A “rutter for piracy” in 2012

Abstract

This "rutter for piracy" begins with a brief update on contemporary piratical incidents and a short review of books and collections of articles dedicated to the topic of piracy, before presenting the ground-breaking group of scholarly essays which make up WMU Journal of Maritime Affairs' special issue on piracy at sea.

1 Introduction

“Rutter” is an archaic term used for a pilot’s book or seaman’s guide¹. “Before the advent of nautical charts, rutters were the primary store of geographic information for maritime navigation².”

Among notable rutters is the Grand Routier, written by the French pilot Pierre Garcie, c. 1483 and published in 1502-3, which focused on the shores of the Bay of Biscay and the English Channel, and its peculiarities. Translated into English as the Rutter of the Sea in 1528, it was reprinted many times, and remained the pre-eminent rutter used by English sailors for decades³.

In this “Rutter for Piracy,” we hope to introduce the ground-breaking group of scholarly essays which make up this special thematic issue of the WMU Journal of Maritime Affairs by saying something about contemporary piratical incidents, following this with a short review of published piracy reporting and scholarship, to place the electronic “navigations” of our authors in their proper academic context, and finally to say something about how these offerings represent true advances in the field of piracy, and may pave the way for still more wave-cleaving research.

2 Contemporary piratical incidents

Twenty-first century areas in which a concentration of piracies have occurred include: (1) the Straits of Malacca, (2) Indonesia, (3) Malaysia, (4) the Philippines, (5) Vietnam, (6) Bangladesh, (7) India, (8) the Horn of Africa, the Red Sea, the Gulf of Aden, and off Somalia, and (9) the Niger Delta (Menefee 2008).

Between January 1991 and December 2011, almost 6,000 robberies and violent attacks against merchant vessels have been reported to the International Maritime Bureau (IMB) of the International Chamber of Commerce (ICC)⁴. From the mid-1990s to the 2000s, piracy and armed robbery against ships were concentrated in the Far East, particularly the waters of the South China Sea and the Straits of Malacca. Between 2006 and 2007, just when the number of Southeast Asian incidents started to wane, the centre of gravity, in terms of the number of attacks reported, shifted perceptibly to the Horn of Africa (Mejia et al. 2012).

The increasing number of incidents off the coast of Somalia is alarming and disturbing. The modus operandi employed by Somali pirates differs markedly from those found in the Far East. In Southeast Asia, the principal motive of piracy and armed robbery against ships has been to steal personal valuables, cart away supplies and equipment, and to plunder the cargo — whether on a relatively small or a grand scale (Abhyankar 2005). Where violence would serve its purpose, there was not much hesitation to apply or use it. In contrast, the historical object of Somali pirates has been to exert some effort to keep the ship’s condition, the crew’s health, and the cargo intact in order to retain a strong bargaining position when negotiating for the ransom payment. However, IMB’s annual piracy report for 2011 reveals that Somali pirates have become increasingly aggressive and violent towards their captives in the past year⁵.

According to the latest annual report, a total of 439 piracy and armed robbery incidents were reported worldwide in 2011, virtually no change from the total of 445 from the year 2010. Contrast these totals with those from 1992 (106 reported attacks), and one observes that annual figures have increased almost fourfold. In the year 2011, eight persons were killed, 802 were taken hostage, 42 were injured, and ten were kidnapped. Of the 439 reported cases last year, 54.9 % are attributed to Somali pirates, making 2011 the fourth year in a row when the Horn of Africa has been the world’s most piracy-prone area⁶.

3 A short review of published piracy reporting and scholarship

The discussion of piracy scholarship which follows is an attempt to place the WMU Journal on Maritime Affairs’ special issue on piracy at sea in its academic context. The decision has been made to consider only books and collections of articles, rather than to review every single paper published on the subject⁷, or to examine the role of conferences in the development of the field⁸. Even with these restrictions, it has not been possible to cover every germane item; the authors have generally concentrated on those with ramifications for the modern crime, and apologize in advance to those whose studies have been inadvertently omitted.

Over the years, the literature on piracy has shown a development from entertainment and edification to education. The earliest publications described encounters with pirates, piratical voyages, or pirate trials. One classic from this period was Esquemelin’s De Americaensche Zee-Roovers (1678), translated into English in 1684 as Bucaniers of America (see Exquemelin 1969). In the early 18th century, Captain Charles Johnson, whom some have identified as Daniel Defoe, produced A General History of the Robberies and Murders of the Most Notorious Pirates (1724), which continues to remain in print after almost 300 years (Johnson 1955)! The 19th century added a third volume to this classic corpus — Charles Ellms’ The Pirates Own Book (Ellms 1924) — which also became a standard.

The first half of the 20th century, saw the appearance of several research-driven works on the topic, such as Jameson’s Privateering and Piracy During the Colonial Period (1923), Dow and Edmonds’ The Pirates of the New England Coast (1923), Bradlee’s Piracy in the West Indies and Its Suppression (1923), and Allen’s Our Navy and the West Indian Pirates (1929). One of the most unusual books of the interwar period was Aleko Lilius’ I Sailed With Chinese Pirates (1931), which details the author’s personal experiences with these marauders, while general studies on the topic can basically be traced to Philip Gosse’s seminal The History of Piracy (1932). These volumes and others set the stage for the surge of books that have appeared about modern piracy since 1950.

Several books resulted from the seizure of the Santa Maria in 1961 (for an account of this incident, see generally Menefee 1987, 1990), all of which considered the seizure from a generally factual perspective. These included Henrique Galvao’s Santa Maria (1961), an account of the takeover by the individual who was in charge, Henry Zeiger’s The Seizing of the Santa Maria (1961), a mass market paperback about the incident, and Beth Day’s Passage Perilous (1962). Other germane works include Juvenal d’Oliveira’s Um Comunicado da Oposicão a Operacão “Dulcineia” (1961), and the anonymous A condenacão pública do ataque ao “Santa Maria,” (Anonymous 1961) both pro-Portuguese government “takes” on the operation, and Miguel Bayon’s Santa Liberdade (1999).

When dealing with regional piracy studies covering Asian and West African waters, only a few monographs come to mind. For the piracies against the Boat People which took place from the late 1970s through the early 1990s (Menefee 2010), the one work which directly concentrates on the topic is Pirates on the Gulf of Siam (1981), which includes a number of documents and reports of piracy (Tien et al. 1981). Wider views of problems in the region are provided by Frécon’s Pavillion noir sur l’Asie du Sud-Est (2002), Eklöf’s Pirates in Paradise (2006), and Young’s Contemporary Maritime Piracy in Southeast Asia (2007), while Upadhyaya’s Combating Piracy in the Indian Ocean (2011) considers piracy in this geographical context. Turning to Africa, Smuggling and “Coastal Piracy” in Nigeria (Akindele and Vogt 1983), the published result of a workshop, is principally notable for its attempts to “define away” the problem.

A major turning point in literature on the subject can be traced to the ICC-IMB’ first three reports on piracy during the early 1980s (IMB 1983, 1984, 1985). These formed much of the basis for Roger Villar’s Piracy Today (1985), which is believed to have been the first comprehensive book dealing with the modern crime. Subsequent to this, the IMB issued Violence at Sea (Ellen 1986)⁹, Piracy at Sea (Ellen 1989), Ports at Risk (Ellen 1993), and Shipping at Risk (Ellen 1997), which mark the beginning of collaborative scholarship on the contemporary crime. While the IMB has produced no further relevant volumes, their piracy reports, now delivered in electronic format, have remained a standard resource since 1992¹⁰.

An important subgrouping of works deals with the law of contemporary piracy. Barry Dubner’s The Law of International Sea Piracy (1980) was the first modern book devoted to legal aspects of this crime. This was followed by Alfred Rubin’s classic, The Law of Piracy (1988), an essential reference for those dealing with this aspect of the problem¹¹. While much shorter, Menefee’s Contemporary Piracy and International Law (1995) partially updates the international law part of this topic. An interesting series of “Essays on Piracy,” the proceedings of a 1990 symposium on Piracy in Contemporary National and International Law, which contains legal contributions by all these individuals, has been published by the California Western International Law Journal (1990). Finally, Petrig’s Sea Piracy Law (2010) considers some national laws and regional frameworks on the subject, while Li Wen Pei has produced a study in Chinese on the international law aspects of piracy (Pei 2010). Geiss and Petrig’s Piracy and Armed Robbery at Sea (2011) discusses the legal anti-piracy framework for operations in Somalia, and James Kraska’s excellent Contemporary Maritime Piracy (2011) is the latest word on the topic.

Still, other books follow in the reportorial tradition of Lilius (1931). Mueller and Adler’s Outlaws of the Ocean (1985) deals with various aspects of crime at sea, including piracy. Pascal Dupont, in Pirates Aujourd’hui (1986), gives a general picture of piracy in the 1980s, Stuart’s In Search of Pirates (2002) reports on his experiences in the South China Sea, while John Burnett’s Dangerous Waters (2002) is a classic of the genre. Ross Kemp’s Pirates (2009) documents the author’s experiences in the Gulf of Aden, the Bight of Benin, the South China Sea, and Djibouti and Daniel Sekulich’s Terror on the Seas (2009) does the same for the Strait of Malacca, Somalia, Sri Lanka, and elsewhere. A more recent and in-depth treatment of East African piracy is Jay Bahadur’s journalistic The Pirates of Somalia (2011). Other readers may be interested in James Hepburn’s The Black Flag (1994), which offers accounts without the personal touch, or Nigel Cawthorne’s Pirates of the 21st Century (2009).

The Achille Lauro incident, much like its predecessor, the Santa Maria (see Menefee 1987, 1990; Galvão 1961; Zeiger 1961; Day 1962; d’Oliveira 1961; Anonymous 1961; Bayon 1999), was a questionable piracy¹² (most scholars classify it as an act of maritime terrorism) which nonetheless captured world attention. A number of books reported the facts of the seizure, including Gerardi’s “Achille Lauro” Operazione Salvezza (1986) and De Rosa’s Terrorismo Forza 10 (1987), and Michael Bohn’s The Achille Lauro Hijacking (2004). Academic monographs were also produced on the subject, including Antonio Cassese’s Terrorism, Politics, and Law: The Achille Lauro Affair (1989) and Natalino Ronzitti’s Maritime Terrorism and International Law (1990)¹³.

Another important area is that of maritime security. One of the major initial works was by Gale Hawkes, who literally wrote the book — Maritime Security, in 1989. A somewhat different perspective on the topic is offered by Brian Parritt’s Security at Sea (1991), while Gray et al.’s Maritime Terror (1999), Corbett’s A Modern Plague of Pirates (2009), and Berube and Cullen’s Maritime Private Security (2012) incorporate recent advances in the field.

Some books still attempt to capture the fuller picture of modern piracy. Menefee’s Trends in Maritime Violence (1996), while only a shadow of its pre-publication size, does duty in tracing the crime throughout the 20th century. Gottschalk and Flannigan’s Jolly Roger with an Uzi (2000), tends to closely track the IMB’s series of reports¹⁴, while more recently, Martin Murphy has produced excellent additions to the literature with Contemporary Piracy and Maritime Terrorism (2007) and Small Boats, Weak States, Dirty Money (2009), while Alexander and Richardson’s two-volume Terror on the High Seas (2009) reprints relevant government documents and James Wombwell’s The Long War Against Piracy (2010) discusses the modern problem in its historic context. Other works include John C. Paine’s Piracy Today (2010), which gives a special emphasis to Somalia, David Marley’s useful Modern Piracy: A Reference Handbook (2010) along with Porterfield’s Modern-Day Piracy (2010), and Dunn’s Modern-Day Pirates (2011), both written for juveniles.

Other organizations have also produced symposia and other works dealing with piracy, including the American Society for Industrial Security, which produced manuals on maritime security in 1990¹⁵ and 1994¹⁶, and the Maritime Security Council, U.S. Department of Transportation, MARAD, and the U.S. Coast Guard, which co-published International Perspectives on Maritime Security (Fitzhugh 1995). Often, the subject will be part of one panel at a larger conference dealing with maritime issues. A meeting at Singapore on “Implementing Article 43 of UNCLOS in the Straits of Malacca and Singapore,” for example, featured a panel on “Piracy, Ship Hijacking and Armed Robbery in the Straits” which was subsequently published (Singapore Journal of International & Comparative Law 1999), while the Okazaki Institute sponsored a conference and subsequent publication on Combating Piracy and Ship Robbery (Ahmad and Ogawa 2001). Ong-Webb edited a collection of pieces dealing with piracy in the Straits of Malacca in 2006, the Center for Oceans Law and Policy has published papers on the subject from its 31st (see Menefee 2008) and 34th (Nordquist et al. 2012) conferences, Peter Lehr’s Violence at Sea, Piracy in the Age of Global Terrorism (2007) is another entrant in the field, and Haberfeld and Von Hassell produced Modern Piracy and Maritime Terrorism (2009). More recently, the Naval War College has produced a collaboration on “Piracy and Maritime Crime” without any initial gathering (Elleman et al. 2010).

A series of piracy-related compilations has been produced by the World Maritime University, based on a number of conferences they have held with the support of such organizations as the Swedish International Development Cooperation Agency, the Swedish Ministry for Foreign Affairs, the German Federal Ministry of Transport, Building and Housing, the ICC-IMB, the UK Foreign and Commonwealth Office, and the University of Wales Swansea. These include Maritime violence and other security issues at sea (Mukherjee et al. 2002), Contemporary Issues in Maritime Security (Mejia 2005), Coastal zone piracy and other unlawful acts at sea (Mejia and Xu 2007), and Maritime Security and Crime (Mejia 2010). These have provided a consistent source for international scholarship in the field, and it is hoped that funding for the series will allow it to be continued.

Another development has been the growing literature concerning categories of vessels. Yacht piracy is covered by Klaus Hympendahl’s Yacht-Piraterie (2002), which has been translated into English as Pirates Aboard! (2003)¹⁷, while Captain Fatty Goodlander has produced the print-on-demand Somali Pirates and Cruising Sailors (2011)¹⁸. An infamous tanker attack is covered by Ken Blyth’s Petro-Pirates (2000), while a more recent offering on cruise ships is Gaoutte and Carver’s Cruising for Trouble: Cruise Ships as Soft Targets for Pirates, Terrorists, and Common Criminals (2010).

Other volumes touch on new or inadequately explored aspects of the subject. Daniel Heller-Roazen’s The Enemy of All (2009) considers the place ancient and modern piracy has occupied in legal and political thought, while Maximo Mejia’s Law and Ergonomics in Maritime Security (2007) presents a critical analysis of the international legal framework for maritime security, proposes a cross-disciplinary approach to the study of maritime security, and develops an analytical tool for maritime security incidents.

Recently, much attention has been paid to the developing situation off Somalia. A cluster of books has recently appeared covering piracy in this region. Richard Phillips’ A Captain’s Duty (2010) provides a first-person account of the attack and capture of the Maersk Alabama by Somali pirates in April of 2009¹⁹, while Eichstaedt’s Pirate State (2010) discusses the problem of piracy here. Nelson’s Ocean Piracy (2010) contains a collection of relevant regional documents, and Burgess’ The World for Ransom (2010) uses the situation in Somalia to make larger generalizations about the fight against terrorism and piracy. Last year, several new books appeared, including Murphy’s Somalia, the New Barbary? (2011) and Pecastaing’s Jihad in the Arabian Sea (2011).

4 WMU Journal of Maritime Affairs: special issue on piracy at sea

The above survey is a representative slice of the body of literature that examines the phenomenon of maritime piracy from a wide variety of angles, fueling an ongoing debate on socio-political stability, development, economics, legislation, policy, law enforcement, regional security, international cooperation, human rights, health, and risk management, among countless other topics. This special issue on piracy at sea represents the WMU Journal of Maritime Affairs’ modest attempt not only to contribute to the debate, but also to push it further. We are proud to note that this is one of the very few issues of any journal that has dedicated an issue exclusively to this contemporary menace; even fewer such issues are readily accessible on line. This special issue’s call for papers attracted submissions from authors covering a variety of disciplines. The mix of eight articles presented here focus on development, forensic investigation, statistics, geopolitical studies, and legal issues related to the problem of piracy.

The first article, “Drops in the Bucket? A Review of Onshore Responses to Somali Piracy” by Christian Bueger examines onshore counter-piracy initiatives designed to address local populations at the clan, sub-clan and village level with the aim of increasing surveillance, sensitizing populations to the consequences of piracy, and providing rehabilitation or alternative livelihood opportunities. Bueger discusses the promises and difficulties encountered in addressing piracy through such programmes. Five major problem areas are considered in the paper, namely knowledge problems, implementation problems, counter-intuitive consequences, tensions towards other parts of counter-piracy strategy, and the securitization of aid.

The second article, “Investigating Sea Piracy: Crime Scene Challenges” by Henri Fouché and Jacques Meyer, presents important lessons learned from the authors’ participation in a team of forensic investigators and detectives that conducted a crime scene investigation on board a very large crude carrier (VLCC) at sea off Durban, South Africa. Prior to the investigation, Somali pirates held the VLCC hostage for 58 days. The article examines the unique investigative challenges faced by the forensic investigators and detectives who conducted the investigation and processed forensic evidence on what had effectively been declared a major crime scene. In conclusion, the authors distill the views of the forensic team and put forward suggestions that may assist in establishing best practices for dealing with and processing physical evidence at future major maritime crime scenes.

The next article, “Is Somali Piracy a Random Phenomenon?,” by George Kiourktsoglou and Alec Coutroubis, investigates whether Somali piracy is a random phenomenon. The research is conducted and presented in two distinct parts. The first challenges the widely held belief that Somali pirates select their targets at random and that the decision to attack a vessel registered under a particular flag is unrelated to the participation of the flag state in any of the naval forces operating around the Horn of Africa. The second part questions whether certain nationalities of crews are more vulnerable to falling victim to Somali pirates. In both parts, while the study debunks the theory of randomness, it does not necessarily prove causality. In other words, while there is a very strong correlation between the nationality of the ship or its crew and the number of pirate attacks, neither the flag of a ship nor the passport of the seafarer automatically create the risk of attack. Nevertheless, the study concludes that the statistical correlation reveals an existing pattern that cannot be random and that calls for further research to better understand potential causal links.

Martin N. Murphy’s article, “International Cooperation Against Piracy: China's Role, Problems and Prospects” probes into the motivations underlying the participation of states in counter-piracy actions, particularly the assembly off Somalia of the biggest multinational naval flotilla the world has ever seen. Murphy notes that Somali piracy has attracted the interest of China whose citizens have been attacked and hijacked. In his article, he asks whether this deployment demonstrates that China is committed to the protection of shipping in the context of the existing maritime order or if it has a wider purpose to advance Chinese interests in the Indian Ocean region. While the suppression of piracy would appear to be in the interest of all states, the author observes that states have often been more ambivalent as they have found piracy to be a useful cloak behind which to hide their wider geostrategic ambitions.

The next four articles cover legal topics, two of which deal with jurisdictional issues and the other two dealing with marine insurance issues. Matteo del Chicca’s article, “Universal Jurisdiction as Obligation to Prosecute or Extradite,” examines the existing international legal framework to determine whether the principle aut dedere aut iudicare — extradite or prosecute — constitutes an option or an obligation on states. Del Chicca’s analysis leads him to two conclusions. Taken strictly from a treaty law point of view, the above principle limits the obligation to states party to the relevant condition, to be applied under conditions stated by such convention. On the other hand, if we consider it as a principle of customary international law, because piracy — as crimen iuris gentium — offends international community as a whole, then the principle aut dedere aut iudicare should be binding under all circumstances.

Paul Musili Wambua’s “The Jurisdictional Challenges to the Prosecution of Piracy Cases in Kenya: Mixed Fortunes for a Perfect Model in the Global War Against Piracy,” gives voice to the experiences of a country literally at the forefront of the legal battle against maritime piracy. Since 2008, Kenya has been prosecuting suspected pirates in its national courts under bilateral agreements entered into by the country with the leading maritime nations. Wambua discusses the new merchant shipping act enacted to overcome, among others, jurisdictional challenges it faced in prosecuting suspected pirates. He concludes that while the litigation process is still fraught with challenges due to lack of financial and human resources, the Kenyan approach is a model that should be replicated in other states. Not only does it grant extra territorial jurisdiction to national courts, it also affords a comprehensive translation into domestic law of the most important anti-piracy provisions found in a number of international treaties.

Gotthard Gauci’s contribution, “Total Losses and the Peril of Piracy in English Law of Marine Insurance,” uses case law to highlight a major piracy-related flaw in the Marine Insurance Act 1906 in determining whether a seizure of the subject matter of insurance, in this case cargo, by pirates, demanding a ransom, can give rise to a claim for a total loss. Gauci examines the implications of recent judgments against the backdrop of the English marine insurance definition of piracy and the intricacies of the law relating to constructive and actual total losses. He then concludes that there is a need to harmonize the marine insurance definition of piracy with that in the domain of public international law. Furthermore, he posits that legislative intervention should be considered for the purpose of ascertaining the point in time whether and when seizure by pirates can constitute a total loss.

The final article in this special issue is Constantinos Lambrou’s “The Implications of Piracy on Marine Insurance: Some Considerations for the Shipowner.” Lambrou examines how the marine insurance market is being affected by the threat of modern piracy, and seeks to identify the options available for the recovery of a ransom payment by the shipowner. Problems associated with recovering the ransom payment from insurers — arising from illegality, unseaworthiness and exemption clauses, among others — may be overcome if clauses are carefully drafted to specifically cater for piracy in a marine insurance policy. Several inconsistencies may also be resolved by transferring the piracy peril to war risks cover. Lambrou concludes that the shipowner’s duty is to respond to the changing circumstances, by ensuring that his vessel is sufficiently equipped and the crew is properly trained to avert a hijacking incident.

Following the above eight articles, the special issue ends with a book review by Max Mejia of Natalie Klein’s Maritime Security and the Law of the Sea and a conference review by Mark Sawyer on the International Conference on Piracy at Sea (ICOPAS). The Conference, hosted jointly by the World Maritime University and the International Maritime Organization, was held in Malmö, Sweden on 17–19 October 2011. The Conference featured presentations from over 40 subject matter experts representing militaries, governments, special interest groups, academia, and non-government organizations. Over 400 individuals participated in the Conference. The goal of ICOPAS was to increase exposure of the increased global threat of maritime piracy and discuss possible solutions in mitigating and eradicating the threat. In particular, the Conference highlighted the significant humanitarian impact of piracy and focused on humanitarian support initiatives such as the Save Our Seafarers campaign. ICOPAS concluded with the adoption of the Malmö Declaration urging all concerned to do their utmost to coordinate efforts in combating piracy and other violent crimes at sea.

Taken together, the articles in this special piracy issue of the WMU Journal of Maritime Affairs articulate and dissect some of the most pressing issues facing both public and private institutions as well as humanitarian and commercial entities in their quest for lasting solutions to the current challenges. They are a welcome addition to an assortment of tools available to the policy-makers who will have to make the important decisions that will contribute to arresting the level of piracy attacks or to mitigating its most negative effects. The value of this special issue must be judged not only in how it offers some of the answers, but more importantly by the questions that it generates and the thoughts that it provokes, paving the way for future studies on piracy and advanced scholarship on the topic.