Annex 4.4.: Movement of piracy proceeds offshore (STRICTLY CONFIDENTIAL)*
Bovenstaande lege (want strikt vertrouwelijke) bijlage moet een van de meest interessante delen zijn van het nieuwste VN-rapport over Somalië. Het zal antwoord geven op de vraag: "waarheen (buiten Somalië zelf) gaat het losgeld dat voor gekaapte schepen en bemanningen is betaald?"
Dat de VN deze informatie onder de pet houdt is niet zo vreemd. Het gaat immers om lopend onderzoek, en het is niet zo slim om betrokken partijen publiekelijk inzicht te geven over de informatiepositie van de VN.
Nederland speelt bij dit onderzoek ook een rol. Het kabinet zegde begin dit jaar twee experts en 300.000 euro toe aan een op de Seychellen in te richten Regional Anti-Piracy Prosecutions and Intelligence Coordination Centre (RAPPICC), zie Kamerbrief . Met de bouw van een kantoor voor deze nieuwe instantie is eerder deze maand begonnen, meldt het Britse ministerie van Buitenlandse Zaken.
Piraterij is overigens maar één onderdeel van het nieuwste Report of the Monitoring Group on Somalia and Eritrea pursuant to Security Council resolution 2002 (2011). De Monitoring Group doet er de volgende aanbevelingen aan de Veiligheidsraad in:
116. The Monitoring Group recommends that:
(a) The Committee should proceed without further delay to designate known pirates and their associates identified by the Monitoring Group or Member States for targeted measures;
(b) The Security Council should consider the possibility of establishing a specialized investigative group of experts with a mandate to collect information, gather evidence and record testimonies relating to acts of Somali piracy, including and especially the identification of pirate leaders, financiers, negotiators, facilitators, support networks and beneficiaries;
(c) The Security Council should consider making explicit reference, in its next resolutions on Somalia and piracy, to the Monitoring Group’s responsibility of investigating and identifying key individuals responsible for acts of piracy off the coast of Somalia, as well as the movement and investment of piracy proceeds, and call upon Governments, international organizations and national law enforcement agencies to exchange evidence and information with a view to the arrest and the prosecution of senior pirate leaders and their associates, or to their designation for targeted measures;
(d) The Security Council should consider options for the establishment of an international regulatory authority that regulates, monitors and inspects the activities of private maritime security companies operating floating armouries and providing armed protection to vessels in international waters.
Aanbeveling (d) is extra interessant voor Nederland, gelet op de levendige discussie tussen overheid en reders over de inzet van particuliere gewapende beveiligers op schepen die de Nederlandse vlag voeren. Volgens de reders is dat schering en inslag, maar het is op basis van de Nederlandse wetgeving verboden. De VN Monitoring Group pleit voor een internationaal toezichtsorgaan dat de activiteiten van gewapende beveiligers moet gaan reguleren en controleren.
III. Violations of the general and complete arms embargo
C. Private maritime security companies/floating armouries
72. The unmonitored and largely unregulated activities of private maritime security companies off the coast of Somalia, offering armed protection to ships and crews traversing the high-risk area, may represent a potential new channel for the flow of arms and ammunition into Somalia and the region.
73. During the course of the mandate of the Monitoring Group, this highly profitable business has expanded beyond the provision of armed escorts to the leasing of arms, ammunition and security equipment, and the establishment of “floating armouries” that operate in international waters beyond the remit of any effective international regulatory authority. Private maritime security companies are currently holding approximately 7,000 weapons in circulation, which are either owned or leased.
74. The absence of control and inspection of armed activities inevitably creates opportunities for illegality and abuse, and increases the risk that the maritime security industry will be exploited by unscrupulous and criminal actors, eventually coming to represent a threat to regional peace and security, rather than part of the solution. A detailed analysis of private maritime security companies and floating armouries can be found in annex 5.4.
In bijlage 4 van het rapport noemt de VN-Monitoring Group de belangrijkste trends op het gebied van de piraterij (voor de vele voetnoten en case studies, zie het originele rapport). Wat onder andere opvalt is de onverholen kritiek van de VN op de autoriteiten van het noord-oostelijke gebied Puntland (spreek uit: Boentland). De kleine jongens in de piraterij worden (met royale financiële ondersteuning van donorlanden) wel aangepakt en opgesloten. Tegelijkertijd opereren in Puntland de grote jongens van de piraterijbusiness ongestraft; kloppen de statistieken van de autoriteiten van geen kant, en weigert Puntland tot nu toe zelfs een onderzoek van de VN ter plaatse.
Volgens de Monitoring Group is Puntland sinds begin 2011 weer het belangrijkste centrum van de piraten geworden. Met name het (zee)gebied rond het oostelijk gelegen Garacad wordt wat dit betreft genoemd.
Kritiek is er ook op landen die weinig tot niets doen aan de vervolging van piraten. Het rapport noemt o.a. Griekenland en de Verenigde Arabische Emiraten.
Annex 4.1.: Piracy overview: trends, judicial challenges and impunity
1. The year 2011 witnessed some positive developments in the battle against Somali piracy. Pirate activity increased, but the proportion of successful attacks dropped dramatically. Early 2012, however, saw a steep decline of around 50 per cent in both attack rates (43 versus 97) and successful hijackings (9 versus 16).
2. Nevertheless, Somali piracy continues to represent a significant threat to international shipping. Somalia’s two main pirate groups, the Puntland Piracy Network (PPN) and the Hobyo-Harardheere Piracy Network (HHPN), both remain active, well-organized and continue to operate from their usual anchorages,3 chiefly Harardheere (HHPN), Garacad (PPN), and a pirate camp some 17 nautical miles north of Bandar Beyla (PPN). From these and other, smaller bases, the pirates range across an immense area comprising the southern Red Sea, Gulf of Aden, Indian Ocean (east and south of Somalia down to the north of Mozambique), Arabian Sea and Gulf of Oman. Decreased success rates have been matched by increasingly protracted ransom negotiations, longer periods of captivity for hijacked crews and escalating ransom payments.
3. On 23 March 2012 the Council of the European Union extended the area of operations of the EU Naval Force (EU NAVFOR) counter-piracy mission, Operation Atalanta, to include Somali coastal territory and internal waters, in order to attack pirate camps and logistical bases. A first attack with maritime aircraft and attack helicopters was reportedly carried out in the early hours of 15 May 2012 along Somalia’s coastline in the central region of Gaalmudug. The Monitoring Group believes that this new military strategy has the potential to degrade pirate finances and morale, but its success will depend heavily on the frequency and effectiveness of the attacks, and could be counterproductive if it entails significant civilian casualties. On the other hand, Somali pirates have proven extremely adaptive, and will almost certainly take steps to disperse weapons and equipment, and to rethink their own tactics. One option available to them may be heavier weaponry to defend themselves against future attacks, and in the belief that foreign governments are not prepared to accept casualties in the conduct of counter-piracy missions. Another risk is the possibility of closer cooperation between pirates and Al-Shabaab militias in areas such as Harardheere, where many fighters in both groups are drawn from the same clans. An escalation in violence might also impact upon pirate negotiating demands and the treatment of hostages: a day after the airborne attack on 15 May, for example, Harardheere pirates threatened to kill European hostages in the event of any future attack against them.
Tactics, Techniques, Weapons and Equipment
4. With one notable exception (see the case study below), pirate tactics, techniques, weapons and equipment remained generally the same as in previous years. There has been little change in the level of violence used by Somali pirates during attacks against merchant vessels, although the pirates’ ability to lay down effective fire has been degraded somewhat by the increasing presence of armed security on board of vessels, forcing pirates to abort attacks earlier and at greater ranges from targeted vessels.
5. Reports of ‘swarm attacks’, which have occasionally been called in by merchant vessels at certain locations identified as ‘choke points’, are attributable to hasty and inaccurate reporting prompted by encounters with large numbers of small fishing boats at the same time and at close range.
6. For hostages, the experience of captivity is by definition psychologically and physically challenging. Since the average time spent in captivity is increasing, conditions on board are likely to deteriorate, due to lack of hygiene and exercise, scarcity of food, water and medicines, and growing despair among hostages. Psychological abuse of captive crewmembers is standard practice and usually proportional to the difficulty and duration of negotiations. Long and acrimonious negotiations may increase the frequency and the cruelty of the abuse. However, physical violence against crewmembers remains the exception rather than the rule, and the Monitoring Group has detected no appreciable rise over previous years. Physical abuse is often directly related to specific situations or circumstances, due to stress and/or miscommunications. While exceptional, senseless brutality and torture have been reported in at least two recent cases.
Pirate Negotiators and Ransom Payments
7. The Monitoring Group reported extensively on the activities of pirate negotiators in its July 2011 report and has continued to monitor and investigate their involvement. Pirate leadership in both the PPN and the HHPN still rely on essentially the same pool of negotiators and translators to conduct ransom negotiations on their behalf. However, Monitoring Group inquiries have identified a growing number of pirate leaders, negotiators and associates from or with linkages to the Somali diaspora in Europe, the U.S., Asia, the Middle East and other places in Africa.
8. With diminishing levels of pirate activity and a declining success rate, ransom negotiations are becoming more difficult and longer lasting. This is especially detrimental to hijacked seafarers, who on average spent close to six months in captivity in 2011, in comparison with five months in 2010. Worse still, the crews of the last ten merchant vessels to be released from captivity between October and December 2011 on average spent nearly eight months as hostages: three months longer than the 2010 mean.
9. The increase in ransom payments in 2011 appears to have been less spectacular than in 2010. This could in part be attributed to the increasing use of armed protection on board of high-value ships, but may also be indicative of ransom amounts gradually approaching a maximum payout limit.
Piracy and Al-Shabaab
10. As per the Monitoring Group’s July 2011 report, the linkages between Somali pirates and Al-Shabaab can still best be described as clan-based, pragmatic, and linked to specific geographic locations. Because of clan and family ties, relations between the two groups are characterized by competition and co-existence, and the lines between them can at times become blurred: for example, members of local militias aligned with Al-Shabaab, are not necessarily excluded from participating in piracy operations for personal gain. Similarly, pirates are not exempt from Al-Shabaab’s standard practice of demanding taxes from individuals or organisations engaged in profitable enterprises. Despite these largely ad hoc linkages, the Monitoring Group has found no evidence that would suggest a structural or organizational link between Al-Shabaab as an organization and Somali pirate networks.
Puntland: Progress or Propaganda?
11. Puntland has long served as a hub for Somali pirate groups, as described in previous Monitoring Group reports, and senior officials in the Puntland administration – including President Abdirahman Mohamud Faroole himself – have been accused of benefiting from the practice.21 But since 2009, the Puntland administration has expressed a commitment to the eradication of piracy, and has embarked on a sustained counter-piracy campaign involving arrests, prosecutions and community mobilization.
12. The Puntland authorities have also succeeded in marketing their counter-piracy efforts as a major source of international funding. Some foreign donors have invested in Puntland police, custodial and judicial systems, while others, notably the United Arab Emirates, have allocated tens of millions of dollars to establish, train and equip the ‘Puntland Maritime Police Force’ (or PMPF, see Annex 5.3.a.).
13. The authenticity of the Puntland authority’s commitment to fighting piracy, however, remains questionable. Puntland remains the destination of choice – specifically the anchorages near Garacad and Bandar Beyla - for hijacked commercial vessels. The PMPF, meanwhile, represents a highly profitable enterprise for relatives and close associates of Puntland President Faroole, and has yet to be deployed in a single, significant counter piracy operation. While several hundred junior pirates languish in internationally funded Puntland prisons, senior pirate leaders and negotiators continue to operate in Puntland with impunity. Puntland administration statistics with respect to reported arrests, convictions and prisoners are so riddled with inconsistencies that they lack credibility and at times seem designed to attract donor support rather than to reflect reality.
14. The Puntland authorities have repeatedly deferred and ultimately declined a proposed Monitoring Group mission to Puntland to investigate and clarify these issues.
Arrests, convictions and prisoners
15. The Monitoring Group has closely monitored reports of arrests and seizures of suspected pirates, their weapons and equipment by Puntland security forces. No less than 281 pirates have reportedly been arrested during a total of 11 operations conducted between October 2011 and February 2012 in the vicinity of Garacad and Jiriiban. An additional 9 suspects were arrested in March and June 2011, making a total of 290 pirates reportedly ‘arrested’ to date in 2011-2012. However, inconsistencies in previous reporting on the subject call the accuracy of such statistics into question.
• At an anti-piracy rally in Garowe in early 2009, Puntland President Abdirahman Mohamud Faroole told the crowd: “Recently we have condemned 60 pirates.”
• In April 2009, President Faroole repeated that figure to US Ambassador Michael Ranneberger, stating: “sixty pirates are serving sentences of three to twenty years in Puntland prisons”.
• In a July 2009 interview with the BBC World Service World Business News, President Faroole
added that an additional 100 piracy suspects were awaiting trial, implying that 160 individuals suspected or convicted of piracy-related offences were in Puntland custody.
• In October 2009, Garoweonline reported that since the Puntland presidential election of January 2009, more than 120 pirates had been convicted and jailed in Puntland.
• On 22 March 2010, President Faroole’s announced a further increase in convicted pirates at a press conference at the presidential palace in Bosaaso, stating:33 “Puntland has actively fought against pirates and we have 264 pirates or suspected pirates in jail”.
• In late May 2010, the Puntland authorities reportedly told Professors Mohamed Samantar and David K. Leonard, that 245 pirates were imprisoned in an internationally financed prison in Bosaaso.
• A Garoweonline media article of June 2010 cited Puntland Minister of Marine Transport and Ports, Sa’id Mohamed Raage, and other government officials warning that Puntland prisons were stretched to their limits with more than 300 arrested pirates, and calling for assistance to increase prison capacity.
• The UN Secretary General’s report on Somalia of 9 September 2010 makes reference to a claim by the Puntland Government that more than 350 pirates or suspected pirates were then in prison.
• In June 2011, an EU-funded UNODC report “Support to the Trial and related Treatment of Piracy Suspects”, and a UN Security Council meeting document dated the same month, both refer to a total of 290 prisoners, of which 240 had been convicted.
• On 20 October 2011, President Faroole told participants at the Combating Piracy Week in London, United Kingdom, that his administration had 242 pirates and suspected pirates in custody.
• An official press release by the Puntland Presidency dated 29 November 2011 indicated that over 200 pirates were then imprisoned in Puntland.
• 281 pirates reportedly arrested in Puntland between October 2011 and May 2012, brings the total of pirates reportedly jailed in Puntland to close to 600.
• A Somali Report article on the PMPF of 20 January 2012 cites a much lower figure of “nearly 300” prisoners on piracy-related charges.
• The ‘Report of the UN Secretary General on Specialized Anti-piracy Courts in Somalia and other States in the Region’, dated January 2012, refers to a total of 290 prisoners, of which 240 had been convicted. However, these figures had already been communicated to the public in the UNODC report of June 2011.
• In its February 2012 ‘Counter Piracy Programme Brochure’ the UN Office on Drugs and Crime (UNODC) restated the June 2011 figures contained in the UN Secretary General’s report.
• In April 2012, UNODC restated these same figures to the Monitoring Group, but with the qualification that the Puntland administration “doesn’t hold precise figures about its jailed prisoners.”
16. In sum, it appears that while the prison population of suspected and convicted pirates in Puntland has grown from approximately 60 in 2009 to almost 300 in early 2012, these figures are unverified and – in the absence of accurate statistics on prisoner acquittals and releases over the same period – unverifiable. For example, the Puntland authorities’ claim that 281 pirates were arrested between October 2011 and May 2012 should have brought the number of suspected or convicted pirates to close to 600, but independent reports (including UNODC) retained a total of under 300 detainees, leaving nearly 300 others unaccounted for. Under such circumstances, and in the absence of independent verification of the numbers and status of piracy-related detainees, the Monitoring Group considers such figures to lack credibility.
Inaction and impunity
17. While hundreds of junior pirates serve sentences in Puntland’s prisons, top pirate leaders/organizers/investors and negotiators including Mohamed Abdi Garaad, Abdullahi Farah Hassan, Loyan Siciid Barte, Ciise Yulux, and Mohamed Warsame (a.k.a. Haaji), have remained undisturbed, and have continued to organize and manage piracy operations. One notable exception in this regard is the notorious pirate leader Abshir Boyah, who was arrested in May 2010 after international pressure had been applied to the Puntland authorities. Since, by his own account, Boyah once headed a militia of approximately 500 pirates and was responsible for between 25 and 60 hijackings, his sentence of only 5 years contrasts sharply with penalties of up to 20 years awarded junior pirate figures and foot soldiers.
18. A more alarming development is the re-emergence of Puntland, since 2011, as the principal base of operations for Somali pirates. On 10 January 2011, at least 10 hijacked vessels were reportedly anchored in the vicinity of Garacad in northern Mudug region. Since 20 August 2011 until the time of writing, every merchant vessel hijacked by Somali pirates (a total of 8 to date), has ended up in the custody of the Puntland Piracy Network (PPN), of which 4 vessels were anchored in the vicinity of Garacad and 3 others further north between Bandar Beyla and Raas Haafun. In comparison, only 2 vessels remain under control of the Hobyo-Harardheere Piracy Network (HHPN): the ‘Albedo’ and the ‘Orna’. Despite repeated claims by Puntland officials that pirates have been completely removed and eradicated from Garacad and Jiriiban districts, Garacad remains the largest and most active pirate anchorage in Somalia.
Hobyo – Harardheere Piracy Network: From piracy to abduction
19. Although the Hobyo-Harardheere Pirate Network (HHPN) has been less active than the Puntland Pirate Network (PPN), senior figures among the group, including Mohamed Abdi Hassan ‘Afweyne’, Abdiqadir Mohamed Abdi, Ahmed Saneeg, Mohamed Gafaanje, Suhufi, and Hussein Jiis, have remained actively involved in piracy and some have become involved in land-based kidnapping for ransom (KFR). Moreover, some elements of the HHPN have adopted a new and disturbing negotiating tactic, demanding not only ransom payments but also the release of Somali pirates detained in foreign countries in exchange for the release of hostages.
20. On 15 April 2011 a pirate group active within the HHPN released the UAE owned and operated asphalt/bitumen tanker ‘Asphalt Venture’ and its crew after almost 7 months in custody allegedly in exchange for a US$ 3.01 million ransom payment. However, 7 of the 15-member Indian crew were left behind, apparently in retaliation for several successful counter piracy operations conducted by the Indian Navy, in which more than one hundred Somali pirates had been arrested and jailed in India. Representatives of the pirate group holding the remaining crewmembers have since stated that the 7 Indians would only be freed in exchange for the release of Somali pirates imprisoned in India.
21. This new tactic was repeated on 30 November 2011 during the release of the hijacked chemical/oil products tanker ‘Gemini’ and its 25-member crew: 4 South Korean crew members were retained as bargaining chips for the release of 4 convicted Somali pirates imprisoned in South Korea. The pirates also demanded financial compensation for the deaths of 8 of their associates during a 21 January 2011 raid by the South Korean Navy on the South Korean-owned chemical/oil products tanker ‘Samho Jewelry’.
22. Two crewmembers of the Seychellois fishing vessel, ‘Aride’, hijacked on 30 October 2011, are currently being held hostage on land. Their captors have reportedly demanded the release of a group of jailed pirates in the Seychelles as a condition for the release of the two fishermen. One of the pirates in Seychellois custody is believed to be a nephew of Mohamed Gafaanje.
23. It remains to be seen whether this new negotiating tactic will eventually yield results for the Somali pirates. Although the Indian and South Korean Governments have both expressed their refusal to negotiate, on 15 March 2012 the pirates released a recorded video recording showing the four South Korean hostages, and restating that they will not be released until the pirates’ demands are met.
24. Information received by the Monitoring Group indicates that all three groups of hostages are being held by a single, influential sub-group group of the HHPN. Other sub-groups of the HHPN, as well as the PPN, do not appear to have bought in to this negotiating tactic, since a total of 53 Indian crewmembers have been released from their custody over the same period.
International responses to piracy: the need for more robust law enforcement
25. The international community has dedicated enormous resources – political, military, intelligence and financial – to combating Somali piracy in recent years. 3 large international task forces and a dozen independent, national missions are currently engaged in maritime counter piracy off the coast of Somalia. The complex architecture of multilateral counter piracy efforts includes international working groups, sub-working groups, regular conferences, information and intelligence sharing platforms, and the efforts of various international organizations and entities such as Europol, Interpol, the UN, and IMO. A wide variety of military and civilian intelligence agencies are tasked with gathering detailed and specific information on the organization and activities of Somali piracy networks. But a critical, potentially decisive, element is missing: a more robust commitment to investigate Somali piracy from a law enforcement perspective and to prosecute identifying key individuals who organize, finance or benefit from this essentially criminal activity.
26. The hijack of a vessel inevitably involves multiple States, because of the flag of the vessel, location of registration of owning and/or operating company and the nationality of the hostages. The 125 registered hijacking cases attributed to Somali pirates since 16 December 2008 have affected at least 83 different countries, all of whom would in theory be entitled to prosecute individuals who have cause harm to their citizens or national interests. Very few, however, have actually done so. Moreover, although 20 countries currently detain suspected Somali pirates in custody with a view to prosecution, their efforts are primarily limited to the alleged actions and specific responsibility of these detainees. Not more than 10 of these governments have taken the initiative to undertake broader investigations into Somali pirate networks in order to identify the pirate ‘kingpins’ who are ultimately responsible for organizing these international crimes and who benefit the most from them. Similarly, attempts to impose targeted sanctions against senior Somali pirate figures have been thwarted in the UN Security Council. As a result, the international community is investing enormous resources to pursue and punish those at the bottom of the piracy pyramid – most of whom are impoverished, functionally illiterate youth who are easily replaced – while virtually guaranteeing impunity for those at the top of the hierarchy who bear greatest responsibility and profit the most.
Failure to prosecute: conflicting interests?
27. Only the United States has so far prosecuted individuals alleged to have played leadership roles in Somali piracy: Mohammad Saaili Shibin was convicted an sentenced by a U.S. Federal Court in April 2012 for his role as a negotiator in the case of the SV Quest; another alleged pirate negotiator, Ali Mohamed Ali, is in detention in the U.S. awaiting trial. Yemen also convicted and jailed a senior Somali pirate leader, Fu’aad Warsame Seed (a.k.a. Fu’aad ‘Hanaano’), together with several of his associates, in October 2009, but it is unclear whether the Yemeni authorities were aware of his leadership role at the time of his conviction.
28. Most other countries, however, have been less eager to investigate and prosecute criminal cases. Greece for example, which reportedly owns more ships than any other country in the world, could have initiated investigations in at least 22 hijacking cases, but has so far chosen not to do so. The United Arab Emirates hosts a large Somali diaspora population and is involved in extensive and direct maritime trade with Somalia; Somali pirates and associates operate in the UAE and ransom proceeds are being laundered through UAE-based financial institutions. The UAE authorities could claim criminal jurisdiction in at least 13 hijacking cases, but have only prosecuted one.
29. The most interesting and important case is arguably that of the United Kingdom (UK), which has exercised leadership in global efforts to eradicate the problem of Somali piracy and has recently committed itself, along with the Netherlands and Seychelles, to establish a Regional Anti-Piracy Prosecutions Intelligence Co-ordination Centre (RAPPICC) based in the Seychelles. The UK has greatly contributed to all existing counter piracy naval task forces82 and hosts the operational headquarters for EU (Atalanta) and NATO (Ocean Shield) in Northwood, London. The Royal Navy operates the UK Maritime Trade Operations (UKMTO) office in Dubai to ensure the safe transit of trade in the area, to act as the primary point of contact for merchant vessels and to liaise with military forces active in the region. In February this year the UK has organized a high level and worldwide discussed conference on Somalia in London, with piracy high on the agenda.
30. Conversely, the UK has failed to pursue law enforcement investigation against alleged Somali pirates and their associates in at least 6 different opportunities where it has potential criminal jurisdiction. Furthermore, the British Government has blocked UN Security Council efforts to designate senior Somali pirate leaders for targeted sanctions, apparently at the behest of powerful domestic interests in shipping, crisis and risk management consultancies, maritime law and insurance, and private maritime security companies (PMSCs) who indirectly derive significant profits from the Somali piracy phenomenon. These enterprises, which predominate with respect to Somali hijacking cases, also possess much valuable information and intelligence on Somali pirate groups, negotiators and networks - including details of financial and communication arrangements. This information is rarely, if ever, released for the purposes of criminal prosecution or the imposition of targeted sanctions, whether inside or outside the UK, raising serious questions and concerns, especially when UK residents or nationals are found to be involved in Somali piracy activities.
31. The UK Government’s ambivalent posture with respect to Somali piracy is illustrative of a more general international reluctance to tackle Somali piracy as a form of international organized crime, rather than as a sui generis product of Somali statelessness requiring custom-made military and custodial responses. Unless and until this attitude changes, international counter piracy efforts will continue to treat the symptoms of Somali piracy rather than the cause.
Countering Impunity: the case against criminalization of ransom payments
32. Broadly speaking, international attitudes towards the payment of ransom are divided between those who seek to criminalize the practice and those who perceive it as necessity to allow ship-owners and operators to recover hijacked vessels and captive crewmembers. This impasse creates a climate of uncertainty, in which a multiplicity of actors involved in ransom negotiations and payments (including ship owners and operators, crisis and risk management firms and private security companies) are reluctant to share information relating to piracy for fear that it might eventually be used against them for the purposes of prosecution or sanctions.
33. On several occasions in the recent past, United States Government officials and lawmakers have expressed their support for the introduction of measures that would discourage, or ban outright, payments to Somali pirates. In April 2010, the U.S. issued Executive Order 1353688 and at the same time listed two well known and influential Somali pirate leaders,89 raising fear within the shipping industry and associated private sector actors that future payment of ransom could potentially expose them to prosecution. When questioned about the issue, the U.S. Office of Foreign Asset Control (OFAC) reportedly stated that unless a U.S. person or entity was involved it would take no further action. Furthermore, the U.S. Government has taken no action against U.S. entities engaged in ransom payments to Somali pirates since the Executive Order was issued more than two years ago.
34. Nevertheless, the British Government decided to place a technical hold on an April 2010 U.S. proposal to also sanction pirate leaders under Security Council Resolution 1844 in order to ensure that ransom payments remain legal - apparently in deference to concerns raised by elements of Britain’s influential shipping and counter piracy industries. The UK’s technical hold against designation of pirate leadership by the Security Council has remained in force until to date.
35. The debate over criminalization of ransom payments is unlikely to be resolved any time in the near future. In the meantime, the international stalemate on the issue means that ransom payments continue, piracy – (and some aspects of counter piracy) remains highly profitable, and most pirate kingpins – unlike the foot soldiers – can be confident that they will never face prosecution or UN sanctions. This climate of impunity is reinforced by the general reluctance of States to pursue criminal investigations within their national jurisdictions, as described above, and the culture of secrecy practised by parties involved in the payment of ransoms.
36. Based on its long experience of investigating all aspects of Somali piracy, the Monitoring Group believes that, pending international consensus on the question of criminalizing ransom payments, the UN Security Council and the U.S. Government (OFAC) should both clarify that the payment of ransom to Somali pirates, in return for the release of human victims, is a form of extortion and would not be considered a sanctionable offence. This would potentially have at least three positive effects:
a) It would permit the UK to review its technical hold on the Security Council’s proposed designation of Somali pirate leaders, potentially opening the way for targeted measures to be implemented against them;
b) It would allay concerns within the shipping, crisis and risk management consultancy and private security industries relating to possible prosecution or sanctions, and therefore facilitate a freer exchange of piracy-related information with law enforcement agencies and sanctions monitoring teams;
c) Enable national authorities to more methodically and effectively pursue cases – ideally in close coordination with UN sanctions cases -- against pirate leaders, financiers and facilitators.
Annex 5.4.: Private Maritime Security Companies (PMSCs) and Floating Armouries
1. The burgeoning activities of Private Maritime Security Companies (PMSCs) offering armed protection to ships and crews traversing the High Risk Area (HRA)1 off the coast of Somalia have been extensively discussed in the Monitoring Group’s July 2011 report, which also raised a number of concerns about the rapid growth of this largely unregulated industry.
2. International organisations like IMO and BIMCO apparently share these concerns, and have since made significant efforts to provide the shipping industry and concerned governments with ‘guidelines’, ‘recommendations’ and ‘model contracts’ to govern the employment and use of security guards on board merchant vessels.
3. However, the expansion of PMSC activities has outpaced these tentative regulatory efforts, and although guidance and recommendations have led to some improvement, their armed operations remain unmonitored and largely unregulated.
Management, storage and disposal of PMSC weapons
4. PMSCs are currently holding approximately 7,000 weapons in circulation, which are either owned or rented. The vast majority are acquired through legal channels and procedures, which are generally laborious and time consuming. However, the continued absence of oversight by an international regulatory authority provides a window for some PMSCs to use illegal or unregistered weapons, some reportedly acquired from dealers in Yemen and Egypt.
5. Due to very high profits PMSCs can afford to dispose of weapons and ammunition at sea before disembarking at transit ports – especially those ports that charge high fees or employ strict regulations governing the transit and storage of weapons.
6. Weapons can be officially leased from certain Governments through intermediaries for the short or long term: an option that, when strictly regulated, probably provides the greatest degree of oversight. However, experience has already shown that keeping track of these weapons and monitoring their use remains challenging.
7. In 2011, the Sri Lankan Government reportedly lost track of hundreds of government-owned weapons that it had rented out to PMSCs. In one case, 3 Kalashnikov-pattern semi-automatic rifles, leased or sub-leased to a UK-registered PMSC, Marine Risk Management S.A., were taken on board the Finnish-flagged bulk carrier ‘Alppila’ at Galle (Sri Lanka) on 3 September 2011, for escort to Gibraltar. When the Sri Lankan government custodian accompanying the weapons flew back to Sri Lanka from Gibraltar on 22 October 2011, the weapons were abandoned in Gibraltar by Marine Risk Management, and ostensibly ‘disappeared’ until the Alppila reached its next Port of Call, Police, in Poland, where they were found and seized by the authorities on 8 November 2011.
8. Weapons in transit are usually embarked, disembarked and stored in regional ports, including some located in countries facing political unrest, where application of security and storage protocols can be lax. This poses the potential problem of weapons going ‘missing’, especially when storage is required for longer periods. Egypt for example, which is located at the end of the HRA, requires PMSCs to store weapons in Suez when leaving for the Mediterranean, for a fee of US$ 2,000 per month.
9. Some countries bordering the Red Sea, Arabian Sea and Gulf of Oman, are virtually inaccessible for armed PMSCs, imposing severe restrictions or prohibitions under national law. Other States, such as Somalia and Eritrea, have been placed under UN arms embargos. Such constraints – as well as the desire of PMSCs to save time and money by avoiding port transits – have led to the emergence of privately-owned ‘floating armouries’: typically older vessels (such as tugs, supply and research vessels), used as platforms for storing and transferring weapons and ammunition at sea, outside national territorial waters.14 Some 18 vessels are currently acting as floating armouries, deployed mainly in the Red Sea, Gulf of Oman and the Mozambique Channel. (see footnote 15)
15 Owned or operated by the following companies: Ekitala International (South-Africa); FRC Sarmed (Egypt); Maritime guard Group RMC FZE (UAE); Gulf of Aden Group Transits / GoAGT (Seychelles); GAC Ltd. (UAE); Drum Cussac Ltd. (Jersey); Protection Vessels International Ltd. (UK); Ambrey Risk Ltd. (UK); Solace Global Maritime Ltd. (UK); Armed Piracy Defence (U.S.); Moran Maritime Group Ltd. (Russia); Djibouti Maritime Security Services Ltd. (Djibouti); Mercator International Ltd. (UK).
10. This new and highly profitable business for PMSCs is uncontrolled and almost entirely unregulated, posing additional legal and security challenges for all parties involved. In the absence of Flag State and/or Government oversight, some owners or operators of floating armouries do not accept any liability for personnel, weapons or equipment. And since proper inspection of such vessels is non-existent, there is no guarantee that minimum safety standards for the safety and storage of arms and ammunition are applied.
Threats to Peace and Security
11. While some PMSCs acknowledge the importance of complying with existing international resolutions and national legislation, others are either ignorant or simply believe that they can afford to disregard them. In mid-2011, for example, a PMSC offered a shipping company, in return for hard cash, to rescue a hijacked crew and vessel by use of force, engaging in a firefight with pirates if needed. On other occasions, PMSCs have provided armed escort services to merchant vessels docking in Somalia without authorization from the Committee and thus technically in violation of the arms embargo. In November 2011, the Belize-flagged and Lebanese-owned bulk carrier ‘Judi Alamar’ entered the port of Berbera, Somalia, with a consignment of bulk wheat escorted by an armed security team from the PMSC Muse Professional Group. The vessel stayed in Berbera for several days.
12. On 12 February 2012, the Advanfort Texas and Advanfort Alaska -- two vessels designed to provide maritime security services, belonging to the U.S.-registered PMSC Advanfort Company – encountered distress and were forced to break off their journey, seeking urgent assistance at Massawa, Eritrea. Arriving in Massawa, both vessels and their crews were impounded and arrested by the Eritrean authorities. According to the company, the vessels were routing from Alexandria (Egypt) to Djibouti and had no firearms or security equipment on board.
13. At the end of March 2012 Nacala District Commander Adriano Muianga and four of his of his subordinates in the Mozambican Police Force were arrested and charged with having stored weapons owned or leased by PMSCs, as well as ammunition and security equipment, without knowledge of their superiors or authorisation by the proper authorities.22 According to a maritime source familiar with the case, some of the confiscated weapons belong to ‘Special Projects Group – Maritime Security Consultancy’ (SPG-MSC), a UK/Comoros-based PMSC appointed by the Government of the Union of the Comoros to rent out Government-owned weapons and facilitate embarkation/disembarkation and storage of PMSCs’ weapons on the Comoros Islands.
14. On 22 April 2012, media sources reported the arrest of 3 British citizens in Hurghada, Egypt, allegedly charged with smuggling of weapons. The men reportedly had ammunition magazines, laser-guided sniper rifles, radios, bullet proof vests, helmets and spare parts for automatic weapons hidden in their 20m steel hull, Panama-flagged yacht, which is used as a floating armoury. A reliable maritime source told the Monitoring Group that the 3 detainees are employees of UK-based PMSC Solace Global Maritime. They allegedly entered the port to buy tax-free fuel and declared to their agent that they had no weapons with them.
15. Such incidents serve to highlight the risks of allowing the unmonitored and unregulated expansion of PMSC activities in the region. The innovation of privately owned and operated ‘floating armouries’, beyond any national jurisdiction, represents a new cause for concern. Unless a mechanism for international regulation, monitoring, and inspection of PMSC activities is established, there is a genuine risk that the exploitation of the maritime security industry by unscrupulous and criminal actors, will eventually come to represent a threat to regional peace and security, rather than part of the solution.
(VN/Defensie weblog, 17 augustus 2012)