Robin Geiß / Anna Petrig Piracy and Armed Robbery at Sea Max Planck Research on International, European, and Comparative Criminal Law General Editor: Prof. Dr. Dr. h.c. mult. Ulrich Sieber Volume 1 Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea This series presents results of research conducted at or in cooperation with the Max Planck Institute for Foreign and International Criminal Law in Freiburg/Germany. The Institute’s research program focuses on the challenges to criminal law in the global risk and information society that are leading to new paradigms: The global nature of the 21st century defies the traditional territorial limits of national criminal law and requires new forms of transnationally effective regulation; the modern risk society with its emerging security law poses a challenge to the functional limits of traditional criminal law and threatens the delicate balance of security and liberty. These developments are especially apparent in complex criminal activity such as terrorism, cybercrime, organized, economic, and international crime. Comparative legal research and the analysis of national, international, and private regulative approaches as carried out by the Max Planck Institute in Freiburg are essential to the successful and timely resolution of these fundamental issues. Robin Geiß • Anna Petrig Piracy and Armed Robbery at Sea The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (cid:2) Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © R Geiß and A Petrig, 2011 The moral rights of the authors have been asserted Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Database right Oxford University Press (maker) First published 2011 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing-in-Publication Data Data available Library of Congress Cataloging in Publication Data Data available Typeset by The Max Planck Institute for Foreign and International Criminal Law Printed in Great Britain on acid-free paper by CPI Antony Rowe, Chippenham, Wiltshire ISBN HB 978–0–19–960952–9 1 3 5 7 9 10 8 6 4 2 Preface This new series, “International, European, and Comparative Criminal Law,” pub- lished by Oxford University Press presents the results of research conducted at or in cooperation with the Max Planck Institute for Foreign and International Criminal Law in Freiburg/Germany. The Institute’s research program focuses on the chal- lenges to criminal law in the global risk and information society that are leading to new paradigms: The global nature of the 21st century defies the traditional territo- rial limits of national criminal law and requires new forms of transnationally effec- tive regulation. The modern risk society with its emerging security law poses a challenge to the functional limits of traditional criminal law and threatens the del- icate balance of security and liberty, especially in the context of such complex crimes as terrorism, organised crime, and cybercrime. In today’s interconnected world, solutions to these challenges must be derived from comparative law and basic research on the models of international crime control and its regulation. These central challenges are clearly apparent in the area of sea piracy. Since 2008, the international community has witnessed a sharp increase in pirate activi- ties off the coast of Somalia, in the Gulf of Aden, and in the Western Indian Ocean. The roots of this development lie in Somalia’s socio-economic problems, which are fostered by extensive international exploitation of its neighbouring fishing grounds, and in the collapse of state institutions, the paralysis of governance, and the break- down of law and order in Somalia. These problems are no longer merely national and have led to a global threat to security at sea and to the security of international trade routes. They illustrate how highly interconnected the world has become and show that the emergence of global problems requires a reconceptualization of the traditional mechanisms of national law. Present international attempts to repress piracy in the larger Gulf of Aden and in Somalia also provide an ideal area of study with respect to the development of models for a security law that reaches beyond the territory of the nation State. The reactions of the international community to sea piracy showcase the need for such new security concepts and can be interpreted against the background of the two main models for such a transnational security law: the development of international law and the extension of national laws to extraterritorial conduct. The international policing approach to sea piracy in the Gulf of Aden aiming at the prevention of future crimes, which uses the international model, albeit with explicit caveats not to create “new” law, is based on the United Nations Convention on the Law of the Sea and various UN Security Council Resolutions, and it is currently enforced by Preface VI an international armada of warships. It is partly successful at sea but has yet to be enforced on the territory of Somalia. Most importantly, this “executive” inter- national policing approach lacks a corresponding concerted international judicial approach. Thus, the judiciary, particularly in the area of “repressive” criminal law aiming at the sanctioning of past crimes, must rely on the second model, that of applying national criminal law, mainly by using the national criminal law systems of regional States. Yet this national approach is limited by the capability and will- ingness of nation States to assume responsibility for prosecution. In more general terms, the UN Security Council approach to sea piracy is an in- complete solution and shows that the international community lacks a coherent system of transnational security law beyond the limits of the nation State and one that effectively protects human rights by means of judicial remedies. Thus, as in the case of UN Security Council Resolutions against terrorism, international regulation by the UN against piracy illustrates the need for new concepts on the basis of which a global security law can be established that is transnationally effective and at the same time guarantees international human rights standards. In the context of this ongoing debate, this book fills a major gap. Robin Geiß and Anna Petrig present the first monograph that specifically deals with the various legal challenges pertaining to the repression of piracy in the larger Gulf of Aden region. The authors have skillfully untangled the intricate meshwork of applicable regulations, and they provide a concise analysis of the entire spectrum of applicable legal regimes. Their study develops a number of innovative ideas that will influ- ence and promote future debate on the prevention and prosecution of piracy. The book shows that, in the global risk and information society, just as at the national level, the effectiveness of law enforcement operations and rule-of-law abidance should not be regarded as mutually exclusive; ultimately, they are the best guaran- tees to achieving long-term success. Robin Geiß’ and Anna Petrig’s pioneering work addresses these issues comprehensively and offers new insights into and solu- tions to the myriad challenges posed by sea piracy. The authors should be commended for making a serious and significant contribu- tion to the corpus of international law governing the prevention and prosecution of piracy and armed robbery at sea. Their analysis of the complex operational, polit- ical, and legal challenges of sea piracy is also exemplary of the issues surrounding the coordinated efforts of the international community to repress international criminal phenomena as a whole. For this reason, this book should be of great inter- est not only to those dealing specifically with piracy but also to scholars and practi- tioners working on the regulation of international criminal phenomena in general. Freiburg/Germany, October 2010 Prof. Dr. Dr. h.c. mult. Ulrich Sieber Director at the Max Planck Institute for Foreign and International Criminal Law Acknowledgments The upsurge of piracy off the coast of Somalia and in the Gulf of Aden since 2008 has generated a significant amount of new legal instruments and State prac- tice in a rather short period of time. The current efforts to counter piracy in the Gulf of Aden, therefore, provide an excellent opportunity to study the international legal framework pertaining to the repression of piracy, as it stands in 2010. In addition, the tools devised and the practices employed to repress piracy in the Gulf of Aden may be used in the future when dealing with other criminal phenomena in the mari- time context in the future. Thus, the findings of the research at hand may have val- idity beyond the piracy context. This book was written with the aim of providing an overview on the current legal framework pertaining to the repression of piracy and armed robbery at sea, both in general, and with regard to the specific context of Somalia and the Gulf of Aden. An Appendix containing the most relevant legal instruments for the repression of piracy off the coast of Somalia – some of which are hard to come by even in the internet era – should help the reader to find some orientation in the rather complex tangle of norms pertaining to the repression of piracy and armed robbery at sea. The work reflects the law as it stood in August 2010. We wish to express our deep gratitude to Prof. Dr. Dr. h.c. Ulrich Sieber, Director at the Max Planck Institute for Foreign and International Criminal Law in Freiburg (Germany), who made this publication possible. We are also very grateful for the meticulous work done by the publication team of Oxford University Press and the various proof-readers (especially Ellen Weaver, Indira Tie, and Justin Bachmann) as well as the professional support we received from the staff of the Max Planck Institute’s publication department (namely Ines Hofman, Irene Kortel and Petra Lehser). We would also like to thank the practitioners and scholars, who participated in the Criminal Law & Sea Piracy Scholarship Program at the Max Planck Institute for Foreign and International Criminal Law in fall 2009. Dr. Henri Fouché from South Africa, Aïd Ahmed Ibrahim from Djibouti, Raphael Kamuli from the United Republic of Tanzania and Dr. Paul Wambua from Kenya provided us with excel- lent insights into the various national legal frameworks, judicial proceedings and generally the domestic practices in dealing with piracy in the Gulf of Aden. During the Expert Meeting on Multinational Law Enforcement and Sea Piracy held at the Max Planck Institute for Foreign and International Criminal Law in November 2009, we gained valuable insights into the operational challenges that VIII Acknowledgments counter-piracy missions in the Gulf of Aden region face. We thus owe special thanks to the practitioners (namely Lt. Colonel Gavin Davies, Legal Advisor to the NATO, Commander Marc Lemoine assigned to the European Union Operation Atalanta and Jacob Skude Rasmussen of the Danish Ministry of Foreign Affairs) and academics (namely Prof. Dr. Claus Kreß of the University of Köln, Dr. Max Meija from the World Maritime University of Sweden and Prof. Dr. Wolfgang Schomburg) for attending the Expert Meeting and contributing to the fruitful discussions. A special debt of gratitude goes to Tilman Rodenhäuser who greatly assisted the organization of the Expert Meeting. Moreover, warm thanks are due to the various other experts who provided us with invaluable information. In particular, we would like to mention Wambui Mwangi, who is the United Nations Political Affairs Officer for the Somalia Plan- ning Team at the Department of Peacekeeping Operations, and Thomas Unger, who is a Legal Officer at the Office of the Legal Adviser for the Austrian Federal Ministry for European and International Affairs. Finally, the list of acknowledgments would not be complete without mentioning all those persons who contributed in one way or the other to the realization of the book at hand – be it for providing us with up-to-date information, by reading draft versions, by giving us help with formal corrections or the layout or by simply encouraging us to write this book. Geneva & Freiburg/Germany, October 2010 Robin Geiß & Anna Petrig Contents Preface .............................................................................................................................. V Acknowledgments .......................................................................................................... VII List of abbreviations ..................................................................................................... XVI Introduction ..................................................................................................................... 1 Part 1: Current Efforts to Counter Piracy in Somalia and the Gulf of Aden I. Piracy in the Gulf of Aden ...................................................................................... 6 A. The Gulf of Aden .............................................................................................. 6 B. The Upsurge of Pirate Attacks in the Gulf of Aden since 2008 ........................... 6 C. Somali Pirates: Who Are They? ........................................................................ 9 D. Pirate Attacks: The Modus Operandi .............................................................. 10 E. Ransom Payments: A Factor Fueling the Growth of Piracy ............................ 12 F. The Situation in Somalia ................................................................................. 13 II. Efforts to Counter Piracy in the Gulf of Aden .................................................... 17 A. Naval Enforcement Missions Operating in the Region ................................... 17 1. European Union Naval Force Operation Atalanta .................................. 18 2. Consecutive NATO Operations .............................................................. 22 a) Operation Allied Provider ............................................................... 22 b) Operation Allied Protector .............................................................. 23 c) Operation Ocean Shield .................................................................. 23 3. United States-Led Combined Maritime Forces ....................................... 24 B. Coordination of National and Multinational Efforts to Counter Piracy .......... 25 1. Contact Group on Piracy off the Coast of Somalia ................................. 26 2. Shared Awareness and Deconfliction ..................................................... 27 3. Operation Atalanta Maritime Security Centre – Horn of Africa ............. 28 4. United Kingdom Maritime Trade Organization Office in Dubai and the Maritime Liaison Office ............................................................. 29 C. Criminal Repression of Piracy and Armed Robbery at Sea ............................ 29 1. Catch-and-Release-Practices ................................................................... 29 2. Criminal Prosecutions in Seizing States and Non-Seizing Victim States ........................................................................................... 30 3. Criminal Prosecutions in Regional States ............................................... 32 III. Conclusion .............................................................................................................. 35