSC did not, however, go as far as classifying piracy as a threat to international security as such, but rather as an aggravating factor in the specific context of Somalia. 15 43. The most striking aspect of the UNSC s response to piracy in Somalia has been the extension of the legal regime of piracy as set forth by UNCLOS to the territorial waters of Somalia. This measure effectively abolishes the distinction between the high seas and the territorial waters, and allows foreign navies engaged in anti-piracy operations to operate throughout the entire zone. An initial authorisation was granted for six months by UNSC resolution 1816 of 2 June 2008, and extended for another 12 months by UNSC resolution 1846 of 2 December 2008. 44. Resolution 1851 of 16 December 2008 introduced yet another exceptional measure, authorising states engaged in anti-piracy in the region, for a 12-month period starting on 2 December 2008, to undertake all necessary measures that are appropriate in Somalia, i.e. to intervene on land for the purposes of anti-piracy efforts. 45. The UNSC has been very careful to stress the exceptional nature of these measures. All resolutions state explicitly that their provisions apply exclusively to Somalia; that they should not be considered as establishing new rules of international customary law; that they were adopted following the consent of Somali authorities; and that they are limited in time and kept under review by the UNSC. 46. UNSC resolutions on piracy have also addressed some of the problems relating to the question of jurisdiction for arresting and prosecuting pirates. In particular, UNSC resolutions 1846 and 1851 have confirmed the applicability of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), a matter that had previously been a subject of debate among legal experts. Article 6 of the SUA Convention creates an obligation for State parties to take necessary measures to establish their jurisdiction when unlawful acts are perpetrated against their ships, in their territory or by one of their nationals. However, it does not go as far as UNCLOS in authorising universal jurisdiction i.e. any state can claim jurisdiction over any act of piracy. In this sense, neither UNCLOS nor the SUA Convention taken separately provides a perfect legal framework. As explained by Agustin Blanco-Bazan, Senior Deputy Director for Legal Affairs at the International Maritime Organisation, at a recent seminar organised by the European Commission: Against these complexities, legal certainty can only be achieved on the basis of an adequate implementation in national law of both UNCLOS anti-piracy provisions and the SUA treaties. At most, SUA should be considered as complementing UNCLOS, never as replacing it. The gaps left by the multiple jurisdiction established by SUA should be filled by provisions implementing the universal jurisdiction established by UNCLOS. 16 The conclusion of extradition agreements could also facilitate the prosecution of pirates, by allowing states whose warship detains pirates to extradite them for instance to the flag state of the attacked ship. In the long run of course it should be up to Somalia s courts to prosecute pirates, a large majority of whom are its own nationals. 15 16 UNSC resolutions use the following wording: Determining that the incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the situation in Somalia which continues to constitute a threat to international peace and security in the region. Presentation given at the seminar Piracy and Armed Robbery against Shipping, Brussels, 21 January 2009.

023 CDS 09 E 10 47. Other legal mechanisms have also been envisaged. UNSC resolution 1851, for instance, encourages states participating in anti-piracy operations to sign agreements with regional states allowing them to embark armed law enforcement officers so-called ship riders - on their warships, who can follow the operation and take custody of detained pirates in view of their prosecution. The agreements signed by the United Kingdom, the United States and the European Union with the Kenyan government follow a similar logic, allowing for the pirates captured by these navies to be delivered to Kenya with a view to their prosecution in local courts. 48. It has also been suggested that pirates could be tried by the International Criminal Court or by an international tribunal created for this purpose. The former option is not desirable, as it would mean assimilating acts of piracy to war crimes, which they are obviously not. The latter solution seems to your Rapporteur to be superfluous. Rules exist to try pirates in national courts; what is lacking for now is proper implementation of these rules. Priority should thus be given to perfecting national legislations to allow for the prosecution of pirates under domestic laws. 49. Another important legal question relates to the legal status of ransom payments. Under British laws, ransom payments are lawful transactions as long as the money serves for the release of crews or captured ships. However, if ransom money were used by pirates to buy weapons or drugs a highly likely prospect in the Somali context - one could argue that it should fall under relevant domestic criminal provisions regarding money laundering, which, in the UK, would oblige the payer usually the ship s insurer to report this as a suspicious transaction. C. SOMALIA: THE INDUSTRY AND STAKEHOLDERS RESPONSE 50. A key element in addressing the threat posed by piracy to maritime flows is enhancing the shipping industry s response. Several international organisations and stakeholders associations have stepped up their efforts towards this aim. 51. The role of the IMB Piracy Reporting Centre should be emphasised in this regard. Reporting incidents of piracy is a first essential step towards promoting a better understanding and awareness of the problem, and drawing up appropriate responses. It is therefore essential that shipmasters consistently report incidents of piracy. 52. The International Maritime Organisation (IMO) has also played a leading role in promoting guidelines and best practices. The key document in this regard is MSC Circular 623 Guidance to Ship Owners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships. This was complemented by the Best Management Practices to Deter Piracy in the Gulf of Aden and off the Coast of Somalia adopted by 11 international industry and insurance representatives in March 2009. 53. These documents contain guidelines to assist the shipping industry with preventing piracy and armed robbery against ships and responding to attacks when they occur. They deal with such issues as the adoption of ship security plans; reinforced protection measures (preventing access, increasing bridge staffing levels and lookouts, installing electric fences, etc.); evading tactics (for instance, maintain maximum sustainable speed, even under attack); and defensive measures (use of high-pressure directional water jets, of high-frequency sounds, etc.). The use of onboard security guards is more controversial. Some ship owners have already adopted this practice, while others have warned of the risk that this could lead to an escalation of violence. D. SOMALIA: AN UNPRECEDENTED MILITARY RESPONSE 54. The proliferation of piracy off the coast of Somalia has led to an unprecedented multinational naval deployment, under the overall authority of the UN Security Council. The military response was initially justified by the need to protect deliveries of humanitarian assistance. It has taken different shapes: national deployments; US-led multilateral deployments; NATO and EU operations.

023 CDS 09 E 11 55. From November 2007 to June 2008, France, Denmark, the Netherlands and Canada provided escorts for WFP convoys. The US-led Combined Task Force 150 (CTF 150) was the first multinational naval force to be deployed to Somalia. CTF 150 was originally created in 2001 to conduct anti-terrorist operations as part of Operation Active Endeavour in the Gulf of Aden, Gulf of Oman, the Arabian Sea, Red Sea and the Indian Ocean. Its mandate was later extended to counter smuggling, people trafficking, narcotics trade and piracy. It is composed of the US Navy s 5 th Fleet and of ships and reconnaissance aircraft from several coalition partners, including Canada, France, Pakistan, Denmark, and Germany. In August 2008, CTF 150 established a Maritime Security Patrol Area to channel commercial shipping through a protected corridor in the Gulf of Aden. 56. CTF 150 ended its anti-piracy operations in January 2009, when the newly created Combined Task Force 151 took over. The establishment of CTF 151 was a response to the difficulties encountered by several coalition partners to perform anti-piracy operations in the framework of CTF 150 due to the lack of adequate rules of engagement. CTF 151 is entirely dedicated to anti-piracy missions. As of mid-march, the force included naval forces from the United States, United Kingdom, Turkey and Denmark. The estimated operating cost from January through mid-february was USD 1.5 million. 17 57. On 9 October 2008, in response to a request from the UN Secretary General, NATO Defense Ministers decided to deploy three ships from the Standing NATO Maritime Group 2 (SNMG2), from Italy, Greece and the United Kingdom, to contribute to anti-piracy operations off the coast of Somalia. SNMG2 is one of NATO s four immediate reaction standing naval forces. As maritime standing elements of the NATO Response Force (NRF), the Standing NATO Maritime Groups 1 and 2 are a multinational, integrated maritime force made up of vessels from various allied nations. These vessels are permanently available to NATO to perform various tasks from participating in exercises to intervening in operational missions. 58. Operation Allied Provider was launched on 24 October 2008. It was conducted under the operational control of the Allied Maritime Component Command Headquarters Naples, under the direction of Allied Joint Force Command Naples. The NATO ships provided escort to 8 WFP convoys, and conducted deterrence patrols and aerial surveillance. The operation was terminated on 12 December 2008 when NATO handed over to the EU operation Atalanta. 59. Atalanta EUNAVFOR Somalia is the first-ever EU naval operation conducted under the European Security and Defense Policy (ESDP). EUNAVFOR was approved by the EU Council on 8 December 2008 for an initial mandate of a year and reached its Initial Operational Capability on 13 December 2008. The mission also took over EUNAVCO, the co-ordination cell established in September 2008 to support surveillance and protection activities carried out by EU member states in the Gulf of Aden. As of March 2009, Atalanta included contributions from 5 EU member states (Greece, France, Germany, Italy, Spain). Additional contributions from Sweden, Belgium and the Netherlands, as well as from Norway, were expected imminently. The EU Operational Headquarters is located in Northwood, United Kingdom. Eight million three hundred thousand euros are allocated to cover the common costs for the operation. Since its inauguration, the EU naval force has conducted some 20 escorts of WFP convoys. The EU operation also has a mandate to place vessel protection detachments on ships upon request and with the agreement of the flag state. 60. As part of its anti-piracy response, the EU has also established a Maritime Security Centre Horn of Africa, which provides various services to mariners. It offers ship owners, shipsmasters and agents the facility to register with the Centre, update the position of their vessels, and receive 17 See the testimony given by Vice Admiral William E. Gortney, US Navy Commander, US Naval Forces Central Command, before the House Armed Services Committee on 5 March 2009. These costs include flight hours, steaming days, and supplies.

023 CDS 09 E 12 information and guidance designed to reduce the risk of pirate attacks. This centre is an interesting example of a military operation providing services to businesses. 61. At the beginning of March 2009, NATO Allies decided on a second contribution to anti-piracy efforts in Somalia. Operation Allied Protector will be conducted by five ships from the Standing NATO Maritime Group 1 (from Portugal, Canada, the Netherlands, Spain, and the United States). The operation is conducted under the operational command of Allied Maritime Component Command Northwood, one of the Component Commands assigned to Joint Force Command Brunssum, and is therefore co-located with the EU operation Atalanta. The deployment will be conducted in two stages: the first phase, which started on 24 March, is undertaken on the outbound leg of the force s deployment to South East Asia; the second phase will take place as SNMG1 makes the return journey at the end of June. 62. Besides these multinational deployments, several other navies have deployed ships to the region, including India, China, Russia, Malaysia and Japan. Although these governments exchange information and collaborate with US, EU and NATO-led multinational operations, they operate independently; in line with UN resolutions, they are only required to notify Somali authorities and the United Nations of deployments. Military Contributions to Anti-piracy Efforts in Somalia (as of mid-march 2009)* CTF 151: US-led: contributions from the United States (3 vessels), United Kingdom, Turkey, Denmark; others expected to join. EU Operation Atalanta: 4 vessels, contributions from Greece, France, Germany, Italy, Spain; expected: Belgium, Netherlands, Sweden, Norway. NATO Operation Allied Protector: 5 vessels, contributions from Portugal, Canada, the Netherlands, Spain, United States. Other national contributions: India, China, Russia, Malaysia, Japan; expected: Australia, South Korea. * According to a US Navy estimate, the total number of deployed vessels in the area is around 20; information on certain national deployments could not be found in publicly available documents. Certain vessels rotate between the three multinational deployments. 63. There are already some signs that military deployments to the Gulf of Aden and Somalia are achieving positive results. The number of successful attacks has been decreasing since the end of 2008. In October and November 2008, one in three attacks was successful; the share of successful attacks dropped to one in five in December 2008, and one in seven in January 2009. How much this trend is connected with international military deployments is difficult to know for sure; these numbers are nevertheless encouraging. It should also be noted that no attacks on WFP shipments have taken place since the first escorts in November 2007. 64. However, despite these encouraging signs, international efforts in Somalia raise several important questions regarding the short and long term response to this challenge.

023 CDS 09 E 13 IV. LESSONS LEARNED AND RECOMMENDATIONS FOR THE FUTURE 65. A first important lesson is that international military efforts can only provide a limited contribution to the struggle against the proliferation of piracy off the coast of Somalia. Piracy is as much a land-based as a sea-based challenge, and is a symptom of broader problems relating to governance, instability, poverty, corruption and organised crime. To eradicate piracy, it is therefore essential to address its root causes and the favourable environment that has allowed it to develop in Somalia. As stated in the UN Secretary General s report of March 2009 on a long-term international strategy to combat piracy off the coast of Somalia, the current situation in that country requires a multi-faceted and integrated approach: support for the peace process; strengthening of security institutions on land, and legal and maritime institutions, including the coast guard; enhanced law enforcement and accountability (i.e. the ability of local authorities to apprehend and prosecute pirates); strict compliance with the UN arms embargo; and empowerment of local communities. 18 66. The success of South East Asian states in curbing the proliferation of piracy in the region in the second half of the 1990s demonstrates that decisive law enforcement action by the coastal states and regional co-operation can make a real difference. 67. The weakness of state institutions in Somalia makes it difficult to replicate the South East Asian experience in the short term. However, a number of recent developments in the country s political landscape might provide a basis for positive change. Ethiopian forces completed their withdrawal at the beginning of this year, thereby removing one of the main rallying grounds for armed opposition groups, including Al-Shabaab. In August 2008, moderates from the governing faction and from the opposition movement ARS (Alliance for the Re-Liberation of Somalia) signed the Djibouti peace agreement, leading to an expanded unity parliament and the selection of a new government. Former President Abdullahi Yusuf resigned and was replaced by Sheikh Sharif, chairman of the ARS and a former moderate leader of the ICU. The next few months should provide an indication of the new government s ability to regain control over its territory, fill the vacuum left by the withdrawal of Ethiopian forces, and defeat armed opposition groups. 68. As the political situation in Somalia stabilises, it will be essential to build up local and regional capacity to combat piracy. A positive step in this regard is the adoption in January 2009 of the IMO-sponsored Djibouti Code of Conduct concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden. This document foresees the establishment of co-operation and co-ordination mechanisms in the region, including the creation of four information sharing centres. 69. The international community also needs to enhance existing mechanisms to prevent and respond to piracy. In the short term, several measures can be taken to enhance the effectiveness of international military efforts. The deterrent effect of current deployments already seems to be producing positive results. However, foreign navies are far from covering the entire area affected by pirate attacks, which according to one estimate is equivalent to the entire coast of the United States. 19 The Somali shoreline alone is some 3,500 km long. According to one estimate, some 60 vessels would be necessary to protect the internationally designated shipping lanes alone 20 ; yet only some 20 ships were deployed in the area as of the beginning of April. Current levels therefore need to be sustained and other international partners should be encouraged to join 18 19 20 Report of the Secretary General pursuant to Security Council resolution 1846 (2008), S/2009/146, 16 March 2009. See the report of the visit of the European Parliament s Subcommittee on Security and Defense to the Northwood Operation Headquarters, 9 January 2009. The US military estimates that the whole area is over 1.1 million square miles, which is equivalent to four times the size of Texas, or to the area covered by the Mediterranean and the Red Sea together. US Navy official quoted by Donna Miles, American Forces Press Service, in Latest Ship Seizures Broaden Counter-Piracy Challenge, 27 March 2009, available at: http://www.navy.mil/search/display.asp?story_id=43830 (accessed 2 April 2009).

023 CDS 09 E 14 the current coalition. Situational awareness, the ability to track ship movements in the area, is key to the effectiveness of military efforts. Greater use of aerial surveillance including Unmanned Aerial Vehicles would therefore be desirable. 70. Three multinational operations including an EU and a NATO operation - as well as a number of national contributions, are currently deployed in the region. It is therefore essential that mechanisms be put in place to ensure proper communication and co-ordination of these deployments, and in particular between EU and NATO operations. Your Rapporteur hopes that the co-location of the headquarters for both operations in Northwood will facilitate the process of co-ordination. A clearer distinction between those naval assets providing escorts for deliveries of humanitarian assistance and those engaged in other types of anti-piracy activities might also be desirable, as called for by the UN Secretary General in its March 2009 report. 71. In the short and medium term, enhancing the international legal framework relating to piracy is also essential. UN member states should be encouraged to adopt adequate national legislation to incorporate the provisions of UNCLOS and the SUA Convention. In the meantime, third party or extradition agreements can provide a useful alternative. It is your Rapporteur s opinion that the establishment of an international tribunal for piracy is not necessary. 72. Another important objective in the medium term is to enhance and streamline existing mechanisms for reporting incidents of piracy and armed robbery. Proper reporting is an essential first step towards developing appropriate prevention and response mechanisms. Currently, several competing reporting mechanisms exist. This situation needs to be addressed in the future; the shipping industry needs greater clarity and a simple reporting process. 73. The creation of a Contact Group on piracy off the coast of Somalia in January 2009 is an important step towards addressing these different issues and achieving a greater co-ordination of international efforts. It should therefore be saluted. The group brings together, under the overall authority of the UNSC, Somali authorities, governments of the region, as well as other states and international organisations making a tangible contribution to counter-piracy efforts or significantly affected by piracy. The Contact Group identified six related focus areas: - improving operation and information support to counter-piracy operations; - establishing a counter-piracy co-ordination mechanism; - strengthening judicial frameworks for arrest, prosecution and detention of pirates; - strengthening commercial shipping self-awareness and other capabilities; - pursuing diplomatic and public information efforts; - and tracking financial flows related to piracy. Four working groups have been established to deal with these different issues, each under the leadership of a nation or international organisation. The United Kingdom is the lead nation, together with the IMO, for working group 1 dealing with military and operation co-ordination and information sharing. Working groups have been meeting regularly since January 2009 and the Contact Group met in March to review progress. Your Rapporteur will follow these developments and include additional information and recommendations in the updated version of this report to be discussed at the NATO PA s annual session in November 2009. 74. Another important issue for the future is what roles NATO and the EU can play in the long run in combating piracy on the world s seas, and how future initiatives by both organisations in this field can be co-ordinated. The European Security Strategy of 2003 includes just one reference to the growth in maritime piracy, as a dimension of organised crime which will merit further attention. The report on the implementation of the Strategy of December 2008 elaborates on this statement, and links piracy with state failure. However, it does not give much indication as to what the EU s long-term role could be in addressing this issue. NATO has engaged a reflection on its potential role in combating piracy and enhancing maritime security. This will certainly be one of the issues for discussion as part of the process of revision of the Alliance s 1999 Strategic Concept, which is expected to be launched on the occasion of the Strasbourg-Kehl Summit in April 2009. As demonstrated by the swiftness of the Alliance s response in Somalia, NATO can certainly bring an added value to international efforts. However, this is bound to remain a limited and occasional

023 CDS 09 E 15 contribution in support of broader objectives. Your Rapporteur will also offer more detailed recommendations on NATO and the EU s potential roles in the revised version of this report.

023 CDS 09 E 16 Appendix 1 APPENDIX 1: MAP OF SOMALIA (SOURCE: UNITED NATIONS)

023 CDS 09 E Appendix 2 17 APPENDIX 2: INCIDENTS OF PIRACY AND ARMED ROBBERY BY REGION 2008 (IMB DATA) France 1 Columbia 1 Ecuador 2 Peru 5 Haiti 2 Venezuela 3 Brazil 1 Ghana-Ivory Coast- Liberia-Togo 12 West African Coast 7 Nigeria 40 Gulf of Aden- Somalia 111 Kenya 2 Tanzania 14 Mozambique 2 Seychelles 1 Indian Subcontinent 23 SE Asia 65