February 24, 2011 | World Defense Review

Somali Piracy Hits America: Some Questions in Need of Answers

The murder earlier this week by their captors of four United States citizens aboard the SV Quest, a yacht hijacked last Friday off the coast of Oman, brought home to America the increasing toll of the ongoing piracy off the coast of Somalia. The four victims—yacht owners Scott and Jean Adam of Marina del Rey, California, and their friends, Phyllis Macay and Bob Riggle of Seattle, Washington—are the first Americans to be killed by pirate gangs which have become increasingly emboldened as they operate ever farther from their native littorals for longer periods, scoring greater successes and winning record ransoms. As this crisis worsens, it might be opportune to ask some of the questions and review some of the lessons that the international community seems either unwilling to fully confront or whose implications it is apparently unable to completely absorb.

What were the yachters doing in waters that are well known to be pirate-infested? While freedom of the seas has been a principle that the United States has defended since the earliest days of the Republic and certainly questioning the victims of violence is hardly a popular move, with the right of navigation comes to the responsibility to prudence, if only out of respect for the men and women in uniform whose lives are risked in eventual rescue attempts.

In fact, the waters of the northwestern India Ocean, hundreds of nautical miles east of the pirates' hitherto preferred hunting grounds in the Gulf of Aden, have become the focal point of attacks with two oil tankers, the Italian MV Savina Caylyn and the Greek MV Irene SL—the latter carrying some 2 million barrels of Kuwaiti crude, worth more than $200 million, to the U.S. Louisiana Offshore Oil Port in the Gulf of Mexico—seized nearby in just the week before the Quest was captured. Certainly the last known location of the yacht before its capture was well within the war risk exclusion zone declared in December by the maritime insurance industry's London-based Joint War Committee. It is not immediately clear whether, having, according to a BBC report, told family and friends that they were going to be out of communication for about two weeks, the yachters had even bothered to submit a vessel movement registration with the Maritime Security Center-Horn of Africa (MSCHOA), which they could have done online. Had they done so, they would have received the following message:

In view of the recent escalation in piratical attacks in the area of the Gulf of Aden, Yemeni and Somali, and the consequent very high risk, the essential advice is not to enter this area. However a yacht which, despite this advice, decides on such a passage is recommended to make contact in advance with the naval authorities.

The authorities would have then provided the registrants with a document prepared in collaboration with the International Sailing Federation (ISAF) that would have told them—in bold letters, no less—that: “The danger of piracy and consequent loss of life and property in the Gulf of Aden, Yemeni and the Somali waters (up to 750 miles offshore), is high. Yachts are strongly recommended to avoid the area.” They would also have been advised to join up with a small convoy. Thus it needs to be clarified whether the four vacationing Americans had registered their passage and received these warnings. If not, why not? If so, what went wrong? Answers to these queries had better be quickly forthcoming because, as I told Reuters two weeks ago, as soon as the monsoon abates next month, more pirate attacks over an even wider area, one that cannot be secured by the available naval forces, are virtually guaranteed. In fact, just last week, a live piracy report from the International Maritime Bureau's Piracy Reporting Center indicated that three skiffs, each carrying six to eight Somali pirates, were spotted operating brazenly less than 30 nautical miles off the coast of India, just south of the Gujarati port of Porbandar, forcing a tanker they and their suspected “mother ship” were apparently shadowing to take evasive maneuvers.

Do pirates really face a credible deterrence from the international community? While much has been made of the two dozen or nations which have contributed naval forces to patrol the waters of the Gulf of Aden and western Indian Ocean, I have repeatedly pointed out that the military forces are inadequate for the area which they have to patrol, while the pirates have merely changed their tactics and shifted their areas of operation in response to the naval presence. In 2010, while attacks in the Gulf of Aden dropped off by more than 50 percent due to the naval patrols and better security measures by commercial vessels, overall the number of attacks by Somali pirates increased and a total of 49 vessels being successfully hijacked. The marauders seem to be more than on their way to besting these figures with more than a dozen seizures so far this year. According to the most recent report by the European Union Naval Force (EU NAVFOR), Somali pirates currently hold 32 hijacked ships and an estimated 692 hostages, not counting “an unknown number of unconfirmed dhows and smaller vessels.”

The international community's willingness to pay record ransoms, including the $9.5 million handed over in November to secure the release of the South Korean oil tanker MV Samho Dream, certainly incentivizes even more individuals to get involved in the piracy in the hopes of scoring a major success, especially when coupled with the lack of enough severe consequences for failure. For every Abduwali Abdukhadir Muse, the pirate sentenced last week in New York to just shy of 34 years in prison for his role in the 2009 hijacking of the United States-flagged MV Maersk Alabama, there are the six marauders who opened fired on Whidbey Island-class docking ship USS Ashland who had the piracy charges against them dismissed by a federal district judge who ruled that they could not be accused of “robbery at sea” because they had actually failed to seize the Navy ship. Hopefully the thirteen pirates captured by the U.S. Navy on the Quest as well as two others who had boarded an American warship earlier to negotiate over the hostages won't be set free by some other small-minded judicial legalist on the grounds that the rocket-propelled grenade they fired at the Arleigh Burke-class guided-missile destroyer USS Sterett missed its target.

In fact, to date more than 90 percent of pirates captured are released quickly with no sanction except perhaps the confiscation of their arms, even when there is no reasonable innocent explanation for their behavior when caught in flagrante delicto. For example, at the very end of 2009, authorities ordered the commander of the Royal Netherlands Navy frigate HNLMS Evertsen, then serving as part of EU NAVFOR's anti-piracy Operation Atalanta, to release thirteen Somalis captured following a failed attack on the Antigua and Barbuda-flagged cargo ship MV BBC Togo. Despite being seized in a speedboat laden with ladders, grappling hooks, automatic weapons, grenades, and other ammunition, the Somalis were put back into their own boat and sent on their way with food and fuel after EU legal officials decided there was insufficient evidence to bring charges against them. Whatever else it might be, the “catch-and-release” approach to counter-piracy operations is hardly a credible deterrent—not that those the Europeans actually put on trial are much worse off if the five Somalis who last June became the first defendants convicted in Europe in modern times of piracy are anything to go by: Judge Jan Willem Klein Wolterink of Rotterdam sentenced them to a mere five years in prison and at least one of them is already preparing for his parole by applying for asylum under Dutch law.

Continuing to try those pirates unlucky enough to see the inside of a courtroom has become even more difficult recently with Kenya refusing earlier this month to renew a 2009 agreement whereby it had agreed to prosecute the marauders captured by EU NAVFOR, citing what authorities characterized as an unfair burden with over 130 suspects handed over since the accord went into effect, but the level of additional support which the East African nation received for its judiciary and prisons systems was paled alongside the material and political costs it took on.

In fact, it might be argued that the lack of real penalties for acts of piracy has inexorably changed the nature of the phenomenon as more and more actors try to get a piece of the action, slowly shifting from the modus operandi of “entrepreneurs” who saw harming their hostages as bad for their “business” interests over the long term to less disciplined criminal elements looking to make a quick buck and less concerned about keeping violence within any limits.

Is anyone seriously committed to solving the piracy challenge in the only sustainable manner, that is, on land? The lack of a functioning state in Somalia, the territory of the unrecognized Republic of Somaliland being an exception (last year, a report by the United Nations Security Council Monitoring Group on Somalia acknowledged that “Somaliland authorities and community leaders have adopted a firm and decisive posture against piracy”), is arguably the principal factor in facilitating the phenomenon of Somali maritime piracy. And yet the international community has yet to agree to do anything that would actually alter the statelessness that has been the lot of the former Somalia since the collapse of the last entity that could plausibly be described as the government there more than two decades ago.

Despite the manifest failure of the “Transitional Federal Government” (TFG) which I documented in this column space earlier this month—a report this week by the International Crisis Group went even farther and declared that the TFG's members were “not fit to hold public office and should be forced to resign, isolated, and sanctioned”—recourse to it remains, remarkably, the international default position, although it is hard to tell whether this is out of invincible ignorance or gross cynicism. Even usually well-briefed U.S. Secretary of State Hillary Rodham Clinton fell into this trap when her reaction to the Quest tragedy was to put out a statement that called on “those members of the international community concerned about stability in Somalia and piracy to contribute to AMISOM by providing material, financial, and logistical support”—as if adding to a demoralized peacekeeping force saddled with the thankless mission of protecting a questionably legitimate and otherwise utterly ineffective regime from its own people was somehow going to advance sustainable security on Somali soil, much less along the country's coastline.

Moreover, it needs to be admitted that piracy, far from being a marginal criminal activity, is one that involves quite a number of individual stakeholders. While it is wealthy Somali businessmen who provide the operating capital necessary to acquire and outfit the pirate “mother ships” and skiffs and to recruit and arm their crews—and, ultimately, reap the largest share of the ransoms paid—enough of cash flows to the rest of society to obtain widespread social by-in. After the major investors are paid off, individual pirates are paid according to a relatively complex scale according to the role they played in the heists. Subcontractors—ranging from the elders of local clans who permit the pirates to operate in their territory or to bring the vessels they capture there to the gunmen guarding the hijacked ships, caterers serving food to captors and prisoners alike, and even prostitutes providing assorted services while the ransoms are being negotiated—also get a cut of the proceeds, as do corrupt government officials and even Islamist insurgents (Reuters reported on Tuesday that rebels from al-Qaeda-linked Harakat al-Shabaab al-Mujahideen had reached a deal for a 20 percent cut of all future ransoms from piracy and were even opening an office in the pirate port of Xarardheere to liaison with their new partners). Their occasional pro forma denials notwithstanding, the evidence is considerable that the leadership of the Puntland regional government has at least tacitly aligned its interests with those of the pirates. Hence, uprooting piracy from the soil of Somalia will require significant resolve.

Of course, again Somaliland aside, building up a viable—much less responsible—political entity on the territory of the onetime Somali Democratic Republic will take time. In the meantime, piracy continues to occur at sea because pirates find safe haven onshore, one that ought to be denied them. However, to date, with the exception of two instances in 2008 when French President Nicolas Sarkozy successfully sent teams from the Commando Hubert of the berets verts, the elite French naval special operations forces, onto Somali soil to free French hostages and seize their captors, international forces have been rather reluctant to pursue the maritime marauders ashore. My friend Dr. Martin Murphy concludes his new book, Somalia, the New Barbary? Piracy and Islam in the Horn of Africa, by arguing that:

Somalia has demonstrated the risks the trading nations of the world run if they ignore maritime security. It has also demonstrated that the solution is not solely naval. It never was and never has been at any point in history. Suppressing piracy and securing the seas means securing the land. Securing the land demands engagement which in turn requires a realistic political strategy.

Alas, the tragic death of four American yachters this week underscores just how far we still are from having anything even close to such a comprehensive strategic approach.

— J. Peter Pham is Senior Vice President of the National Committee on American Foreign Policy in New York City. He also holds academic appointments as Associate Professor of Justice Studies, Political Science, and African Studies at James Madison University in Harrisonburg, Virginia, and non-resident Senior Fellow at the Foundation for the Defense of Democracies in Washington, D.C.