Somali piracy and international law - Research Paper Example

Number Somali piracy and international law Introduction The issue of piracy by the Somali pirates has been a contentious issue especially to the East African communities and also the international community (Walter 75). This has been facilitated by the fact that the Somali pirates have been linked with the Al-Qaida terror group (Ohaegbulam 104). This paper is going to examine this issue in regard to the international law. The issue of piracy through the international law has been a challenging one perhaps due to unclear interpretation of piracy by the international law (Murphy 52, United Nations Office on Drugs and Crime 147). The only legal Interpretation That Exist Currently is the Economic gains by the pirates as a result of criminal activities along the Somali coast (Gurtov 100, Ademola 124 Shanahan 124). Background of the study In 1991, Somali went down into war after the fall of Dictator Mohamed Siad Barrre (Little 79). Shortly after his fall, some foreign countries took advantage of the anarchy and sent their navy to fish in the Somali waters. Other countries took advantage of the situation to dump their toxic waste and nuclear waste at the sea. Due to lack of government in place to control such illegal activities in the Somali waters, the Somali fishermen began to organize themselves to confront waste dumpers and to collect some revenues from foreign fishers. It is this legitimate fight against foreign exploitation that turned to be a criminal venture after the Somalis discovered its profitable potentials (Little 99). Most of the people who are pirates along the Somali coast are actually not from the coast but are former militiamen whose biggest motivation is money (Kraska 155, Natalie, Joanna, and Donald 241). However, they justify their activities by claiming that they are always on a mission to defend their waters from illegal fishing and dumping of waste products. This has led to increased piracy along the Somali coast and has attracted the international response on the same. In this regard, the United Nations Security Council has passed a series of resolutions to give its forces legal authority to apprehend pirates. The Somali pirates were much angered by the council resolution and especially because it was initiated and promoted by the United States. In fact, this marked a clear start of Somali pirates’ connection with the Al-queda terror group (Little 49). Since the main aim of the Somali pirates is to scoop money from their victims, the Al-queda group targeted Somalia in order to use Somalis along the coast to terrorize targeted citizens of certain states in the exchange of money. However, this did not seem to work for the Al-queda group as the Somali pirates considered this as a different mission altogether. After lacking concrete contact with the Somali pirates, the Al-queda group turned to Somali militia men who with the help of Al-queda consolidated their forces and named it ‘Al-shabab’ (Alina 481). Al-shabab conflicted the role played by the Somali pirates and started kidnapping citizens of western states. Their main target people were the tourists from the United States especially those that visit the border, Kenyan coast. In the recent developments, a German tourist was killed and his wife kidnapped by men believed to be members of Al-shabab terror group. However, the Kenyan government was quick to launch a manhunt for the Al-shabab in the effort to rescue the kidnapped lady. The Kenyan government declared war against both the Somali pirates and the Al-shabab and launched a military land operation in Somalia. Kenya called for the intervention of the international community with the United States, Britain and Israel backing it up for the operation. Statement of the problem Since Somali attracted the international attention due to piracy activities, very little has been done by the international community to curb the menace. This is what has led to increased piracy activities along the Somali coast. In fact, the international community disregards the Somali piracy with the simple reason that Somali is a messed up country (Great Britain Parliament 84). They link Somali piracy to the fighting that goes on among Somalis thus, failure to see any consequences facing the rest of the world. The international law defines piracy as illegal acts committed on the high seas for private ends. The law also states that all countries have a right to seize and prosecute those found committing pirate acts on the high seas (Alina 464). However, what the law failed to clarify is the issue of failed states like Somalia. On the other hand, the law specified that piracy that takes place on the high seas, but failed to address the issue on a country’s territorial waters. The other contradicting issue about the international law on piracy is that the law assumes that the individual states would be responsible for patrolling their own waters and arraign the culprits in court (Ademola 88). But the worry is that not all states have the resources to ensure maritime security. This has been the case of Somalia which is still in the process of setting up a functional government. However, in the recent past, Kenya, Somalia’s neighbor, has signed a memorandum of understanding with the United States, Britain, and the European Union to prosecute suspected pirates in Kenya (Little 72). Nevertheless, this move has been termed as inefficient one due to the fact that Kenya is yet to pass relevant piracy laws. It is also believed that Kenya can not be fully trusted in conducting free and fair trials due to high rates of corruption in its judicial system. Nonetheless, the Kenyan government has strongly defended its position on maritime security, arguing that Kenya is making necessary contributions in ensuring that maritime security is restored in East Africa, but asserted that the problem would still continue unless Somalia achieves political stability (Little 83). Objectives of the study Main objective To assess how the international law addresses the issue of piracy Specific objectives To investigate the piracy situation along the Somali coast To examine the US anti piracy Military operations in Somali To assess the impact of Somali piracy to Somali people and the international community Research questions How does the international law address the issue of piracy? What is the piracy situation along the Somali coast? How does the US anti piracy military carry out its operations in Somali? What are the impacts of Somali piracy to Somali people and the international community? Hypothesis International law has helped in fight against Somali piracy Relevance of the current study Multiple researches have been carried out on the issue of piracy in regard to how the international law tackles it (Dominic 46). However, not a single research has ever elucidated this nuisance (Great Britain Parliament 28). In the last few years, piracy has been rampant along the Somali coast (Kraska 154, Natalie, Joanna, and Donald 241). Although the international law provides that piracy is a criminal offence and prohibited, some incentives to deal with it has always been unclear with the law not clearly stipulating on the appropriate actions to be taken and by which organ of the international community (Bibi and Frans-Paul 584, Little 79). With such issues revolving around piracy and international law, therefore, the current study would be justified. It will provide a comprehensive coverage of the international law in regard to piracy. Significance of the study In order to curb the menace of the existing Somali piracy, this paper is going to focus on the existing international law and try to evaluate some of the missing critical issues revolving around piracy (Alina 241). In this regard, the current study will investigate and try to bridge the gap that exists in terms of international law coverage and successful curb of piracy. Chapter two: literature review Introduction The continued piracy along the Somali coast has in the recent years put the United Nations maritime law on the spotlight regarding its effectiveness. In fact, this issue poses a bigger question considering that Somali piracy has been ranked by the United Nations as one of the largest and dangerous piracy region in the world (Kraska 108). Although many researches have been carried out on the issue of piracy, Somali piracy has been the most difficult to research on. Perhaps, this can be attributed to the fact that there is no credible source of information due to lack of stable government in Somalia. International law on piracy Although the international law prohibits piracy on high seas, a bigger challenge came in as the Somali pirates launched attacks on ships in the international waters and quickly returned to Somalia waters. This was a big challenge to the international law. In the effort to respond to such attacks, the International Security Council passed a resolution 1816, which permits states to take action on against the pirates even at Somali waters (Alina 104). However, it was noted that this law was passed with consent of the Somalia government which lacks the authority and capacity to deal with pirates. On December 2008, the council resolved to pass a new border resolution which was drafted and endorsed by the United States broadening the authorization of use of military force to launch operation on the main land of Somalia (Natalie 91). However, the law tends to contradict itself because pirates are not combatants, but rather civilians. Therefore, it can be argued that such operations requiring military intervention on the main land of Somalia would not be effective. On the same note, the international humanitarian law does not allow attacks on civilians by any given body (Ademola 46). If this statement is anything to go by, then it is right to argue that unless an alternative law is formulated under the international laws, then the fight against piracy may not end. Moreover, the law should come up with clear policies guiding on precise actions against pirates and not just giving general provisions on how to deal with pirates. For example, the law should come out clean and create a given body that would directly deal with pirates (Kraska 116). When the law states that nations affected by piracy may decide to take action against the pirates, then it means that the law lacks strong basis through which pirates can be dealt with. A country like Somalia lacks the capacity to deal with pirates. In this regard, the law is seen to have missed to articulate on the whole issue of piracy. Another biggest challenge to the international law is on the issue of where the pirates need to be charged. Many countries lack the capacity to try foreigners in the country. This is because of the anticipated difficulty and expense, a situation which leads to deportation of the suspects to their home country for trial (Bibi and Frans-Paul 415). On the other hand, most of the countries’ judicial systems would only try suspects captured by their own security agents. For example, the Kenyan government has in several occasions captured suspected pirates along its coast, but due to constrain of its judicial system, the Kenyan governments sends the suspects to Somalia for trial. However, the Somalia government lacks the capacity to try the suspects due to lack of functional government and the suspects are released without charging them with any crime (Ademola 64). All in all, many countries has argued that it is better to avoid capturing suspected pirates since there are no clear provisions under which the pirates can be tried and that even when they are deported to Somalia, they are subjected to unjust trial and cruel treatment. The only and probably the most compelling efforts by the international community efforts to curb piracy along the Somali coast was by a resolution to escort ships sailing across the Somali waters (Alina 114). However, this can not be termed as the last solution to the problem. US policy on piracy After several attempts to attack the U.S-flagged vessels and hijack of the MV Maersk Alama and MV Liberty Sun, the U.S came under force to stop piracy along the Somali coast. The U.S has supported reconciliation efforts in Somalia and has been in the frontline in coordinating diplomatic and military responses. In 2005, the US national maritime security strategy stated that “safety and economic security of the united states depends on the secure use of world’s oceans” and identified “well organized and well equipped” pirates and criminals as threats to international maritime security (Gurtov 194). In 2007, the Bush administration adopted a policy of the United States stressing that the United States would continue to lead and support any positive international efforts to suppress piracy and other acts of violence against maritime navigation (Dominic 76). However, the U.S role of trying to stop piracy activities in Somalia contradicted with her role of Humanitarian Intervention in Somalia which was hampered by piracy along the Somalia coast (Dyson 29). Although the U.S committed herself in carrying out the two missions, it was seen to be more of political intervention than its intended missions (Ohaegbulam 254). The international community has for a long time failed in solving Somali’s problems and the U.S intervention had a lot to be desired. The message sent by the Somali’s was clear to the international community. They simply meant that; they never entertained any political intrigues from any quarter. The U.S. forces engaging in combat operation with local clans and their warlords is what negates its piracy and humanitarian intervention in Somali. Many people were killed during this intervention and the humanitarian intervention turned to be bloody rather than helpful (Walter 206). Some images of US troops manhandling Somali’s were seen much earlier before those of soldiers providing food relieves to the affected people. It was not clear why the Bush administration acted that way, given that that was a humanitarian intervention and not a war against these two nations (Shanahan 241). Security threat paused by Somali maritime crime Somalia is currently faced with several maritime security threats. Due to lack of both clear international law and stable government, its waters remain in a condition of lawlessness (Bibi and Frans-Paul 428). Attacks directed to merchant vessels in the Gulf of Aden region has been on the increase in the recent past and this pauses a threat to global business brought about by the shipping industry. Worst still is the fact that the pirates are also targeting fishermen. As a result, fishermen are taking precautions before going fishing and some have become reluctant in doing their business for fear of attack and abduction by the pirates (Kraska 120). However, their problems does snot only lay on the attacks from the pirates but also from the naval forces, who in most occasions mistake them with the pirates. According to various surveys carried out by different humanitarian organizations, the effects of piracy are not only felt by the Somalis and the victim countries but also by the neighboring countries (Shanahan 268). Crime is said to have increased in the neighboring Kenya due to influx of piracy. Piracy is associated with use of weapons which in one way or another finds their way to the neighboring countries. Ransom money paid to the pirates is considered to facilitate crime along the coast with cases of drug abuse reportedly being on the increase (United Nations 2010). Challenges for maritime security policy both by the Somalia and the international community The major and primary issue to address on Somalia piracy is the issue of how and by whom should the Somalia waters be governed (Ademola 28). The internationally recognized Transitional Federal Government (TFG) which is currently in charge of managing the sea in actually not in a position to control the activities that goes on in it. In fact, it is alleged that the government is not able to manage anything beyond the capital town Mogadishu (Bibi and Frans-Paul 135). With this in mind, it is worth noting that the TFG can only succeed in the war against piracy if it jointly works with regional and international states. Although the international community has tried on several occasions to address the issue of piracy in Somalia, this has always been unfruitful due to lack of proper international laws against piracy (Alina 168). On the other hand, the provision of the international law that addresses the issue of piracy has always not been able to curb the menace due to inexistence of functional government in Somalia. For example, the United Nations Convention on the Law of the Sea 1982 (UNCLOS) provides that countries should establish a 200nm exclusive economic zone, where they can enjoy primary resource exploitation and management rights (Alina 154). However, on the case of Somalia, they have not yet established such a zone. Chapter three: methodology Introduction This chapter describes the various methodologies that were used in gathering information, procedures adopted in conducting the research, the techniques used in analysis and the presentation of data collected. This chapter therefore, focuses on the research design, population sample and design, data collection, and analysis applied during the study. Research design According to the researcher, a descriptive case study design was appropriate for this study. Consequently, the shipping companies previously attacked by the pirates and representatives of the international criminal court. This design was preferred because of proximity of the case and faster access to information. More importantly, it permits an in-depth scrutiny of the phenomena at hand. The research approach that was used in this research is the qualitative research approach. Target population The population used in this study entailed the two representatives of the international criminal court, two managers of shipping companies and one victim of piracy. This was a sample frame which represented the population of many shipping companies and other and stakeholders affected by the Somali piracy. Sampling design and sample size According to the researcher, sampling was necessary for this study. Thus, a sampling design instead of a census was considered appropriate. The choice of the sample survey as opposed to census study was because the size of the population was too large hence coverage of all sample units in the sampling frame was considered impracticable. The size of sample took into consideration the cost of including a larger sample, the time frame and convenience. Purposive sampling was considered ideal for this study since the only the people with in-depth understanding of the phenomena would provide useful information to this study. Data collection instruments and methods The interview guide may be judged as an efficient and economical screening instrument for descriptive research on large community samples thus, was considered ideal for the study. This being a qualitative study, this method was very convenient and applicable in the research being carried out. Data collection procedures First and foremost, primary data was collected by the use of interview and was the main data used in the research. Secondary data involved collection of already processed information. This was mainly used as a source of literature review and was sourced from libraries, internet and journals. Chapter four: results Results from managers When they were asked to describe piracy in general, both managers described it as an economic destroying activity. “That is an obvious question. What do you expect to happen when my company pays a ransom of millions of dollars to undeserving parties? In 2008, my company paid a ransom of $1 million. This was a big loss to the company.” “Just like my colleague has said, piracy will never do any good to anybody. My company lost $900,000 in terms of ransom payment to the pirates. The most annoying thing is that the company went into a loss since the goods that were supposed to be delivered at the port of Mombasa delayed for one month the period which the ship was hijacked. As a result, our clients ordered goods elsewhere and demanded a refund of their deposit.” When asked about what they thought need to be done to the stop piracy, one of the managers was very bitter about the pirates. “These people need to be killed. They create problems to others. Why cant they work to earn their own money? I think the international community need to join hands in order to help Somalia instills a functioning government.” “On my side, I think the critical issue here is who is responsible for overseeing the welfare of the sea along the Somali waters. If Somalia has no government, the international community should come up with a body to oversee smooth running of activities along that coast.” Results from the victims When he was told to describe the situation, the victim had a lot to say: “Let me tell you my friend. Nothing is horrifying as being held up by those idiots. They don’t seem to care about anything else apart from money. When they capture you, they stop being in a hurry. Although they were not brutal on us, they made sure we were always in suspense. I remember when I asked one of the pirates for how long they were to keep us; he to told me it could take up to an year before they can release us if they wouldn’t have gotten the money. Results from international criminal court representatives When asked about what the international law say about piracy, both representatives were quick to say that the law is very clear. “Piracy is a criminal offence. The law also provides that all countries have the right to seize and prosecute those found committing pirate acts on the high seas. However, the international criminal court deals with crimes committed against humanity.” When asked whether the international court has the authority and capacity to try suspected pirates, the representatives noted that all cases brought to the court are handled according to the provisions of the law. “We have the capacity to try suspected pirates only if the law mandates us to do so. For now, the law is not clear on who should try the suspects. In fact, it’s the duty of a particular country that catches up with the pirates to prosecute them in their countries if their judicial system is capable of doing so” When asked what they thought the international law need to do in order to deal with piracy, both representatives noted that the international law had a lot to do in order to curb the menace. “Well, we acknowledge the efforts made by the international community in regard to dealing with piracy. However, maritime laws need to be revised and articulated well in order to alienate the doubts and any pending issues regarding the body mandated to deal with piracy.” Conclusion Although much has been done to deal with piracy, a quick decision needs to be made in order to solve the problem completely. The best and most effective way is by the international law makers to come up with more detailed laws that deal with piracy. Although the current international law is in existence and tends to tackle the issue, much is needed and especially with considerations of special cases like that of Somalia. On the other hand, the international community needs to join efforts in order to assist Somalia put a functioning government in place. This way, the law on piracy would receive a remarkable support from the Somalia government which by then would be having capacity to deal with maritime security issues. Finally, the findings of this paper disagree with the hypothesis that the international law has helped in fight against Somali piracy. Works cited: Ademola Abass. Protecting human security in Africa. Oxford: Oxford University Press, 2010. Alina, Kaczorowska. Public International Law. New York: Taylor & Francis, 2010 Bibi, van Ginkel and Frans-Paul van der Putten. The international response to Somali piracy: challenges and opportunities Leiden, Netherlands; Boston, Mass.: Martinus Nijhoff Publishers, 2010. Dominic, Tierney, Against All Enemies: Inside America's War on Terror, London: Free Press, 2004. Dyson, Williams. Terrorism, an Investigator’s Handbook (3rd ed.). Anderson Publishing: A member of the LexisNexis Group. Ohio, 2008. Great Britain. Parliament. House of Lords. European Union Committee. Combating Somali piracy: the EU's Naval Operation Atalanta: 12th report of session 2009-10: report with evidence. London: Stationery Office, 2010. Gurtov, Morris. Superpower on Crusade: The Bush Doctrine in US Foreign Policy, Boulder: Lynne Rienner Publishers. 2006, Kraska, James. Contemporary maritime piracy: international law, strategy, and diplomacy at sea. Santa Barbara, Calif: Praeger, 2011. Little, Benerson. Pirate hunting: the fight against pirates, privateers and sea raiders from antiquity to the present. Washington, DC: Potomac Books, 2010. Murphy, Sean. Humanitarian intervention: the United Nations in an evolving world order. New York: University of Pennsylvania Press, 1996. Natalie, Klein and Joanna, Mossop and Donald, Rothwell. Maritime Security: International Law and Policy Perspectives from Australia and New Zealand. New York: Taylor & Francis, 2009 Ohaegbulam, Ugboaja. U.S. policy in postcolonial Africa: four case studies in conflict resolution. New York: Peter Lang, 2004. Shanahan, T. Philosophy 9/11: thinking about the war on terrorism. Illinois. Open court publishing company, 2005. United Nations Office on Drugs and Crime. The globalization of crime: a transnational organized crime threat assessment. Vienna: United Nations Office on Drugs and Crime, 2010. Walter, Collins. Somalia and the future of humanitarian intervention. Foreign Affairs, 1996. 75 (2): 70-10. Interview guide for the shipping companies managers How can you describe piracy and how has it affected your company? What do you think need to be done to curb the menace? Interview guide for victims of piracy How was the situation when you were captured? What did the pirates want from you? What happened for you to be released? Interview guide for the international criminal court representatives What does the international law say about piracy? Does the international criminal court have the authority and capacity to try suspected pirates? What do you think the international law need to be done to curb the menace? Read More