The Lawless Fighting the Lawless
By Shaun Randol, 1/2/2009
Pirates are a hot news item these days. Increased ship seizures around the Horn of Africa have renewed interest not just in piracy, but also on how to combat the criminal behavior as well. And now, seeing profits to be had in policing pirate-laden waters, private military firms (PMF) have stepped into the fray. In the Gulf of Aden’s anarchic waters, one of the world’s busiest shipping channels, pirates and PMFs are poised to make millions of dollars plying their respective trades. The lining of their pockets, however, is not the only thing these disparate factions share; international law regarding the treatment of these groups is equally murky. In the choppy waters around Somalia, mixing pirates and PMFs, with sprinklings of NATO, European, Russian, Chinese, Indian (and soon, maybe Japanese) warships as well as possibly some rogue, militant, Islamic terrorist groups, makes for a dangerous, potentially violent, concoction.
As of this writing, there are at least fifteen ships and nearly 250 hostages being held by Somali pirates, including the Sirius Star, a bulk vessel loaded with 300,000 tons of crude oil, and a Ukrainian ship containing 33 military tanks. “Pirates based in Somalia have made the waters off east Africa some of the most dangerous in the world,” reports GlobalSecurity.org (11/24/08). “There were 15 attacks on ships in or near Somali waters from January to July 2007-two of these on World Food Programme (WFP) contracted vessels… compared to 10 such attacks in 2006.” Tellingly, more than thirty vessels were hijacked in 2008; in the weeks preceding the turn of the year, at least ten vessels were seized. Somali pirates engaged in more than one hundred attacks in 2008, more than twice as many as the previous year.
2009 is shaping up to be no different. On January 1, French authorities intercepted to pirate vessels as they were about to seize a Panamanian vessel. Eight Somalis were arrested. Elsewhere in the Gulf of Aden, however, pirates captured the Blue Star, a cargo vessel with 28 Egyptian crew members aboard. The same day, a Malaysian military helicopter thwarted a pirate attack against an Indian tanker.
Acts of piracy on the high seas often occur in ambiguous, international territory. State military warships (from, for example, NATO, the U.S., or Europe) combating piracy do so in uncharted waters, so to speak. (The ink is still wet on a UN Security Council resolution authorizing countries to pursue pirates on land and sea using “all necessary measures”). Private military firms eager to contribute their services provide an attractive alternative for states and shipping companies looking to clear the waters of such pesky riffraff without the risk of sparking international incidents. This does not mean, however, that utilizing PMFs represents a straightforward option.
When it comes to combating piracy, international law lacks both teeth and clarity. The United Nations Convention of the Law of the Sea (UNCLOS) defines piracy as “all illegal acts of violence or detention … committed for private ends by the crew or passengers of a private ship.” (Accordingly, if the objective is political-not economic-in nature, the act may be terrorism rather than piracy). Piracy, according to UNCLOS, within territorial waters is a crime against the state and subject to national laws. But what if, as is the case with Somalia, there is a weak local government or no state to speak of? UNCLOS states:
“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.”
France took advantage of this clause as far back as April 2008; Special Forces captured six pirates who had seized a French passenger vessel, and then sent the captured pirates to Paris for due process.
Unlike France, however, states like Germany, the United Kingdom, the United States, Russia, and others are (so far) hesitant about using military force against pirates. NATO’s Standing Naval Maritime Group just finished its mission escorting WFP ships (none of its four vessels engaged in decisive, anti-pirate action). A European task force of ten ships-codenamed Atalanta-moved into the region this month, but it is unclear to what extent they will engage or pursue Somali pirates. Meanwhile, the International Association of Independent Tanker Owners (INTERTANKO) has also called for a UN blockade of the dangerous waters. With no such barrier forthcoming, a lack of security in the region as a whole, and with no apparent cessation in acts of piracy, there are economic and diplomatic openings private military firms seek to exploit.
Sensing that pirated waters will remain “uncontrolled,” private shipping companies will increasingly seek alternative means to securing their financial interests. Indeed, such ventures promise to be highly profitable business opportunities for PMFs, some of which are already participating in anti-pirate activity around Somalia. Drum Resources Limited, a British PMF, for example, offers protection services of four guards stationed on a commercial ship at a price of $8100 per day. Secopex, a French PMF, will provide security escorts at a cost of $12,000 per day. For about $30,000, British-based Anti-Piracy Maritime Security Solutions provides vessels with three private guards and a small arsenal of non-lethal weapons (e.g. long range acoustic device, water cannons). By late November, 2008, this PMF had teams on seven ships. “Inquiries are going through the roof,” said principal Nick Davis. With average ransom amounts hovering around $1 million, hiring PMFs becomes a financial no-brainer to shipping entities. Yet while Davis’ company has seen some action, he also acknowledges Anti-Piracy’s exploits “purely displace the threat” to other ships.
Citing “major terrorist implications” of the piracy problem, Blackwater Worldwide-the infamous PMF continuing to make headlines in Iraq-is also offering its corporate services in the waters off Somalia. The firm’s small ship, the McArthur, can hold two helicopters and 35 personnel and would provide a security escort for ships sailing through pirate-waters. Unlike Anti-Piracy, however, Blackwater will deploy lethal force against potential pirates if necessary. In an interview with “Defense News,” Blackwater’s owner Erik Prince addressed the gray areas in maritime rules of engagements by underscoring “…a pretty clear use of force continuum, from warning shots [to] laser dazzlers. But frankly, if guys are in a small boat, in a twenty-foot fishing boat in the middle of the Gulf of Aden, holding an RPG, he’s not out there fishing. So clearly, you know what their intent is.” In short, “the sharpshooters on board the two helicopters on Blackwater’s ship, the McArthur, will do their jobs” (October 26, 2008). At the time of the interview Prince reported Blackwater was in negotiation with thirteen different shipping lines to provide security against pirates. Other PMFs like Hollow Point, Defense Services, ArmorGroup, Secopex, and Asia Risk Solutions, to name a few, are also looking to gain a foothold in this potentially lucrative-and ambiguous-line of work.
An increase in reliance on private military firms to combat piracy in the Gulf of Aden will have far-reaching implications. In Iraq alone, where there are more PMF contractors active than coalition forces, PMFs have caused much consternation. Yet, while Iraq’s war is largely contained (geographically speaking) piracy is quite literally a global phenomenon. “The concentration of piracy incidents continues to be located in areas with little or not maritime law enforcement, political and economic stability, and a high volume of commercial activity,” notes GlobalSecurity.org. “Incidents of piracy tend to occur in four regional areas: Southeast Asia, Africa, South America, and Central America. Furthermore, most incidents of maritime crime occur in coastal waters with nearly 80 percent of all reported piracy incidents occurring in territorial waters.” This last bit of reality in the pirate trade makes it difficult for foreign militaries to intervene without sparking an international incident. Hence, the use of “politically neutral” private entities like Blackwater to protect commercial vessels becomes an increasingly attractive, security alternative. A dangerous, security precedent is being exacerbated off the coast of Somalia.
If piracy is haphazardly regulated in international law, then PMFs operate in an even grayer area. There is no substantial, international treaty regarding the use of private military firms. A Protocol added to the Geneva Conventions in 1977 (APGC77) comes closest to defining parameters for PMF involvement in the international arena, though it specifically deals with “mercenaries,” a moniker many PMFs find objectionable and outright reject. APGC77 loosely defines mercenaries as foreign nationals motivated by private gain hired to fight in armed conflict and “is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict.” By many accounts, today’s PMFs would fall into this broad definition, especially if they operate in Somalia’s territorial waters (or if, for example, the Iraqi government hires outside PMFs for security tasks). Still, the U.S., where most PMFs originate, is not a party to this Geneva Protocol, leaving firms like Blackwater to operate in legally murky zones. The 1989 UN Resolution 44/34, International Convention against the Recruitment, Use, Financing and Training of Mercenaries, does nothing to clarify the situation.
The success of Somali pirates will likely encourage copycat actions around the world, which will, in turn, increase the need and/or reliance on private military firms to tackle the problem. (Insurance premiums for shipping companies are already on the rise). If PMFs are hired to clear the waters around Africa (or elsewhere) of pirates, many new questions surrounding these two groups will arise. What plays in the waters off the African coast, for one, may not go over well with countries like, say, China, who has a vital interest in the Straits of Malacca-another pirate-patrolled shipping channel.
Moreover, accountability becomes a serious issue: if a PMF kills an innocent fisherman or destroys private or state property, for example, who should be punished? The state who hired the firm? The private shipping company that placed the guards on their boats? The private military firm employing the trigger-happy guards? International law is decidedly unclear in this matter, creating a dangerous juridical vacuum.
Right now, the use of PMFs in fighting pirates is a case of the lawless fighting the lawless. It is anarchy on the high seas. Profits to be gained from piracy-and from fighting it-are magnets for an increase in both adventures. What we are witnessing off the African coast is another instance of private enterprise increasingly filling the voids of traditional state functions. If states or international bodies like the UN do not step into this fray to control the situation, beginning with bolstered international treaties on the uses of PMFs, the lawlessness in the waters off Somalia portend more trouble than just inconvenience for international trade.
Shaun Randol is an Associate Fellow at the World Policy Institute. He regularly contributes to the World Policy Journal blog, is a contributor to Foreign Policy in Focus, and regularly publishes in academic journals. Mr. Randol is also a research assistant at the India China Institute and an independent research consultant.