Legal Hurdles in West Slow Pursuit of Pirates

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30 Nov 2008

Somali pirates firing automatic weapons and rocket-propelled grenades hijacked yet another ship in the Gulf of Aden on Friday, this time seizing a chemical tanker. A German military helicopter from a nearby warship arrived in time to pull three security guards out of the water, but not soon enough to prevent the hijacking of the ship and the rest of the crew. The latest attack, in which even trained security personnel aboard could not deter the pirates, demonstrated the urgent need for coordinated action by governments from Cairo to Berlin. But the bureaucratic and legal hurdles facing international institutions and national governments have so far defeated most efforts to deal with the nimble crews of pirates in speedboats, whose tactics have grown bolder as their profits have paid for better weapons and equipment.
While the pirates have been buying GPS devices, satellite phones and more-powerful outboard motors, officials in Europe have been discussing jurisdictional issues surrounding the arrest of pirates on the high seas and even the possibility that the pirates might demand asylum if brought onto European Union shores.
Germany, perhaps more than any other country, epitomizes both the importance of safe passage for ships and the difficulty of reacting swiftly. It is the world’s leading exporter of goods, and according to the German Shipowners’ Association it has the world’s largest container-ship fleet, with some 36 percent of total container capacity.
That would seem to argue for swift action to stop the pirates, and Germany did indeed draw international attention earlier this week when it announced that up to 1,400 military personnel members might take part in the mission to combat piracy. But the figure significantly overstated the likely deployment as part of a European Union mission in the region, and Parliament has yet to approve it. It also remains to be seen whether the rules of engagement give German sailors a free enough hand to fight the pirates.
German law requires parliamentary approval for all troop deployments, an outgrowth of the country’s uneasiness with the use of military force after the aggression and crimes of the Nazi regime.
On Wednesday, government ministry officials, members of Parliament and representatives of the shipping industry and the workers’ unions gathered on a dark, rainy night in the imposing stone Reichstag building to debate the problem and the best course of action. In addition to the question of asylum, questions of extradition to other countries and how to proceed with potential prosecutions were high on the agenda.
“It is not only the case for Germany that these legal questions have to be clarified, but that also goes for the other countries,” said Vice Adm. Hans-Joachim Stricker, commander of the German fleet, in an interview shortly before the proceedings began. “That is being worked on under high pressure, and once these legal questions are clarified, then the operations can be ordered.”
But some legal experts in Germany said that the United Nations Convention on the Law of the Sea and an existing United Nations mandate to combat Somali piracy already provided all the legal cover necessary for muscular action against the pirates.
“The legal regime is in existence, sustainable, and there’s no problem with that,” said Rüdiger Wolfrum, professor and director at the Max Planck Institute for Comparative Public Law and International Law and a leading jurist here. “There is a certain political hesitation to forcefully engage in anti-pirate acts.”
If it gets approval, the German military is planning to send a frigate, the Karlsruhe, with some 220 seamen on board, to join in the European Union’s first naval mission, Operation Atalanta, named after the swift huntress of Greek legend. “At this point we are finalizing the operational plan,” said Cristina Gallach, spokeswoman for Javier Solana, the European Union’s foreign policy chief.
Ms. Gallach said that half a dozen nations or more were expected to contribute to the mission and that its first tasks would probably begin Dec. 9, after the expected approval by the countries’ foreign ministers the day before. The presence is expected to include up to six frigates, three to five airplanes for maritime patrols and some 1,200 people in all, and the European Union hopes to coordinate actions with other navies operating in the region, including those from India, Russia and the United States.
But the Germans may not obtain the necessary approvals for their part of the plan in time to join the mission right away. Though the plan is expected to be approved before Christmas, the slowness of the process has frustrated some members of Parliament.
“I cannot believe that we could have this kind of problem, where pirates fool around with the international community,” said Bernd Siebert, a member of Parliament and a defense expert with Chancellor Angela Merkel’s Christian Democrats. “The bureaucratic obstacles and legal problems must be overcome. We have discussed this for too long.”
The capture of yet another ship on Friday, the chemical tanker Biscaglia, flying under the Liberian flag, underscored the point. The company that provided the security personnel for the ship, Anti Piracy Maritime Security Solutions, based in Poole, England, said in a statement after communicating with its team leader that “the ship came under sustained and heavy attack from automatic weapons and rocket-propelled grenades.”
The security team had been using nonlethal means, including water cannons, to defend the ship. After getting the crew to a safe place, the men were unable to prevent the pirates from boarding and jumped overboard under fire, the statement said. The three men, two Britons and one Irishman, were rescued unharmed by a German military helicopter. Roughly 30 crew members were still on board the ship at the time of the hijacking, according to the International Maritime Bureau, which runs the Piracy Reporting Center.
A spokesman for the operations command of the Bundeswehr, the German armed forces, confirmed that the Mecklenburg Vorpommern, a frigate operating in the region as part of the American-led antiterrorism mission, sent its helicopter to investigate after receiving an emergency call from the tanker. By the time the helicopter, a Sea Lynx Mk 88, arrived, the pirates had already boarded the tanker, the spokesman said, thereby precluding aggressive countermeasures for fear of the crew’s safety.
“From the time a crew on board spots the pirates to the time they actually board is usually only 15 minutes,” said Peter Lehr, an expert on piracy and maritime terrorism at the University of St. Andrews in Scotland. Mr. Lehr said that even the addition of the European Union naval mission would not be enough to secure the vast area. “A naval escort has to be nearby. As soon as they’re on board it’s too late to do anything.”
Forty ships have been confirmed as hijacked this year out of a total of close to 100 that have been attacked, according to the International Maritime Bureau. The most spectacular hijacking occurred two weeks ago, when pirates captured a Saudi-owned supertanker, the Sirius Star, worth $100 million and loaded with two million barrels of oil, worth another $100 million.
Pirates have already collected at least $25 million in ransom this year, the United Nations secretary general, Ban Ki-moon, said last week. The Associated Press reported Friday that a Greek-owned cargo ship taken more than two months ago was released Thursday.

Source: New York Times