Page last updated at 10:27 GMT, Tuesday, 9 December 2008

Rules frustrate anti-piracy efforts

By Paul Reynolds
World affairs correspondent, BBC News website

Canadian sailor watches over food ship
Food aid ships headed for Mogadishu need guarding

The international effort to stop piracy off Somalia has not worked and the effort clearly needs to be stepped up into a higher gear.

The response so far has been twofold: first, to assemble naval forces to try to stop the pirates on the high seas; second, to encourage a political settlement within the fractured state of Somalia to enable law and order to be established.

The naval forces are growing all the time. There is already a small flotilla of warships in the region from the US, UK, Canada, France, Turkey, Germany, Russia and India, among others.

This shows how the world's trading powers regard the piracy as a joint threat.

There has been some success. The warships have established a safe shipping lane and escort food aid ships into Somalia. The Royal Navy recently shot and killed two pirates and captured others. The French staged a daring capture of pirates who had taken over a yacht. The Indian navy has thwarted two attempted hijacks, though the pirates in both cases got away. (Update 19 November: The Indian Navy reports that it has sunk a pirate ship which refused to stop. Further update 26 November: it is now reported that the 'pirate' ship was in fact a Thai fishing boat.)

And the European Union is about to launch its first naval action. It has approved Operation Atalanta, in which about eight ships will add their weight to the international effort.

It is under the control of Commodore Antonius Papaioannou of Greece and Rear Admiral Philip Jones of the UK, whose command will be based at Northwood, outside London.

It offers a chance, perhaps, for some dashing naval commander to make his name in the style of some of the great anti-pirate commanders of the past.

Changing times

The problem these days, however, is that the operation is hemmed in by rules and regulations.

In 1815 the American Cmdr Stephen Decatur, sent to stop the Barbary pirates in the Mediterranean, simply captured the flagship of the Algerian Dey and forced a capitulation. When the Dey later repudiated the agreement, the British and Dutch bombarded Algiers.

The authorities these days have a real problem because of international law... As in the days of the Caribbean pirates, everything is on the pirates' side
Dr David Cordingly
Maritime writer

These days, there is no question of a bombardment of the port of Eyl, the main pirate base on the Somali coast. That might be the most effective response but it would require a UN Security Council resolution.

There is a resolution (1838, passed in October) which authorises the use of "necessary means", meaning force if need be, to stop piracy in international waters. There is also another resolution (1816) which allows anti-pirate operations within Somali waters, but only with the agreement of the Somali transitional government.

But even all these operations have to be conducted within international law, defined in this case as the provisions of the UN Law of the Sea Convention.

There has also been a legal opinion by the Foreign Office in London that captured pirates cannot necessarily be sent back to whatever authorities can be found in Somalia, in case they are subject to harsh treatment. That would contravene the British Human Rights Act. The pirates captured in the Royal Navy action have now been handed over not to Somalia, but Kenya.

The Law of the Sea Convention places limitations on daring action. Under Article 110 of the convention a warship has first to send an officer-led party to board a suspected pirate ship to verify any suspicions.

The warship cannot just open fire. Any inspection has to be carried out "with all possible consideration". That sounds rather tentative.

(Update: I have heard from the Nautical Institute, an international professional body for mariners based in London that it has started a petition to the British prime minister urging tougher measures. Other readers have suggested various 'solutions', including having marines or private security guards on board ships or in escort vessels and declaring war in order to bombard pirate ports. I have also heard from someone who used to advise British forces in the region and he says you cannot under international law convert a commercial ship into a kind of warship. He also thinks the issue of who will put pirates in trial is a legal minefield and yet to be resolved.)

Historical measures

Maritime writer Dr David Cordingly, author of "Life among the Pirates", says that, historically, firm measures were taken against pirates.

"There would often be a show trial in London, Jamaica, Boston or Charleston," he said.

British naval vessels intercept a suspected pirate dhow in the Gulf of Aden
International forces often try to intercept pirate vessels

"That was followed by a public hanging and the bodies would be left swinging on the gallows at the entrance to harbours. Sailors would draw the conclusion that piracy was not a good career option.

"The authorities these days have a real problem because of international law. There are measures ship owners can take like having fire hoses to aim at the pirates, acoustic devices to hurt their hearing or electric fences but, as in the days of the Caribbean pirates, everything is on the pirates' side.

"Modern pirates use very similar methods to the old. They shadow and then board their victims. They usually outnumber the small crew on board the ship.

"The difference is in what they do next. They used to remove the valuables and maybe abandon or kill the ship's crew. The pirates of the Caribbean did not seek ransom though the Barbary pirates did, as the Somali pirates do.

"But the old ways of dealing with them are no longer possible."

Diplomatic effort

As for the diplomatic effort on land, that is going even more slowly. Somalia is basically split into three.

The capital, Mogadishu, is nominally under the control of a transitional government set up after an Ethiopian-led intervention that removed the Union of Islamic Courts.

Between the lack of decisive naval operations and the chaos on land, the pirates have thrived

Since then, a breakaway Islamist group known as al-Shabab has gained control of much of the south and centre of the country. An African Union peacekeeping force has been ineffective. There have been some calls for a larger UN force. Large parts of population survive on food aid.

The pirates, however, are based further north, in Puntland, a semi-autonomous region, where the port of Eyl is the main pirate base.

There is a president but he has either no power or no interest in stopping a lucrative form of income.

It is believed that the money gained from ransom is more than the income of the local government of Puntland.

Further round the coast again is Somaliland, which would like international recognition of its independence. The chances of there being a united, peaceful Somalia in the foreseeable future are close to nil.

Between the lack of decisive naval operations and the chaos on land, the pirates have thrived.

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