Maritime Piracy as International Crime and its Influence on Shipping
Despite the fact that piracy has a long history, it still exists and is growing. Actually, in the late 1800s piracy was recognized as the first international crime, and pirates were declared “hostes humani generis” (enemies of humanity). While hundreds of years ago pirates united into small groups only, today piracy is a form of organized crime and has a number of large criminal networks at local, state and international levels involved not only in piracy but in other transnational crimes, such as smuggling, arm trafficking, money laundering, corruption, etc. Piracy hot spots also change and expand from the Caribbean to the Strait of Malacca, the South China Sea, the Gulf of Guinea, off the coast of Somalia into the Indian Ocean and the Red Sea (Gulf of Aden).Therefore, maritime piracy is a threat to international peace and security, economic prosperity not only of corporations or entities in the marine industry but to ordinary consumers.
Legal definition of piracy
There are a number of legal definitions of piracy contained, inter alia, in the United Nations Convention on the Law of the Sea (theUNCLOS) dated 10 December 1982 and the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SCUA)of 10 March 1988. According to Article 101 of the UNCLOS, piracy consists of any of the following acts: “(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; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts that make it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)”1. In turn, the SCUA does not operate the word “piracy”, however Article 3 thereof states the following: “Any person commits an offence if that person unlawfully and intentionally: 1) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or 2) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or 3) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or 4) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or 5) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger safe navigation of a ship; or 6) communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or 7) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set out in sub-paragraph (a) to (f)”2.
National legislation also contains a definition of the crime of piracy. In accordance with Article 446 of the Criminal Code of Ukraine of 5 April 2001, “piracy is the use of a vessel, whether armed or not, for capturing any other sea or river vessel, and violence, robbery or any other hostile actions against the crew or passengers of such vessel, for the purpose of pecuniary compensation or any other personal benefits”3. As can be seen, this definition is quite weak and needs to be harmonized with those provided by International Acts.
In accordance with the principle of legality, to be applicable for a criminal judicial system a clear definition of the crime of piracy should be drafted. The crime should be defined from a consensus development from the definitions provided by the UNCLOS and the CSUA. An exhaustive definition would include aspects from both conventions, although it may not include them completely. For instance, the UNCLOS’s determination emphasizes violence, detention and robbery, while the CSUA’sdefinition focuses on damage or destruction of a ship or cargo and endangerment of the safe navigation of a ship.
In 1981 the International Chamber of Commerce established its specialized division, which is called the International Maritime Bureau, which is a non-profit organization, aiming to act as “a focal point in the fight against all types of maritime crime and malpractice”4. In October 1992 outrage in the shipping industry at the alarming growth in piracy prompted the creation of the IMB Piracy Reporting Centre in Kuala Lumpur, Malaysia. The main services of the PRC are: “issuing daily status reports on piracy and armed robbery to ships via broadcasts on the Inmarsat-C SafetyNET service; reporting piracy and armed robbery at sea incidents to law enforcement and the IMO; helping local law-enforcement to apprehend pirates and assist in bringing them to justice; providing updates on pirate activity via the Internet”5. The services of the PRC are provided free of charge to all ships irrespective of their ownership of flag. By posting information on the Internet, ship-owners and authorities ashore as well as ships at sea can access these updates and make decisions and assess risks associated with certain sea areas.
For the period from 1 January 2019 to 30 September 2019 the PRC received reports on 119 incidents of piracy (hereinafter — all statistics are taken from The International Chamber of Commerce International Maritime Bureau Piracy and Armed Robbery Against Ships Report for the period from 1 January to 30 September 2019). This compares to 156 incidents for the respective period in 2018. These include 99 actual attacks and 20 attempted attacks. The distribution of the attacks as per regions is as follows: Africa (53), SE Asia (35), America (23), East Asia (5) and Indian Sub-Continent (3). There are top 5 locations of actual and attempted attacks: Nigeria (29), Indonesia (20), Malaysia (10), Venezuela (6), Peru (5) and Cameroon (5). The most dangerous port is Lagos (Nigeria), where 11 incidents were reported. So, piracy is a widespread crime.
The majority of attacks were against the following types of ships: Tanker Chem/Product (32), Bulk Carrier (30), Tanker Crude Oil (15), Container (12), General Cargo (7). As to the nationalities of vessels which are the most frequently attacked, the statistics are as follows: Marshall Islands (22), Liberia (18), Singapore (17), Panama (10), Malta (8). Regarding managing countries whose vessels were attacked most commonly, there are Singapore (20), Greece (18) and Germany (10).
The human cost is also high. The PRC reports that for the mentioned period as a result of piracy attacks 70 crew members were kidnapped, 49 were taken hostage, 4 were threatened, 6 were injured, 3 were assaulted and 1 was killed. The number of crew members taken hostage had reduced from 112 in 2018 to 49 in 2019. However, the number of crew members kidnapped from vessels rose from 39 in 2018 to 70 in 2019.
According to the State of Maritime Piracy 2017 Report, as prepared by One Earth Future’s “Oceans Beyond Piracy” program, the sum of USD 1.4 billion was economic costs from Somali piracy alone. Among piracy-associated reasons for that are: insurance costs; employment of security officers and the purchase of special security equipment for ships transiting through piracy hot spots; increased costs for fuel caused by the need to move at faster speeds or modify the route to avoid pirate attacks; funds for ransoms; this list is endless. Therefore, the direct consequence is increasing the costs of products and services due to rising costs of transportation. Thus, the economic impact of piracy is felt not only by corporations or entities in the marine industry but by ordinary consumers.
Despite the fact that in the years of drafting of the Rome Statute piracy showed its relapse, and it was initially proposed to be included within the jurisdiction of permanent international criminal court, it was not included in the Statute. The reasoning is that its aim is personal gain and it is not a crime committed by state actors. However, the present involvement of government officials (for instance, in Somalia or Southern Asia) in the piracy network is evidence that state actors can also participate in crimes, even indirectly. According to the Rome Statute, the International Criminal Court (hereinafter — ICC) is established to investigate and punish crimes that “threaten the peace, security and well-being of the world”6. Actually, piracy has now gone far beyond being directed merely for personal gain. It is committed on a large scale and impacts global security and the well-being of humanity.
The prosecution of piracy is permitted under universal jurisdiction, with the exception being crimes committed in territorial waters. Despite the fact that the United Nations Security Council Resolution No. 2077 of 21 November 2012 permits states to enter Somali territorial waters to pursue and capture pirates7, this is not an option. Thus, the prosecution and investigation of acts of piracy committed in the territorial waters of other countries is still a challenge. In the light of the rising number of acts of piracy in recent years, practitioners and scholars discuss the possibility of prosecuting pirates who commit crimes beyond the territory of states. One such option is the adoption of an amendment to the Rome Statute. In accordance with Article 121 thereof, “any State Party may propose amendments thereto”8. However, it must be taken into account that the ICC is the court of last instance. It would be part of a global justice system dealing with piracy, but not the only court to have jurisdiction over it. In the event of failure to adopt a new, specific crime of piracy to the Rome Statute, it would be possible for the ICC to prosecute crimes of piracy under any of the current crimes provided in the Rome Statute. For example, crimes against humanity (Article 7).
Piracy began years ago as random events. However, the organized nature of attacks developed significantly, and piracy attacks are no longer spontaneous. This crime is not just about the theft of a ship, but all the accompanying crimes, such as hostage-taking, kidnapping, infliction of grave injuries, torture and even murder. The impact of piracy is felt not only by its direct victims, experiencing physical and mental suffering, the growth and spread of this crime creates an effect that stretches beyond oceans and borders. Consumers pay more for goods and services as prices rise proportionally to cover higher shipping costs. Piracy has turned into a more complicated and organized criminal enterprise. It engages a business-like approach and involves pirates, financial backers, government corruption and, possibly, even links to terrorist groups. Therefore, it is inevitable to take action to investigate and punish piracy crimes effectively.
Yuriy Sergeyev is a managing partner at Sergeyevs’ Law Office
Iryna Radkovska is a lawyer ata Sergeyevs’ Law Office
1 The United Nations Convention on the Law of the Sea dated 10 December 1982
2 The United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation dated 10 March 1988
3 The Criminal Code of Ukraine of 5 April 2001
4 The International Chamber of Commerce International Maritime Bureau Piracy And Armed Robbery Against Ships Report for the period from 1 January to 30 September 2019
6 The Rome Statute dated 17 July 1998
7 The United Nations Security Council Resolution No. 2077 dated 21 November 2012
8 The Rome Statute dated 17 July 1998