The Role of the European Union in Combating Piracy

09.04.2009

Bodewig, Kurt (2009): The Role of the European Union in Combating Piracy. European Securtiy and Defence Assembly, Assembly of Western European Union.

PRELIMINARY DRAFT RECOMMENDATION
on the role of the European Union in combating piracy

The Assembly,
(i) Noting the increase in acts of piracy and armed robbery in the Gulf of Aden and off the coast of Somalia in 2008 and the danger they represent for food relief being delivered to Somalia under the World Food Programme, and for international trade;
(ii) Conscious that the weakness of the Somali state prevents it from taking effective measures to combat piracy;
(iii) Noting that there is a legal vacuum at international level with regard to bringing pirates to justice;
(iv) Welcoming the fact that the international community as a whole has become aware of the scale of the problem, making it possible to establish a legal framework for action in cooperation with Somalia and Kenya and to organise maritime operations to combat piracy;
(v) Welcoming not only the numerous naval operations involving Task Forces 150 and 151 and a number of third countries such as China, Russia, Japan and India, but also NATO’s maritime patrol activities in this zone;
(vi) Welcoming the success of the European Union naval operation (EUNAVFOR Somalia – Atalanta) which has made a real contribution to the fight against piracy: – by organising patrols and escorts in the Gulf of Aden; – by installing representatives of shipowners at the Northwood Operation Headquarters; – by creating an information website enabling warships to share information in real time;
(vii) Regretting, however, the lack of interoperability among those involved in action at sea;
(viii) Considering the need for a comprehensive approach to the sharing of information among all such players,

RECOMMENDS THAT THE COUNCILS OF WESTERN EUROPEAN UNION AND OF THE EUROPEAN UNION
1. Ensure coordination of all naval forces using the website for real-time information exchange set up by the Operation Headquarters in Northwood;
2. Improve the systems for communicating with third countries participating in operations;
3. Increase considerably the number of onboard protection teams (OPT) aboard ships in transit;
4. Equip one of the frigates of the task force with a surgical unit;
5. Strengthen maritime air patrol capability by using other bases (such as Mombasa, Kenya or Mahé, Seychelles);
6. Provide ongoing support for the conduct of the maritime operations;
7. Set up, in cooperation with the EU Council Secretariat and the EU Directorate-General for Justice, Freedom and Security, a legal study group in order to harmonise member states’ legislation with regard to the prosecution of captured pirates;
8. Set up a legal team to be seconded to Kenya with a view to assisting the prosecution process;
9. Support the action being taken by the Commission to ensure that Somalia and the coastal states have access to judicial institutions competent to try pirates who are apprehended, and to a coast-guard service;
10. Participate in drawing up fishing agreements and in monitoring Somalia’s exclusive economic zone in order to do away with illegal fishing;
11. Participate in the reconciliation process in order to establish the rule of law in Somalia;
12. Invite those countries participating in the counter-piracy operations that do not have the legal capacity to bring presumed pirates to justice to sign extradition agreements with the other member states.

EXPLANATORY MEMORANDUM submitted by Kurt Bodewig (Germany, Socialist Group), Aristotelis Pavlidis (Greece, Federated Group) and Tarmo Kõuts (Estonia, Federated Group), Rapporteurs

I. State of play

1. The main zones affected by maritime piracy

1. In 2008 piracy took on significant proportions in five regions of the world: the Caribbean, the Strait of Malacca (between Indonesia and Malaysia), the Red Sea, the Gulf of Guinea, the Gulf of Aden and off the coast of Somalia. Since 2007, things had considerably calmed down in the Caribbean and off the coasts of Peru and Ecuador. The same had been true of the Strait of Malacca following the creation in 2004 of coordinated police patrols by Indonesia, Malaysia and Singapore under the codename “Malsindo”. Now, however, piracy, fed by the political instability and dire state of the economy in Somalia, is making the Gulf of Aden and the waters off the Somali coast dangerous for shipping and constitutes a major threat to international trade.

2. Somalia and the Gulf of Aden

2. The Gulf of Aden is a key point of passage for shipping between Europe and Asia. This area with its two million square kilometres and traffic in 2007 of 14.6 million teu,1 or 16 000 ships per year, is the world’s second busiest shipping route.

3. It is the route taken each day by merchant ships and World Food Programme (WFP) vessels carrying food supplies for some two million Somalis, travelling in convoys from Mombasa to Mogadishu. This shipping lane is also used by oil tankers: half the world’s oil supplies transit through the Gulf of Aden.

4. Attacks against ships in the waters off the Somali coast have become a routine source of income for inhabitants: the ransoms being demanded are huge and the risks are minimal. According to International Maritime Bureau (IBM) data, pirate attacks in this region increased by 75% in 2008. In the 3 700 km of waters off the Somali coast there were 135 attacks against ships, with 33 hijackings.

5. Following a period of respite when Somalia was under the Islamic Courts regime, in 2007-2008 the pirates began to transfer their operations from the port of Mogadishu and the south of Somalia towards the Gulf of Aden, where the denser traffic offered much richer pickings. Effective government in Somalia ceased as of 1991 when the bloody battle for power began. The government has no control over the state and international aid to those in need is being blocked, with humanitarian convoys being attacked and the goods stolen. The African Union Mission to Somalia (AMISOM) is permanently under attack and is unable to control the situation. Unless this internal crisis is resolved it will not be possible to create the administrative structures in Somalia that will allow piracy to be effectively combated. The international community must continue its coordinated efforts to bring about a peace process in Somalia; these include the implementation of the Djibouti agreement and a strengthening of the Somali police forces. The African Union has a major role to play with the support of UN peacekeeping forces.

6. In 2008 there was a spate of attacks, including the seizure of the three-masted French ship Le Ponant and a rocket assault on the Japanese giant tanker Takayama. In September alone there were three incidents: the capture of the French yacht Le Carré d’As, the attempted assault on the French tuna boat Le Drennec 420 nautical miles off the Somali coast and finally, the hijacking of the Ukrainian ship Faina with its unusual cargo of 33 T72 tanks as well as air defence systems and rocket launchers. The ship, which had been held for five months, was released at the beginning of February after a ransom of 3.2 million dollars was paid. The pirates gave another demonstration of their temerity with the capture in November of the 330 metre-long Sirius Star carrying two million barrels (100 million dollars worth) of oil, 450 nautical miles off the Kenyan coast. The vessel was released in January 2009 in exchange for a three-million dollar ransom.

7. Despite the fact that the naval forces of a number of countries are deployed in the area, the pirates have stepped up their activities dramatically since April 2009. Within the space of two weeks, an Italian tug and several ships (British, Taiwanese, German and Yemeni) were captured by pirates who appear to be increasingly determined. The French yacht Le Tanit, bound for Zanzibar and captured off Puntland, and the American cargo ship the Maersk-Alabama, attacked 270 nautical miles off the Somali coast and carrying WFP cargo, were both rescued “by force” in operations mounted by the French and American navies respectively. Three out of four pirates were caught in the French operation and have been sent to France to stand trial.

3. The pirates’ origins and tactics

(a) Origins

8. Most of the pirates operating in the Gulf of Aden are based in the semi-autonomous region of Puntland in Somalia, more precisely the ports of Harardheere, Hobyo and Eyl. A smaller number are from Yemen. Puntland, which has sunk into chaos due to the absence of a strong sovereign state, is one of Somalia’s most poverty-stricken regions. Somali pirates are for the most part young stockbreeders having left their community in order to hire themselves out as mercenaries to the highest bidder. However, they use ridiculous pretexts: they like to present themselves as coastguards defending the integrity of their country’s territorial waters in danger of being polluted by toxic waste and plundered by unlicensed foreign operators fishing illegally in Somalia’s exclusive economic zone2 (EEZ, defined by the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as the maritime zone extending 200 nautical miles (370 km) from the coast in which the coastal state has “sovereign rights”). Somalia, which is incapable of asserting its sovereignty and does not have a coastguard fleet, is unable to stem these illegal fishing activities, which according to a UN estimate taken up by Greenpeace are costing Somalia 300 million dollars each year in lost revenues. A pirate by the name of Yassim explained the situation in an interview with Reuters: “No-one was monitoring the sea and we couldn’t fish properly, because the ships which trawl the Somali coasts illegally would destroy our small boats and equipment. That is what forced us to become pirates”.

9. Moreover, the country’s fishing industry is in a state of collapse. The December 2004 tsunami destroyed the boats and equipment that had enabled 16 000 families to make their living from the sea.

(b) Tactics

10. Piracy is endemic along the 3 700 kilometre Somali coast but the scale on which it is now happening no longer bears any comparison to the 1980s, when it consisted of simple fishermen robbing the crews of foreign boats they accused of fishing illegally in Somali waters.

11. The pirates use small skiffs. Although these are fast and manoeuvrable their range of action is small, which has led to the use of “mother ships” to place the skiffs in the water at much greater distances from the coast. The mother ships are generally trawlers captured off the coast and converted into bases for further attacks. It has recently been proven that the pirates hide behind boats carrying illegal migrants, making it even more difficult for the forces on the spot to intercept them.

12. Some of these vessels are equipped with sophisticated electronic devices such as GPS systems and satellite phones, allowing them to plug into an international network providing information from the ports of Europe, Asia and the Gulf. All this has enabled the pirates to increase their range of action up to 500 nautical miles, rendering the recommendation to ships to stay at least 200 instead of 50 nautical miles away from the coast, ineffective. The pirates themselves are equipped with automatic weapons, AK-47 assault rifles, Kalashnikovs and RPG-7 portable rocket-launchers easily available in Somalia.

13. The attacks, carried out at high speed, are highly effective against slow vessels moving at less than 15 knots and with sides less than five metres high, with small crews and inadequate watch-keeping. To give an example, only 16 minutes after having been sighted, pirates had already boarded the Sirius Star as it sailed on the Indian Ocean.

14. In reality, according to NATO data, piracy has become a well-organised criminal activity: in the south and the north of the country pirate groups are operating together under a centralised command. Somalia’s clan system supports piracy: many officials, while publicly claiming to combat piracy, are in fact entering into agreements with the pirates.

15. According to interviews given by two Estonian sailors following their rescue from captivity aboard a ship hijacked by pirates (one after 40 days and the other after 71 days), although the pirates may have highly modern equipment and arms, they are sometimes on drugs or simply totally uneducated and unable to control their weapons. The sailors described the days spent in captivity as a nightmare and felt that if ship crews included three or four armed men for protection, this would substantially improve the situation in the waters off the Somali coast, the Gulf of Aden and the Strait of Malacca. The two men were firmly convinced of the need to eradicate piracy. They also explained that they had to choose their words carefully because the Somali pirates had a coordination centre and could follow the media and the interviews given by rescue sailors.

16. Piracy these days is taking on organised crime proportions, with: – nine separate and competing pirate gangs; – hostages being held either on board the ships or in the little ports of Eyl, Hobyo or Alula pending the payment of ransoms, which are getting higher all the time: “A few years ago ransoms were in the tens to hundreds of thousands of dollars range. So far in 2008 they have hovered between half a million and two million dollars, although recent reports indicate that demands have again shot up”.3 A total of some 18 to 30 million dollars by way of ransoms was paid in 2008.4 The proceeds are shared out according to fixed rules: 30% goes to the investors, 50% to the pirates and 5% to the families of deceased or captured pirates.5 – some pirates now wealthy enough to hire others to do the work, allowing them to reap the profits without exposing themselves to the risks. They are investing in the purchase of weapons, boats and communications equipment, thus feeding a thriving business. The pirate Yassim describes himself as a financier: “I have employees doing the business for me now (…) I get my money and I don’t have to leave Eyl”. Thus there are organised structures governed by a code of honour. Investors put up between 5 000 and 10 000 dollars at the start of an operation and sign a contract with hired men. The pirates are members of the Darod clan and are assisted on land by Hawiye. Organising such an operation involves numerous professionals, from interpreters and tradesmen to the accountants who keep a ledger and draft the agreement with the investors acknowledging the debt for each operation.

17. Pirates in the Gulf of Aden, then, are becoming more and more professional thanks to the use of increasingly sophisticated equipment and efficient organisational structures. They appear to be becoming more aggressive, with the acquisition of MANPADS (Man Portable Air Defence Systems) with which to threaten planes and helicopters flying at low altitude.

4. Reaction of the western states

(a) Isolated operations by certain countries

18. Among the states engaged in combating piracy in this maritime zone, two in particular stand out for their ambition to launch not just national but also multinational operations in order to eradicate this problem. The United States

19. US Navy forces were deployed in the Gulf of Aden and Indian Ocean with the launch on 7 October 2002 of Operation Enduring Freedom-Horn of Africa (OEF-HOA) as part of the wider counter-terrorism operation, Enduring Freedom, set up the year before in the wake of the 11 September attacks. OEF-HOA is being conducted jointly with the naval forces of a number of countries (France, Spain, Germany, the United Kingdom, etc.). Its naval component, Task Force 150 (TF 150),6 operates under the command of the US Fifth Fleet. At the beginning of January 2009 the US set up a specific naval task force (TF 151) to carry out anti-piracy operations, with its command based in Bahrain.

20. In April 2009, following attacks on two American cargo ships carrying humanitarian food supplies, US Secretary of State Hillary Clinton announced the introduction of a four-point plan to combat piracy. France

21. France is one of the countries most actively engaged in anti-piracy operations: for several decades now it has maintained a naval presence in the Indian Ocean (ALINDIEN) and is also part of the TF 150 multinational task force. In December 2001, it introduced a system of voluntary naval control of shipping (VNCS) protocols (protocole de contrôle naval volontaire, CNV) on cooperation between the French Navy and shipowners. Any vessel having signed such a protocol and transiting through the zone covered by it, from the Red Sea to the Strait of Malacca, receives security information and advice on dealing with any threats. The shipowners undertake to communicate their position every six or 12 hours and to report any suspicious sightings. It may well have been thanks to such “voluntary naval control” that the pirates’ attempts to board the tuna boat Le Drennec were thwarted.

22. Military intervention is used to rescue French ships captured by pirates. The Le Ponant rescue operation (Operation Thalatine) is a good example.

23. Following an appeal by the World Food Programme (WFP) and International Maritime Organisation (IMO), France, together with Denmark, the Netherlands and Canada, launched a one-off mission codenamed Operation Alcyon (from November 2007 to January 2008) for the escort and protection of WFP ships.

24. Four French Navy vessels are positioned in the Gulf and there have been some 200 requests for escorts since 2008.

(b) The will to cooperate since 2008

25. Pirate attacks have become increasingly frequent and sophisticated since the beginning of 2008, posing a growing threat to international shipping. The national authorities, alarmed by the surge in attacks, have been obliged to seek a cooperative solution. Estonia, like all other countries whose sailors have been the victims of attacks by Somali pirates and spent long periods aboard hijacked ships, is seriously concerned about the current situation. It supports the action being taken by the UN, the EU and NATO to combat piracy by more powerful means and to establish a legal framework enabling the seizure of pirate ships. It is intolerable that it should be impossible to arrest pirates or that they should have to be released for want of the appropriate legislation.

26. The IMO was the first specialised UN body to draw the attention of the UN Security Council to acts of piracy off the Somali coast in 2005, leading in 2008 to the adoption of Resolutions 1816 and 1838.

27. The IMO alerts countries and shipowners to the procedures to be followed in the event of an attack. In November 2008, after reiterating its warnings, it adopted a further resolution (A1002(25)) on “Piracy and armed robbery against ships in waters off the coast of Somalia”, in which it calls on the Transitional Federal Government of Somalia to take the necessary measures to prevent and suppress acts of piracy and deprive pirates of the possibility of using its coastline as a safe haven from which to launch their operations. It requests that the government take appropriate action to ensure the prompt release of all ships seized by pirates and brought into its territorial waters, and that it consent to the use of its territorial waters and airspace by warships or military aircraft escorting World Food Programme ships in the framework of international operations.

(d) UN Resolutions

28. On 15 May 2008, the UN Security Council adopted Resolution 1814 reiterating its support for escorts of WFP vessels to be provided by nations or regional organisations.

29. On 2 June, at the initiative of the United States and France, it adopted Resolution 1816 aimed at bolstering the naval forces by giving their warships, for an initial period of six months, the right of hot pursuit of pirates into Somali territorial waters.

30. These two resolutions adopted following the seizure of Le Ponant completed the legal framework for the fight against piracy by providing a legal basis for national and multinational operations in this zone.

31. Resolution 1838 adopted on 7 October 2008 authorised the deployment of warships and airborne capabilities to combat piracy off the Somali coast and extended for a further six months the decisions taken under previous resolutions on the Maritime Security Patrol Area (MSPA)7 initiative establishing a corridor under military protection through which any ship could transit.

32. In parallel, on 14 January 2009, a first meeting of the Contact Group on Somali Piracy was held on United Nations premises in order to discuss coordination of the action of 24 states. (e) Role of the NATO Task Force vessels

33. Pursuant to a request on 25 September 2008 by the UN Secretary-General and to UN Security Council Resolutions 1814, 1816 and 1838, NATO agreed to participate in the escort of WFP ships with the launch of Operation Allied Provider (October to December 2008). It also undertook to patrol Somali waters in order to prevent acts of piracy in coordination with other international players such as the European Union, which took over operations on 10 December 2008. At the end of March, the Alliance resumed operations off the Horn of Africa (Allied Protector). Five ships of the Standing NATO Maritime Group 1 (SNMG1) and two German vessels en route for deployment in south-east Asia took part in the counter-piracy operation. (f) European Union action

34. At the initiative of France and Spain and in agreement with the authorities in Djibouti, on 19 September 2008 the EU set up a coordination cell for the fight against piracy (EU NAVCO) based in Brussels with the main objective of coordinating the resources made available by the member states for the escort of vulnerable ships.

35. Then, on 10 November 2008, with the adoption of Council Joint Action 2008/851/CFSP, the activities of EU NAVCO were reorganised as part of an operation called EU NAVFOR Somalia-Operation Atalanta, launched off the Somali coast for a period of one year, with the possibility of an extension. This first European naval mission has its headquarters at Northwood in the United Kingdom. Its forces, consisting on average of four or five frigates and two naval patrol aircraft, operate up to 500 nautical miles off the coasts of Somalia and neighbouring countries.

36. The mission objectives are to: – protect the World Food Programme (WFP) ships, in particular by placing armed military personnel on board; – protect merchant shipping; – monitor the zones of the Gulf of Aden and Somalia; – intervene against acts of piracy, using force if necessary; – arrest, detain or transfer persons having committed acts of piracy in order to bring them to justice; – liaise with other naval forces on the spot.

(g) The Arab countries

37. The Arab countries are giving thought to a response of their own. Six of them – Egypt, Yemen, Sudan, Jordan, Djibouti and Saudi Arabia – are meeting in Cairo with a view to defining a common strategy. In early January 2009, nine countries of the region8 signed “a code of conduct” establishing closer regional cooperation. This agreement provides for three information centres (in Mombasa, Dar es Salam and Sanaa) to be set up and for a training centre for officials in charge of anti-piracy operations to be opened in Djbouti. The code of conduct also calls on states to take appropriate legislative measures nationally to facilitate the arrest of pirates and bring them to trial.

(h) Other countries

38. China, Russia, India, Japan, Pakistan, Malaysia, Turkey and others are also contributing to antipiracy operations in the Gulf of Aden, on the basis of the resolutions adopted by the United Nations. Some of these countries, like Pakistan, Japan and Turkey, have joined Task Force 151. Others such as Russia, China and India have remained independent of it while at the same time coordinating their action with that of the European forces and the Task Force.

39. Piracy in the Gulf of Aden and off the coast of Somalia has an impact on international trade: companies are losing money due to delayed deliveries and the payment of ransoms for captured ships. The cost of insurance premiums for ships using this route has risen tenfold in recent years. Since this trend is continuing, some companies have decided to divert shipping routes around the Cape of Good Hope, adding 10 to 12 days to the journey and further increasing transport costs.

40. The repercussions are wide-ranging. Piracy provides a living to a host of small businesses in the ports (Eyl, Hobyo, etc.) where the pirates are based. Moreover, ransom money is being used to buy the weapons that are feeding the war which has been ravaging the country for decades.

41. Pirates captured by western countries benefit from a legal vacuum that gradually, it seems, is being filled; nonetheless at the end of the day the Somali authorities remain powerless. As Yassim tells us, “I was also once in jail in Garowe. But my family attacked the jail and they killed two of the policemen, and then in the exchange of fire I escaped together with other prisoners”.

II. Means of combating piracy

42. United Nations Security Council Resolutions 1814, 1816 and 1838 provide the legal framework for the protection of ships chartered by the World Food Programme (WFP) and contribute to ensuring the safety of sea lanes under threat of piracy in the Gulf of Aden and off the coast of Somalia.

1. Potential courses of action

43. Potential courses of action to limit the effects of piracy on merchant shipping in the Gulf of Aden and/or off the east coast of Somalia using the military capabilities deployed for that purpose are: – Precaution: providing information and recommendations to civilian shipping; – Protection: improving or ensuring the safety of ships likely to be targeted by pirates; – Interception: intercepting pirates at sea before or after they commit acts of piracy; – Repression: retaking hijacked ships by force; – Eradication: taking action against pirate land bases in Somalia.

44. Depending on the priorities defined and the means available, such courses of action could be implemented for: – vessels chartered by the WFP; – shipping in the Gulf of Aden; – shipping off the east coast of Somalia; – fishing fleets operating off the coast of Somalia.

45. “Precaution” is the one course of action that is open irrespective of the capabilities deployed by nations in the Horn of Africa region. It involves extending “voluntary naval control” to ships sailing under European flags. Vessels that so wish can give advance warning that they will be in the area. They may request an “onboard protection team” (OPT), and agree to form part of a convoy in dangerous waters and steer a course along the Internationally Recommended Transit Corridor (IRTC).

46. The second course of action, “Protection”, can be adapted according to the desired effect and the capabilities deployed for the operation. It can take different forms: – a vessel can have an escort and an OPT or several vessels can sail in convoy escorted by a helicopter-carrying frigate; – a frigate can patrol a merchant shipping transit zone and inform vessels in the area of any pirate activity. The frigate “visits” any vessel suspected of being a potential pirate vessel with a view to apprehending the crew and seizing any weapons and boarding equipment (grappling hooks, ladders, etc). The presence of maritime patrol aircraft makes such operations far more effective. However, a huge number of helicopter-carrying frigates would be required to patrol the Gulf of Aden effectively. For just one sector of the map (see Appendix I), such as sector 3 for example, a minimum of five frigates and four maritime patrol aircraft would be necessary on a permanent basis. According to some theoretical calculations, 45 helicopter carriers and eight maritime patrol aircraft would be required to cover the entire Gulf of Aden. – the only effective means of protection against pirate attacks are military helicopters that can take off from a nearby carrier, or for the ship to maintain a relatively high cruising speed.

47. “Interception” requires a significant improvement in the quality of intelligence gathered on pirate movements so as to provide sufficient advance notice for action to be taken and for the pirates to be intercepted at sea.

48. “Repression” complements the previous courses of action. It can only be implemented effectively under certain conditions and on a strictly national basis because of the sheer complexity of the legal framework. At the present time only the American, British and French navies have the special forces capability to carry out raids at sea. As a result, this course of action can only be envisaged in exceptional circumstances (for example: pursuit of Le Ponant pirates).

49. “Eradication” is not covered by the United Nations Security Council resolutions. In December 2008, the United States called a UN Security Council meeting to discuss the possibility of mounting a land operation in Somalia.