The Pirates of Somalia_ Inside Their Hidden World - Jay Bahadur [67]
“It’s not true that we have to catch pirates in the process of an attack. We can catch them well afterwards, as long as there’s clear link of evidence,” he explained, proceeding to describe an incident where EU maritime patrol aircraft had tracked a pirate attack group from the scene of an attempted hijacking for twelve hours before a warship caught up and took them into custody. “Of course, if we catch them in the act, that’s great, because we’d be killing them … we’d shoot them down,” he said. “Normally, they’re not that stupid; they usually try to break off, and even scatter.” Indeed, when catching pirates in the midst of an attack, NAVFOR has not hesitated to respond with deadly force. From August 2008 to May 2010, the combined international naval forces killed at least sixty-four pirates and wounded twenty-four.4
The blame for the typically lenient treatment of arrested pirates, according to Harbour, lay squarely with the domestic legal systems of the nearby countries—such as Kenya—to which the pirates are sent for prosecution. “EUNAVFOR forces are the policemen of the seas; our job is to gather the evidence to present to the court, but it’s up to the judge to decide whether to prosecute,” he said. “What we’d like to see is countries develop laws on conspiring to piracy. To use the police corollary: if a policeman catches some bloke walking down the road with an unlicensed gun in his pocket, then he is conspiring to commit a criminal act. He should be taken to court and given a very long sentence just for carrying the gun.”
The metaphor was not entirely apt; unlike the streets of London, on the high seas it is not a crime under international law to carry firearms, even when they consist of a rather suspicious assortment of Kalashnikovs and rocket-propelled grenade (RPG) launchers. The United Nations Convention on the Law of the Sea (UNCLOS) permits the seizure of “pirate ship[s] or aircraft” without actually catching the occupants in an act of piracy but also without clarifying what constitutes adequate grounds to do so. This omission is especially problematic given that a Somali fishing boat with a few Kalashnikovs stashed in the bottom could as easily contain legitimate fishermen as pirates. The danger is that by prosecuting suspects for “conspiracy to commit piracy,” countries would be giving an unprecedented interpretation to UNCLOS, one that unfairly targets all seafaring Somalis. So far, the Seychelles has been the only country to pass such a law.
The international naval effort, Harbour conceded, represented only part of the solution to the piracy crisis, which in the end had to be resolved on the ground. “It’s important to remember that we are the military arm of the European Union, which is spending $250 million on trying to stabilize that country by supporting the Transitional Federal Government (TFG),” he said, referring to money pledged at an April 2009 donor conference in Brussels. “We look upon ourselves as part of that political grouping, and that is why we differ from NATO and [CTF-151], which are purely military forces conducting a particular job, i.e., anti-piracy or anti-terrorism.”
But with the TFG currently in control of only a half-dozen neighbourhoods in Mogadishu, I asked Harbour whether funnelling money to such a “government” could realistically make any difference to the anti-piracy effort. “A bit of optimism is required there,” he conceded. “But by stabilizing the TFG, by supporting it, that’s going to defeat piracy … The fact that you’ve currently got eight huge cargo or oil ships sitting at anchor off the coast of a country controlled by a bunch of criminals, who are demanding huge ransoms from the international community, is just appalling. Can you imagine