Maritime Transgressions: Somali Piracy in Context

By Vanessa Coleman for GlobalJusticeBlog.com. 

Over the past two decades, the world has experienced an upsurge in maritime piracy.[1] Attention has been predominantly focused on the Somali coasts and the Gulf of Aden, a vital artery in global commerce along the route through the Suez Canal. Every year, more than 16,000 ships[2] or approximately eight percent of all global seaborne trade[3] pass through the Suez Canal entering or exiting near Somalia’s seemingly perilous coast made infamous by the presence of modern day pirates.

Somalia appeared to provide the perfect storm for insurmountable piracy. In 1991, president and military dictator Siad Barre was overthrown, initiating a period without central governance that would last decades.  The country quickly fell into anarchy and clan warfare. Drought, famine, poverty, and civil war beset the nation.   Somalia took on the title of “failed state.”

In the era of lawlessness, what is often left out is that outsiders surreptitiously exploited Somalia’s vulnerabilities. Foreigners plundered the aquatic life and dumped hazardous and toxic waste in to the sea. In the midst of chaos, foreigners prioritized prospective profits over sound environmental practices.

Somalia’s bountiful waters fell victim to extensive plundering by foreign trawlers. Precise statistics are not available, but in 2005, the United Nations Food and Agricultural Organization estimated that 700 foreign vessels were engaging in illegal, unregulated, or unreported fishing in Somali waters.[4] Foreign vessels utilizing sophisticated equipment were primarily owned by Asian and European Union fishing companies and included ships from Egypt, France, Great Britain, Greece, India, Italy, Japan, Kenya, Russia, South Korea, Spain, Taiwan, Ukraine, and Yemen.[5]   In 2010, estimates of the value of the ransacked sea life range from $300 million[6] to as high as $450 million[7] annually.

In addition, numerous sources have found evidence of “toxic colonialism,” the dumping of illegal nuclear and toxic waste originating from developed countries in the waters of Somalia.[8] [9] [10] The United Nations Environmental Programme concluded illegal dumping had occurred when hazardous materials washed ashore following a devastating tsunami in 2004.[11] The hazardous waste included uranium radioactive waste, lead, cadmium, mercury, industrial waste, hospital waste, chemical waste, leather treatment, and other toxic waste.[12] Immediately after the tsunami, nearby Somali communities suffered numerous health problems including acute respiratory infections, dry heavy coughing and mouth bleeding, abdominal hemorrhages, unusual skin chemical reactions, and sudden death after inhaling toxic materials.[13] Moreover, physicians working in Somalia have reported unusually high occurrences of various cancers, unidentifiable diseases, spontaneous miscarriages, and malformed babies beginning in the mid-1990s that appear to be attributable to exposure to hazardous waste.[14]

Numerous issues left the Somali people ill-equipped to seek redress of their grievances. Somalia was incapable of formally adjudicating their grievances domestically. Internationally, no central government existed to assert their claims. Also, when transnational problems have occurred involving African states and Western domiciled corporations, Western states have often failed to take swift and meaningful action despite their predominate role in the international community.[15] Furthermore, the failure of Somalia to update territorial water boundaries and establish an exclusive economic zone (hereinafter “EEZ”) in accordance with the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”) left the legitimacy of their claims regarding their exclusive right to living resources within 200 miles of the land territory in question.[16] (The reclassification of territorial waters and the proclamation of an EEZ finally occurred on June 30, 2014.[17])

Moreover, open registries or flags of convenience further insulated some offenders from consequences.[18] Although the UNCLOS requires that the flag states to have a genuine link between the state and the ship and imposes a duty to regulate flagged ships, actual enforcement is weak. In a system that rewards a race to the bottom, flags of convenience have been widely criticized for preventing adequate enforcement of minimal environmental, labor, and safety standards. [19]

In response to an exceptionally difficult and complex legal situation, Somali fisherman began their own informal coastguard to patrol and protect the seas.  Foreign vessels were fined on the premise of vigilante justice. Before long, the lure of fast money attracted more than just disenfranchised fishermen. The once seemingly defensible motive weakened to give way to greed. Piracy provided young men their first and likely only chance at wealth. (Somalia’s GDP per capita peaked at $284 USD in 2008.[20])

Taking hostages and demanding ransoms proved to be extraordinarily lucrative. It is estimated that between $339M and $413M USD was paid in ransoms between 2005 and 2012.[21] The average payout was $2.7M USD.[22] Individual pirates generally earned $30K to $75K per successful hijacking.[23] None of these figures account for the intangible costs including deaths, the psychological impact on victims and their families, or the general effect of piracy on the people in the region.[24]

Highly organized networks developed in response to the sudden influx of illicit gains. Human ingenuity exists everywhere and Somalia is no different. Financiers provided the resources for operations to expand extensively; however, the view that piracy was a safe investment and profitable opportunity rippled throughout communities. During operations, pirates received khat (a leafy plant that is chewed to produce a stimulant effect and is popular in the region) on credit while awaiting their next big payoff.[25] Since supplies were needed to keep hostages alive, stores began offering goods on credit at exorbitant rates.[26] Receipt of ransom payments also created a demand for cash smuggling and money laundering services.[27] Even a stock exchange developed that allowed people to buy shares into a future attack.[28] Soon more than just pirates had a vested interest in maintaining the failed state status quo. Again, everything pointed to a problem that seemed uniquely insuperable.

Instead, through an international effort, successful pirate attacks along the coast of Somalia have plummeted. So far this year, there were only nine attempted pirate attacks near the Red Sea and Gulf of Aden and zero that succeeded.[29] Through NATO, there have been multiple coordinated counter-piracy operations. Military convoy operations have escorted ships to safety, completed patrols, and performed surveillance. Also, regulations regarding armed security personnel have been amended in many countries to allow weapons onboard and in ports. In addition, the International Chamber of Commerce International Maritime Bureau has issued a Best Practices Manual that provides risk assessment information based on live monitoring, advice regarding precautionary measures (e.g., speed, reporting, lookout dummies, enhanced bridge protection, razor wire, water cannons, foam monitors, alarms, establishing a citadel, and private maritime security contractors), and guidance if attacked.[30]

Despite the view that piracy is an obligations erga omnes offense resulting in universal jurisdiction to prosecute offenders, significant problems have arisen. Evidentiary issues are rampant. Some countries are hesitant to prosecute due concerns regarding asylum claims. Funding issues have arisen in regional courts resulting in temporary refusals to prosecute. Furthermore, there are vast sentencing disparities. In the United States, a conviction of piracy under the laws of nations carries a mandatory life sentence.[31] In Europe, the mean sentence is only 8.45 years.[32] Fairness requires a more uniform response.

Today, successful pirate attacks along the coasts of Somalia have largely disappeared. The root causes have not dramatically changed. Somalia is still a poor country struggling to find stability. Only time will tell what the future holds for Somalia, but piracy is not the only crime that has the potential to seduce individuals with few options and genuinely threaten global security.

Vanessa Coleman is a is a JD Candidate, Class of 2016. Coleman’s entry to the GlobalJusticeBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.

 

[1] Int’l Mar. Org., MSC.4/ Circ.208, Reports on Acts of Piracy and Armed Robbery Against Ships: Annual Report – 2013, at 22 (2013).

[2] Suez Canal Authority, Traffic Statistics (2013), http://www.suezcanal.gov.eg/TRstat.aspx?reportId=3.

[3] Steven A. Cook, Why Suez Still Matters: The Canal that Holds the United States and Egypt Together, Foreign Affairs (Dec. 3, 2013), available at http://www.foreignaffairs.com/articles/140310/steven-a-cook/why-suez-still-matters.

[4] Food & Agric. Org. of the United Nations, The Somali Republic: General Information (Jan. 2005), http://www.fao.org/fi/oldsite/FCP/en/som/profile.htm.

[5] Leticia M. Diaz & Barry Hart Dubner, Foreign Fishing Piracy vs. Somalia Piracy – Does Wrong Equal Wrong?, 14 Barry L. Rev. 73, 81 (2010).

[6] Dr. Ranee Khooshie Lal Panjabi, The Pirates of Somalia: Opportunistic Predators or Environmental Prey?, 34 Wm. & Mary Envtl. L. & Pol’y Rev. 377, 433 (2010).

[7] Diaz & Dubner, supra note 5.

[8] United Nations Env’t Programme, After the Tsunami: Rapid Environmental Assessment (2005), www.unep.org/tsunami/reports/TSUNAMI_report_complete.pdf.

[9] Greenpeace, The Toxic Ships: The Italian Hub, the Mediterranean Area and Africa (2010), www.greenpeace.org/italy/Global/italy/report/2010/inquinamento/Report-The-toxic-ship.pdf.

[10] Bashir Mohamed Hussein, The Evidence Of Toxic And Radioactive Wastes Dumping In Somalia and Its Impact on the Enjoyment of Human Rights: A Case Study (2010), somalitalk.com/sun/toxic_waste_dumping_somalia.pdf.

[11] United Nations Env’t Programme, supra note 8, at 128-136.

[12] Id. at 134.

[13] Id.

[14] Hussein, supra note 10, at 10-13.

[15] James Tsabora, Illicit Natural Resource Exploitation by Private Corporate Interests in Africa’s Maritime Zones During Armed Conflict, 54 Nat. Resources J. 181, 190 (2014).

[16] Adam Gertz, Deadliest Catch: Towards A Framework for Combating Illegal, Unreported, and Unregulated Fishing in Somali Territory, 19 Sw. J. Int’l L. 401, 412 (2013).

[17] H.E. Hassan Sheikh Mohamud, Proclamation by the President of the Federal Republic of Somalia (2014), www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/SOM_2014_Proclamation.pdf.

[18] Ishaan Taroor, How Somalia’s Fishermen Became Pirates, Time Magazine (Apr. 18, 2009), available at http://content.time.com/time/world/article/0,8599,1892376,00.html.

[19] H. Edwin Anderson, III, The Nationality of Ships and Flags of Convenience: Economics, Politics, and Alternatives, 21 Tul. Mar. L.J. 139, 162 (1996).

[20]UN Data, Per Capita GDP at Current Prices – US Dollars (2014), https://data.un.org/Data.aspx?q=somalia+gdp&d=SNAAMA&f=grID%3a101%3bcurrID%3aUSD%3bpcFlag%3a1%3bcrID%3a706.

[21] The Economist, Somali Piracy: More Sophisticated Than You Thought (Nov. 2, 2013), available at http://www.economist.com/news/middle-east-and-africa/21588942-new-study-reveals-how-somali-piracy-financed-more-sophisticated-you.

[22] Id.

[23] Id.

[24] Barry Hart Dubner & Claudia Pastorius, On the Effectiveness of Private Security Guards on Board Merchant Ships Off the Coast of Somalia-Where Is the Piracy? What Are the Legal Ramifications?, 39 N.C. J. Int’l L. & Com. Reg. 1029, 1032 (2014).

[25] The Economist, supra note 21.

[26] Id.

[27] Id.

[28] Avi Jorisch, Today’s Pirates Have Their Own Stock Exchange: Western Powers Patrol the Seas But Do Little to Stop Pirate Financing, The Wall Street Journal (June 16, 2011), available at http://online.wsj.com/articles/SB10001424052702304520804576341223910765818.

[29] Int’l Chamber of Commerce Int’l Mar. Bureau, IMB Piracy & Armed Robbery Map (2014), https://icc-ccs.org/piracy-reporting-centre/live-piracy-map.

[30] Int’l Chamber of Commerce Int’l Mar. Bureau, Best Management Practices for Protection Against Somalia Based Piracy (2011), https://icc-ccs.org/images/stories/pdfs/bmp4.pdf.

[31] 18 U.S. Code § 1651 (2014). But see, United States v. Said, 3 F. Supp. 3d 515 (E.D. Va. 2014) (Holding that a mandatory life sentence for piracy could be grossly disproportionate and would violate the Eighth Amendment of the United States Constitution in some instances).

[32] Eugene Kontorovich, The Penalties for Piracy: An Empirical Study of National Prosecution of International Crime, Northwestern University, Faculty Working Papers No. 211 (2012), http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/211.