Somali Piracy and International Law: Some Aspects

• Author: Omer Elagab
• Position: Reader-in-law, City University London. This article is dedicated to the memory of my mentor, the late Professor Sir Ian Brownlie. I owe a great debt of gratitude to Milica Djordjevic for her excellent and tireless research skills, which made the production of this article possible
• Pages: 59-75

SOMALI PIRACY AND INTERNATIONAL LAW: SOME ASPECTS

Dr Om e r Ela ga b∗

Piracy is a crime under international law and some municipal laws. Although it prominently features

as a crime under existing Law of the Sea instruments, the advent of Somali piracy has demonstrated

that some aspects of it are not properly addressed. The Security Council, the EU and indeed the major

powers are actively engaged in stamping out the phenomenon of piracy by various means such as

naval patrols, freezing of pirates’ assets, and perhaps imposing sanctions on ransom payers.

Prosecution of suspected pirates has come with its own bundle of difficulties which need to be ironed

out through various means, such as Memoranda of Understanding (MoU). Above all, a comprehensive

rather than incremental approach to the roots of the problem in Somalia is most needed.

1 Introductio n

This paper addresses piracy as the major concern off the coast of Somalia and the Gulf of Aden.

Having said that, the author recognizes that piracy is still widespread in many other parts of the world

such as: coastal areas of West Africa (mainly Nigeria), Tanzania, Peru, Bangladesh, Malaysia, the

Philippine Archipelago, Indonesia and the Straits of Malacca .1

According to International Maritime Bureau (IMB), last year alone there were 214 pirate incidents in

the Somali Basin and the Gulf of Aden.2 That figure represents half of the piracy-related incidents

worldwide during that year. Forty seven vessels were hijacked with 837 of their crew taken hostage.

Until recently, the attacks were on the increase along the east coast of Somalia and in the Indian Ocean,

sometimes taking place over 1000 nautical miles from the coast. IMB statistics for the first three

months of 2010 show that only 17 incidents have been recorded, in contrast with 41 in the same period

in 2009.3 The decline is apparently attributable to the continued naval presence in the area and also to

the employment of vigorous anti-piracy techniques by merchant shipping.4 What is alarming is that,

Somali pirates are currently holding more than 10 vessels. Moreover, a conservative estimate of

ransoms paid to Somali pirates reaches the astronomical figure of $50 million; on the other hand, other

estimates exceed this figure by far.5

This supports the hard reality that, whatever its motivation, piracy

off the coast of Somalia remains a profitable activity.

The purpose of this article is to examine some of the main legal issues which have arisen in the context

of Somali piracy. Thus, it will commence by addressing the root causes of the Somali piracy. It then

proceeds to identify and analyse the definition of piracy as mentioned in existing instruments on the

Law of the Sea. The paper will then highlight the major weakness of these instruments when it comes

to Somali piracy. The question of whether piracy is synonymous with terrorism will be alluded to.

From there, an assessment of the contribution of the Security Council (SC) in combating piracy will be

made. Next to be discussed is the important question of the prosecution of suspected pirates,

particularly in the courts of third states. A comment on the role of the Memoranda of Understanding

(MoU) between Kenya and the EU and other States will be made. The paper will then proceed to

examine the viability of freezing ransom money after it has been paid, as well as the possibility of

imposing sanctions against entities that pay it. Reference will also be made to the Djibouti Code of

Conduct (‘Code of Conduct’) and the lessons that can be learnt from the South-East Asian experience.

Thereafter, combating Somali piracy through naval deployment will be looked at. Finally, an overall

conclusion will be offered.

∗ Reader-in-law, City University London. This article is dedicated to the memo ry of my mentor, the late Professor Si r Ian

Brownlie. I owe a great debt of gratitude to Milica Djordjevic for her excellen t and tireless research skills, whi ch made the

production of this article possible.

1 Lauren Ploch et al, Piracy off the Horn of Africa, [R40528] Congressional Research S ervice (28 September 2009), 5

<http://italy.usembassy.gov/pdf/other/R40528.pdf> at 10 July 2010; Peter Chalk, The Maritime Dimension of International

Security. Terrorism, Piracy, and Challenges for the United States (2008) RAND Project Air Force, 8

<http://www.rand.org/pubs/monographs/2008/RAND_MG697.pdf> at 10 July 2010.

2 UN Security Council, Somalia: Piracy. Update Report No 3. 20 April 2010, 1.

3 Ibid.

4 Paul Ames, ‘Costly blunder for pirates as figures show decline in attacks’, Europolitics (online), 22 April 2010

<http://www.europolitics.info/sectorial-policies/costly-blunder-for-pirates-as-figures-show-decline-in-attacks-art269814-

13.html> at10 July 2010.

5 Above n 2, 4.

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2 The Roo t of the Problem

Though piracy has been, until recently, considered a relic of the past, it has returned in the Horn of

Africa almost with impunity. Somalia is now synonymous with the phenomenon of piracy. Powerful

naval powers are united in their resolve to fight it all the way. One of the perplexing questions is why

this phenomenon has flo urished in Somalia.

There are several possible reasons that can be identified for the prevalence of the phenomenon, chief

among which is the extreme poverty which existed prior to the inception of piracy.6 This poverty is

seen as a direct result of the protracted civil war which has engulfed the country for about two decades.

That civil war is directly responsible for the total collapse of the economy as well as the entire

infrastructure of the country and its institutions.7 Thus, it comes as no surprise that piracy has emerged

as a natural consequence of the desperation and the relative ease with which ships may be targeted

while passing through one of the most important maritime trade routes in the world. In addition to the

foregoing, although Somali piracy had humble beginnings with a crude foundation, the attraction of

huge lucrative gains has turned it into a sophisticated organised crime. It now has the character of a

business and the actors are no longer the insolvent disgruntled local fishermen scantly equipped with

simple GPS and some guns. They now possess long-range speed boats that stalk the high seas,

advanced weaponry, sophisticated electronic equipment, and support from ‘mother ships’. 8

As may be appreciated, it would be a mammoth task to engage in a detailed discussion of all the root

causes of Somali piracy. Suffice it for now to address some of its major contributory aspects such as

pollution, depletion of resources, and lack of lasting solutions. As concerns pollution, there are

undisputed claims of discharging toxic waste dating back to 1990s.9 The waste we are talking about is

thought to be extremely hazardous as it includes radioactive uranium waste, lead, cadmium, mercury

chemical, hospital and industrial waste. According to one official account:10

the coastal population has already begun to fall ill. At first, the inhabitants had strange rashes, nausea,

and babies were born with malformation. But after the tsunami in late 2004, washing hundreds of these

barrels and their contents up onto the beaches, people began to show symptoms of radiation poisoning,

and more than 300 people died.

Turning to depletion of resources, Western, Asian and African fleets have engaged in illegal and

unregulated harvesting of fish and other seafood in Somali territorial waters, with an estimated annual

return of $94 million.11 This unregulated overfishing by foreign ships deprived local fishermen of their

traditional livelihood.12

The early Somali pirates were motivated by the desire to push away foreign

fishing fleets, but to no avail. Thus, when fishing resources became depleted, Somalis turned to piracy.

This new ‘industry’ sud denly flourished and proved to be very l ucrative.

As has been alluded to above, the disposal of toxic waste at sea off the coast of Somalia is one of the

precipitating factors which triggered off Somali piracy. Member States of the EU and the

overwhelming majority of UN members have, in 1989, adopted the Basel Convention on the Control of

6 Raymond Gilpin, Counting the Costs of Somali Piracy, (2009) United States Instit ute of Peace, s 1

<http://www.usip.org/files/resources/1_0.pdf>.

7 Martin Murphy, Somali piracy: Not just a naval problem (2009) Center for Strategic and Budgetary Assessm ents, 10

<http://www.csbaonline.org/4Publications/PubLibrary/B.20090417.Somali_Piracy/B.20090417.Somali_Piracy.pdf>; Roger

Middleton, Piracy in Somalia: Threate ning Global Trade, Feeding Local Wars (2008) Chatham House

<http://www.chathamhouse.org.uk/files/12203_1008piracysomalia.pdf> at 10 July 2010.

8 Ploch et al, above n 1, 11.

9 See Edward G Ho ward-Clinton, ‘The Emerging Concepts of Environmental Issues in Africa’ (1984) 8 Environmental

Management 3, 187; and more recently María Femés, ‘The Hi dden Side of Somali Piracy’, The Epoch Times (online), 15 March

2010 <http://www.theepochtimes.com/n2/content/view/31437/> at 10 July 2010.

10 Femés, above n 9.

11 Marine Resources Assessment Group Ltd, Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing

Countries (2005) UK Department for International Development, 37

<http://webarchive.nationalarchives.gov.uk/+/http://www.dfid.gov.uk/pubs/files/illegal-fishing-mrag-report.pdf> 10 July 2010.

12See United Nations Environment Program me (UNEP), The State of the Environment in Somalia: A Desk Study, UN Doc

DEP/0760/GE (December 2005) available from <http://www.unep.org/DEPI/programmes/Somalia_Final.pdf> at 10 July 2010;

Leigh Phillips, ‘Commission Ready to Investigate European Illegal Fishing Off Somalia’, euo bserver.com (online) 22 April 2009

<http://euobserver.com/13/27983?print=1> at 10 July 2010.

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