Privatizing the struggle against Somali piracy

Small Wars & Insurgencies

Volume 24, Issue 1, 2013

 

Privatizing the struggle against Somali piracy

Scott Fitzsimmonsa*

pages 84-102
Abstract

Pirate attacks against commercial vessels in the Western Indian Ocean and nearby seas reached an unprecedented level in 2011. Despite concerted efforts by the international community and shipping companies to address this threat by conducting naval patrols and equipping commercial vessels with non-lethal defenses, the frequency of pirate attacks continues to increase. The general ineffectiveness of existing anti-piracy measures has sparked interest in expanding the use of armed private security contractors to protect commercial vessels from pirate attacks. This article argues that armed private security contractors can, indeed, enhance the security of commercial vessels because these actors can provide onsite protection for commercial vessels, which should allow them to respond very quickly to pirate attacks, and because these actors are willing to use deadly force against pirates. However, this article also argues that expanding the use of these actors may increase the degree of violence used during pirate attacks, pose threats to the safety of innocent civilians, and violate a number of domestic and international laws.

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Pirate attacks against commercial vessels in the Western Indian Ocean and nearby seas reached an unprecedented level in 2011. Despite concerted efforts by the international community and shipping companies to address this threat by conducting naval patrols and equipping commercial vessels with non-lethal defenses, the frequency of pirate attacks continues to increase. The general ineffectiveness of existing anti-piracy measures has sparked interest in expanding the use of armed private security contractors to protect commercial vessels from pirate attacks. This article argues that armed private security contractors can, indeed, enhance the security of commercial vessels because these actors can provide onsite protection for commercial vessels, which should allow them to respond very quickly to pirate attacks, and because these actors are willing to use deadly force against pirates. However, this article also argues that expanding the use of these actors may increase the degree of violence used during pirate attacks, pose threats to the safety of innocent civilians, and violate a number of domestic and international laws.

 

Pirate attacks against commercial vessels in the Western Indian Ocean and nearby seas, through which over 10,000 ships and 12% of the world’s oil travel annually, represent the most significant security threat to the international shipping industry since the end of the Second World War.1 Attacks by Somali pirates reached a record level in the first three months of 2011, with a total of 97 reported incidents in the pirates’ zone of operation, which includes the waters of Somalia, the Gulf of Aden, the Red Sea, the Arabian Sea, and the Western Indian Ocean.2 This constitutes an almost threefold year-over-year increase in attacks since 2010, which saw only 35 attacks during this period.3 Pirate attacks have also become more violent during the past year. For instance, Somali pirates killed almost as many crew members of commercial vessels during the first three months of 2011 as they did during all of 2010.4 As of 31 March 2011, the pirates also held 28 vessels and 596 crew members for ransom.5

Although the scourge of Somali piracy is more widespread in 2011 than ever before, it has presented a clear and growing security threat for over a decade. It has prompted a range of responses, including the deployment of multinational naval task forces to the Gulf of Aden and attempts by ship owners and crews to reduce their risk of attack by, for example, sailing at higher-than-normal speeds when operating in pirate-infested waters and installing defensive equipment on some ships, such as barbed wire, electric fences, and long-range acoustic devices (LRADs) that can blast painful sound waves up to 300 meters. These measures have, however, failed to reduce the total number of pirate attacks against commercial vessels, which increased from 217 in 2009 to 219 in 2010.6 They have merely encouraged some Somali pirates to shift away from the Gulf of Aden to, instead, hunt for commercial vessels in waters that lack the benefit of regular military patrols.7

The general ineffectiveness of existing anti-piracy measures, which are discussed in greater detail below, has spurred interest in expanding the use of armed private security contractors to protect commercial vessels from pirate attacks. For instance, Vice Admiral Bill Gortney, the commander of the US Navy’s Fifth Fleet from 2008 to 2010, argued that, ‘Companies don’t think twice about using security guards to protect their valuable facilities ashore. Protecting valuable ships and the crews at sea is no different.’8 Similarly, in 2009, Rear Admiral William D. Baumgartner, the judge advocate general of the US Coast Guard, informed Congress that, ‘the U.S. government does recognize that… (utilizing private security contractors) is an option available to a ship owner.’9 An alliance of insurance companies, led by the Jardin Lloyd Thompson Group, so strongly supports expanding the use of armed private security contractors to protect commercial vessels that it has begun assembling a ‘private navy’ that could eventually be made up of over a dozen armed escort vessels operated by approximately 150 armed security personnel.10 In another sign of support, multiple maritime insurance companies have also pledged to reduce the premiums charged for commercial vessels that are under the protection of private security contractors.11

Despite these endorsements, proposals to expand the use of armed private security contractors to protect commercial vessels from pirate attacks remain controversial, and with good reason. As this article demonstrates, armed private security contractors can, indeed, enhance the security of commercial vessels because these actors can provide onsite protection for commercial vessels, which should allow them to respond very quickly to pirate attacks, and because these actors are willing to use deadly force against pirates. However, this article also finds that expanding the use of these actors may increase the degree of violence used during pirate attacks, pose threats to the safety of innocent civilians, and violate a number of domestic and international laws.

Drivers of Somali piracy

Somali piracy has been driven by a combination of three factors. First, the fall of the Siad Barre government in 1991 ushered in a period of chaotic instability in and around Somalia that continues to the present day.12 The Barre regime maintained a maritime security force to police Somali waters against unauthorized incursions by foreign vessels.13 This force barely outlasted Barre’s government, however, which contributed to the second driver of Somali piracy, the collapse of the Somali fishing industry. In the absence of an armed security force, foreign fishing vessels, which dwarfed the motorized skiffs used by Somali fishermen in terms of size and capabilities, converged on Somali waters and quickly overexploited the local fish stocks.14 The first modern Somali pirates, who often referred to themselves as a ‘coast guard’, emerged out of this context in the mid 1990s. Their initial goals were modest: to use violence and the threat of violence to extract financial remuneration from foreign fishing vessels that were illegally operating in Somali waters and to motivate these vessels to keep out of Somali waters so that the local Somali fishing industry could recuperate.15

However, once the pirates learned that the owners and operators of foreign vessels were willing to pay ransoms to retrieve their captured vessels and crews, the third and most important driver of Somali piracy, unparalleled opportunities for financial gain, came into play. Both the number of people involved in Somali piracy and the number of attacks carried out against foreign ships greatly expanded during the first decade of the twenty-first century as piracy came to be viewed as a relatively low-risk pursuit that could yield higher financial returns than virtually any other activity open to ordinary Somalis. During this period, the organized criminal backers of Somali piracy found that shipping companies were willing to pay ever-higher ransoms for the release of their ships and crews, which increased from an average of $150,000 in 2005 to $5.4 million in 2010.16 The individuals who physically carried out pirate attacks, likewise, saw their personal financial compensation increase from an average of approximately $10,000 per attack in 2008 to approximately $15,000 per attack in 2010.17 As could be expected, given these figures, a steady stream of able-bodied Somali men, who lack similarly lucrative economic opportunities in their war-torn failed state, have found the lure of piracy irresistible.

The tactics of Somali pirates and the services offered by private security contractors

Somali pirates tend to attack commercial vessels in fishing skiffs that can travel in excess of 30 knots.18 These watercraft are often supported by a larger, slower vessel, which serves as a mother ship by carrying multiple skiffs, fuel, food, and ammunition. These vessels also provide sufficient space for the pirates to rest on voyages that can cover over 1,000 kilometers and last more than two weeks. Most pirates use captured Somali fishing vessels as mother ships; however, some pirates have, particularly since 2010, opted to use captured foreign fishing or transport vessels in this role because these inconspicuous watercraft allow the pirates to approach new target vessels without raising suspicions and then launch surprise attacks with skiffs at close range.19

The four or five pirates operating each skiff target their prey visually and then attempt to either quietly sneak alongside the target vessel, if attacking at night or in conditions where visibility is poor, or run down the target vessel at high speed before trying to climb aboard with grappling hooks and ladders.20 The pirates often fire at the target vessel with assault rifles or rocket-propelled grenades in an effort to convince its crew to allow the pirates to board without resistance.21 If the boarding attempt is successful, the pirates will then try to seize control of the vessel, capture its crew, and issue a ransom demand to the vessel’s owners and operators while sailing it toward a Somali port.22 Successful attacks are usually completed in 15 minutes or less.23

In response to these tactics, several private security contractors have entered the market for commercial vessel protection during the past decade. These have ranged from well-known firms, like Xe/Blackwater, which purchased a ship for anti-piracy operations in 2007 but left the market in 2010 when it failed to acquire sufficient clients, to companies that lack Xe/Blackwater’s public profile, like Drum Cussac, Espada, Muse, Salama Fikira, Eos, and HollowPoint.24 Many of these firms entered the market by offering non-lethal protection for ships, such as installing barbed wire or electric fences on ships, electrifying the perimeter handrails of ships, or equipping ships with an LRAD sound cannon and, sometimes, security personnel to operate it in the event of a pirate attack.25 Although these measures have thwarted some pirate attacks, they have failed, on multiple occasions, to prevent concerted pirate assaults because they can be easily countered: pirates can cut through fences with bolt cutters; climb over or cut through electrified defenses with insulated clothing and tools; and undermine the unidirectional LRADs by wearing heavy-duty ear protection, shooting at the device or its operators to force them to take cover, or attacking a target vessel with multiple skiffs approaching from different directions at the same time.26 After using an LRAD against an incoming pirate skiff, one member of a British private security team recalled that, ‘We thought it would make the pirates back off, but they just laughed. It was a total waste of time.’27 In addition, installing physical barriers on commercial vessels is problematic because they can make it more difficult for the vessels’ crews to evacuate in an emergency; moreover, electrified defenses increase the risk of fire on vessels transporting flammable cargo.28

In light of these issues, a growing number of private security contractors now offer to deploy teams of armed security personnel or armed escort vessels to protect commercial vessels from pirate attacks.29 The security personnel are intended to engage suspected pirates with deadly force, using assault rifles and machine guns, to try to deter or drive off attackers, and, if this fails, to injure or kill the pirates and disable their skiffs and mother ships. These lethal anti-piracy measures are inherently more controversial than the non-lethal measures discussed earlier; consequently, the remainder of this article focuses on the implications of expanding the use of armed private security contractors to protect commercial vessels from pirate attacks.

How armed private security contractors can enhance the security of commercial vessels

Expanding the use of armed private security contractors can help enhance the security of commercial vessels against pirate attacks because these actors can provide onsite protection for commercial vessels, which should allow them to respond very quickly to pirate attacks, and because these actors are willing to use deadly force against pirates.

Armed private security contractors can provide onsite protection to commercial vessels

The primary reason why expanding the use of armed private security contract can enhance the security of commercial vessels from pirate attacks is that these actors can provide onsite protection to commercial vessels, which should allow them to respond very quickly to pirate attacks. This represents a distinct approach to anti-piracy protection that would complement the inadequate, patrol-based approach favored by the international community, which involves maintaining multiple multinational naval task forces in and around the Gulf of Aden, including Combined Task Force 150 and 151 and Operation Atalanta.30 As of April 2011, these task forces are made up of over two dozen armed ships from the United States, Canada, Australia, and several European and Asian countries.31 These ships are tasked with monitoring the Gulf of Aden for pirate attacks and responding to attacks or sightings of suspicious watercraft that approach foreign commercial vessels.

Despite the best efforts of the crews involved, and despite some high-profile and successful anti-piracy operations, where commercial vessels were rescued from pirate attacks or where pirates were captured, killed, or put to flight, the multinational naval task forces have not significantly undermined the threat posed by Somali piracy.32 As discussed earlier, Somali pirates launched 219 attacks in 2010, an increase from 217 in 2009.33 Based on the number of attacks that occurred between January and March of 2011, the total number of attacks in 2011 will probably be considerably higher than in 2010.34

The multinational naval task forces have failed to undermine the threat of Somali piracy because they lack sufficient ships to effectively patrol the pirates’ vast operating zone, which stretches from the Suez Canal to Madagascar, and keep track of the sheer number of pirate boats and commercial vessels inside this zone.35 Most of the ships in the multinational naval task forces are dispersed throughout the Gulf of Aden to try to monitor as many watercraft as possible.36 However, if a military vessel is more than a few kilometers away from the location of a pirate attack when it receives a distress signal, its crew usually cannot prevent the pirates from seizing their target. As mentioned earlier, the average pirate attack lasts less than 15 minutes, which leaves a very small window of opportunity for the multinational naval task forces to respond.37 Reflecting on this, French Vice Admiral Gerard Valin, argued that, ‘When the pirates see a warship on the horizon (that is, five or more kilometers away), they know that they have all the time in the world,’ to carry out their attack.38 Making a similar point, Roger Middleton, an analyst with Chatham House, rightly argued that, ‘to prevent an attack, a naval vessel would need to be close and have a helicopter ready to go at a moment’s notice’.39 The crews of the multinational naval task forces rarely attempt to retake commercial vessels that have been seized by pirates because of the inherent risk that civilian hostages could be hurt or killed during a rescue operation.40 Therefore, if the multinational naval task forces cannot respond before the pirates gain control of a ship, the pirates can start issuing ransom demands.

The multinational naval task forces have, however, proven to be a fairly effective deterrent against pirate attacks in the Gulf of Aden. Attacks in this body of water dropped sharply from 117 in 2009 to 53 in 2010.41 This makes sense because, even though time and geography are usually on the pirates’ side during an attack, the presence of armed military vessels with assault teams, fast attack boats, and helicopters in the Gulf still reduces the chances that a pirate attack will succeed and increases the chances that pirates will be spotted and captured in their skiffs in open water. Nevertheless, the Gulf of Aden is, unfortunately, just one of several nearby bodies of water that Somali pirates operate in. Consequently, although the multinational naval task forces helped reduce pirate attacks in the Gulf of Aden between 2009 and 2010, pirate attacks increased from 15 to 25 in the Red Sea and from 80 to 139 in the waters to the south of Somalia during the same period.42 As the International Maritime Bureau concluded in its 2010 Annual Report,

Attacks in the Gulf of Aden have dropped by more than 50 percent due to the international naval patrols and positive actions of the seafarers. However, in… the Red Sea and the wider Indian Ocean, where naval patrols are not available, attacks have gone up substantially.43

This trend has continued in the first quarter of 2011, which saw year-over-year reductions in pirate attacks in the Gulf of Aden from 42 attacks during this period in 2009 to 12 attacks in 2010 and 10 attacks in 2011.44 Attacks in the waters south of Somalia, on the other hand, more than quadrupled from 18 between January and March of 2010 to 85 during the same period in 2011. Based on these figures, it is clear that Somali pirates have not been significantly undermined by the presence of the multinational naval task forces in the Gulf of Aden; rather, they have simply shifted to safer hunting grounds.45 Unless the multinational naval task forces expand to the point where they can patrol the pirates’ entire zone of operation, which is unlikely, the pirates will continue to plague commercial shipping in the Western Indian Ocean and nearby seas.

Rather than attempt to patrol a large area of the ocean and respond to pirate attacks on any commercial vessel in a particular body of water, private security contractors attempt to defend just one or a small number of commercial vessels against pirate attacks by providing onsite security teams and escort vessels that can quickly respond to attacks.46 These armed security teams and escort vessels travel with the commercial vessels under their protection as they transit through pirate-infested waters and then redeploy to new commercial vessels as needed. The difference in the approaches offered by the multinational naval task forces and private security contractors is akin to the difference in approaches taken by a city police force and a bodyguard service. The former patrols a large geographic area and attempts to provide security to all but, inevitably, cannot be everywhere at once and may not be able to quickly respond to a call for help. The latter only attempts to provide security for its client and can, therefore, stay very close to its client and quickly respond to security threats.

Being stationed on site when a pirate attack begins, private security contractors should be able to respond very quickly and stop the attack before the pirates can seize control of the vessel and take its crew hostage. As an employee of HollowPoint Protection Services put it, ‘vessels travelling in hostile waters require one-on-one protection. The seas are much too vast for governments… to protect every ship.’47 In other words, since time and proximity to the point of attack are probably the two most critical factors determining whether a would-be defender can stop a pirate attack before it succeeds, onsite private security personnel should provide better protection to commercial vessels than the multinational naval task forces can provide alone.

Private security contractors have achieved some notable successes against Somali pirates in recent years. For example, a team of private security personnel stationed on the MV Maersk Alabama, which was captured by pirates in April 2009 and later freed by US Navy SEALs, thwarted a second pirate attack in November 2009 with small arms fire.48 The latter attack took place when the MV Maersk Alabama was sailing 350 nautical miles east of Somalia, outside of the multinational naval task forces’ main patrol zones.49 In March 2010, a private security team on the MV Almezaan shot and killed at least one member of a pirate boarding party and forced the rest of the pirates to disengage.50

Neither the patrol-based approach favored by the multinational naval task forces nor the onsite protection approach favored by private security contractors can completely supplant the other because they have different methods and objectives. Instead, expanding the use of armed private security contractors in the fight against Somali piracy could supplement and build upon the efforts of the multinational naval task forces by providing a second layer of protection for commercial vessels that choose to pay for it. The multinational naval task forces would continue to patrol large areas of ocean to monitor for suspicious watercraft and attempt to engage watercraft that appear to pose a threat to commercial vessels. Private security contractors would engage any suspicious watercraft that slip through the military surveillance net and attempt to attack their clients’ commercial vessels. This would help counteract some of the pirates’ innovative tactics for circumventing the multinational naval task forces’ patrols. For example, the pirates sometimes stage ‘dummy’ attacks on a commercial vessel or broadcast false distress signals in order to monopolize the attention of a military vessel while other groups of pirates launch simultaneous attacks against different commercial vessels.51 Since the employees of a private security contractor would only be responsible for protecting one or a handful of their client’s ships at any given time, they would still be on site and ready to engage any pirates that used these tactics to slip past the military patrols.

In the waters outside of the multinational naval task forces’ patrol areas, private security contractors would serve as the sole protectors of commercial vessels that are beyond the reach of military assistance.52 These vessels would be more vulnerable than those under the protection of both military ships and private security contractors. However, they would still be much better protected against pirate attacks than vessels that lack either military or private protection, which is currently the case for most commercial vessels in the waters of Somalia, the Red Sea, the Arabian Sea, and the Western Indian Ocean.

Armed private security contractors are likely to use deadly force against pirates

A second reason why expanding the use of armed private security contractors can help enhance the security of commercial vessels is that, in contrast to the crews of the multinational naval task forces in the Gulf of Aden, armed private security contractors are likely to use deadly force against the pirates. Save for a few high-profile incidents, such as the rescue of the MV Maersk Alabama in April 2009, the multinational naval task forces rarely attempt to kill suspected pirates.53 Indeed, according to statistics compiled by the Government of the United States, the multinational naval task forces only killed 11 of the 706 pirates encountered between August 2008 and September 2009.54

In addition, although the multinational naval task forces routinely arrest pirates, few pirates are ever prosecuted for their crimes because Western governments fear that pirates may try to claim refugee status or seek political asylum in a Western country, especially if they were to be acquitted at trial.55 The Government of Kenya initially volunteered to prosecute pirates captured by the naval forces of other countries, but reneged on this commitment in 2010 when it became clear that the country’s courts lacked the capacity to handle what could amount to hundreds of prosecutions per year.56 With most legal avenues closed, the multinational naval task forces tend to pursue a ‘catch-and-release’ strategy against the pirates by attempting to capture suspected pirates and seize their weapons, but then releasing them back into Somali waters with sufficient food and fuel to reach shore.57 This strategy provides little deterrent against further pirate attacks, since most pirates can reasonably assume that they will only suffer temporary inconvenience and slightly increased operating costs if caught.58

In contrast, private security contractors operating in Iraq and Afghanistan have demonstrated a clear willingness to employ deadly force against suspected security threats to themselves and their clients. These actors have fired at suspected security threats thousands of times during the past decade and killed numerous suspected insurgents during the Iraq and Afghan Wars.59 Moreover, as mentioned earlier, a private security team on board the MV Almezaan, in an incident dubbed, ‘the shot heard ‘round the seas,’ killed at least one pirate on 23 March 2010, and prevented the rest of the pirate boarding party from hijacking the ship.60 If sea-based private security contractors were to follow the example set by their land-based counterparts and routinely use deadly force against security threats, this should provide a much stronger deterrent against pirate attacks than the multinational naval task forces’ catch-and-release strategy. Given that Somali pirates are primarily motivated by financial gain, rather than a sense of selfless patriotism, the prospect of being killed or seriously injured for trying to capture and ransom a foreign ship should encourage many current and potential pirates to reevaluate the relative costs and benefits of this line of work.61 Even if deterrence fails, routinely killing and injuring pirates should help keep their numbers in check and undermine their ability to learn from and build upon successful attacks.

Risks associated with using armed private security contractors to enhance the security of commercial vessels

Although private security contractors can, indeed, enhance the security of commercial vessels in pirate-infested waters, expanding the use of these actors may also increase the degree of violence used during pirate attacks, pose threats to the safety of innocent civilians, and violate a number of domestic and international laws.

The presence of armed private security contractors on commercial vessels could escalate the degree of violence used in pirate attacks

Perhaps the most troubling risk associated with using private security contractors to protect ships from pirate attacks is that the presence of armed private security teams on commercial vessels or on nearby escort vessels could provoke pirates to escalate the degree of violence they use when attempting to seize a ship. Most Somali pirate attacks are remarkably non-violent. To be sure, the pirates risk traumatizing the crew members of the ships they seize; however, they rarely attempt to kill or seriously injure their victims. Information compiled by the International Maritime Bureau suggests that Somali pirates took 1,016 crew members hostage in 2010, but only killed 8 and injured 13.62 These data indicate that Somali pirates subdue most crew members without much violence, but also suggest that these pirates are not above killing civilians, a characteristic that sets them apart from pirates operating in other areas of the world.63

Two factors help explain the relatively non-violent nature of most Somali pirate attacks. First, if the pirates were to routinely kill their hostages, the multinational naval task forces would have little incentive to allow the pirates to retain control of the ships they seize. Rather, if the hostages are likely to be killed anyway, the crews of the multinational naval task forces would be motivated to storm captured ships and attempt to rescue at least some of the hostages before they are killed. In addition, live hostages can serve as a lucrative source of revenue for the pirates because shipping companies will likely pay a higher ransom for the release of a ship and its crew than for the ship alone. When asked why he refrained from harming his hostages, one Somali pirate drew attention to their financial value by explaining that, ‘we have to take care of them. They are the merchandise.’64

The presence of armed private security teams on board commercial vessels or in nearby armed escort vessels could aggravate these relatively non-violent circumstances by provoking firefights with the pirates. The central purpose of maintaining armed security personnel on or nearby a commercial vessel during a pirate attack is to resist the pirates with deadly force to try to motivate them to break off their attack. This should stop most pirate attacks, but could motivate particularly determined pirates to use deadly force to try to capture a ship and its crew.65 A pirate boarding party would probably target the private security personnel during a firefight, since they would pose the greatest threat to the pirates, but the civilian crew members of commercial vessels could also suffer harm during a firefight or be intentionally targeted by a successful pirate boarding party in retribution for resisting.66 Therefore, the use of armed private security contractors to protect commercial vessels could increase the risk of death or serious injury to civilian crew members. For this reason, the International Maritime Organization discouraged the use of firearms to defend commercial vessels from pirate attacks.67

Moreover, firefights between pirates and armed private security contractors could also increase the risk that commercial vessels will suffer damage during pirate attacks because a pirate boarding party would likely fire a greater volume of bullets and rocket-propelled grenades at a well-defended ship, in order to subdue its armed defenders, than at a defenseless ship that posed no threat. This could result in increased maintenance and downtime costs for damaged vessels and could also produce serious safety and environmental hazards if a vessel is transporting flammable or toxic cargo, such as oil, natural gas, coal, or dangerous chemicals.68 This is an important consideration because over a third of the vessels attacked by Somali pirates in 2010 were tankers.69 Therefore, before deciding to employ the services of armed private security contractors, shipping and insurance companies should weigh the risks and costs associated with incurring physical harm to their ships and crews against the risks and costs associated with losing a ship and its crew for months while negotiating a ransom payment.

Armed private security contractors could harm innocent civilians

Another risk associated with using armed private security contractors to protect commercial vessels from pirate attacks is that the employees of private security contractors could harm innocent civilians in the course of their security work. Some private security contactors have earned reputations during the Iraq and Afghan Wars for using excessive violence against suspected security threats, many of which turned out to be unarmed pedestrians or civilian vehicles. Since Iraqi and Afghan insurgents dress in civilian clothing, drive civilian vehicles, and often use women and children to launch attacks against foreign military and security personnel, some private security contractors feel they must treat every civilian as a potential insurgent and shoot first when they feel threatened. According to a 2007 memorandum issued by the Congressional Committee on Oversight and Government Reform,

Incident reports compiled by Blackwater reveal that Blackwater has been involved in at least 195 ‘escalation of force’ incidents in Iraq since 2005 that involved the firing of shots by Blackwater forces…. In addition to Blackwater, two other private military contractors, DynCorp International and Triple Canopy, provide protective services to the State Department…. (A)ll three companies shoot first in more than half of all escalation of forces incidents.70

This aspect of private security contractors’ behavior has also been illustrated in press coverage of their activities. For example, several articles in The New York Times and The Washington Post described private security contractors as, ‘reckless gunslingers charging around Iraq with impunity’, and argued that they are often ‘quick to shoot’ and ‘quick on the trigger’ when they feel threatened.71 One article accused a firm of flaunting, ‘an aggressive, quick-draw image that leads its security personnel to take excessively violent actions to protect the people they are paid to guard’.72 Another included a statement from an Iraqi policeman, who argued that private security contractors were ‘butchering’ civilians without cause.73

Since Somali pirates use ordinary fishing skiffs as their primary attack craft, proactive private security contractors could mistakenly engage harmless Somali fishermen with deadly force on the mere suspicion that they could be pirates. As Gary E. Weir notes, ‘a patrol vessel or potential victim could hardly tell the difference at distance between a pirate and a legitimate fisherman.’74 Carolin Liss, similarly, cautions that, ‘Fishermen can… become targets of “trigger-happy” guards, as their vessels are often difficult to distinguish from pirate vessels.’75 Erroneous shootings of innocent civilians are, however, less likely to occur in the pirate-infested waters around Somalia than on the bustling streets of Iraq and Afghanistan because the operating environments are very different. In the dense urban areas of Baghdad and Kandahar City, private security contractors can encounter hundreds of civilian pedestrians and vehicles during the course of a single security operation because they operate on civilian roads and in the midst of civilian foot and vehicle traffic. In contrast, the private security contractors assigned to protect commercial vessels from Somali pirates are much less likely to encounter civilians during their security operations since, in open water, civilian fishermen have little reason to approach a large foreign commercial vessel. This, in turn, should greatly reduce the risk that private security contractors will mistakenly attack civilian fishermen. Nevertheless, it remains unclear whether and how private security contractors should respond to a pirate attack launched from a captured commercial vessel, which could still have its civilian crew on board, especially if the ship is owned or operated by the security contractor’s clients.76

The services provided by armed private security contractors may not be legal

Still another risk associated with using armed private security contractors to protect commercial vessels from pirate attacks is that this practice may not be legal under domestic or international laws. When operating on board a commercial vessel, private security contactors must abide by the firearms laws of the flag state where the vessel is registered.77 This could make it quite difficult for private security teams to defend commercial vessels with automatic weapons because although some flag states, such as the United States, allow security guards equipped with automatic weapons to travel on board their commercial vessels, others, such as Great Britain, only permit commercial vessels to carry a single shotgun or one-shot rifle, and still others do not allow any firearms to be transported or used on their ships.78

Likewise, private security contractors must also abide by the firearms laws governing the territorial seas they will pass through while escorting commercial vessels.79 Since Somali pirates operate throughout a vast area of water, which includes the territorial seas of Somali, Kenya, Yemen, Egypt, Madagascar, and several other African and Asian countries, a private security contractor seeking to provide legal anti-piracy services to vessels transiting through these waters would have to secure authorization from each of these governments to transport and operate weapons within their respective territorial seas. This challenge is not insurmountable, but it could make it more difficult for private security contractors to sell their services legally. Some private security contractors have attempted to circumvent this problem by deploying security personnel and weapons to their clients’ vessels in international waters and then removing these assets before the vessels enter a territorial sea.80 However, this approach still leaves the vessels defenseless whenever they approach a coastline.

Finally, it is not clear that maintaining armed private security teams on commercial vessels or operating armed escort vessels in international waters are permissible under international law. According to Article 101 of the United Nations Convention on the Law of the Sea, piracy consists of,

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft.81

As private actors working for private ends on a private vessel, the employees of private security contractors could be considered pirates under international law if they were to use force against a vessel or person in international waters, regardless of whether that vessel or person is also considered to be a pirate under the terms of this convention.82

Articles 105 and 107 of the convention, which stipulate who may attempt to seize a pirate vessel and arrest its crew, only permit states and, ‘warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect’, to carry out these roles.83 These provisions would seem to bar private security contractors from engaging pirates in international waters unless they were specifically directed and authorized to do so by a recognized government, which would transform private security contractors into the modern equivalent of the pirate-hunting privateers that patrolled the world’s oceans from the sixteenth to the nineteenth century. This would provide a way to legally employ private security contractors against pirates in international waters; however, none of the governments, shipping companies, or private security contractors that would be involved in such an arrangement have endorsed it.84

Conclusion

The international community will likely not overtly support expanding the use of armed private security contractors to protect commercial vessels from Somali pirates because doing so would constitute an admission that the international community has failed in its duties to maintain freedom of the seas and rebuild Somalia. Fulfilling these duties is the most viable long-term solution to Somali piracy, but will take at least a generation of unrelenting effort to accomplish. In the meantime, it will fall to shipping companies to protect their crews and vessels against the threat of pirate attacks. As this article has demonstrated, armed private security contractors can, indeed, help mitigate the threat of Somali piracy by providing on site protection to commercial vessels and by using deadly force to stop pirate attacks. Nevertheless, private security contractors, their current and potential clients, and a myriad of governments must work together to ensure that expanding the use of these actors will not needlessly increase the degree of violence used during pirate attacks, pose undue threats to the safety of innocent civilians, or remain mired in legal ambiguity. Clearly, much work remains to be done.

Notes

1. Middleton, ‘Piracy in Somalia’, 3; Murphy, ‘Somali Piracy’, 17; Ward, ‘Piracy in Somalia’, 136.

2. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 March 2011’, 5, 19.

3. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 March 2011’, 5.

4. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 11; ICC International Maritime Bureau, ‘Piracy… 1 January – 31 March 2011’, 10–11.

5. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 March 2011’, 19.

6. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 5–6, 9–10, 19, 23; ICC International Maritime Bureau, ‘Piracy… 1 January – 31 March 2011’, 5, 19; Liss, ‘Privatizing the Fight against Somali Pirates’, 8.

7. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 9–10, 19, 23; ICC International Maritime Bureau, ‘Piracy… 1 January – 31 March 2011’, 5, 19.

8. Wadhams, ‘As Somali Pirates Get Bolder’. The US Navy’s Fifth Fleet is the US fleet with primary responsibility for the waters where Somali pirates operate.

9. K&L Gates, ‘The Pirates of Puntland’, 7.

10. The Economist , ‘A Mercenary Solution to Somali Piracy’.

11. Houreld, ‘After Iraq, Security Firms Join Somalia Pirate Fight’; Mineau, ‘Pirates, Blackwater and Maritime Security’, 71.

12. Advisory Council on International Affairs, ‘Combating Piracy at Sea’, 13; Basciano, ‘Contemporary Piracy’, 10.

13. Advisory Council on International Affairs, ‘Combating Piracy at Sea’, 14; Weir, ‘Fish, Family, and Profit’, 17.

14. Basciano, ‘Contemporary Piracy’, 10; Onuoha, ‘Piracy and Maritime Security off the Horn of Africa’, 202; Weir, ‘Fish, Family, and Profit’, 18.

15. Advisory Council on International Affairs, ‘Combating Piracy at Sea’, 14; Basciano, ‘Contemporary Piracy’, 10; Middleton, ‘Piracy in Somalia’, 5; Treves, ‘Piracy, Law of the Sea, and Use of Force’, 400; Weir, ‘Fish, Family, and Profit’, 18–19.

16. Bowden et al., ‘The Economic Cost of Modern Piracy’, 9.

17. Advisory Council on International Affairs, ‘Combating Piracy at Sea’, 21; de Wijk et al., ‘The New Piracy’, 42.

18. Ding, ‘A Tactical Campaign at the Horn of Africa’, 193; Gilpin, ‘Counting the Costs of Somali Piracy’, 7–8; Middleton, ‘Piracy in Somalia’, 4; Staff of Subcommittee on Coast Guard and Maritime Transportation, ‘Memorandum for Hearing on Assuring the Freedom of Americans on the High Seas’, 7; Weir, ‘Fish, Family, and Profit’, 20. A skiff is a relatively small (40 foot or less) flat-bottomed open boat powered by an outboard motor.

19. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 19; Weir, ‘Fish, Family, and Profit’, 4.

20. Ding, ‘A Tactical Campaign at the Horn of Africa’, 192; Staff of Subcommittee on Coast Guard and Maritime Transportation, ‘Memorandum for Hearing on Assuring the Freedom of Americans on the High Seas’, 7.

21. Gilpin, ‘Counting the Costs of Somali Piracy’, 3–4; ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 12; Kraska and Wilson, ‘The Global Maritime Partnership and Somali Piracy’, 224; Sorenson, ‘State Failure on the High Seas’, 19; Staff of Subcommittee on Coast Guard and Maritime Transportation, ‘Memorandum for Hearing on Assuring the Freedom of Americans on the High Seas’, 7.

22. Ding, ‘A Tactical Campaign at the Horn of Africa’, 193; Onuoha, ‘Piracy and Maritime Security off the Horn of Africa’, 199; Sorenson, ‘State Failure on the High Seas’, 17; Staff of Subcommittee on Coast Guard and Maritime Transportation, ‘Memorandum for Hearing on Assuring the Freedom of Americans on the High Seas’, 7; Weir, ‘Fish, Family, and Profit’, 20.

23. Ding, ‘A Tactical Campaign at the Horn of Africa’, 193; Gilpin, ‘Counting the Costs of Somali Piracy’, 5; Middleton, ‘Piracy in Somalia’, 4.

24. Hanson, ‘Combating Maritime Piracy’, 3; Liss, ‘Privatizing the Fight against Somali Pirates’, 8; Middleton, ‘Piracy in Somalia’, 4; Mineau, ‘Pirates, Blackwater and Maritime Security’, 68–9; Ward, ‘Piracy in Somalia’, 145.

25. Bellamy, ‘What Can be Done to Counter Somali Piracy?’, 6–7; Hanson, ‘Combating Maritime Piracy’, 3; Liss, ‘Privatizing the Fight against Somali Pirates’, 8.

26. Bellamy, ‘What Can be Done to Counter Somali Piracy?’, 6.

27. Boniface, ‘Heroic Brit Trio Take on Somali Pirates before Escaping into Sea’.

28. Bellamy, ‘What Can be Done to Counter Somali Piracy?’, 7; Middleton, ‘Piracy in Somalia’, 4.

29. Deheza, ‘The Danger of Piracy in Somalia’, 11; The Economist, ‘A Mercenary Solution to Somali Piracy’.

30. Weir, ‘Fish, Family, and Profit’, 21–2.

31. Weir, ‘Fish, Family, and Profit’, 21–2

32. Hanson, ‘Combating Maritime Piracy’, 3; Onuoha, ‘Piracy and Maritime Security off the Horn of Africa’, 207; Weir, ‘Fish, Family, and Profit’, 21–2.

33. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 5–6, 9–10, 19, 23.

34. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 March 2011’, 5, 19.

35. Deheza, ‘The Danger of Piracy in Somalia’, 9; Spearin, ‘A Private Security Solution to Somali Piracy?’, 61; Spearin, ‘Private Security, Somali Piracy, and the Implications for Europe’, 6; Ward, ‘Piracy in Somalia’, 145.

36. Spearin, ‘A Private Security Solution to Somali Piracy?’, 61.

37. Ding, ‘A Tactical Campaign at the Horn of Africa’, 193; Gilpin, ‘Counting the Costs of Somali Piracy’, 5; Middleton, ‘Piracy in Somalia’, 4; Spearin, ‘Against the Current?’, 559; Spearin, ‘Private Security, Somali Piracy, and the Implications for Europe’, 6.

38. Cited in Spearin, ‘Private Security, Somali Piracy, and the Implications for Europe’, 6.

39. Middleton, ‘Piracy in Somalia’, 4.

40. BBC News, ‘Frenchman Dies in Somalia Rescue’; Liss, ‘Privatizing the Fight against Somali Pirates’, 6.

41. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 5.

42. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 5–6, 19, 23.

43. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 19.

44. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 March 2011’, 5.

45. Onuoha, ‘Piracy and Maritime Security off the Horn of Africa’, 207; Spearin, ‘A Private Security Solution to Somali Piracy?’, 61.

46. Spearin, ‘A Private Security Solution to Somali Piracy?’, 61.

47. HollowPoint Protection Services, ‘“Ships Need Armed Guards”, Says Security Firm Chief’.

48. CNN, ‘Pirates Foiled in a Second Attack on Maersk Alabama Cargo Ship’. The MV Maersk Alabama did not have guards on board during the April 2009 attack.

49. Childress, ‘Armed U.S. Ship Repels Attack by Somali Pirates’; CNN, ‘Pirates Foiled in a Second Attack on Maersk Alabama Cargo Ship’.

50. The Telegraph , ‘Pirate Shot Dead by Ship’s Guards off Coast of Somalia’.

51. Fraser, ‘On Patrol with the Pirate Hunters’; Kraska and Wilson, ‘The Global Maritime Partnership and Somali Piracy’, 224; Sorenson, ‘State Failure on the High Seas’.

52. Spearin, ‘Against the Current?’, 559.

53. Treves, ‘Piracy, Law of the Sea, and Use of Force’, 412.

54. Pham, ‘Putting Somali Piracy in Context’, 332.

55. Basciano, ‘Contemporary Piracy’, 13; Deheza, ‘The Danger of Piracy in Somalia’, 11; Murphy, ‘Somali Piracy’, 21; Treves, ‘Piracy, Law of the Sea, and Use of Force’, 408.

56. Basciano, ‘Contemporary Piracy’, 13–14; Broder and Johnston, ‘U.S. Military Will Supervise Firms’; Deheza, ‘The Danger of Piracy in Somalia’, 11; Murphy, ‘Somali Piracy’, 55; Pham, ‘Putting Somali Piracy in Context’, 332; Treves, ‘Piracy, Law of the Sea, and Use of Force’, 411.

57. Basciano, ‘Contemporary Piracy’, 12–13; Onuoha, ‘Piracy and Maritime Security off the Horn of Africa’, 208; Pham, ‘Putting Somali Piracy in Context’, 332; Treves, ‘Piracy, Law of the Sea, and Use of Force’, 408.

58. Ding, ‘A Tactical Campaign at the Horn of Africa’, 200; Onuoha, ‘Piracy and Maritime Security off the Horn of Africa’, 207.

59. Broder and Johnston, ‘U.S. Military Will Supervise Firms.’; Broder and Risen, ‘Blackwater Mounts a Defense with Top Talent from Capital’; Broder and Risen, ‘Blackwater Tops All firms in Iraq in Shooting Rate’; Committee on Oversight and Government Reform, ‘Memorandum’; Kramer and Glanz, ‘U.S. Guards Kill 2 Iraqi Women in New Shooting’; Raghavan et al., ‘Blackwater Faulted in Military Reports from Shooting Scene’; Risen, ‘Iraq Contractor in Shooting Case Makes Comeback’; Tavernise, ‘U.S. Contractor Banned by Iraq Over Shootings’.

60. The Telegraph, ‘Pirate Shot Dead by Ship’s Guards off Coast of Somalia’.

61. Bellamy, ‘What Can be Done to Counter Somali Piracy?’, 6; Sorenson, ‘State Failure on the High Seas’, 30.

62. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 11–12.

63. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 11–12; ICC International Maritime Bureau, ‘Piracy… 1 January – 31 March 2011’, 10–11.

64. Rogan, ‘The Trouble with Pirates’.

65. Basciano, ‘Contemporary Piracy’, 17; Harrelson, ‘Blackbeard Meets Blackwater’, 311; Liss, ‘Privatizing the Fight against Somali Pirates’, 12.

66. Bellamy, ‘What Can be Done to Counter Somali Piracy?’, 7.

67. Harrelson, ‘Blackbeard Meets Blackwater’, 297; International Maritime Organization, ‘Piracy and Armed Robbery against Ships’, 60–1.

68. Agence France-Presse, ‘Somali Piracy Offers Huge New Market for Private Security’; Liss, ‘Privatizing the Fight against Somali Pirates’, 12; Middleton, ‘Piracy in Somalia’, 9; Mineau, ‘Pirates, Blackwater and Maritime Security’, 71.

69. ICC International Maritime Bureau, ‘Piracy… 1 January – 31 December 2010’, 23.

70. Committee on Oversight and Government Reform, ‘Memorandum’.

71. Broder and Johnston, ‘U.S. Military Will Supervise Firms’; Broder and Risen, ‘Blackwater Mounts a Defense with Top Talent from Capital’; Raghavan et al., ‘Blackwater Faulted in Military Reports from Shooting Scene.’; Risen, ‘Iraq Contractor in Shooting Case Makes Comeback.’; Tavernise, ‘U.S. Contractor Banned by Iraq Over Shootings’.

72. Broder and Risen, ‘Blackwater Tops All firms in Iraq in Shooting Rate’.

73. Kramer and Glanz, ‘U.S. Guards Kill 2 Iraqi Women in New Shooting’.

74. Weir, ‘Fish, Family, and Profit’, 20.

75. Bellamy, ‘What Can be Done to Counter Somali Piracy?’, 10; Liss, ‘Privatizing the Fight against Somali Pirates’, 12; Weir, ‘Fish, Family, and Profit’, 20–1.

76. Advisory Council on International Affairs, ‘Combating Piracy at Sea’, 31; Basciano, ‘Contemporary Piracy’, 17; Deheza, ‘The Danger of Piracy in Somalia’, 4; Ding, ‘A Tactical Campaign at the Horn of Africa’, 193; Gilpin, ‘Counting the Costs of Somali Piracy’, 7; Guilfoyle, ‘Counter-Piracy Law Enforcement and Human Rights’, 141; Middleton, ‘Piracy in Somalia’, 4; Sorenson, ‘State Failure on the High Seas’, 19–20; Weir, ‘Fish, Family, and Profit’, 20–1.

77. Harrelson, ‘Blackbeard Meets Blackwater’, 306; Mineau, ‘Pirates, Blackwater and Maritime Security’, 70, 74.

78. Harrelson, ‘Blackbeard Meets Blackwater’, 306.

79. Mineau, ‘Pirates, Blackwater and Maritime Security’, 74; United Nations, ‘United Nations Convention on the Law of the Sea’, Article 2.

80. Mineau, ‘Pirates, Blackwater and Maritime Security’, 68, 70; Staff of Subcommittee on Coast Guard and Maritime Transportation, ‘Memorandum for Hearing on Assuring the Freedom of Americans on the High Seas’, 11.

81. United Nations, ‘United Nations Convention on the Law of the Sea’, Article 101.

82. Spearin, ‘Private Security, Somali Piracy, and the Implications for Europe’, 8.

83. United Nations, ‘United Nations Convention on the Law of the Sea’, 21.

84. Spearin, ‘Private Security, Somali Piracy, and the Implications for Europe’, 8.

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