An Overview of Current Concerns in Piracy Studies and New

An Overview of Current Concerns in Piracy Studies and New Directions for Research Derek Johnson and Erika Pladdet Position Paper for the Piracy Panels and Roundtable at the conference: People and the Sea II: Conflicts, Threats and Opportunities International Institute for Asian Studies and the Centre for Maritime Research Amsterdam August 1, 2003 Introductory Remarks In the past decade, considerable attention in the media has been given to the problem of piracy, particularly as it has been manifested in the waters of Southeast Asia. This renewed attention to piracy reflects reports of a resurgence in armed attacks on vessels at sea by the International Maritime Organisation (IMO) and from the International Maritime Bureau (IMB). The Centre for Maritime Research (MARE) and the International Institute for Asian Studies (IIAS) have come together to organise panels and a roundtable at the conference People and the Sea II: Conflicts, Threats and Opportunities on the topic of piracy and robbery in Asian waters. The purpose of the meeting is to assess the feasibility of an interdisciplinary research program on piracy and robbery at sea in Asia. This paper begins with a more detailed overview of the intent of MARE and IIAS in undertaking this initiative on piracy. The second, and largest part of the paper presents an overview of key academic, international organisational, and media concerns about piracy. The final section makes a preliminary assessment of the gaps in this work on piracy, thereby raising a number of questions, which will serve as the starting point for the panel and roundtable discussions. 1. Impetus and Intent of the IIAS-MARE Piracy Studies Initiative The IIAS-MARE piracy initiative was initially conceived by Professor Dr. Wim Stokhof as a result of his exposure to the issue of piracy in his capacity as the director of the IIAS. Professor Stokhof noted that piracy attracted considerable attention among governments, military experts, and the media, but had attracted only a few, if important, studies by academics. Given the growing incidence of piracy, particularly in Asia, he reasoned that the IIAS could possibly make a significant contribution to international security by stimulating sustained interdisciplinary academic research on the topic. Professor Stokhof approached MARE to request its participation with the IIAS in a feasibility study to assess how such a long-term programme of research could fill important gaps in global counter-piracy efforts. He selected MARE for its expertise in maritime studies and for its connections to Asian studies. The piracy panels and the roundtable at the People and the Sea II conference are the cornerstone of the IIAS-MARE feasibility study. The intent of bringing together international experts in the field of piracy studies at the conference is to lay the foundations for the focused academic program of research on piracy mentioned above. Discussion will focus on key topics to be pursued, and on how the IIAS-MARE collaboration can most effectively catalyse an international and interdisciplinary research program on piracy in Asian waters. 1 2. The Preoccupations and Achievements of Piracy Studies The study of contemporary piracy is a relatively narrow field. Much effort has been devoted to examining the incidence of piracy in recent years and considerable effort has been devoted to defining legal and institutional responses to the problem. Much less attention has been paid to a number of other topics. These include the social and politicaleconomic contexts that give rise to piracy, the responses of pirates to attempts at their suppression, and to the more strictly academic problem of understanding how piracy has been constructed as a problem worthy of international attention and action. Prior to entering into a discussion of these issues, it is necessary to survey the key concerns of published work on contemporary piracy. The important first question is “what is piracy?”, as even the term itself is used in varying ways by the key actors in the field. Second, the paper outlines the area in which the most systematic data gathering on marine piracy has occurred: the contemporary incidence of registered piracy attacks and the nature of those attacks. The final section of this part of the paper is a summary of the measures taken for the control of piracy. What is piracy? The word pirate derives from the Greek ‘peirates’, which was the label for an adventurer who attacked a ship (Innes 1966: 8). Central to any definition of piracy is the association with the sea. This is brought out clearly by the English criminologist Vagg, who states that piracy is equivalent to robbery or banditry with the sole difference that it occurs on water (1995: 65). In practice piracy is similar to banditry, which is armed robbery using violence or the threat of violence in remote areas outside of effective government control. Thus much contemporary piracy takes place in areas, particularly in developing countries, where authorities are unable or unwilling to intervene. In contemporary discussions of piracy, the International Maritime Organisation and the International Maritime Bureau have a dominant role in defining piracy and setting the counter-piracy agenda as they are the key international organisations involved in antipiracy activities. The IMO is a specialised organisation within the United Nations that has the mandate to develop international standards for promoting safe and environmentally sound shipping activities. The IMB, a part of the International Chamber of Commerce (ICC), established the Anti-Piracy Centre (APC) for the explicit purpose of reducing the incidence of piracy. In defining piracy, both organisations emphasise that piracy involves an attack on a ship. This focus on ships runs counter to historical usage that included attacks on settlements by maritime marauders. In the past, pirate activities were directed as much to coastal raiding as to attacks on ships. Raids for booty and for slaves triggered the depopulation of entire coastlines (Warren 2001). With the political, economic, and military development of coastal areas, such raiding gradually declined to the point where it is presently almost unheard of. While coastal raiding might at some future point again become an issue, current political conditions make the IMO-IMB focus on ships reasonable. 2 Although the IMO and the IMB agree that piracy involves an attack on a ship, their definitions of piracy differ significantly in other ways. The IMO follows the United Nations Convention on the Law of the Sea (UNCLOS), which declares piracy a criminal act in Article 101. The UNCLOS definition of piracy contains five elements. First, piracy must involve a criminal act of violence, detention, or depredation. Second, piracy is committed on the high seas or in a place outside the jurisdiction of any state. This aspect of the definition flows directly from the idea of mare liberum, or open sea, propounded by Hugo de Groot in 1609. De Groot considered the sea to be res communis, or the joint property of humankind, serving as the basis of free trade between nations. Piracy endangers the mare liberum and is considered hostis humani generis, or enemy to the common interest of humanity. The concept of mare liberum thus became a key part of maritime common law. This aspect of the definition of piracy restricting it to high seas thus means that an alternative term has to be created for attacks against ships within territorial waters. The IMO thus defines criminal attacks on ships within territorial waters with weapons as armed robbery and not as piracy. States themselves may or may not have laws that equate acts of armed robbery within their own territorial waters with piracy (Zou 2000). The third element of the UNCLOS definition of piracy is the two-ship requirement. Pirates need to use a ship to attack another ship, which excludes mutiny and privateering from being acts of piracy. Fourth, piracy needs to be committed for private ends, which excludes the acts of terrorists or environmental activists from being piratical acts. Fifth, attacks by naval craft fall outside of the bounds of piracy because pirate attacks have to be committed by the crew or passengers of a privately owned vessel. The IMB defines piracy as ‘an act of boarding or attempting to board any ship with the intent to commit theft or any other crime and with the attempt or capability to use force in furtherance of that act’ (Abhyankar 1999: 2). This definition makes no distinction between attacks in international and territorial waters. The two-ship requirement is abolished, which means that attacks from a raft or even from the quay are acts of piracy. The IMB definition does not require that the act of piracy be committed for private ends. Attacks on a ship for political or environmental reasons qualify as piracy. The Achille Lauro incident in 1985 is thus piracy according to the IMB definition (Abhyankar 1999: 6, 14). Even naval attacks in certain circumstances could conceivably be deemed to be piracy. While choosing either the IMO or IMB definition is not necessary for this paper, we favour the more inclusive IMB definition of piracy, as the perpetrators of armed robbery at cannot be logically subdivided according to the IMO definition. It is true, however, that the distinction between high seas and territorial seas must be considered when conceiving responses to piracy1. The magnitude of contemporary piracy It is impossible to determine the precise magnitude of contemporary piracy, whether according to the broader IMB definition or the narrower IMO one. Both organisations register pirate attacks according to their own definitions of piracy and publish reports on an annual basis. As attacks have to be reported to the IMO or the IMB, either directly or indirectly via local authorities, data on the frequency of pirate attacks depends entirely on 1 For a more detailed discussion of the complexities of defining piracy see Zou (1999: 3-6). 3 the collaboration of crew, shipping companies, and local authorities. Each of these groups has specific reasons not to want to register pirate attacks (Chalk 1998: 90; IMO 2002). For crew and shipping companies, an important reason underpinning the failure to report pirate attacks is the fear of complex reporting procedures. A delay of just one day can signify EUR 10,000 of extra harbour fees and fuel costs (Veldt 1993). Shipping companies also fear having to pay import duties for the cargo stolen from them (Jippes 1997). They also often doubt the integrity and competence of local authorities. In such situations they consider it senseless to report their losses because no investigation will be made to track down pirates or lost cargo (Post 1997). Mistrust is fed by the suspiciously accurate information pirates often have about ship layouts and cargo; information that could quite possibly have come from local authorities who inspect ships and possess detailed information on who and what is present on board (Jippes 1997). All of this said, one important reason to report pirate attacks to the local authorities is the requirement to do so by insurance companies. Readiness to report pirate incidents thus varies between countries as does the ability and willingness of local, regional, and national authorities to co-operate with the IMB or IMO. Local authorities are sometimes themselves hesitant to contact the IMO or IMB for fear of the economic consequences of their region being declared a high-risk zone. Figure 1: Piracy and armed robbery 1984 - 2001 500 450 400 Registered incidents 350 300 250 200 150 100 50 0 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 20 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 20 01 Year Total Malacca Strait South America and Caribbean South China Sea Source: (IMO 2002) Victims, shipping companies, and local authorities can also report pirate attacks directly to the IMO or IMB. Shipping companies may still be reluctant to make such reports due 4 to concern for their commercial reputations. Authorities and shipping companies are aware, however, that the benefits of reporting incidents of piracy to the IMO and IMB allows the latter to post warnings about dangerous areas or to distribute information on stolen cargo and vessels. Figure 1 represents an overview of all the incidents2 registered by the IMO in the period 1984 – 2001. It shows an increase in the number of registered piracy attacks between 1994 and 2000, particularly in the South China Sea and in Indonesia. These are the most piracy prone areas in the world, with the waters of Indonesia being recognised as the most dangerous in the world (International Chamber of Commerce 2003). The toll of piracy in terms of injury and death for mariners is serious. In the first half of 2003, 234 pirate attacks resulted in 16 deaths, 52 injured, 20 missing, and 193 hostages taken (International Chamber of Commerce 2003). Contemporary forms of piracy Pirate operations vary according to local conditions, the availability of targets, and the competence of the pirates involved. Geography has a large influence on pirate tactics. Attacks on the high seas outside territorial waters are relatively rare because of the greater distances involved and the need for powerful and expensive speedboats. Sea areas dotted with islands, rocks, and reefs form an ideal setting for pirates using the “hit and run” or “Asian” method because they provide hiding places and narrow sea-lanes slow ships down, making them easier targets (Abhyankar 1999). Pirates conducting a hit and run attack board a steaming vessel, plunder it, and carry off whatever they have been able to lay their hands on. The geography of Indonesia is particularly propitious for this kind of attack. An example of a hit and run attack is that on the oil tanker the Valiant Carrier, as has been vividly described by the journalist Burnett (2002). Attackers boarded the vessel while it was steaming off the coast of Sumatra, foolishly lit a fire on deck, and beat up crewmembers and the captain before disembarking without having managed to steal anything. The best opportunities for small-scale pirate attacks are offered in and around harbours. Ships at anchor or berthed while waiting to enter a harbour are vulnerable to piracy attacks. Attacks on vessels which are at anchor or berthed are particularly common in Africa and South America {Abhyankar, 1999 #21: 5-6}. Due to congested harbours, ships have to wait a long time, sometimes even days, before entering port. While waiting, they are prey to pirates in small boats. Ships are also vulnerable to being boarded when docked. In both situations, money, cargo, and personal belongings of the persons on board are at risk of theft (Post 1997). Generally, such attacks are by petty criminals and relatively random and disorganised. Professional pirates who operate on a long-term basis require much greater organisational sophistication. One important reason for this is their need to procure and operate the modern equipment and fast speedboats employed in attacks on large vessels at sea. Equally critical is their need to secure reliable access to markets and, as much as possible, 2 Incidents include incidents of piracy and incidents of armed robbery as registered by the IMO. 5 gain the compliance of local authorities (Vagg 1995; Worral 2000). Bribery is the classic route to achieving these goals. In extreme cases, officials may even collude with pirates by providing information on vessels and cargoes in their areas of jurisdiction (Worral 2000). Southeast Asian pirates are the world’s most organised, sometimes being linked to criminal organisations, which provide established linkages to market and government (Stellweg 1999). Umbrella criminal organisations may also inform pirates about interesting targets (Christern 1999). In some circumstances, pirates may have connections with warlords and political movements that have recourse to terrorism (Burnett 2002: 10). For professional pirates, theft of cash, personal belongings, and shipboard electronics are usually of secondary interest, their primary target being particular kinds of cargo or even entire vessels, for which they can earn a much greater return. When pirates steal an entire vessel, their movement is restricted to those few “ports of refuge” which turn a blind eye to their illegal activities. In such places, the identities of ships are transformed: external appearances are altered, they are given new names, and are newly registered in a flag state before leaving the port. A makeover of this order allows the new “phantom ship” to be used quasi-legally or sold for criminal activities (Jippes 1997; Chalk 1998: 93). Table 1 presents the number of piracy attacks in international and territorial waters and in harbours (1999 – 2001). Forty-five percent of all the attacks registered in 2001 were attacks on ships at anchor. A minority of 21 % were classifiable as traditional attacks, or attacks on the high seas, outside of territorial waters. The number of traditionally defined acts of piracy declined significantly with the ratification of UNCLOS and its provisions enlarging territorial waters from 3 to 12 nautical miles. As a result, the strict definition of piracy in UNCLOS Article 101, limiting it to attacks in international waters, misses the greater number of similar such attacks committed within national waters. Table 1: Registered pirate attacks by area (1999 – 2001) Year 2001 2000 1999 International Waters 79 21% 136 29% 38 12% Territorial Waters 125 34% 224 48% 201 65% Harbours 166 45% 111 23% 70 23% Source: (IMO 2002) Responses to Piracy The efficacy of anti-piracy efforts is shaped by the international institutional context. Of key importance in shaping responses to piracy is the legacy of UNCLOS, which has in effect nationalised the responsibility to react to the larger percentage of piracy cases that occur within territorial waters. The investigation, capture, prosecution, and punishment of pirates who commit crimes within national maritime boundaries thus depend on diverse national systems (Zou 2000). Indeed, attacks on vessels committed within the jurisdiction of a coastal state are only considered piracy if the national penal code criminalises them as such. 6 Although piracy is criminalised by article 101 of UNCLOS, responsibility for the pursuit and punishment of pirates who operate in international waters also falls upon national navies and national courts. The navies of all countries are entitled to seize a ship taken by pirates and arrest them according to UNCLOS Articles 105 to 107. At present the prosecution of pirates depends on national courts, the rulings of which vary considerably. This may change should the new International Criminal Court begin to try piracy cases, as it arguably could be within its purview to do (Zou 1999: 8). There are several instances of regional co-operation for the suppression of piracy. At a regional level, countries are working together to combat piracy. In the Caribbean, Dutch, French, American, British, Jamaican, and Venezuelan naval units and coastguard vessels are working together to confront drug trafficking and piracy (Jansen 2000). A similar regional effort to combat piracy is underway in the South China Sea but due to limited budgets, overlapping jurisdictions, and a lack of effective extradition procedures the cooperation is not working properly (Zou 2000). Finally, joint patrols of the coastguards of Japan, India, South Korea and Malaysia were instituted following an anti-piracy conference in Tokyo in 2000. National and regional efforts to control piracy are of course supported by significant international resources in the form of the IMO and IMB. Both provide invaluable data gathering services and co-ordination activities. Among its most important contributions to maritime security, the IMO has helped improve inter-ship communication systems and has developed piracy response protocols for crew. Currently it is developing the International Ship and Port Facility Security Code (ISPS Code), which contains detailed security related requirements for governments, port authorities and shipping companies. Among the important anti-piracy interventions of the IMB are two technical innovations sponsored by its Anti-Piracy Reporting Centre. These are the Shiploc technology, which acts to regularly report the exact position of ships to a satellite network3, and the SecureShip high-voltage fence which hinders unwanted boarders by giving them a debilitating but non-fatal shock and by triggering alarms4. 3. Next Steps in Piracy Research This final section is intended to stimulate discussion on how to address the limitations of piracy research. The questions it raises are just some of the many that relate to the pressing issues in piracy research. We welcome your input over the course of this feasibility study and beyond to define the broad range of questions to be addressed and to identify those among them that deserve priority. That said, this paper has demonstrated that there is considerable attention paid to piracy at the international level by states, international organisations, and the media. While this document does not pretend to be a systematic overview of all academic literature on piracy, and there are numerous academic sources to which we did not refer due to their inaccessibility, academic attention to piracy is limited. 3 4 For more information see www.shiploc.com. For more information see alarms www.secure-ship.com. 7 Three foundational questions for consideration are thus how interdisciplinary academic research into piracy can be stimulated, what issues are most in need of examination, and what role academic research should have in the control of piracy. An immediate niche that academia could fill is to provide analysis of the multiple and complex causes of piracy. This is an area of critical importance for developing effective counter-piracy measures and yet one that has until now been the focus of insufficient interdisciplinary research. At present, counter-piracy measures are primarily reactive in that they emphasise the deterrence of piracy through physical and legal measures. Detailed academic research on the contexts and causes of piracy could result in the development of preventative measures to control piracy that would complement ongoing work on reactive measures. Some worthwhile first steps have been taken in this area. Warren (2001), for example, has noted that the intensity of pirate attacks has fluctuated historically with changing economic conditions. In the 16th and 17th centuries, the expansion of European trade in luxury goods and slaves provided propitious conditions for privateering. Different economic circumstances at the end of the 1990s, in the form of the Asian economic crisis, may have acted to stimulate piracy through increased unemployment and economic hardship. In both of these cases geopolitical considerations also influenced increases in piracy. In the earlier case, competing colonial traders deliberately encouraged pirate activities directed against their opponents. In the recent case, the end of the Cold War changed the strategic importance of Southeast Asia, leading to a reduction in the naval presence of the major Cold War players (Abhyankar 1999: 3). Vagg (1995) has followed a similar line of reasoning in his equation of piracy with banditry, which increases during times of economic and political uncertainty. In such circumstances local authorities may be unwilling to, uninterested in, or unable to enforce counter-piracy laws. Inability may be due to economic limitations, such as the lack of funds to buy Coastguard vessels for surveillance. In other situations, corruption may undermine law enforcement and the courts or chronic ethnic conflict may make intervention risky even for state military forces. Vagg has even argued that clandestine activities may be more culturally acceptable in some areas, such as Malaysia and Indonesia where there is a long tradition of depredation, robbery, and smuggling during times when fishing is unremunerative (1995: 68; cf. Abhyankar 1999: 2). Abhyankar (1999) has argued that piracy in Southeast Asia has grown in response to an accumulation of propitious factors including some of the broader contextual ones noted above and others more specific. These include the heightened vulnerability of ships due to technological innovations that have meant that ships now require only small crews for their operation. The increased electronic sophistication of modern ships also provides increasingly tempting targets for robbery (Abhyankar 1999: 3). Warren, Vagg, and Abhyankar’s reflections open up a host of further questions, not the least of which is how, if academic research is to become more deeply involved in 8 studying the causes of piracy, can relevant data be gathered? In other words, what methodological strategies are appropriate to studying a topic with such great political sensitivity and where the primary data-gathering methods of social science are difficult or impossible? Numerous other important and related lines of inquiry are evident to which academic research could make significant contributions. Most germane in the post-September 11 world is a consideration of the threat posed by possible linkages between piracy and terrorism. This question is one already on the agenda for the People and the Sea II conference. Also of interest is the definitional question of whether piracy should also include acts of smuggling, whether of illicit goods, drugs, or people. Given the involvement of criminal syndicates in piracy, a connection among the groups behind these various illegal activities likely exists. Finally, an important further issue for study being addressed by researchers at the Netherlands Naval College is how pirate groups react to attempts at their control5. A topic of more purely academic interest and one which moves piracy studies in a different direction from the principal thrust of the above overview, is the consideration of the construction of piracy and counter-piracy interventions by state and media. Such a study would address itself to how piracy is represented in official and media documents and what interests predominate and are absent from such representations. Study of the representation of piracy would be attractive from an interdisciplinary perspective as it would allow for the inclusion of a range of disciplines beyond which are normally involved in studies of contemporary piracy. These might include cultural studies, communications, and languages. It is with anticipation, therefore, that we look forward to addressing questions such as these as part of what we hope will be the first step in defining and carrying forward a new agenda for piracy research. 5 Personal communication with Dr. Gert Teitler. 9 Bibliography Abhyankar, J. (1999). An overview on piracy problems - A global update. http://www.sils.org/seminar/1999-piracy-00.htm. (February 12, 2003). Burnett, J. (2002). Dangerous waters, modern piracy and terror on the high seas. New York, Penguin Group. Chalk, P. (1998). "Contemporary Marine Piracy in Southeast Asia." Studies in Conflict and Terrorism 21: 87-112. Christern, M. (1999). Zeerovers vonden vrijhaven in China. NRC Handelsblad. IMO (2002). Reports on acts of piracy and armed robbery against ships, annual report 2001. London. Innes, B. (1966). The book of pirates: buccaneers, corsairs, privateers, freebooters, & all sea rovers. London, Bancroft. 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