commentary

(International Herald Tribune)

September 3, 2010

An Old Scourge Needs a Modern Solution

by Peter Chalk

Every 12 hours last year young men boarded motorized skiffs and hijacked vessels on the waterway used by 24,000 ships around the Horn of Africa. Pirate gangs have accrued $150 million in ransom to date, about $4 million per ship. Their take is likely to swell before year's end. Somali gangs now hold 18 vessels and 379 crew members for ransom.

How do scruffy vagabonds as young as 16 overpower freighters and defy patrolling warships? And how, even when captured, do these modern pirates get away with their crimes?

The answers rest on surprising truths about scrapped laws and strapped shipping lines that tack piracy costs onto freight charges and pass it all on to consumers. As for court trials, international efforts fall short of what could be done.

Piracy is a crime of international jurisdiction. Any flag state can arrest persons caught in the act. However, most nations have junked archaic piracy laws and enacted no new ones, and therefore are reluctant to bring pirates to trial.

This works to the pirates' advantage. Last month, a Virginia court threw out charges against six Somali men captured after they attacked a U.S. Navy ship. The defense successfully argued that laws written in 1820 didn't apply to modern pirates. Old laws define piracy as robbery, not hijack and ransom. No way to prove intent to rob, no way to convict.

Some countries have signed agreements authorizing Kenya to prosecute alleged pirates for them. The win-win idea was that Kenya, located close to Somalia, would benefit from much needed Western dollars to cover the cost of trials and incarceration. The world community would gain a cost-effective place to park the accused and convicted.

So far, this arrangement has failed. Kenya's judicial system is notoriously inefficient. Its courts are clogged with a backlog of 800,000 various criminal cases; its jails are filled to capacity.

Earlier this year, the government threatened to stop accepting new piracy suspects. It agreed to resume only when the European Union dangled $9.3 million more for trials and construction of a new piracy prison. Whether this infusion will improve a piracy conviction rate of just 14.5 percent remains to be seen.

In the meantime, piracy remains lucrative. The average $4 million ransom settlement is double the payment of 22 months ago. The pirates' cost to seize and hold a vessel for 40 days — the average time for a ransom to be negotiated — is about $4,500. This in a country where the mean annual salary is $600.

For large shippers, ransom is cheap compared to losing an entire vessel and its cargo. Freighters travel with too few hands on deck to enable 24-hour security watches. And many shippers ignore travel advisories to avoid shorter but more dangerous routes.

Large companies reason that the chances of attack on any particular ship are relatively low — 0.5 percent in the Gulf of Aden — so they play the odds. Smaller shippers simply cannot afford "hardening" their vessels against attack. Three-man protection details from private companies can cost as much as $21,000 per ship.

So security falls to international task forces, such as the Combined Task Force 151, NATO's Ocean Shield and the European Union's Atalanta. But these flotillas cannot provide adequate security over two million square miles of ocean. To augment them would be prohibitively expensive; the budget for Atalanta alone was $450 million in 2009.

The bottom line is that deep ocean patrols have served to push pirate attacks closer to Somali shores where there is little naval presence.

So what can be done? The first fix is to expand the international legal definition of piracy to include both attacks on the high seas and in territorial waters, which is where most hijacks occur. National governments should enact and enforce domestic laws congruent with global agreements. To add credibility to these moves, the United States should ratify the United Nations Convention on the Law of the Sea (Unclos), which has governed other sovereign maritime states for the last 16 years.

Another solution is to forge public-private partnerships to underwrite costs for better coastal monitoring of nations abutting pirate-infested waters. For their part, insurance companies should require a defined level of security on client vessels and reward shippers with lower premiums if they comply, higher ones if they don't.

Piracy is a crime at sea, but it starts on land. To thwart the Somali piracy career path, the world community should put funds toward protecting local fishing grounds and building a national coast guard capability in Somalia. Then its young pirates might take a different course.


Peter Chalk is a senior analyst at the RAND Corporation.

This commentary originally appeared in International Herald Tribune on September 3, 2010.