Combating piracy at sea: a reassessment of public and private responsibilities

February 28, 2011 - nr.72
Summary

Conclusions and recommendations

Modern-day piracy, as described in chapter I, shares a key similarity with European piracy of the 16th and 17th centuries: it is closely bound up with anarchy, fragile states and the corresponding impunity. The most effective and durable anti-piracy policy therefore requires a focus on strengthening state authority, good governance, law enforcement and economic development in fragile coastal states. The AIV notes that developing such policy requires substantial, long-term efforts from a large number of public and private actors.1 However, short-term measures to combat piracy are also required.

Based on the conclusions outlined below, the AIV has formulated the following policy recommendations regarding effective public-private cooperation to combat piracy and armed robbery at sea, in both the short and the long term:

  1. Through the permanent presence of naval vessels, helicopters and maritime patrol aircraft in the Gulf of Aden and the waters to the east of Somalia, the international community is making an important contribution to the security of international shipping in this area. The participating states are thus fulfilling their responsibility to uphold the rule of law at sea. However, it is impossible to fully protect the voluminous shipping traffic in the Gulf of Aden, the Somali Basin and the Indian Ocean.
  2. Shipowners and masters of vessels bear primary responsibility for protecting cargo ships against piracy and implementing self-protection measures and best management practices. They are also responsible for registering their ships with the Maritime Security Centre – Horn of Africa (MSCHOA) prior to passing through the Gulf of Aden and for using navigation routes recommended by the MSCHOA.
  3. Shipowners, insurance companies and the government are jointly responsible for implementing effective preventive measures. Insurance companies should reward shipowners who take adequate self-protection measures with reduced insurance premiums. The government should ensure that all ships sailing under a Dutch flag are equipped with sufficient on-board security measures to protect themselves against piracy, for example by introducing a periodic inspection for older and/or vulnerable ships.
  4. In special cases, in which preventive security measures and the option of group transits or supported transits through the Gulf of Aden do not provide sufficient guarantees for the safe passage of highly vulnerable ships2 sailing under a Dutch flag, the Minister of Defence should opt to station a Dutch military vessel protection detachment (VPD) on board. This would be contingent on the conclusion of agreements with coastal states in the region (preferably Djibouti and Oman) on the embarkation and disembarkation of Dutch military personnel.
  5. Stationing Dutch military VPDs on board highly vulnerable ships on other navigation routes in the Somali Basin and the Indian Ocean involves more operational restrictions than doing so in the Gulf of Aden. Given the security risks in this vast maritime area, the AIV advises the government to grant masters of highly vulnerable vessels the authority to employ private armed guards to deter pirates, but only in exceptional circumstances and under strict conditions (e.g. regarding the use of force and compliance with international human rights and humanitarian law instruments). First, however, the government should start to certify and regulate private security companies (PSCs). Dutch shipowners and masters of vessels would then only be permitted to use the services of certified PSCs.
  6. It is too soon to discuss an exit strategy for international maritime operations in the Gulf of Aden and the waters east of Somalia. This means that the Netherlands, too, will have to contribute to the suppression of piracy in the region in the years ahead. A substantial increase in the international maritime presence is neither likely nor desirable. To combat piracy and armed robbery at sea effectively, measures aimed at improving the situation in Somalia and the region are required.
  7. The simultaneous deployment of three multinational operations (EU Operation Atalanta, NATO Operation Ocean Shield and CTF 151), along with the maritime presence of several individual countries, is not efficient. There is a need for a joint operational concept and a central coordinating mechanism for all maritime operations in the Gulf of Aden, the Somali Basin and the Indian Ocean. The government should raise this issue within the European Union and NATO.
  8. The International Maritime Organization (IMO) should play a key role in international efforts to build regional anti-piracy capacity in African coastal states. The realisation of the objectives of the Djibouti Code of Conduct depends on the willingness of international donors, including the European Union and the Netherlands, to make sufficient funds available.
  9. The Dutch government should be willing to work with Somaliland to strengthen the local coastguard. It should also examine the scope for implementing policies to discourage piracy in Puntland, especially the creation of alternative forms of employment for unemployed fishermen and former pirates, which could lay the foundations for socioeconomic development in Puntland’s coastal areas. The Netherlands should also argue at EU level for a coherent and dynamic anti-piracy strategy in Puntland and for more cooperation on capacity building in Somaliland.
  10. In the short term, there is no possibility of working with Somalia to try suspected pirates. Instead, the emphasis should be placed on trying Somali pirates in the region. UNODC’s efforts to assist in the trial and detention of Somali pirates in East Africa deserve broad international support.
  11. There is no need for a new centre of expertise on piracy, but there is a need to develop and improve operational doctrines for combating piracy within NATO and the EU’s operational staffs. The government should push for the creation of a joint EUNATO operational staff tasked with combating piracy.
  12. MSCHOA needs to improve its communications strategy as regards shipowners and masters of vessels. Furthermore, there is a need for a communications strategy to better inform the population in Somalia’s coastal areas about the activities of the EU and NATO naval vessels off the coast.
  13. All the Kingdom partners, including Aruba, Curaçao and St Maarten, as well as the BES islands (Bonaire, St Eustatius and Saba), which have become Dutch public bodies, must implement the international agreements on combating piracy. In view of the provisions of the Charter for the Kingdom of the Netherlands, the AIV recommends that the Council of Ministers for the Kingdom put anti-piracy on the agenda.

These conclusions and recommendations are further elaborated below in response to the government’s questions. [See total advice, pp. 54-67]

___________________

 See also AIV advisory report no. 64, Crisis management operations in fragile states: the need for a
coherent approach, The Hague, March 2009.

Highly vulnerable vessels are vessels for heavy cargo shipping and special shipping projects that are usually characterised by low freeboards, slow navigation speeds and limited manoeuvrability.

 

Advice request

Mr F. Korthals Altes                                                     
Chairman of the Advisory Council                                   
on International Affairs                                                 
Postbus 20061                                                            
2500 EB Den Haag

Date          22 March 2010
Re             Request for advice on piracy


Dear Mr Korthals Altes,

The Minister of Justice and the Minister of Transport, Public Works and Water Management join us in requesting the Advisory Council on International Affairs to advise the government on international efforts to combat piracy and armed robbery at sea.

Since 2008, when the United Nations requested the member states to provide naval escorts for World Food Programme (WFP) ships taking food to Somalia, the Netherlands has gained considerable experience in combating piracy and armed robbery at sea. Not only did the Dutch navy afford protection to twenty WFP vessels, thus enabling over 100,000 tons of food to be safely conveyed to the Somali people, the Netherlands has also gained experience, as a participant in the NATO operation Allied Protector and the EU operation Atalanta, in international patrols of the Internationally Recommended Transit Corridor (IRTC) in the Gulf of Aden, actively protecting merchant ships, warding off attacks by pirates and armed assailants, searching suspect vessels and capturing suspected pirates.

The international community responded en masse to the United Nations’ call for action to repress piracy and armed robbery at sea in Somali waters by all necessary means. UN Security Council Resolution 1816 (2008) authorised states cooperating with the Transitional Federal Government of Somalia to enter the territorial waters of Somalia for this purpose. The Maritime Security Centre (Horn of Africa) in Northwood (UK) plays a coordinating and advisory role in international efforts to combat piracy.

The international community is also aware that the long-term solution to the problem of piracy and armed robbery at sea lies not at sea but on land, where capacity building is required. The necessary initiatives towards this end have already been put in place. The Contact Group on Piracy off the Coast of Somalia, for instance, is discussing ways of helping to build and reinforce regional capacity to combat the problem. In this context, a study on the regional need for capacity building is currently being discussed. The European Commission is setting up various programmes to support regional capacity building. Support of this kind is also expected to be an upcoming agenda item for both the EU and NATO.

In addition to these efforts, a number of countries in the region have agreed anti-piracy measures. These have been laid down in the Djibouti Code of Conduct, which has been signed by eight East African countries and by Egypt and Yemen, under the auspices of the International Maritime Organisation (IMO). The signatories aim to implement national anti-piracy legislation, as well as to set up or strengthen enforcement capacity and coastguard organisations. The Code of Conduct was modelled on the Southeast Asian Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), which was the first instance of an effective regional approach to piracy. The Netherlands supports the implementation of the Djibouti agreements. Under the Code of Conduct, coordination and information centres will be set up in three strategic locations (Mombasa, Dar es Salaam and Yemen) to exchange intelligence on piracy.

Some time ago, most piracy and armed robbery at sea was concentrated in the Strait of Malacca, but the problem was effectively tackled as a result of joint action by countries in the region. In recent years, international attention has shifted to Somali waters where attacks of this kind have increased exponentially. An increase in piracy is also being seen in the Gulf of Guinea and the Caribbean. It is against this background that the government requests the Advisory Council to take a broad look at the problem of piracy in its report, rather than confining itself to the current problems off the coast of Somalia. Rapid developments as described above are taking place in the East African region. The government’s central question is, ‘How can the international community – and the Netherlands in particular – combat piracy and armed robbery at sea most effectively?’

The government would also appreciate answers to the following subsidiary questions:
 

  1. What can the international community learn from successful initiatives against piracy and armed robbery at sea, including in the Strait of Malacca?
  2. What future trends does the Advisory Council predict in terms of the threat of piracy and armed robbery at sea?
  3. How great is the actual and potential threat posed by piracy to the Netherlands (to security as well as to the economy)?
  4. Besides the responsibility of states to combat piracy and armed robbery at sea, what responsibility do shipowners and the masters of vessels have in this respect?
  5. Do NATO and the EU, along with the other states concerned, possess sufficient capacity to deal with the threat of piracy in the long term? And what contribution can be expected of the Netherlands?
  6. How can a contribution be made to building capacity in coastal states to enable them, in the long term, to combat piracy and armed robbery at sea without assistance from the international community?
  7.  What can be done to tackle impunity in relation to piracy and armed robbery at sea?
  8. What steps could be taken to combat the funding of piracy?
  9. Does the Advisory Council believe, having regard to the many international initiatives in this area, that there is a need for a centre of expertise on piracy?

The Advisory Council is requested to present its advisory report in the summer of 2010.

Yours sincerely,

Maxime Verhagen

Minister of Foreign Affairs
Eimert van Middelkoop

Minister of Defence

                                                  
                                     
 

Government reactions

Mr F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
P.O. Box 20061
2500 EB The Hague

Date    April 2011
Re       Government response to the AIV advisory report ‘Combating Piracy at Sea’

Dear Mr Korthals Altes,

We, together with the Minister of Infrastructure and the Environment and the Minister of Security and Justice, are pleased to present the government’s response to the AIV advisory report ‘Combating Piracy at Sea: a Reassessment of Public and Private Responsibilities’.

Yours sincerely,

Uri Rosenthal                                                     Hans Hillen
Minister of Foreign Affairs                                Minister of Defence
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Government response to the AIV advisory report ‘Combating Piracy at Sea: a Reassessment of Public and Private Responsibilities’

The government thanks the Advisory Council on International Affairs (AIV) for its advisory report on combating piracy at sea. Since 2008, the Netherlands has contributed substantially at both national and multilateral level to combating piracy at sea. The government requested the AIV for advice on international efforts to combat piracy and armed robbery at sea. The government considers the advisory report a valuable addition to the political and public debate on this issue and thanks the AIV for organising a seminar on 18 March 2011 on the advisory report.

In this response, the government will first address the division of responsibility between private and public parties. It will then respond to the recommendations concerning the military contribution to counter-piracy operations, the deployment of military and private security personnel, and regional capacity building.

Responsibility of shipowners and masters of vessels
The government agrees with the AIV that shipowners and masters of vessels bear primary responsibility for protecting their ships. Merchant ships operate in a highly competitive, close-knit international market, and shipowners are expected, in the interests of due care, to perform a risk analysis, prepare adequately when there is a heightened risk of attack, consider alternative routes and, if necessary, refuse to transport the cargo in question. Shipowners who decide to travel through the high-risk area off the Somali coast are expected to use the Best Management Practices (BMPs) drawn up for this region. The importance of the BMPs cannot be overstated – according to the EU’s Operation Atalanta, in more than 80% of averted hijackings, the pirates’ failure could be attributed directly to the use of BMPs. The government does not know of any merchant ship that has been hijacked despite having applied all the BMPs.

There is no international obligation to apply the BMPs. The prospect is unlikely as this would be difficult to enforce and, moreover, the BMPs are regularly adjusted to reflect the changing threat posed by Somali pirates. The government therefore will not adopt the AIV’s recommendation that the government ensure compliance with rules on on-board security measures, for example by introducing a periodic inspection. Such a system would substantially increase shipowners’ administrative burden and increase government expenditure at a time of public spending cuts. In addition, as the Dutch fleet is relatively young, a periodic inspection system would not add significant value.

A growing number of insurance companies are reporting that in their negotiations with shipowners they are increasingly making cover conditional on some or all of the BMPs being applied, such as having to register ships passing through the Gulf of Aden with the Maritime Security Centre – Horn of Africa (MSCHOA). This is a positive development. As regards the AIV’s suggestion that insurance companies reward shipowners who take adequate self-protection measures with reduced insurance premiums, the government considers this a matter for the market parties concerned, and one in which it has no role.

Deployment of Dutch military personnel
Since 2008, practically without interruption, the Netherlands has deployed a naval unit to combat piracy and has played its part in promoting the legal order at sea. Naval vessels are used to protect merchant ships and facilitate the delivery of humanitarian aid to Somalia, and to keep the route through the Suez Canal and the Gulf of Aden navigable. This shipping route is of great economic importance to the Netherlands, which in Rotterdam has Europe’s largest seaport and is strongly focused on international trade. Currently, the Netherlands commands Standing NATO Maritime Group 2 and HNLMS Tromp holds flagship duties for NATO Operation Ocean Shield. Besides the NATO operation, the EU’s Operation Atalanta and the US-led Combined Maritime Forces (CMF) initiative are also active in the area. Some countries, including China, India and Russia, provide naval vessels on an individual basis.

The AIV notes that the simultaneous deployment of three different multinational operations is not efficient. The government only partly agrees with this observation. Although maximum efficiency is generally achieved through a single command structure and operational concept, these multinational operations and individual countries have made solid working agreements on combating piracy in the Shared Awareness and Deconfliction (SHADE) mechanism, which also includes shipowners’ organisations. There is even closer cooperation among the EU, NATO and the CMF: the three fleets coordinate all their operations in the Gulf of Aden and have drawn up Joint Operations Concepts for the Gulf of Aden, the Arabian Sea and the Somali Basin. Supply ships and other support ships attached to one of the operations serve all three. Information collected by aerial patrols over sea, and by the Dutch submarine recently deployed under the NATO flag, is shared with the other multinational operations. The AIV’s recommendation that a joint EU-NATO operational staff be established is not politically feasible and would, in addition, diminish the force generation process as, within the current structure, non-EU NATO allies can also contribute to anti-piracy operations as can non-NATO EU partners. Since the respective command headquarters are both established in Northwood in the United Kingdom, the two already cooperate closely. The government will continue to emphasise the importance of cooperation among the multinational operations and individual countries.

The government concurs with the AIV that international maritime operations will need to be continued in the years ahead. Piracy occurs off the coasts of Somalia, Kenya, Tanzania and even Mozambique, as well as in the Gulf of Aden and the Arabian Sea. Over the last twenty years, with lawlessness prevailing in large parts of Somalia, piracy has become a highly profitable business model. The absence of law and order is the result of ongoing internal conflicts on the Somali mainland. Only a political solution that has the support of the Somali people and their leaders can end the civil war and widespread lawlessness. The international community can support this process. Dutch support is primarily channelled through the EU and UN. Given that the political outlook for Somalia remains bleak, the threat of piracy is not expected to diminish in the foreseeable future.

Deploying military and/or armed private security guards on vulnerable ships
The government agrees that there will always be ships which, even if they implement all the BMPs, run a real risk of falling prey to pirates. These ships are usually characterised by low freeboards, slow navigation speeds and limited manoeuvrability. The non-specific protection provided by the various counter-piracy operations may not always be sufficient, given the size of the operational area. The AIV therefore recommends stationing Dutch military vessel protection detachments (VPDs) on board highly vulnerable ships in the Gulf of Aden and allowing shipowners, under strict conditions, to station private armed guards on board in the Somali Basin and the Arabian Sea. In the government’s opinion, it will be impossible to maintain this geographical distinction as shipping routes may include the Gulf of Aden as well as the Somali Basin and the Arabian Sea. Switching security regimes on the boundary of two maritime areas would pose serious logistic problems.

The government is of the opinion that it does have a responsibility to protect individual cargo ships in certain situations. After carefully considering the options, the government will provide VPDs to ships on the basis of criteria that are yet to be established. Ships are not entitled to this form of protection, however, since the government is under no general obligation to provide it. Should the government decide to protect an individual cargo ship, it stands to reason that the Ministry of Defence should be responsible for this task. The legal basis for military deployment is provided by article 97 of the Constitution, in part because protection is being provided in the context of combating the universal crime of piracy, against which states are authorised to act under the international law of the sea.

The government expects it will continue to receive requests for military protection on a fairly regular basis in the future. Such requests will be assessed using a policy framework on deploying VPDs, which will also set out how Parliament is to be kept informed. The policy framework will be presented to the House of Representatives and the Senate before the end of April 2011 and will list the criteria for deploying VPDs, such as the degree of vulnerability, the presence of alternative shipping routes and the ship’s registration. In this regard, it should be noted that maintaining shipping registers is the responsibility of each country of the Kingdom of the Netherlands. Ships flying the Kingdom flag and registered outside the Netherlands should request protection from the authorities of the country of registration. If the ship qualifies for protection on the basis of assessment guidelines to be developed by the government of Curaçao, the scope for military support will be given due consideration.

The policy memorandum will also address how the deployment of VPDs is to be financed. The Ministry of Defence will bear all regular personnel costs. The government has not yet decided whether additional costs will be passed on in whole or in part to the shipowners. This will depend on how such costs would affect the level playing field for shipowners, such as a lopsided rise in insurance premiums. The government will also have to decide how the government’s costs are to be divided over the ministries concerned.

As regards the current scope for self-protection and the system of firearm permits, the government notes that the Firearms, Ammunition and Offensive Weapons Act and the associated Implementation Guidelines make a distinction between automatic and non-automatic weapons. In the government’s opinion, allowing private armed guards on board Dutch merchant ships to protect against pirates is a fundamental issue affecting the state’s monopoly on force. The government therefore elects, first, to request further advice from an ad hoc committee led by Professor J.L. de Wijkerslooth so that it can make a well-considered decision on this matter. Parliament will be informed as soon as possible.

Regional capacity building
It is vital to tackle the impunity enjoyed by pirates. In accordance with the AIV’s recommendation, the government is working at EU level and through the United Nations Office on Drugs and Crime (UNODC) to enable pirates to be prosecuted in the region, especially since, if pirates are prosecuted in the Netherlands, it is possible that they might apply for asylum after serving their sentences to avoid returning to Somalia. The government is pressing for detention capacity to be developed as quickly as possible in Puntland and Somaliland, the relatively stable regions of Somalia, as the shortage of detention facilities there currently outstrips the shortage of courts. In this way, pirates convicted elsewhere could serve their sentences in Somalia. It should of course be guaranteed that conditions in Somali prisons meet international standards. Increasing detention capacity will facilitate the conclusion of transfer agreements with countries in the region. The Netherlands has already contributed €1.8 million to the UNODC criminal justice capacity-building programme in the Seychelles and €1 million to the UN trust fund to support counter-piracy initiatives. The Netherlands has also seconded a police trainer to the UNODC Counter-Piracy Programme in Nairobi.

The report by Jack Lang, the UN Secretary-General’s Special Adviser on Legal Issues related to Piracy off the Coast of Somalia, recommended the ‘Somalisation’ of the prosecution and detention of Somali pirates. Building Somalia’s criminal justice capacity would be the most sustainable solution and would also contribute more generally to the development of the rule of law in Somalia. The government is therefore in favour of Mr Lang’s proposal to establish piracy courts in Puntland and Somaliland. In the meantime, however, the government will continue to exert pressure on countries in the region, in bilateral contacts and through the EU, to do their part in combating impunity. The government will study the possibility of using development instruments in an integrated manner to achieve this objective.

The government agrees with the AIV that the Djibouti Code of Conduct (CoC) is a key framework for maritime capacity building in countries in the region, and that the IMO has an important role to play in this regard. The Netherlands has contributed financially to the Djibouti CoC in the past. Currently, the EU is preparing a proposal for possible EU activities in this area. Should there be a positive EU decision on this proposal, the Netherlands would in principle be prepared to contribute to such activities. In July 2010, the Netherlands acceded to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), which works together with the IMO to strengthen counter-piracy capacity in Southeast Asia. The Netherlands has also contributed financially to ReCAAP.

Although piracy takes place over a vast maritime area, most pirates operate from Puntland and to a lesser extent South and Central Somalia. Somaliland is not a base for piracy. Through the EU and the above-mentioned contribution to the UN trust fund, the Netherlands supports projects (mainly in Puntland) aimed at creating alternative employment and public information campaigns about the consequences of piracy. It is currently impossible to contribute to the development of a coastguard in South and Central Somalia because of the civil war, or in Puntland due to its very weak state structure and the alleged connections between pirate leaders and local authorities.

Finally, combating piracy also contributes to one of the spearheads of the government’s new development cooperation policy, i.e. the promotion of peace, security and stability.

Conclusion
The government concludes that piracy is a major threat worldwide, especially for those at sea. Currently, more than 600 seafarers are being held hostage by Somali pirates. Shipowners and masters of vessels bear primary responsibility for protecting their ships and should adopt self-protection measures and apply the Best Management Practices. The government will shortly present the policy framework for VPDs to parliament and provide more information about the use of private security companies on vulnerable individual cargo ships. In the years to come, the deployment of naval units in the operations area off the coast of Somalia must be continued. After all, there is little prospect of ending the lawlessness on the Somali mainland, which allows piracy to flourish. Where possible, the Netherlands will therefore invest in the stabilisation of the region and in regional capacity building in the areas of criminal justice and maritime enforcement so that countries in the region will be able to tackle the impunity of pirates and put a stop to the lawlessness in their territorial waters.
 

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