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The Legalities of Gulf of Guinea Maritime Crime With Suggested Solutions

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A Mess

There is a general consensus in the global maritime industry that the rate of unlawful acts against vessels in the Gulf of Guinea (GoG) has been on the increase in recent years. However, information on the exact nature of such unlawful acts in the region is distorted and unreliable with confusing statistics – hampering efforts to suppress the menace. There are confusing definitions of piracy and armed robbery at sea, coupled with weak legal mechanisms for dealing with and prosecuting apprehended offenders.[1] There is also evidence suggesting that most unlawful acts against vessels in the region, irrespective of their nature or location, are erroneously being classified as acts of piracy. There have also been various allegations of low prosecution rate for apprehended offenders.

The Nature of Crimes Against Vessels in GoG from a Legal Perspective

It is vital that the exact nature of the unlawful acts against vessels in that region is established from a legal perspective so as to determine whether any counter measures, including apprehension and prosecution of offenders, should be international or nationalistic in approach or a combination of both. It seems that the confusion over the legal nature of crimes against vessels in GoG is due to the different definitions of piracy adopted by the International Maritime Bureau (IMB) and the International Maritime Organisation (IMO).

The IMB is an agency established by the International Chamber of Commerce (ICC) with the support of the IMO for the purpose of collecting, exchanging and disseminating information on maritime crimes for the benefit of international commerce. Until 2009 the IMB defined piracy in its annual reports as:

An act of boarding (or attempted boarding) with the intent to commit theft or any other crime and with the intent or capability to use force in furtherance of that act.[2]

The IMO is the United Nations agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships. IMO has adopted the international law definition of piracy under the United Nations Convention on Law of the Sea (UNCLOS) 1982.  Article 101 of UNCLOS 1982 provides that:

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).

The IMO clarifies the position further with a separate definition for armed robbery against ships as follows:

1)    Any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or property on board such a ship, within a State’s internal waters, archipelagic waters and territorial sea;[3]

 2)    Any act of inciting or of intentionally facilitating an act described above.

 It is worthy to note that the IMB’s definition of piracy above makes no distinction as to the nature or location of unlawful acts against vessels, including unlawful acts against vessels whether in internal waters, within or outside port facilities, and whether within or outside territorial waters. On the contrary, the IMOs’ definition recognises a distinction between piracy as only occurring in international waters and all other unlawful acts within internal and territorial waters and port facilities as armed robbery. For this purpose, international waters means all maritime zones, including the Contiguous Zone,[4] the EEZ,[5] and High Seas, but excluding the Territorial and Internal waters.

Maritime Zones.jpg 2
World Maritime Zones Source: UNESCO

 

Thus the distinction between Territorial Waters[6] and International waters is crucial in establishing whether a criminal act against a vessel constitutes piracy under international law. This leads to the question: what is Territorial Waters? The answer is provided by Article 3 of UNCLOS stating:

Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

Under UNCLOS, a coastal state may claim right to Territorial Sea of any breadth subject to a maximum limit of 12 nautical miles from the baseline.

The IMB’s definition of piracy above may be useful for commercial expediency. However, in the quest for a strategy to tackle unlawful acts against vessels in GoG (or anywhere); including where to prosecute offenders, a legal definition will be more appropriate. Therefore it is submitted that the IMO’s definition of piracy in accordance with Article 101 of UNCLOS should be the preferred mechanism for this purpose. This is because piracy is an international crime for which every state has the right and duty to fight[7]. Theft and armed robbery within internal waters, port facilities and territorial waters is a national problem properly dealt with under the domestic laws of each country. Moreover, some of the theft and armed robberies against vessels in GoG and Nigeria in particular, are due to high level of bribery and corruption, such as port and security personnel colluding with criminals. Thus, it is not only inappropriate but it is legally wrong to describe theft and armed robbery against vessels within internal and territorial waters and port facilities as piracy.

Critics to the above position may point out that some countries, such as the United States, are yet to ratify UNCLOS. The answer to such critique is that the definition of piracy under UNCLOS is not a new concept. It is a restatement of the customary international law which was previously codified in similar language under one of the preceding conventions to UNCLOS, i.e. the High Seas Convention (HSC) 1958,[8] to which the United States and other non-UNCLOS countries are parties. Above all, as at 29 October 2013, UNCLOS had either been ratified or acceded to by 166 States worldwide[9] which makes it one of the most widely accepted international conventions of all time.

Further support as to why the definition of piracy under UNCLOS is the most appropriate mechanism for determining whether an unlawful act should be classed as such could be found from the fact that the IMB’s annual reports since 2010 adopts this view. In fairness, it seems that the IMB has taken steps to rectify the confusion with its definition of piracy, but this has not had any impact since its statistics are not broken into separate heads for international waters and territorial waters, whereas most players in the global maritime industry rely on the IMB’s statistics in making crucial decisions, such as designating High Risk Areas (HRA) as well as fixing insurance premiums and freight rates.

Statistics for crimes against vessels in GoG

Having made a case as to why the IMO’s definition of piracy based on UNCLOS should be the preferred mechanism for determining whether or not an unlawful act constitutes piracy to warrant international action, we now look at the IMO’s own statistics to ascertain the legal nature of the unlawful acts against vessels in GoG. Although the IMO’s statistics are described as a Regional Analysis on West Africa, but it relates to the whole of GoG as it includes the few reported incidents of unlawful acts against vessels in central Africa, such as the incident of the MV Kerela which took place in the internal waters of Angola on 18 January 2014.

Below is a table compiled by the IMO for unlawful acts against vessels in West Africa (including central Africa) for the period between 10 August 1995 and 6 March 2014. The table gives a breakdown of location of all reported incidents for that period, indicating the total number of reported incidents for International Waters, Territorial waters and Port area; the status of the vessels at the time of the incident – whether steaming, at anchor or unspecified; number of attackers involved; consequence of the attacks on the crew; nature of weapons used by the attackers; parts of the vessel raided; and other miscellaneous information such as  number of lives lost, number of wounded crew, number of missing crew, number of crew taken hostage, number of crew assaulted and whether any ransom was paid.

IMO Regional Analysis of unlawful acts against vessels in West Africa between 10 Aug 1995 and 6 Mar 2014

West Africa
Location of incident
In international waters 158
In territorial waters 296
In port area 389
Status of ship when attacked
Steaming 236
At anchor 457
Not stated 64
Number of persons involved in the attack
1-4 persons 241
5-10 persons 208
More than 10 persons 85
Not stated 290
Consequences to the crew
Actual violence against the crew 277
Threat of violence against the crew 110
Ship missing 1
Ship hijacked 36
None/not stated 223
Weapons used by attackers
Guns 236
Knives 210
Rocket-propelled grenades 2
Other 30
None/not stated 336
Parts of ship raided
Master and crew accommodation 18
Cargo area 152
Store rooms 261
Engine room 5
Main deck 9
Not boarded 166
Not stated 66
Other
Lives lost (unit: people) 46
Wounded crew (unit: people) 181
Missing crew (unit: people) 7
Crew hostage (unit: people) 519
Assaulted (unit: people) 173
Ransom 0
Total number of incidents reported per area 843

 

Source: http://gisis.imo.org/Public/PAR/Reports.aspx?Name=RegionalAnalysis

From the IMO’s Regional analysis on maritime crime in West Africa above, it could be seen that a total of 843 reported incidents of unlawful acts against vessels took place in the more than 18 year period between August 1995 and March 2014. Out of the above figure, only 158 reported incidents took place in international waters which could legally be classified as acts of piracy. Of the remaining 685 reported incidents for that period, 296 incidents took place in Territorial Waters and 389 incidents took place in port areas.

Based on the IMO Regional Analysis above, it is clear that more than 81% of the reported incidents of unlawful acts against vessels in the West African region (and indeed GoG) should be properly and legally classified as armed robbery, whereas piracy accounts for less than 19% of such incidents.

Suggested Solutions for Dealing with the Menace

In formulating an effective strategy to repress the surge in unlawful acts against the safety of maritime navigation in GoG it is vital that we first appreciate the exact nature of the problem from a legal perspective. This is based on simple logic because it is impossible to have an effective solution to a problem without establishing the nature of the problem. The necessary corollary for that reasoning is that for any security measure to be fruitful in combating crimes against vessels in GoG it must be based on a sound legal footing bearing in mind the rights and obligations of states within the various maritime zones under UNCLOS with issues relating to sovereignty and jurisdiction, and the various maritime boundary disputes which abound in the region due to the presence hydrocarbons. Examples of maritime boundary disputes which could hinder collaborative efforts for maritime security measures in GoG include the acrimonious dispute over Bakassi peninsular between Nigeria and Cameroon; Cameroon and Equatorial Guinea over the island at the estuary of river Ntem; Equatorial Guinea and Gabon over Corisco Bay and Mbane Island; Ghana and Cote d’Ivoire over the Dzata-1 oil well near Cape Three points, as well as the potential maritime disputes between Liberia and its western and eastern neighbours following the recent discovery of oil in its waters. It is important for GoG states to set up necessary mechanisms for peaceful resolution of maritime boundary disputes as provided under UNCLOS,[10] as failure to do so may potentially derail maritime security initiatives in the region.

Based on the IMO statistics above it is safe to conclude that more than 81% of the crimes against maritime navigation in GoG is armed robbery (and theft) within territorial and internal waters including port facilities, most of which take place within Nigerian waters, as opposed to piracy in international waters. It is also obvious that the immediate threats offshore have its roots ashore. Therefore any strategy to deal with the problem effectively must be aimed at tackling both ends simultaneously.

Suggested solutions for dealing with the problem are as follows:

A) Tackling the problem offshore:

 i. Littoral states in GoG must first recognise that it is the primary responsibility of each coastal state, not the international community, to secure its internal waters and port facilities as well as individual territorial waters. This is a fundamental factor that must be appreciated to ensure an endearing and effective maritime security in the region. This is because the sovereignty of a state extends to its territorial waters and the state has exclusive jurisdiction and competence to ensure the good order and security of its territorial waters. Thus every coastal state has a legal responsibility by way of a duty of care to provide proper and adequate security for maritime traffic in its territorial waters. There seems to be good arguable grounds to say that a coastal state that fails to provide proper and adequate security in its territorial waters in accordance with the requirements of UNCLOS may be liable for breach of that duty of care to victims of maritime crimes in their territorial waters and port facilities by virtue of the doctrine of State Responsibility. Of course such liability will depend on the facts of each case and may be easily established against coastal states with weak maritime security due to bribery and corruption and / or bad governance.

 ii. GoG States, especially Nigeria, should adopt a zero tolerance policy to all forms of offshore bunkering activities. This is because the surge in maritime crimes in GoG is intrinsically linked to the illegal activities in the oil industry in that region, particularly Nigeria. Offshore bunkering activities in that region often entails a lot of underhand dealings with bent tycoons, which is a potential ground for organised crime and other illegal activities, including rivalry among criminal gangs, some of which ultimately lead to attacks on vessels. Therefore the recent decision by the Nigerian government to legalise offshore bunkering with a view to curtail illegal oil exports will be counterproductive to maritime security initiatives as security operatives will be placed in the difficult position of having to differentiate between legal and illegal bunkering in their operations.

 iii. GoG States need to adopt firm and aggressive anti-smuggling measures with zero tolerance for such activities. Smuggling is the backbone of criminal acts against vessels and seafarers. This is because the clandestine nature of smuggling which is carried out to evade payment of customs and port duties are often conducted sneakily without security protection, thereby creating the propensity for criminal activities which leads to attacks on vessels. Crimes against vessels in GoG is an offshoot of the high rate of smuggling by sea in the region, which has always been a means for trafficking in weapons and narcotics as well as other illicit activities because it gives the perpetrators the confidence to undermined any security regime in the region. Thus any initiative to suppress piracy and armed robbery at sea in GoG will not achieve any meaningful result without curbing the high rate of smuggling in the first instance. In short, anti-smuggling initiatives should be used as a barometer in the quest for suppression of unlawful acts against the safety of maritime navigation in GoG.

iv. Coastal states in GoG need to give priority to removal of shipwrecks from their waters and to have stringent measures to prevent abandonment of vessels. The reason for this is that proliferation of abandoned vessels in the region are not only a source of navigational and environmental hazards, but they also provide cosy nests for maritime criminals to store arms and launch attacks on vessels. Wherever possible, the relevant authorities should identity owners of abandoned vessels from names of the vessels and other identification marks, and to get them to pay for the cost of removal of such wrecks. In this regard it should be noted that the Nairobi International Convention on the Removal of Wrecks (the Convention) which was adopted by the IMO on 18 May 2007 will come into force on 14th April 2015, being twelve months after the ratification of the 10th country for that convention i.e. Denmark.  The ten countries that ratified the Convention to bring it into force on the above date are: Bulgaria, Denmark, Germany, India, Iran, Malaysia, Morocco, Nigeria, Palau and United Kingdom. Under the convention, all vessels of 300 gross tonnes and above registered in any state which is a party to the convention or calling at ports and terminals in those states must have evidence of insurance policy to cover wreck removal. The convention only applies in the EEZ, but there is a provision under Article 3 for states to extend its application to their territories, including territorial and internal waters, where most shipwrecks occur due to higher risk of grounding. Denmark’s ratification of the Convention made it the third country along with Bulgaria and the United Kingdom, to extend its application to their territories.  In view of the high rate of abandoned vessels within the territorial and internal waters of Nigeria and other states in GoG, it will be highly appropriate for the Nigerian authorities to rely on Article 3 of the convention to extend its application to their territory, and for other GoG states to ratify the convention and do the same.

 v. Combating maritime crime in GoG does not require more warships because it is obvious that the root cause of the problem is ashore, as opposed to offshore. Maritime criminals in that region will always try their luck in view of the highly lucrative nature of such illegal activities compared to the low risk of apprehension and prosecution. Therefore naval and coast guard activities should be conducted with the aim to deter, detect and defeat maritime criminals before they are able to carry out any successful operation. What is required for this purpose is the capability for the authorities to have virtual control of their maritime environment so that the presence of security operations could be seen and felt by prospective criminals, which cannot be achieved with warships, but with fast and well equipped patrol boats that are able to outsmart speed boats used by criminals, with more emphasis on use of aircraft equipped with the necessary tools and equipment to undertake far reaching aerial surveillance and able to get to the location of any reported incident in the shortest possible time, all of which must be supported with modern technology to capture the activities and movements of all types of vessels, large or small. There is a need for more and well equipped faster patrol boats manned by properly trained officers. In view of the large expanse of the area to be kept under surveillance, it will be cost effective and the naval and coastguard forces would benefit from Maritime Airborne Surveillance and Control (MASC). Thus, in addition to better equipped and fast patrol boats, what is required is more patrol and reconnaissance aircraft with multiple capabilities, supplemented with extensive use of modern technology. Of course, it will also require the hardening, reinforcement and co-ordination of the existing naval and coastguard capabilities of GoG states to ensure efficient and regular patrol by well trained officers, as well as instilling more discipline and professionalism in the naval forces, for effective maritime law enforcement. This is will be particularly useful in the case of Nigeria in view of the endemic allegations of corruption within the Nigerian navy.

vi. GoG States must invest in modern technology in their efforts to combat maritime crime due to the large expanse of the area to be kept under surveillance. With modern technology which is constantly improving, it is possible for the authorities to have virtual control of their maritime domains by investing in various maritime surveillance systems to complement water and aerial patrols. Whilst technology enhances maritime security, no technological system will provide full proof surveillance, and some may need to be integrated with others to increase reliability. Choosing the right technology also requires careful consideration of prevailing local circumstances and available infrastructure, such as frequent disruption to electricity supply especially in Nigeria, in order to be of any benefit. Examples of available technology for maritime security surveillance are:

 Automatic Identification System (AIS) This is a navigational aid which broadcasts information about a vessel to other vessels and to shore-based authorities automatically. The requirement for vessels to have AIS was adopted by the IMO as Regulation 19 of Chapter V of the International Convention on Safety of Life at Sea (SOLAS) 1974 as amended. The Regulations make it a mandatory requirement for AIS to be fitted on all vessels of 300 gross tonnes or more engaged on international voyages and cargo ships of 500 gross tonnes or more not engaged on international voyages and all passenger vessels irrespective of size, with effect from 31 December 2004. To ensure effective maritime security, all GoG states should consider adopting and implementing the above AIS Regulations (where they have not done so) and to make it a compulsory requirement for all vessels (irrespective of size) to be fitted with AIS, with a zero tolerance policy for any vessel to operate in their maritime domain without AIS. Such a requirement will make it possible for all vessels to be tracked and suspicious vessels interdicted before any atrocities are committed. AIS is useful for short range vessel identification and tracking.

 Long-Range Identification and Tracking (LRIT) system is a global messaging system for security as well as Search and Rescue purposes. LRIT system was adopted by the IMO and came into force on 1 January 2008 through Regulation 19-1 of Chapter V of SOLAS. The LRIT Regulations require passenger ships on international voyages including high-speed craft, cargo ships including high speed craft of 300 gross tonnes and above, as well as mobile drilling units, to transmit information relating to identity and location specifying position, date and time for a vessel to their Flag State at least every 6 hours. Flag States maintain a database for such transmitted information to share with any other State which is a party to SOLAS Convention, upon request. Thus coastal States may request information on any vessel which is within 1000 nautical miles from their coast. The Flag State will release such information to the requesting state unless there are reasons not to do so on grounds of confidentiality. There is no interface between LRIT and AIS. The IMO has since set up an Information Distribution Facility (IDF) to provide LRIT data from SOLAS member states to naval forces in the suppression of crime against vessels in Gulf of Aden and wider Indian Ocean. The IMO issued a circular on 6 December 2010 advising SOLAS member states that North Atlantic Treaty Organisation (NATO) and EU NAVFOR are involved with the IDF and urged Flag States to provide LRIT information to those organisations, on request.

 Vessel Monitoring Systems (VMS) is a satellite-based monitoring system capable of providing information on the location, speed and course of a vessel. VMS is mostly used for purposes of monitoring fishing vessels, but could equally be used for purposes of security surveillance. It will be helpful to make it mandatory for vessels to have VMS to report the location of ships at regular interval.

 Vessel Detection System (VDS) which makes it possible for vessels to be detected through Synthetic Aperture Radar (SAR) under any weather condition, day and night. This is a vital tool in maritime security surveillance because detecting the position of vessels neither requires co-operation of vessels nor voluntary disclosure of information by vessels. Thus VDS makes it possible for suspicious vessels to be detected and reported to relevant naval and coastguards for interception.

 Vessel Traffic Services (VTS) System involves having a station ashore with sensors, radars and optical or infrared cameras for trained personnel to monitor local maritime traffic. VTS systems are used in areas of heavy maritime traffic to ensure safety of navigation but could also be useful for purposes of maritime security surveillance.

B) Tackling the problem ashore:

 vii. GoG states must give priority to Maritime Domain Awareness (MDA) in their national security policies. The Maritime Domain of a coastal state is all areas and things of, on, under, relating to, adjacent to, or bordering on a sea, ocean, or other navigable waterway, including all maritime-related activities, infrastructure, people, cargo, vessels, and other conveyances. MDA on the other hand is the appreciation of everything relating to the maritime domain with the potential to affect the security, safety, economy, or environment of a coastal state. GoG states rely heavily on their Maritime Domain as a major source of revenue. Maritime insecurity in GoG is a direct consequence of the fact that until recently most states in the region overlooked the need for any or proper MDA programmes as they concentrated mainly on land security with little or no attention for their maritime domains. Thus GoG states must have long term MDA Plans in their security policies. Such MDA plans must be tailored to the peculiar needs of each state bearing in mind their social, economic and political circumstances. The MDA plans must be reviewed regularly to ensure efficacy, as well as anchored to regional and international MDA plans. Maritime security initiatives are unlikely to be effective unless GoG states engage in long term and sustained MDA programmes to complement such efforts.

 viii. Coastal States in GoG need to appreciate that maritime activity is the mainstay for their economies and the need to guard that source of income jealously by allocating adequate and commensurate resources for maritime security. Of course this should go hand in hand with having an effective system to ensure that allocated resources are utilised for the intended purpose. It seems that the situation has got this bad because, while all littoral states in GoG derive most of their revenue from their maritime domain, they have not been enthusiastic about allocating adequate resources for purposes of maritime security. This can be seen from the fact that most GoG states do not have any or adequate naval or coastguard capabilities, apart from Nigeria and Ghana who have some naval capability to operate at sea for a reasonable period. Nigeria has the largest navy in the region but its operational capability had been undermined for years by lack of maintenance of its fleet and equipment due to inadequate funding amidst allegations of mismanagement, though it seems that situation is currently being addressed following the recent intervention of Nigeria’s Senate Committee on the Navy.[11]

 ix. It is of utmost importance for GoG states to initiate viable welfare programmes by boosting job opportunities in their coastal communities, to engage those who are enticed into criminal activities as a way of survival. This is particularly important as almost all GoG states have no social security systems for those who are unemployed to fall back on. Thus most unemployed people in the region resort to survival by all means, often with no regard for law and order. This problem is particularly acute in Nigeria being the most populous and richest country in the region, but with a very high unemployment and poverty rate. The problem is aggravated by government policies which are not given careful consideration before implementation, such as the privatisation of Nigerian seaports in which resulted in mass redundancies of about 18,000 people in 2006 within the maritime sector, thereby increasing the number of unemployed people with links to the maritime sector to increase the regiment of maritime criminals. No maritime security initiative is likely to yield any positive result so long as there remain a high number of people with links to the maritime sector, including maritime security sector, with no source of livelihood. There is an urgent need for aggressive job creation programmes within the coastal communities. One way in which this may be done is by rejuvenating the fishing sector which has been neglected as a result of the booming petroleum industry by clamping down on Illegal, Unreported and Unregulated (IUU) fishing, to absorb some of those artisans and security personnel who were affected by the mass redundancies in the maritime sector. Reviving the erstwhile thriving agricultural sector which has also been abandoned for same reason will go a long way to ameliorate the problem.

x. The root causes of maritime crimes in GoG in general and Nigeria in particular are bribery and corruption coupled with weak governance, which is responsible for the high rate of poverty and consequential crimes in the region. Attaining effective maritime security in GoG will remain elusive so long as millions of people are deprived of basic necessities of life such as food, shelter, employment, and access to proper medical facilities. The situation is worsened by the fact that such detrimental activities are perpetuated by some of those who are charged with the responsibility of managing affairs of the state and ensuring law and order. In some instances, government policies and actions amount to nothing short of blatant disregard for the law. This is why the ordinary citizens have no regard for law and order or any form of constituted authority because they do not see or feel any positive impact of the government. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.[12] There is urgent need for improved governance and for existing anti-bribery and corruption laws to be vigorously enforced. The remedies for crime are good governance, accountability and transparency underpinned with respect for rule of law by the custodians of the law for the general population to emulate. Unfortunately actualisation of those simple remedies for the depravity may be the hardest part in the quest to suppress the general insecurity in the region because it will require some form of mass social mobilisation with the aim of complete reorientation and change in mindset from the leaders and the general population.

 xi. There is an urgent need for GoG states to review and overhaul existing legal mechanisms for the prosecution of criminals apprehended for maritime crimes. Such an exercise is necessary in view of the various allegations of corruption against the prosecuting authorities and members of the judiciary who are involved in dealing with such cases, especially in Nigeria. This is because the current low prosecution rate compared to the number of apprehended offenders is an incentive for such acts to continue. In order to deal with the unsatisfactory state of affairs regarding prosecution of maritime criminals, it will be helpful for GoG states to consider pulling their resources to establish a specialist regional tribunal to try such cases. This may entail having to amend their domestic criminal laws to give harmonised jurisdiction to such a specialised regional tribunal to try cases of maritime crimes committed within the territorial waters of member states. The different legal systems of the various Anglophone, Francophone and Lusophone countries in the region should not be an obstacle as there are several international criminal courts and tribunals with templates for such initiative. Having such a regional specialised tribunal will send a strong message to maritime criminals and their ‘godfathers’ that GoG states are all out to combat maritime crimes in the strongest terms, which will serve as a durable deterrent.

 xii. GoG states need to engage in greater regional cooperation in the fight against maritime crimes. The porous and contiguous nature of maritime boundaries means that maritime crimes cut across national jurisdictions and this may occur easily in GoG where most maritime boundaries have not been clearly demarcated resulting in various maritime boundary disputes, which may lead to allegations of transgression. Therefore there is a need for coordination of efforts and resources as well as information sharing between GoG states in the quest for repression of maritime crimes. The Yaoundé Code of Conduct concerning the repression of piracy, armed robbery against ships, and illicit maritime activity in West and Central Africa (Yaoundé Code of Conduct) which was adopted on 25 June 2013 is a laudable step in the right direction because it demonstrates that the governments of GoG states are ready to put aside their differences from the relics of colonialism to combat a common problem. Unfortunately, despite its ambitious aims, the Yaoundé Code of Conduct deals with only the symptoms of the problem by addressing offshore threats, without addressing the root causes of the problem ashore. For instance, it does not propose a solution for the low prosecution rate for apprehended maritime criminals in the region.  Rather, the relevant provisions relating to prosecution of apprehended maritime criminals under the Yaoundé Code of Conduct merely provides that:

 The Signatories intend to prosecute, in their domestic courts and in accordance with relevant domestic laws, perpetrators of all forms of piracy and unlawful acts against seafarers, ships, port facility personnel and port facilities.[13]

 The organization and functioning of this national system is exclusively the responsibility of each State, in conformity with applicable laws and regulations.[14]

…..each Signatory to the fullest possible extent intends to co-operate in arresting, investigating, and prosecuting persons who have committed piracy or are reasonably suspected of committing piracy.[15]

This is a serious deficiency in the Yaoundé Code of Conduct because the low prosecution rate for apprehended maritime criminals in GoG is a big incentive for such acts to continue. The failure of the Yaoundé Code of Conduct to address the root causes of the problem ashore may be attributable to the fact that it was deliberated upon and adopted by officials of the same governments who will not accept any allegations of bad governance and corruption. The effectiveness of the Yaoundé Code of Conduct as a tool for combating maritime crimes in GoG will be greatly improved if it is amended to also deal with the root causes of the problem ashore, such as establishing a specialised regional tribunal for prosecution of maritime criminals. Such initiative will address the problem of low prosecution rate and serve as a strong deterrent for maritime criminals.

Conclusion

It is indisputable that there has been a significant increase in the number of attacks on vessels in GoG and that most of such activities take place within Nigerian waters. However, the exact nature of the attacks seems tangled due to the confusing definitions of piracy used by the major organisations interested in global maritime affairs, as a result of which even theft within port facilities and anchorage areas are classed as piracy. This article has sought to untangle the exact nature of such illegal activities in GoG from a legal perspective, using the most authoritative and widely accepted definition of piracy under UNCLOS which reflects the customary international law position, to the effect that piracy is a universal crime which can only be committed in international waters.

Relying on IMO statistics over an 18 year period from 1995 to 2014 which are based on the UNCLOS definition of piracy, it is evident that more than 81% of such unlawful activities are acts of armed robbery (and some theft) as opposed to piracy because they occur within territorial and internal waters, including port facilities, and not in international waters. Therefore it is safe to conclude that the legal responsibility for dealing with the problem is that of the national governments in GoG as opposed to the international community. The concept of independence and equality of states imposes a duty on countries to refrain from intervention in the internal or external affairs of other countries.[16] Thus, any intervention from the international community without a formal invitation from or the consent of the states concerned, which will of course require a consensus from all the affected states in GoG, will amount to a violation of the sovereignty and territorial integrity of those states. Whilst only about 19% of the problem could be properly classified as piracy to warrant international intervention, any support from the international community to stem the menace will be highly beneficial to the global community in view of the adverse impact on international trade.

Unlike other regions in the world with similar problem such as Gulf of Aden and Malacca Straits, maritime crime in GoG is a convoluted issue because of the peculiarity of such activities in the region. The foremost reason for this is because the menace is a spin-off from the mismanagement of the abundant hydrocarbons in the region, especially in Nigeria’s Niger Delta. Thus it is not surprising that the militants who have been engaged in violent agitation for ‘resource control’ of the crude oil exploited from the Niger Delta have been singled out as the culprits for the surge in attacks on vessels in GoG. The reality of the situation is more intricate than that, as a careful examination of the causes of the problem indicates that it is rooted in the high level of bribery and corruption with lack of good governance in the region, especially Nigeria, coupled with indifference to MDA among GoG states generally. The real culprits include corrupt public and political office holders who recruit criminals to commit various atrocities including attacks on vessels;[17] low and high ranking officers in the armed forces and security services in the maritime sector who abuse their position by engaging in unlawful acts; greedy workers for Multi-National Oil companies and shipping companies who facilitate attack on tankers by providing information to criminals on movement of oil tankers; prosecutors and judicial officers who accept kickbacks in return for not prosecuting apprehended criminals or for trials to falter; as well as greedy foreigners who collude with crooked indigenes to carry out illegal bunkering activities.

Irrespective of the complexities surrounding maritime crimes in GoG, the problem is not beyond subjugation and should not go unchecked. Unfortunately most of the efforts made so far to tackle the menace have been aimed at the symptoms of the problem offshore, with little or no attention in dealing with the root causes of the problem ashore. In finding a lasting solution, efforts must be made to deal with both ends of the problem concurrently. There is an imperative need for the unlawful acts against the safety of maritime navigation in GoG to be nipped in the bud. Crime is contagious, and the negative successes of the terrorist groups in the Sahel, especially the recent atrocities of Boko Haram with the Chibok abductions in Bornu state of north eastern Nigeria may be transposed into the maritime domain, if no firm action is taken to check the situation swiftly. GoG states need to change their mindset from thinking of the cost of having adequate and effective maritime security. Rather, they need to start thinking of how much they stand to lose by not having proper, adequate and effective security in their maritime domains.

 

 References

[1] Maritime Security in the Gulf of Guinea, Report of Conference held at Chatham House, London, 6 December 2012, p.9

[2] ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships, Report for the Period 1 January to 30 June 2009, p.3; 2009 q2 imb piracy report (1).pdf

[3] Code of Practice for the Investigation of Crimes or Piracy and Armed Robbery against Ships, IMO Resolution A.1025(26), Adopted on 2 December 2009.

[4] The Contiguous Zone is the maritime zone immediately after the Territorial Sea, up to a further limit of 12 nautical miles after the Territorial Sea (or 24 nautical miles from the baseline inclusive of the Territorial Sea) and within which a coastal state has limited powers to enforce its fiscal, customs, sanitary and immigration laws. Article 33 of UNCLOS.

[5] The EEZ is a maritime zone which extends up to 200 miles from the baseline, and in which coastal states enjoy extensive rights as regards natural resources  and jurisdictional rights, while other states enjoy the freedom of navigation, over flight, laying of submarine cables and pipelines; Articles 55 – 58 of UNCLOS 1982

[6] The Territorial Sea, sometimes referred to as Territorial Waters, is the immediate maritime zone measured from the baseline of a coastal state and extends up to 12 nautical miles into the sea. Article 3 of UNCLOS

[7] Churchill. R. R. and Lowe. A. V, The Law of the Sea, Third Edition, Manchester University Press, 1999, p.209

[8] Article 15 of HSC 1958 provides that Piracy consists of any of the following acts:

(1) Any illegal acts of violence, 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:

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

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

(2) 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;

(3) Any act of inciting or of intentionally facilitating an act described in sub-paragraph 1 or sub-paragraph 2 of this article.

[9] http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm

[10] Articles 279 – 285 of UNCLOS 1982

[11] http://www.thisdaylive.com/articles/senate-in-move-to-revamp-nigerian-navy/115222/

[12] Justice Louis D. Brandeis in the case of Olmstead-v-United States, 277 U.S. 438, 485 (1928)

[13] Article 4(4) of Yaoundé Code of Conduct

[14] Article 4(5) of Yaoundé Code of Conduct

[15] Article 6(1)(a) of Yaoundé Code of Conduct

[16] Brownlie, I., Principles of Public International Law, Seventh Edition, Oxford University Press, 2008, p.29

[17] http://www.vanguardngr.com/2012/12/top-government-officials-politicians-contract-us-sea-pirates/

 

Short Bio

Herbert I. Anyiam LLB(Hons), BL, LLM, MCIArb.                                                                             Herbert is the CEO of Global Maritime Bureau, an international maritime consultancy firm in the UK. He is a dual qualified lawyer in England & Wales and Nigeria and a member of the Chartered Institute of Arbitrators. He is an expert in international maritime and admiralty law, international dispute resolution services and multi-jurisdictional disputes. He is a Supporting member of London Maritime Arbitrators Association (LMAA), member of the International Maritime Statistics Forum (IMSF) and a member of International Maritime Organisation (IMO) Roster of Expert Consultants.  

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Call for Articles, Non-Navies Week: 29 JUL-2 AUG

CIMSEC is having a Non-Navies Week from 29 July to 2 August as a first step in a longer series on specific non-navies. Delve into this list of non-navy navies with us.

Mainstream policy discussions of navies and maritime law enforcement often consider the denizens of the high seas to be a pliant polity – passive actors being defended, disrupted, or directed by the might of global or local security networks. However, national fleets and their individual warships are not the only ones with the agency to effect global politics and security.

Some topics we have covered at length - pirates and the Private Military Contractors that have risen up in opposition – but we have only scratched the surface.

Commercial enterpirses pursue the possibility of massive drone-ships, bringing new possibilities and vulnerabilities as our virtual network and our trade network grow closer together. Remember those pirates?

Fishing fleets have their own interests and controls - their operations and movement impacting global politics from the Gibraltar to the South China Sea. Sometimes inadvertant, sometimes purposeful, their movements can motivate states or global institutions – from territorial disuptes, to security, to environmental concerns.

Activists attempted to plant Chinese flags on the Senkaku Islands, which are controlled by Japan, as an assertion of the Chinese regime's sovereignty over the uninhabited islands. (Jingcai Mingren/Weibo.com)
Activists planting Chinese flags on Japanese-controlled Senkaku Islands. (Jingcai Mingren/Weibo.com)

Ever-better organized and equipped activists are taking to the high-seas, battling whalers or even states. From the Sea Shepards to the “amphibious landings” of Japanese and Chinese activists in the Senkakus, civilians are taking the politics to sea. Somalian piracy actually started as activism, fisherman-come-vigilantes.

Terrorists are an unfortunate reality on the high seas, from the category of at-sea terrorist attacks to the use of amphibious operations as vectors for attack from Israel to Mumbai. Some groups, such as the Tamil Tiger’s “Sea Tigers”, even went so far as be considered a possible real-world naval force.

Colombian authorities discovered this fully functional narco-submarine in 2011. The vessel could carry 8 tons of cocaine and has a range of 8,000 miles. The submarine is similar to the Colombian Navy's own tactical sub, except this one has an interior bathroom and larger beds, sailors said. (Juan Manuel Barrero Bueno/Miami Herald/MCT)
Colombian authorities discovered this fully functional narco-submarine in 2011. The vessel could carry 8 tons of cocaine and has a range of 8,000 miles. The submarine is similar to the Colombian Navy’s own tactical sub, except this one has an interior bathroom and larger beds, sailors said. (Juan Manuel Barrero Bueno/Miami Herald/MCT)

Around the raucus political conflicts flows the silent  schemes of smugglers, black marketeers, and human traffickers. From drug runners to sanction busters, admirals are not the only ones trying to mask their position. Criminal enterprises conduct their own air-sea battle, even operating submarines to smuggle goods.

map_strategic_passages
Shipping density data adapted from National Center for Ecological Analysis and Synthesis, A Global Map of Human Impacts to Marine Ecosystems.

The almost clinicically precise maps of the sea lines of communication would lead one to think that the oceans are a tame and organized place. Hardly. The sea is as alive with merchants, combatants, and all number of active players creating their own order and chaos.

ARTICLES ARE DUE 24 JULY TO NEXTWAR@CIMSEC.ORG OR IN OUR WORDPRESS QUEUE. LATE ENTRIES WILL BE ACCEPTED, BUT DON’T PUSH YOUR LUCK. THIS IS FIRST-COME, FIRST/MOST AWESOME SERVED.

Limburg-Oil-Tanker-Fire

The ISPS-Code and Maritime Terrorism

As a response to the 9/11 attacks, the International Ship and Port Security code (ISPS) came in to force 1st July 2004. Thus, 10 years have passed, since merchant ships in international trade and the ports they are calling, were required to be certified to a certain security standard.

Background

Most legislation in the maritime world is initiated by some kind of maritime disaster or accident. The Titanic catastrophe, where many passengers and crew members perished due to the fact that there were not enough lifeboats, gave birth to international safety regulations.(1) The MARPOL-convention came in to force a few years after a serious oil pollution, caused by the grounding of the tanker Torrey Canyon on rocks near the Isles of Scilly.(2) Further, despite proper rules and regulations, a very high number of accidents caused the International Maritime Organization (IMO) to implement the International Safety Management Code (ISM).(3)

Contrary to previous conventions and codes, the creation of the ISPS-code was caused by a disaster that happened ashore, when hijacked aircrafts on the 11th of September 2001 flew into the twin towers of the World Trade Center, destroyed part of Pentagon and crashed on a field in Pennsylvania.

In peace time, to facilitate trade, merchant ships have traditionally been entering territorial waters and ports without much hindrance. The embarkation of port authorities, with clearance and free pratique granted has occurred once the ship was alongside a berth or at a customary anchorage.

With such an easy access to seaports, security experts were of the opinion that merchant ships could be used as a tool by terrorists. Different scenarios were developed, where merchant ships were means of transportation of terrorists and their weapons, or that the ship in its own right was a weapon. An example given was the risk of gas ships being hijacked and blown up in busy seaports.

Urgently, legislation was needed to protect both merchant ships and seaports.

Implementation

At a Conference of Contracting Governments to the International Convention for the Safety of Life at Sea (SOLAS), held at IMO headquarters in December 2002, The International Ship and Port Facility Security Code was adopted.

A code written and adopted, just in little more than one year after 9/11, must have been some kind of record. The time period from adoption to enforcement was also very short, only 18 months had passed when the Code came into force on the 1st of July 2004.

During that one and a half year some 50,000 ships were certified, and hundreds of thousands of seafarers and office personnel were educated for their new roles as Ship Security Officers (SSO) and Company Security Officers (CSO). An equally daunting task, port facilities on all continents, with personnel, should be certified and educated.

However, extraordinary times demand extraordinary measures and with a concerted effort from all stake holders in the shipping industry, the ISPS-code was properly enforced.(4)

 

What is maritime security?

Maritime security has always been a part of commercial shipping. Piracy is as old as shipping itself and stowaways is hardly a new problem either. During wars, the merchant marine has been an integral part of the war effort, being a vital support line for warring nations in need of weapons, food, oil and other commodities.(5)

Thus, war, piracy and stowaways are threats that the shipping industry has been dealing with for a long time. Administrations and ship owners´ associations have for decades been issuing regulations and instructions in an attempt to assist seafarers to deal with the perils.

For example, during the cold war, all Swedish ships were by the Swedish Maritime Administration issued with an instruction about how to act during crisis and war.

Some 30 years ago, with the appearance of modern piracy, the International Maritime Organization(6) and the International Chamber of Shipping(7) issued guidelines.

In 1957, an international convention relating to stowaways was adopted, although not yet in force (8), and there are policies issued about how to deal with stowaways.(9)

However, any specific instructions, how to protect a ship against terrorists, prior to the ISPS-code, were never issued. The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, which was agreed upon after the spectacular hijacking of Achille Lauro, was only addressing punishment of acts that could threaten the safety of maritime navigation.(10)

 

Maritime terrorism before ISPS-code (before 1 July 2004)

The Council for Security Cooperation in the Asia Pacific(11) has offered an extensive definition for maritime terrorism:

“…the undertaking of terrorist acts and activities within the maritime environment, using or against vessels or fixed platforms at sea or in port, or against any one of their passengers or personnel, against coastal facilities or settlements, including tourist resorts, port areas and port towns or cities.”

Similar to the ISPS-code, not only ships are considered as objects for maritime terrorism, but also port facilities.

Maritime terrorism is not rampant, nevertheless there have been a steady flow of incidents during the last 50 years. The Global Terrorism Database (GTD) at the University of Maryland(12) is an open-source database on global terrorist incidents (including maritime), covering events from 1970 through 2012.

From 11th June to 1970 to 1st July 2004, there were 212 maritime terrorism incidents. However, most of those incidents were on rather low level, like the incident with GTD ID: 200112120005; “12/12/2001: Members of People’s Revolutionary Army (ERP) set up an illegal checkpoint along the Cauca River near Magangue, Sucre, Colombia. The rebels stopped a canoe traveling along the river and abducted nine of the passengers. Three people were released the next day. Specific motive is unknown.”

Still there are some significant incidents that got an extensive media coverage.

 

-          Santa Maria: The hijacking of the Portuguese passenger ship Santa Maria is considered to be first case of maritime terrorism. On January 22, 1961, 24 leftist Portuguese terrorists hijacked the luxury cruise liner. The ship was carrying 600 passengers and a crew of 300. The would-be hijackers embarked the vessel as passengers at the port of La Guairá in Venezuela and on the Dutch island of Curacao, with weapons hidden in their suitcases. The terrorists took over command of the vessel, but eventually surrendered when they were given political asylum in Brazil.(13)

 

-          Sounion: A few years prior to the outbreak of the civil war in Lebanon, in March 1973 the Greek passenger ship Sounion sunk in the port of Beirut. A limpet mine was attached to the ship`s hull by Palestinian terrorists while ship was in dock, with the aim of blowing up the ship once at sea. Due to the interference of a Swedish undercover agent based in Lebanon, the departure was delayed, passengers could disembark and the ship sunk while still alongside the berth.(14)

 

-          Shadow V; A fishing boat owned by the former First Sealord and last Viceroy of India, Lord Mountbatten. In September 1979, while onboard the boat in waters near his summer home on Ireland, a bomb planted by the Irish Republican Army exploded and killed him.

 

-          Rainbow Warrior; A Greenpeace ship sunk by the French foreign intelligence service in the port of Auckland, New Zealand, July 1985. Not an act of terrorism as such, but two French secret service agents was found guilty and sentenced to ten years in prison by the New Zealand court of law.

-          Achille Lauro; InOctober 1985,the passenger ship while on a cruise in the Mediterranean, was hijacked by four terrorists from Palestine Liberation Front, off the coast of Egypt. After only two days of negotiation, but after they had killed an elderly American passenger, the hijackers gave up when they were promised political asylum in Tunisia. However, justice was swift, as US warplanes forced the Egyptian airliner carrying the hijackers to land in Italy.

As a result of the hijacking, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) was developed and adopted.

 

-          The Tanker War; With something that can be refer to as state terrorism, both sides attacked shipping in the Persian Gulf, mainly tankers, during the Iran-Iraq war between 1980 and 1988. According to sources more than 400 seamen were killed and 340 ships were attacked, during the conflict.(15),(16)

 

-          The Tamil Tigers; During the civil war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam, the latter was involved in maritime terrorism with its Sea Tigers brigade. The brigade was accused of hijacking several vessels in waters off the coast of Sri Lanka, including Irish Mona (in August 1995), Princess Wave (in August 1996), Athena (in May 1997), Misen (in July 1997), Morong Bong (in July 1997), MV Cordiality (in Sept 1997) and Princess Kash (in August 1998).(17) One spectacular act of maritime terrorism was the suicide attack on the tanker Silk Pride. (18)

 

-          USS Cole; Although a warship, the modus operandi used by the attackers was kind of a harbinger, when in October 2000, a small craft laden with explosive commanded by Al Qaeda suicide bombers hit the US Navy destroyer. The attack killed 17 sailors and wounded another 42.

-          M/T Limburg; In October 2002, the French owned crude oil carrier was attacked when approaching an offshore terminal off the coast of Yemen. An explosive-laden boat rammed the hull of the tanker, causing an explosion followed by fire.(19)

 

-          Superferry 14; Regrettably, the ferries of the Philippines have a very bad safety record. Also, the maritime security record has been tarnished. The February 2004 terrorist attack on

Superferry 14 caused the death of 116 persons.(20) Suicide bombers from the Al Qaeda linked

Abu Sayyaf group, using a boat loaded with explosives, were the perpetrators.

 

Maritime terrorism after ISPS-code (after 1st July 2004)

Supporters of the ISPS-code may argue that the code has been successful since there have been no serious maritime terrorist attacks since the implementation.

Detractors may argue that the code did not help much in protecting seafarers against the menace of modern day piracy.

Whatever opinion someone may have, the code was developed to protect the international community against terrorism, and as such it has been a success. Piracy and terrorism are different crimes, needing different approaches. And, according to conventional wisdom, the link between terrorist and pirates is very weak.

Although a positive impact on the security situation by the Code, there have been some serious incidents.

 

-          Don Ramon; The second maritime terrorist attack by Abu Sayyaf took place in August 2005 onboard the passenger ship Don Ramon in Filipino waters. Terrorist had placed a timed bomb beneath gas cylinders in the ship`s galley, causing the ship to sink and wounding 30 passengers.(21)

 

-          M Star; In July 2010, the Japanese owned very large crude oil carrier experienced an explosion when transiting the Strait of Hormuz. Although no craft was sighted, the explosion made a large dent in the hull, parts of accommodation were slightly damaged and one crewmember was injured. After two days, the terrorist group Brigades of Abdullah Azzam claimed responsibility.(22)

-          Yemen, level 3; In August 2013, due to a high level of activity by Al Qaeda affiliated groups in Yemen, the Government of United Kingdom raised the ISPS security level to level 3 for British flagged ships in Yemeni territorial waters. A serious situation indeed, since an elevation to level 3 was unprecedented since the ISPS code was introduced in 2004.(23)

 

-          Cosco Asia; In September 2013, while on transit in the Suez Canal, the Chinese owned container vessel under the flag of Panama, was hit by a rocket propelled grenade. The ship sustained only minor damages, and there were no casualties. An Islamist group named Al-Furqan claimed responsibility for the attack.(24) Although a minor attack, it was of great concern for the Egyptian government, due to the economic importance of the Canal. To increase security, a protective wall along the Canal is in the process of being constructed.(25)

 

The future of the code

Like with all new regulations, ISPS-code was initially met with some skepticism from the end users, i.e. the seafarers. However, the code is now an accepted part of shipping, and the advantages are being appreciated.

Obviously, the code can be modified to the better, by catering more for the threat of piracy and stowaways that are much more of real threats than terrorism.

 

IMO has listed some of the remaining challenges; (26)

  1. Lack of national legislation/guidelines on ISPS code implementation.
  2. ISPS code as a mean to address all maritime security threats.
  3. Deciding on an appropriate risk assessments methodology.
  4. Dissemination of good practices on port facility security.
  5. Who audits the auditor?
  6. Ships` encountering difficulties after calling a high-risk port.

 

About the author: Lars H. Bergqvist is a Swedish master mariner and a reserve officer in the Royal Swedish Navy.

 

 

Footnotes

 

  1. http://www.imo.org/KnowledgeCentre/ReferencesAndArchives/HistoryofSOLAS/Pages/default.aspx
  2. http://www.imo.org/KnowledgeCentre/ReferencesAndArchives/HistoryofMARPOL/Pages/default.aspx
  3. http://www.admiraltylawguide.com/conven/ismcode1993.html
  4. http://www.imo.org/ourwork/security/instruments/pages/ispscode.aspx
  5. Sometimes referred to as “The Fourth Service”.
  6. Resolution A.545(13), “Measures to prevent acts of piracy and armed robbery against ships.” http://www.imo.org/blast/blastDataHelper.asp?data_id=22356&filename=A545(13).pdf
  7. International Shipping Federation/International Chamber of Shipping published in 1986 the first edition of “Pirates and Armed Robbers: A Master’s Guide.”
  8. International Convention Relating to Stowaways 1957 (“Brussels Convention”).
  9. http://www.itfseafarers.org/files/seealsodocs/453/Stowaways.pdf
  10. http://www.imo.org/About/Conventions/ListOfConventions/Pages/SUA-Treaties.aspx
  11. http://www.cscap.org/
  12. http://www.start.umd.edu/gtd/
  13. http://www.maritimeprofessional.com/Blogs/Maritime-Musings/December-2011/Hijacking-of-the-SS-Santa-Maria.aspx
  14. http://jcpa.org/article/mikael-tossavainen-on-theyll-die-anyway-ten-years-in-the-swedish-intelligence-service/
  15. war http://www.amazon.com/Tanker-Wars-Iran-Iraq-1980-1988-International/dp/186064032X
  16. http://csis.org/files/media/csis/pubs/9005lessonsiraniraqii-chap14.pdf
  17. Dr Vijay Sakhuja, South Asia Analysis group, SEA PIRACY IN SOUTH ASIA
  18. http://edition.cnn.com/2001/WORLD/asiapcf/south/10/30/slanka.tiger.attack/
  19. http://www.globalsecurity.org/security/profiles/limburg_oil_tanker_attacked.htm
  20. http://www.hrw.org/reports/2007/philippines0707/background/2.htm#_Toc168986107
  21. http://www.kcl.ac.uk/sspp/departments/dsd/research/researchgroups/corbett/corbettpaper8.pdf
  22. http://www.theguardian.com/world/2010/aug/06/japanese-oil-tanker-terrorist-explosives
  23. http://www.rederi.no/nrweb/cms.nsf/($all)/AE4BD4693E6CD476C1257BC00026E77C?OpenDocument&qnfl=Nrprint
  24. http://news.usni.org/2013/09/05/video-terrorists-rocket-commercial-ship-suez-canal
  25. http://www.skuld.com/topics/voyage–port-risks/port-news/africa/egypt-construction-of-security-wall-along-the-suez-canal/
  26. http://www.seasecurity.org/wp-content/uploads/IMO-Presentation-SAMI-PORT-SECURITY.pdf

 

 

 

 

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Sea Control 43: RADM Rowden – Sea Control, LCS, and DDG 1000

seacontrol2We are joined by RADM Rowden: OPNAV N96 (CNO’s Director for Surface Warfare), future Commander, Surface Forces, and author of the CIMSEC Article Surface Warfare: Taking the Offensive. We discuss his concepts for Sea Control, the development of LCS, perspectives on DDG 1000, and his plans as incoming Commander, Surface Forces.

DOWNLOAD: RADM Rowden – Sea Control, LCS, DDG 1000

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Abbottabad

Reconsidering the Imminence Requirement in a Post-9/11 World

THIS ARTICLE WAS ORIGINALLY PRINTED ON APR 4, 2013 AND IS BEING RE-PRINTED FOR “CHALLENGES OF INTELLIGENCE COLLECTION WEEK.”

AbbottabadOne of the most vexing questions in international law is determining under what circumstances a state may lawfully use military force against another state or non-state actor. The U.N. Charter takes a very conservative approach: use of force, according to Article 51, is authorized “if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”1 The international community has long since abandoned the notion that a state must wait until it is actually under attack before it can employ military force. Instead, the concept of “imminence” has been read into Article 51. Daniel Webster famously articulated this rule after the so-called Caroline case: preemptive force can be used only if there is “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation.”2 But even this more deferential rule has proven unworkable in the age of modern warfare. Modern military technology and techniques allow aggressors to launch devastating attacks without significant notice. Additionally, terrorist groups have become increasingly sophisticated in both their tactics and capability to evade detection. To combat these threats, states often gather intelligence that must be acted on in a matter of hours, and special forces are prepared to respond to threats on extremely short notice. For example, President Obama ordered U.S. Navy SEALS to attack a compound in Abbottabad, Pakistan that was believed to be housing Al Qaida leader Osama Bin Laden. Although the operation turned out to be a major success, Obama later explained that his advisors were only 55% confident that Bin Laden was in the compound.3 Of course, there was no suggestion that Bin Laden was planning an imminent attack on the United States, or even that he would soon relocate to a new hideout. The time-sensitive nature of the intelligence and the enormous stakes, however, justified the use of military force without any delay to collect more detailed intelligence or seek the aid of the Pakistani government. The Abbottabad raid is an example of how the traditional notion of imminence must be adapted to meet the needs of the Global War on Terror. This post seeks to explain why such a shift is needed and suggests a framework for evaluating the use of military force when a threat is not imminent in the traditional sense.

Changing Nature of Threats

The notion of imminence is an intuitive concept for most people. The requirement is familiar from domestic criminal law, which allows a person to use deadly force in self-defense if he believes such force is “immediately necessary for the purpose of protecting himself against the use of unlawful force….”4 The imminence requirement is also consistent with the predominant view of international relations, enshrined in Article 2(4) of the U.N. Charter, that states are to refrain from using force against another state unless authorized by international law.5 This rule, although a good starting point, is strained by the realities of the current international system.

The imminence requirement developed in a time when military conflict occurred almost exclusively between sovereign nations. It was relatively simple to detect a neighbor amassing conventional forces along your border or positioning naval forces off your shore. It also developed in a time when wars were fought by conventional means: by soldiers on battlefields. The need for imminence applied only in deciding to initiate military force. Once two states were at war, there was generally no requirement of imminence before engaging enemy forces.6 The rise of non-state terrorist groups has altered this dynamic in two important ways. First, terrorist groups have developed tactics that are difficult to anticipate. If states wait until a terrorist attack is imminent, they may be unable to prevent a catastrophe and may have difficulty attributing blame after the fact. Second, because terrorist groups are non-state actors, it is often unclear who is a combatant that may be targeted and who is merely a bystander or sympathizer.

Despite the difficulties of applying the imminence requirement in a post 9/11 world, the Obama administration has continued to acknowledge a need for imminence when using military force against members of Al Qaida and other terrorist groups. In a Department of Justice white paper the Obama administration concluded that deadly force could be used against an American citizen abroad if that citizen “poses an imminent threat of violent attack against the United States” and capture is infeasible.7 In a 2011 address, John Brennan, who at the time was President Obama’s Homeland Security Advisor, remarked that imminence would continue to play an important role in constraining America’s use of military force to conform to international law. Importantly, he qualified his support by stating: “a more flexible understanding of ‘imminence’ may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts.”8 Articulating this new approach to imminence will be an important foreign policy challenge as the U.S. continues to prosecute the war or terror. The U.S. must develop a conception of imminence that both maintains the legitimacy of our military actions under international law and allows us to act preemptively against terrorist attacks.

Additional Factors to Consider

Altering the criteria for the lawful use of military force is a delicate task. Taken to an extreme, a more flexible rule could stipulate that force is appropriate whenever the potential benefits of a military operation outweigh the potential costs.9 This is the decision-making process envisioned by proponents of International Realism. States, as rational actors, would take any action in which the expected benefit exceeded the expected cost. Because, in the realists’ view, the international system is anarchic, there are no extra-national rules that govern when use of force is appropriate. The views of realists, however, have been largely rejected by the United States. If force is used in an unbounded manner, we risk losing legitimacy with the international community. Instead, the new paradigm must incorporate additional factors while still limiting the use of force by imposing legal constraints.

In a 2012 speech Attorney General Eric Holder suggested a new framework for determining which threats are imminent. When considering use of force against a terrorist target, the United States would consider the window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.10 This framework is a step in the right direction. The primary shortcoming of the traditional imminence doctrine is that it fails to adequately consider the potential cost of failing to act. The magnitude of a potential threat is an important consideration in deciding when preemption is justified. It is appropriate to preempt a nascent nuclear attack at a much earlier stage than would be appropriate for an attack using conventional weapon. Considering the window of opportunity allows decision makers to weigh the risks of inaction. A related concept is the so-called “zone of immunity.” This term was coined by Israeli Defense Minister Ehud Barak, and refers to a situation in which failure to take prompt military action will result in the enemy being immune from future attack.11 For example, Barak argued that after a certain point, Iran’s nuclear program would be sufficiently safeguarded that no aerial strike could disable it. When there is potential for a zone of immunity, the relevant question should not be when an attack is imminent, but when immunity is imminent. This flexibility does not mean that force can be used without limits. As Attorney General Holder explained, the use of force is always constrained by four fundamental principles: necessity, distinction, proportionality, and humanity.12 With these limitations intact, it is appropriate to consider the window of opportunity, zone of immunity, and the magnitude of harm that a successful terrorist attack would occasion.

Using Technology to Develop New Standards

Technology has profoundly affected the manner in which states react to threats to their national security. Its effect on the imminence standard is mixed. Some technologies have made it easier to collect and act on intelligence, thus expanding the window of opportunity to preempt terrorist attacks. For example, the use of satellite surveillance and unmanned aerial vehicles (UAVs, or “drones”) allows U.S. forces to track, observe, and engage individual terrorists remotely and without putting American service members in harm’s way.13 The ability to gather intelligence remotely and project power rapidly over long distances permits the United States to wait longer before initiating an attack because terrorist operations can be detected at earlier stages and individuals can be engaged on short notice by UAVs. In this sense, new technologies make the imminence standard more demanding. But technology can also compress the timeframe available for decision-making. For example, the decision to freeze financial assets of suspected terrorists must be made quickly and without notice due to the possibility the assets will be electronically transferred.14 Similarly, the advent of cyber-terrorism means terrorist groups can launch attacks on American infrastructure or financial institutions with no notice.15 These developments require the relaxation of the imminence requirement. Perhaps most importantly, technology can aid in decision-making by evaluating the imminence of potential attacks. Sophisticated computer programs can aid in weighing the risks and benefits of using force. In the near future, we may be able to develop systems that can gather intelligence, decide whether an imminent threat exists, and employ deadly force to eliminate the threat.16 Whether this type of technology can be used more widely will depend on whether it can incorporate the legal and ethical rules discussed in this article.

Conclusion

Developing a modern definition of imminence is an important and challenging goal for policy makers. Imminence is a concept that resists a strict legal definition and is better suited for practical determinations. In 2010, Nasser Al-Aulaqi filed a lawsuit in federal court seeking to prevent the U.S. government from killing his son, Anwar Al-Aulaqi, who had allegedly been placed on the U.S. government’s “kill list.”17 Al-Aulaqi wanted a court order stating that his son could be killed only if the government could show that he “presents a concrete, specific, and imminent threat….”18 The court held that it could not issue such an order because it was a political question: “the imminence requirement of [the plaintiff’s] legal standard would render any real-time judicial review of targeting decisions infeasible.”19 Despite being difficult for courts to apply, the administration should seek to develop a definition of imminence that will serve as a guide for future military actions against suspected terrorists. In doing so, it can provide the flexibility needed to respond to evolving threats while maintaining the respect of the international community.

George Fleming is a law student at Harvard Law School and former surface warfare officer in the U.S. Navy.

—————————————————————————————————————————

1. U.N. Charter art. 51 (emphasis added).
2. Daniel Webster, The Papers of Daniel Webster: Diplomatic Papers: Volume 1, 1841-1843, 62 (Kenneth E. Shewmaker & Anita McGurn eds., Dartmouth Publishing Group, 1983).
3. “Obama on bin Laden: The Full “60 Minutes” Interview” (May 2, 2011), available at http://www.cbsnews.com/8301-504803_162-20060530-10391709.html.
4. Model Penal Code § 3.04(1) (1962) (emphasis added).
5. See U.N. Charter art. 2, para. 4 (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”). This understanding is at odds with the international realism school of thought. Under that theory, states use military force as a means of advancing their interests in an anarchic system. See generally Kenneth Waltz, Theory of International Politics (1979).
6. For example, during World War II, American fighters targeted and destroyed an aircraft carrying a Japanese official who planned the attack on Pear Harbor. See Harold Hongju Koh, Legal Advisor, U.S. Department of State, Keynote Address at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010). See also U.S. Army Field Manual, 27-10, The Law of Land Warfare, ¶ 31 (1956) (authorizing attacks on individual officers).
7. Department of Justice White Paper, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force (2013).
8. John Brennan, Assistant to the President for Homeland Sec. & Counterterrorism, Keynote Address at the HLS-Brookings Program on Law and Security (Sep. 16, 2011).
9. A very simple formula would compare (probability of success × benefits of success) with (probability of failure × cost of failure) + (cost of inaction).
10. Eric Holder, Attorney General, U.S. Department of Justice, Speech at Northwestern University School of Law (Mar. 5, 2012).
11. Mark Landler & David Sanger, U.S. and Israel Split on Speed of Iran Threat, N.Y. Times, Feb. 8, 2012.
12. See Holder speech, supra note 10.
13. See generally Jane Mayer, The Predator War, New Yorker, Oct. 26, 2009.
14. See, e.g., Exec. Order No. 13,382, 70 C.F.R. 38567 (2005).
15. See generally Matthew C. Waxman, “Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4), 36 Yale J. Int’l Law. 421 (2011).
16. See, e.g., Kenneth Anderson & Matthew Waxman, “Law and Ethics for Robot Soldier,” Policy Review, 176 (Dec. 1, 2012). An example of this type of technology is the Navy’s AEGIS Combat System
17. Al Aulaqi v. Obama, 727 F. Supp. 2d 1 (2010). Anwar Al-Aulaqi was killed by an American UAV in 2011.
18. Id.
19. Id. at 72 (internal quotation marks omitted).

summer-reading

A Beginner’s Naval Intelligence Reading List

summer-readingWhile the very topic of naval intelligence may seem to imply secrecy, there is a substantial literature on the topic available to the general reader. While many of the books below may be well known to many in the field, they remain a useful start for the uninitiated:

Patrick Beesley’s two books about British efforts to collect, analyze, and use intelligence, particularly in support of the fight against German submarine warfare, are the best places to start for anyone interested in the practical application of intelligence at sea. Very Special Intelligence: The Story of the Admiralty’s Operational Intelligence Centre, 1939-1945 discusses the Second World War, while Room 40: British Naval Intelligence 1914-1918 covers the First World War. In both books Beesley contrasts the performance of these organizations during the two wars (the sharing and use of intelligence was much better during the Second World War). The discussion of British Naval Intelligence’s involvement in the famous Zimmermann Telegram and the subsequent U.S. entry into the First World War is fascinating.

The recommendation of John Keegan’s Intelligence in War may seem a little too obvious and on the nose, but his chapters on intelligence during the age of sail, the First World War, and the Battles of the Atlantic and Midway during the Second World War are one of the best summations of how wireless communications largely created what naval intelligence practitioners call OPINTEL (operational intelligence). Before wireless communications navies conducted “scouting” and “reconnaissance,” but intelligence as we understand it today largely results from the wireless revolution.

Christopher Ford and David Rosenberg’s The Admiral’s Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War is a flawed book, in large part because this slim volume uses the excuse of many of its sources still being classified to justify the general lack of detail and substance devoted to its subject. Having said that, it’s virtually the only source available to a general audience that explains the post-Second World War history of U.S. Navy intelligence. Among the more interesting claims it makes is that the U.S. Navy’s famous Maritime Strategy of the 1980s was directly informed by a detailed understanding of Soviet naval doctrine by American intelligence analysts.

Colonel John Hughes-Wilson’s Military Intelligence Blunders and Cover-Ups features regularly in military and academic courses on intelligence. Discussion of Indications and Warning failures include chapters on Pearl Harbor, the 1973 October/Yom Kippur/Ramadan War, and the Falklands.

“Eddie” Layton and “Joe” Rochefort are two figures considered among the founding heroes of the U.S. Navy’s Intelligence and Information Warfare communities, respectively. Layton (he retired as a Rear Admiral) was the Pacific Fleet’s intelligence officer during the Second World War (both during the Pearl Harbor disaster and the later American victories in the Pacific) while Rochefort led the codebreaking effort that enabled the American victory at Midway. Layton’s autobiography And I was There as well as the recently published biography, Joe Rochefort’s War, offer insight into how a few surface line officers in the inter-war period began to specialize in intelligence-related duties. Of note, both Layton and Rochefort participated in a program that sent them to Japan for several years to learn the language and culture first-hand, an investment that seems to have paid off.

U.S. Naval Intelligence has been one of the many elements of the intelligence community supporting the various aspects of what used to be called the Global War on Terrorism. Mark Bowden is probably the most well-known author covering the special operations world over the fifteen years. While Black Hawk Down is his most famous book, Killing Pablo: The Hunt for the World’s Greatest Outlaw offers another look at the formative years of the current U.S. Special Operations complex and how intelligence is collected and used to target individuals. He’s also written articles for the Atlantic on the 2006 killing of Abu Musab Zarqawi in Iraq, American Special Operations in the Philippines, and counter-drug operations in Colombia.

For those interested in film treatments of intelligence in support of counter-terrorism the obvious choice is probably Zero Dark Thirty. My choice, however, is John Malkovich’s adaptation of Nicholas Shakespeare’s the Dancer Upstairs, a fictionalized depiction of the hunt for Abimael Guzmán, the leader of Peru’s Marxist Sendoro Luminoso Maoist guerrillas in the 1980s and 90s (both the book and film are excellent).

Lieutenant Commander Mark Munson is a Naval Intelligence officer currently serving on the OPNAV staff. He has previously served at Naval Special Warfare Group FOUR, the Office of Naval Intelligence, and onboard USS Essex (LHD 2). The views expressed are solely those of the author and do not reflect the official viewpoints or policies of the Department of Defense or the US Government.

Easy to learn. Easy to play. Now, much easier to win.

AFRICOM’s Chinese Satellites: How To Lose At Mastermind

THIS ARTICLE WAS ORIGINALLY PRINTED ON MAY 3, 2013 AND IS BEING RE-PRINTED FOR “CHALLENGES OF INTELLIGENCE COLLECTION WEEK.”

Easy to learn. Easy to play. Now, much easier to win.
                                   It gets easier with practice.

For many, the game Mastermind is their first adolescent introduction to cryptology.  A code-breaker is given limited turns to discover the encrypted signal of the code-maker.  By choosing to put AFRICOM bandwidth over state-controlled Chinese satellites in 2012, the U.S. Defense Department decided to extend their PRC opponents exponentially more “rounds” to win the game.  The U.S> has won a tactical convenience at the cost of strategic peril.

Defense Department representatives claim the use of the satellites was secure due to the encrypted nature of the transmissions.  However, as in Mastermind, more exposure reveals more information, with which the code-maker can be beaten.  With an unrestricted treasure-trove of data, the cyber-battle proven Dirty Data Dozen of Chinese cyber-warfare will have plenty of material to compare and contrast until base patterns are found and exploited.  This vulnerability is especially worrisome in an area of responsibility rife with corruption issues and general penetration by state-associated Chinese assets.  That access to the satellite transmissions might be doubly useful because of the potential access to the pre-transmitted data, further easing decryption efforts.  This undermines force-wide communications, providing information that will end up not only in the hands of the Chinese, but the actors with whom their intelligence services cooperate.  The U.S. stands not only to lose one game of Mastermind, but most of the tourney.

You must accept that you won’t always have attractive alternatives. The Big Picture may demand tactical sacrifice.

It was only last month that the CNO, ADM Greenert, said that the cyber-EM environment isso critical to our national interests, that we must treat it on par with our traditional domains of land, sea, air, and space…”  The EM-cyber spectrum may be invisible, but they have the same space constraints as those traditional domains.  During the Cold War, if the berths at Bremerton were full, the U.S. Navy would never have requested berthing space in Vladivostok; if the U.S. Army found itself under-equipped, they would never request use of radio towers in East Germany to communicate with West German patrols.  Resources are limited and must be rationed; put simply by Raymond Pritchett, “If this wasn’t the point to tell someone ‘no’ when they ‘needed’ bandwidth, what point is?”  Refusing to prioritize the strategic long-term viability of U.S. communications security over temporary tactical comfort is the laxity alluded to by the CNO when he highlighted the need for a new attitude.  We can start with the lessons learned from a 1970′s board game.

Matt Hipple is a surface warfare officer in the U.S. Navy.  The opinions and views expressed in this post are his alone and are presented in his personal capacity.  They do not necessarily represent the views of U.S. Department of Defense or the U.S. Navy, although he wishes they did.

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