Somalian pirates may have their nuisance value, but is the real game geostrategic control?
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PERHAPS the most vicious of modern-day buccaneers— the pirates of Somalia— made headlines in December 2023 when their audacious attempt at ship hijacking culminated in the successful takeover of a cargo vessel worth a million dollars.
Around three months later, the Indian warship Kolkata intercepted the vessel and successfully rescued its crew in an operation stretched over 40 long, arduous hours. The showdown by the Indian navy in the Southern Indian Ocean Region has been stated to be “[in accordance with] international law, in self-defence and to counter piracy, with minimal force necessary to neutralise the pirates’ threat to shipping and seafarers”.
In the wake of an escalating crisis in the Red Sea, India is emerging as a significant naval player in spearheading anti-piracy missions in major sea trade corridors.
In the wake of an escalating crisis in the Red Sea, India is emerging as a significant naval player in spearheading anti-piracy missions in major sea trade corridors.
Amidst a steady transformation in maritime power politics, it becomes especially relevant to contextualise the catastrophe of piratical attacks, necessitating third-party intervention to strengthen security arrangements, further complicated by intersections of history, law and politics.
The phenomenon of Somali piracy
Until 1991, non-traditional threats in the form of sea piracy and maritime violence along the Horn of Africa were virtually nonexistent, with comparatively higher attacks muddying the water of the Strait of Malacca or the Gulf of Guinea.
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The late 20th-century rise of violent non-State actors from the Somalia region unveiled a chink in international maritime defence’s armor.
At present, roughly 2,500 ‘foot soldiers’ take to the seas to carry out attacks and hijackings. The modus operandi of Somali pirates, nicknamed ‘no prey, no pay’ has evolved into a lucrative business enterprise: entrapment and ransoming of big shipping corporations, oil tankers, private vessels and their vulnerable crews.
The roaring topicality of piracy at sea has brought an array of geopolitical, security and economic issues to the priority list of international policymakers.
On one hand, the paycheques of piracy squeezed out of a flourishing blue economy are enormous. On the other hand, pirate missions get birthed out of the prototype of a failed State.
Somalia’s political breakups and dire financial and humanitarian conditions coupled with a propitious geographical setting permitting shipping traffic have fueled the expansion of maritime crime resulting in the creation of high-risk zones, a falling global supply chain and a surge in maritime insurance premiums.
Until 1991, non-traditional threats in the form of sea piracy and maritime violence along the Horn of Africa were virtually nonexistent, with comparatively higher attacks muddying the water of the Strait of Malacca or the Gulf of Guinea.
The international sea is a common property in the realm of world politics. International forces began monitoring these waterways when sea-borne attacks multiplied between 2005 and 2012, but the spotlight has since been redirected towards the volatile Red Sea and Gulf of Aden, where Iran-backed Houthi rebels have targeted cargo vessels in response to Israel’s war on Gaza.
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Anti-piracy measures, as an end, seek to neutralise an imminent threat defined by an issue of ‘pre-crime’ and, as a means, fulfil the dual claim of counter-terrorism and geopolitics.
Global governance and sovereignty
Elemental to that maritime security agenda is the established understanding of what constitutes the crime, who the perpetrators are, and where to prosecute them.
The UN Convention on the Law of the Sea (UNCLOS), defines piracy “as illegal acts of violence, detention or any act of depredation … committed for private ends by the crew or the passengers of a private ship … on the high seas or outside the jurisdiction of any State.”
In circumstances of piracy, the warship of any State is authorised to board and inspect potential pirate ships and the UNCLOS further stipulates that “every State may seize a pirate ship … and arrest the persons and seize the property on board.
The courts of the State that carried out the seizure may decide upon the penalties to be imposed … Customary international law additionally enables any State encountering a pirate, a.k.a., hostis humani generis— enemies of all mankind” within its territorial bounds to bring criminal charges against them under the principle of universal jurisdiction.
The more robust Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) includes a wider ambit of ocean space and offences such as “an act of violence against a person on board a ship”.
The roaring topicality of piracy at sea has brought an array of geopolitical, security and economic issues to the priority list of international policymakers.
The gamut of the law of the sea breaks the counterintuitive understanding of “sovereignty as equality”. According to Hans Morgenthau, a country’s sovereignty ceases to exist when another nation has control over the law-enforcing operation and in the loss of its territory’s ‘impenetrability’.
These considerations are relevant in the context of territorial integrity of water where outside powers have exercised certain jurisdictions and rights that the littoral States claim as their sovereign right and territory.
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To take the case of Somalia, the geographical bound, as per the definition clause, eliminates acts of piracy in a State’s coastal waters, restricting piracy to activities committed on the high seas or beyond the domain of any State.
This presents a legal quandary given the Somali claims of a territorial sea of two hundred nautical miles through its Law No. 37 of 1972. Article 3 of the UNCLOS seeks to standardise the width of territorial seas at twelve nautical miles. Despite the ratification of the UNCLOS by Somalia, Law No. 37 was not repealed, leaving the status of Somalia’s territorial seas unclear.
Notwithstanding the vast jurisdiction over the recognition of piracy offences by the law of the sea, the majority of offenders are not subject to it. Somali pirates could target ships in the international waters of the narrow Gulf of Aden before swiftly evading into the Somali territorial waters, thus bypassing the hold of universal jurisdiction to prosecute pirates.
Involvement of foreign States
In the wake of sea-borne atrocities, NATO-led Operation Ocean Shield was built in accordance with the actions approved on the high seas, “of all necessary means” to combat piracy and armed robbery at Somali territorial waters.
The European Union set up its flotilla ‘Atalanta’ to Somalia’s already clogged waterways. Navies from China, India, Iran, Russia and Malaysia also stepped into the game.
Today, since December, a dozen Indian warships have been stationed in the Gulf of Aden and the northern Arabian Sea as the Red Sea shipping routes grapple with turmoil.
Despite the ratification of the UNCLOS by Somalia, Law No. 37 was not repealed, leaving the status of Somalia’s territorial seas unclear.
While the States may claim “no offensive capability whatsoever. Our role is purely defensive”, the employment of foreign escort ships poses complex questions of law and accountability.
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Somalia’s proximity to major international trade shipping routes can be seen in light of Judge Laing remarks in the Saiga II case of the International Tribunal for the Law of the Sea, that the “freedom of the high seas and related freedoms subserve the needs of international trade and commerce … taking into account their links with the global economy, freedom of the high seas should be considered as a ‘peremptory norm’ and ‘fundamental principle of international law as a whole.”
In the long run, the international community appears to execute the provision of law and order albeit to a certain extent geographically (territorial waters, occasionally mainland Somalia) and for a restricted reason (fighting piracy and armed robbery at sea, but nothing else).
Challenges may come up where an escort vessel is forced to use armaments to safeguard the escorted ship against intruders in a territorial sea of a coastal State. In this frame can their passage be deemed a violation? Would such security vessels be obliged to take clearance to step into territorial waters as warships? Such questions linger over the actions of privately operated patrols.
Scope of jurisdiction
Currently, there is no international legal mechanism for the trial and disposal of arrested pirates. When anti-piracy operators detain piracy suspects during their patrols, their States are often reluctant to prosecute the apprehended suspects in their domestic courts.
Arguably, the catch-and-release practice is a blot on the commitment to prosecute and extradite as provided in the SUA and Hostage Conventions.
Dominant faraway countries have resorted to counter-piracy measures for goals other than piracy prevention.
In the Indian context, the Maritime Anti-Piracy Act, 2022 gives effect to International maritime laws, namely the UNCLOS. It enables authorities to take action against piracy on the high seas which includes the exclusive economic zone and all waters beyond the jurisdiction of any other State and render life imprisonment and even capital punishment upon those who have been proven to have caused death or attempted to cause death while committing an act of piracy.
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The latter clause becomes relevant in the context of the latest Somali piracy attack which confronted the Indian naval commandos with the hijackers’ blind rage in reckless firing and using the crew as human shields in response to warning shots.
In lieu of the right to self-defence and to counter piracy, Marcos commandos engaged in a meticulous dropoff followed by a dangerous rescue operation some 260 nautical miles off the Somalian coast.
The arrest of 35 Somalian pirates onboard and their prosecution under the 2022 Act would thereby be the first case under the law.
The way forward
The international sea is a quintessential global common and so ensuring maritime safety and seafarers’ security becomes a collective responsibility. From the lens of jurisdiction, policing crimes on the high seas off the Horn of Africa falls under the ambit of maritime law— but one needs to remember that the “sea is the locus of the offence, no more”.
Analogous to that, when house burglars rob households, the remedy to the issue of housebreaking and theft does not enter the domain of land law. Hence, to operationalise land-based solutions tackling root causes becomes essential.
The initial phase of fishermen pirates centred around resisting illegal, foreign fishing in the 1990s. Now they have been transmogrified into violent goons.
According to journalist Jay Bahadur, “Somali piracy is a local business with a low startup cost”. Local investors are predominantly Somali or expats with foreign citizenship which contributes to the misunderstanding that Somalian piracy is a form of global cartel transnational criminal enterprise.
Nevertheless, dominant faraway countries have resorted to counter-piracy measures for goals other than piracy prevention.
The US, the UK and France have used the alliances of anti-piracy as a multiplier of force to reaffirm their supremacy in a geostrategic rivalry. Rising naval powers such as India and Japan seek to counteract the preponderance of China which is making unwarranted claims in the South China Sea, establishing naval bases in Djibouti, docking ships in Sri Lanka and entering into a defence pact with Maldives.
While it is crucial for the world maritime forces to ensure mercantile peace, ambiguity in whether their interplay reflects a fragmentation or unification of international order is just too obstructive to nip piracy in the bud from its land.
Somalia’s comparability to a Hobbesian state of nature permits one to witness its people’s response to anarchy against the backdrop of a poor policing force. While its story is not a single streak of instability and misgovernance, it is critical to recognise that their path to progress is not a game of ‘us versus them’.
