Piracy off the coast of Somalia - Foreign Affairs Committee Contents

Examination of Witnesses (Question Numbers 113-194)

Captain David Reindorp RN and Dr Campbell McCafferty

29 June 2011

  Q113 Chair: I welcome members of the public to this sitting of the Foreign Affairs Committee. We are doing an inquiry into piracy off the coast of Somalia, and the purpose of today's session is to question MOD officials and serving officers on the UK's involvement in NATO and the Combined Task Force counter-piracy operations and its overall counter-piracy work.

  The first two witnesses in this session are Captain David Reindorp, Head of the Defence Crisis Management Centre in the MOD, and Dr Campbell McCafferty, Head of Counter-Terrorism and UK Operational Policy, also MOD. I extend a very warm welcome to you both. I am very pleased that you have been able to accept our invitation to come here today. Perhaps you would like to start by describing what happens in an attack on a ship when pirates try to take it over. Can you talk us through a situation?

  Captain Reindorp: Perhaps I can start by saying there is no such thing as a standard pirate attack, so what I will give you is a generic example. Most attacks occur either from a single skiff, a small vessel, or from two skiffs—generally not more than that. Each skiff contains between two and six pirates. They are armed with a range of weapons, normally small arms, ranging from the traditional AK47s to RPGs. They will manoeuvre one of the skiffs to come alongside the vessel and they will throw up a line on a hook, a grappling rope or some form of apparatus by which they can climb up on to the freeboard of the ship. If they are detected during that, they will usually fire at the ship, generally in and around the bridge, aiming either to get the master to slow down or to clear their way on to the freeboard. Once they have got on to the ship, they will proceed to the bridge and take it over.

  I think the only other point to bear in mind is that, although you hear lots of talk about motherships, we have not yet seen motherships be used in an actual attack. That is simply because they are not very manoeuvrable and they cannot get alongside a ship.

  Q114 Chair: Is it obvious when a boat coming alongside is a pirate vessel, or are some of them innocent?

  Captain Reindorp: As someone who has been the master of a ship, the captain of a ship, I would say that you generally know where you expect someone to come alongside you and where you do not expect that. I would suggest that in the middle of the Indian Ocean or the Gulf of Aden, you do not expect it, so yes, to my mind, it would be particularly obvious.

  Q115 Chair: So you would be pretty entitled to treat anyone coming close as suspicious?

  Captain Reindorp: There are close passes. Particularly in that part of the world, there are lots of small craft around, and they frequently do not get out of your way, so taking action based on a close pass would perhaps be a bit too precipitate, but you should certainly not be expected to ignore it.

  Q116 Chair: One of the issues that we will be looking at when we have had all the evidence is what reaction there should be from a ship, which is vulnerable, if a boat is coming alongside. Of course, it would be disastrous if it was an innocent boat and a counter-attack took place. That is the problem.

  Dr McCafferty, would you like to say anything on that point? Do not feel obliged to answer every question.

  Dr McCafferty: No, I certainly won't. I think what we demonstrate today is what Lord Levene said is a closely integrated civ-mil relationship in the Ministry of Defence, so I will not answer every question. [Interruption.] I think we might be moving them out of London.

  All I would say, Chairman, is that your final point is exactly correct. The difficulty in identifying a pirate attack, and separating pirates from fishermen going about their normal business, is absolutely key to how you deal with piracy in the Indian Ocean.

  Q117 Chair: They are using motherships; how do we respond to this development? I gather that the three forces each have a slightly different approach to dealing with this. What are the guidelines now to ships going through the area in relation to motherships?

  Dr McCafferty: It is all covered in the best management practices. As Captain Reindorp said, you will not actually see the motherships do the attacks; it still remains the skiffs, because of their manoeuvrability. I think it is fair to say that, as the pirates have changed tactics and used motherships to get around monsoon seasons and to launch attacks further out, the international community and the international navies operating in the Indian Ocean have also changed tactics and looked to increase the capabilities that they have available to them, such as increased ability to board what we call complex ships—ships with many decks—which is what the mothership would look like. It is a much more complicated business, but we have adapted our tactics and our forces to be able to cope with that.

  Q118 Chair: If the Navy is aware that a ship has been boarded, do you then stand off? I seem to recall that you do not go back on to fight it out.

  Captain Reindorp: No, standard policy is not to do that. Standard policy is to hold off, monitor what goes on and take what action that we can, but our prime overriding interest once a ship has been boarded is the safety of the lives on board—of the hostages—and quite a few incidents show that to take precipitate action is the wrong course.

  Q119 Chair: Where are the ships taken once they are caught?

  Captain Reindorp: They are taken to a variety of anchorages off the coast of Somalia. There are probably four or five in operation at any one time, but they do move.

  Q120 Rory Stewart: Coming in behind that, given the way in which the attacks are generally mounted—the classic attack you described—presumably, three or four armed men on a boat would make it quite difficult for a pirate to climb up a ladder, and therefore if these companies were to employ private security, they would significantly enhance their ability to deter an attack?

  Captain Reindorp: Statistics can be interpreted in many ways, but I think it is safe to say that any ship that follows best management practice, which can include a variety of things such as manoeuvring and posting extra lookouts to enable the ship to turn and, if necessary, run away—and those sorts of general guidelines stands a statistically much higher chance of avoiding capture. The statistics also show that any ship that employs on-board protection, private or public, has a much greater chance of avoiding seizure. In fact, I think I am correct in saying that no ship with a VPD—vessel protection detachment—on board has been successfully seized.

  Q121 Rory Stewart: The implications of that, Campbell, is that if no vessel with such a unit has ever been seized, surely that is a very good reason to say that ship owners should be pushing ahead to have more security teams?

  Dr McCafferty: I think it is definitely something we need to keep under review, and the Department for Transport in the United Kingdom has the lead for that policy. The challenge comes, as I said, in that like everywhere else, the more guns there are around, although there is a deterrent effect, you also have the increased opportunity or potential for the wrong people to be shot.

  Q122 Sir Menzies Campbell: How many knots does one of these skiffs make?

  Captain Reindorp: They tend to have quite large outboard motors on the side. I would not hazard a guess at the speed that they can go, but I think we can assume that they would be faster than the average merchant ship that they would approach—I mean, these things can do up to 30 or 35 knots. A lot of that, of course, is dependent on sea state.

  Q123 Sir Menzies Campbell: Not many warships could do 35 knots.

  Captain Reindorp: Not many, sir, no.

  Q124 Sir Menzies Campbell: The obvious form of retaliation is to use weapons, but are there other means, such as steam hoses and things of that kind, which if properly directed—courageously directed, because you may have to expose yourself to use them—that offer possible alternatives?

  Captain Reindorp: There is a variety of possible alternatives, which range from ranging razorwire and barbed wire across the most vulnerable parts of your ship to access to rigging fire hoses and having a water curtain over the side of the ship. There are also non-lethal sonic weapons, which I know some elements in the shipping industry have used. Yes, there are quite a few ways.

  Q125 Sir Menzies Campbell: Finally, is it your judgment, from your experience, that the shipping companies are alive to the possibility of using those various means, or are some of them, to put it rather bluntly, simply careless?

  Captain Reindorp: It would only be my judgment, but I think you could generalise and say that there are two camps: there is the majority, who are aware of the security measures available and will take them based upon a risk assessment—only they can determine that the risk their ship faces justifies their taking those sort of actions; and there are perhaps one or two shipping companies, or individual shipping entities or masters, who are either not aware or choose not to take those measures under any circumstances.

  Q126 Mr Ainsworth: Dr McCafferty, you said that as the pirates have changed their methodology and increased their use of motherships, so navies in the area had upgraded their capabilities. Do we ever board motherships? Have we ever boarded one?

  Dr McCafferty: I am not sure. We are straying into difficult realms here: the boarding of motherships is generally an SF capability, so I am not able to comment.

  Q127 Mr Ainsworth: So you do not do it? The purpose of the question is that if we tell people that as they changed their methodologies, so we upgraded our capability, we are giving people the impression that there is a naval solution to this problem, but there isn't, is there? We do not board motherships, do we. I am not aware of any instance where we have boarded a mothership, so why give that impression?

  Dr McCafferty: I think it is fair to say that, while we as the UK have not boarded motherships, we have put in an enhanced boarding capability that would allow us to, should we be in a position where there was a mothership, with evidence of piracy. The challenge comes from the fact that the ships that do the attacks—where there is clear evidence of piracy—are skiffs rather than motherships. That probably explains why we have not boarded a mothership.

  Q128 Mr Ainsworth: Yes, but the problem, in effect, is that until there is actually an attack in progress, there is little we can do. Even if we boarded a mothership, what would we do? Is not that the horrible truth that the world needs to know?

  Dr McCafferty: I think that is right. There is a large number of fishermen in the Indian Ocean, so you have to look for evidence that demonstrates that they are pirates and not fishermen going about their business, but it is not the first time that military forces have dealt with agile adversaries, who change their tactics.

  Q129 Mr Ainsworth: There were a few Icelanders who mucked us about a few years ago, weren't there?

  Dr McCafferty: Certainly in Iraq we saw people who would put weapons down, because then they were not presenting a threat and therefore we could not prosecute in the way that we would normally. It is the same with pirates: when they see a naval vessel approaching, they will often throw the paraphernalia overboard, and then we do not have the evidence which with to chase a prosecution.

  Q130 Ann Clwyd: Can you describe a typical pirate? In the public mind, pirates still have a romantic, swashbuckling image. What kind of people are they? What motivates piracy?

  Captain Reindorp: The early days of what press reports and academic works describe as subsistence pirates, who go to sea because they have had their livelihood taken away from them, are long gone. We must differentiate between what we call "foot pirates"—I know it is a tautology—and pirate leaders and investors. Your average foot pirate who goes to sea is somebody who is prepared to take quite a considerable risk in order to gain what to us would be a negligible reward. They are generally not terribly well educated and they have quite a difficult life ashore, but actually, these days, they are part of a very structured business model. They are the bottom part of an investment chain whereby a group of investors have got together, financed the creation of a pirate capability and sent it to sea in order to prey on innocent merchant ships on the high sea and bring them back for financial reward.

  Q131 Ann Clwyd: Some of the work that NATO has been doing has been to correct misinformation. What kind of misinformation was being given to the Somali people and how do you correct it?

  Captain Reindorp: It is not my area of expertise, but I think the work that NATO has been doing has been to separate the image that you brought up of the pirate as a sort of Robin Hood type, robbing the rich to give to the poor—generally a moralistic actor—from what he actually is, which is a simple maritime criminal.

  Dr McCafferty: Colin Freeman, in his article on the BBC website today, highlights the fact that the Somali people themselves are beginning to see this as difficult for them, because what starts at sea —the kidnapping—can move to land and then aid workers, journalists and people who are generally there to help the overall situation become potential victims as well. It is those sort of messages that NATO is trying to get out.

  Q132 Sir Menzies Campbell: We tend to see this as pirate skiff against merchant ship, but if the people in the skiffs are at the bottom of the food chain, is there any way in which we can cut the chain higher up—for example, if large sums of money are handed over by way of ransom, can we keep tabs on these and stop money laundering and things of that kind? Is that the sort of interruption we would be looking to do as well as to deal with the front line?

  Dr McCafferty: It is something that the international community see as a key priority—changing that risk-reward calculus, not for the foot soldier but for the pirate ganglord. Tracing money is at the nexus of a whole lot of criminal activity. If you can pinpoint that, you would actually solve a lot of problems with organised crime. People are well aware of the opportunities that money laundering presents, but unfortunately it is not simple. Some of the new money laundering laws that they are trying to bring in to the region should make some of that a lot easier.

  Q133 Chair: Dr McCafferty, you are the Head of Counter-Terrorism. If a British ship was hijacked, do you follow closely the release effort?

  Dr McCafferty: Apart from, obviously, the Lynn Rival and the Chandlers, it has been UK-flagged vessels that have been hijacked. Although my job title is Counter-Terrorism and UK Operational Policy, it would not be the Counter-Terrorism team that would look after it; it would be Captain Reindorp and his team who would follow what happened.

  Q134 Chair: I am sorry, I thought that one was military and one was more operational. I will put the question to you both, then. How much knowledge do you have about ransom payments?

  Captain Reindorp: The best way to answer that, sir, would be to say "as much as we need to do the job that we do". Once a ship is taken, there are two ways of releasing it: one is for the ransom to be paid, and the other one is for it to be released through military means. That is not something that my team would deal with. Releasing a ship is a hostage rescue situation, managed from a Special Forces cell.

  Dr McCafferty: The Foreign Office counter-terrorism directorate lead on all UK hostage situations, which would include hostages who were taken by pirates.

  Chair: I had some detailed questions on that, but I will save them for another occasion.

  Q135 Mr Watts: Can you tell us something about the commitment of assets and forces to dealing with this problem? Perhaps you could give us some indication whether you expect the assets and forces to go down, to increase, or to stay about the same?

  Captain Reindorp: Are you talking about UK forces?

  Mr Watts: Yes.

  Captain Reindorp: In respect of UK forces, the MOD remains committed to contributing to the international effort—and it is an international effort, not a UK or a coalition-type effort—on counter-piracy, particularly Somali piracy. Our current intention is to continue to retain command of the EU Operation Atalanta, and General Buster, who you saw last week, is the commander of that. We currently intend to do that until the expiry of the current mandate, which is December next year—December 2012. We also intend to commit forces to the Coalition Maritime Force grouping, which may be available for counter-piracy. CMF is one of three international coalitions that are currently ranged against the pirates.

  Q136 Mr Watts: What will be the impact of scrapping the four frigates?

  Captain Reindorp: The impact of scrapping the four frigates is that there will be four frigates less. The impact in terms of counter-piracy—

  Q137 Mr Watts: So would the answer to the first question be that you see assets and forces going down rather than staying the same?

  Captain Reindorp: Assets will go down.

  Q138 Mr Watts: So you, as the British contribution, will have fewer resources, forces, etcetera to deal with this problem? Okay.

  Turning to air surveillance, what impact will the abolition of Nimrod have on your ability to track pirate activity?

  Dr McCafferty: What you have to remember is that all the operations that Captain Reindorp referred to—the EU Operation Atalanta, the NATO Operation Ocean Shield, and the CMF operation—are coalition operations. The coalition commander decides what assets he requires, then he makes a request for assets from the members of that coalition. In counter-piracy there is also a number of non-aligned nations supplying assets, so it is not the case that if you take away any British asset it leaves a gap. As I said, this is a coalition and you change the balance of the assets in a coalition all the time. It is normal practice in coalitions.

  Q139 Mr Watts: Can you guarantee that after the loss of the four frigates and Nimrod, some of the coalition partners will provide more facilities to bridge that gap? That that has been agreed—it is going to happen.

  Dr McCafferty: I do not think we would say that it has been guaranteed; priorities change all the time. At the minute we have assets—particularly maritime assets—working in what we call Operation Ellamy and the Libya operations that we would not have had six months ago. At all times, every nation has to look at its operational priorities and the assets it has, and then allocate them appropriately. However, as Captain Reindorp said, there is no intention for the Ministry of Defence or for HMG to reduce what they are doing in terms of counter-piracy. It still remains an important operation.

  Q140 Mr Watts: There is a decision to reduce UK assets, and you tell us that you are now dependent on other coalition partners to bridge that gap. If they fail to do that, or wish to do it for their own operational reasons, there could well be a reduction in the assets available to deal with this problem in the future.

  Dr McCafferty: There could be.

  Q141 Mr Watts: It is a bit confusing when you look at the command structure, because there seems to be three different organisations with different engagement rules. How do you bring that together? How is such a confused structure managed?

  Captain Reindorp: There are three key coalitions: there is the European Naval Force one, Operation Atalanta; there is the NATO one; and there is the Coalition Maritime Forces—CMF-150. As you say, each has a different command structure, and there is a variety of reasons why they need that, largely to do with the contributing nations. Some will not want to play with the EU, obviously because they are not European; some will not wish to be part of NATO; and some will not wish to be part of any of them, and that is where you get the independent players, such as China, Japan and South Korea.

  Probably the best co-ordination mechanism is something introduced by the EU naval forces, which is known as SHADE—the shared awareness and deconfliction environment. It meets regularly; it generally works out of Bahrain, which is the home of the headquarters of the Coalition Maritime Force, but the chairmanship is rotating. Although, the last time round, the CMF US-led forces hosted SHADE, I am pretty sure in saying that NATO actually chaired it, and one or two others, including sometimes the single players—the non-aligned nations—have been given the opportunity to co-chair SHADE. It is very effective. It is probably the best example of maritime security co-operation that we have ever seen. You have upwards of 25 nations and industry and the insurance world, and so on, coming together in a single location to talk, share their problems and agree a co-ordinated way forward.

  Q142 Mr Watts: Would it not be better if they all had the same engagement rules? What stops that?

  Captain Reindorp: The idea of NATO, the European Union, the Russians, the Chinese and the Iranians all having the same rules of engagement is not sensible, I'm afraid.

  Q143 Mr Watts: Okay. Finally, can I go on to your involvement, if any, with local clans? Do we engage with the local clans in Somalia to set out what the dangers are of their pirates taking part in such activities? Could we do more, or do you think that that is a lost cause and that, no matter what we do to talk to them, it is not going to have any impact?

  Captain Reindorp: Here, I have to fall back on my role, which is strategic advice and the direction of UK operations. We per se—the UK—do not get individually involved. I am aware that both NATO and the EU have done that, and they have done it with some success. As to whether more would be beneficial, yes, more will always be beneficial. It is a question of applying what assets you have in the best possible way.

  Q144 Chair: Going back to the question about the different command structures and rules of engagement, is there an overlap or duplication of effort between the EU and NATO operations—leaving aside the third one and the independents?

  Captain Reindorp: When you get three coalitions plus a series of independent actors working together, there will always be areas of overlap. Seeking clearly defined boundaries—saying, "You have one part of the ocean. You have another part. You have a third part. You individual guys all mill around in the middle."—will not work, because they will all bring, for the right or wrong reasons, their own agendas. One of the purposes of SHADE and one of things it is very good at doing, on an informal basis—bear in mind that SHADE has no authority or power—is to to attempt to deconflict and to ensure that what assets are available are broadly shared in non-overlapping areas.

  Q145 Chair: Is there a problem, though, with different structures?

  Dr McCafferty: I do not think that there is any evidence to suggest that there is a problem. You look at it and it appears clumsy. SHADE has been a pragmatic approach to bring together the actors in the area, and that has removed the duplication.

  Q146 Chair: If you were starting with a blank sheet of paper, would you set up the structure that we have now?

  Captain Reindorp: If I was starting to put it together now, I would have a different end point in mind, but I would accept the current position as a good compromise.

  Q147 Chair: That is an answer to a different question. What about the question I asked? If you were starting again, what would you do?

  Captain Reindorp: I think, in ideal policy terms, perhaps; but as a practitioner, probably not.

  Q148 Rory Stewart: Can I keep pushing on that? Unity of command is central. Can you tell us what on earth the reason is? I can understand Russia and China, but Russia and China do not belong to any of these three coalitions, so that is a red herring. Why on earth can the countries in the current three coalitions not create one coalition?

  Chair: We have the Minister, who can perhaps answer that, coming next week.

  Dr McCafferty: I suppose the simple answer is that you would have to look at what the principal reason is. If I am right, the EU mission was set up to look after the World Food Programme and to protect its ships. The Coalition Maritime Forces mission is broader than counter-piracy. It looks at counter-terrorism and counter-proliferation in the Gulf. You would have to go back and get the three coalitions to concentrate on one set of objectives. They all have missions that go beyond counter-piracy. It is not impossible, and perhaps that is something you need to look at as you move forward, but you need to go back to the genesis of the three operations to see why there are three.

  Q149 Sir Menzies Campbell: Do any of them come with caveats imposed by their national Parliaments? As you know, that happens with land forces in NATO and has been a particular bone of contention in Afghanistan. Do we have maritime caveats?

  Captain Reindorp: I am fairly sure we do. We impose national caveats on any coalition contribution we make, so it is fair to assume that others would, too. Would we know what they are? Probably not.

  Q150 Rory Stewart: To continue on that, the UK has a range of naval commitments, and Dr McCafferty talked about matching resources to priorities. How does anti-piracy compare with the UK's other naval commitments? Can you give us a rough ballpark figure of how many UK naval resources and how much time is directed towards piracy, rather than other kinds of operation around the world? A third? 10%? 5%? How important is it to the UK Navy?

  Captain Reindorp: At the moment, counter-piracy is not what we would consider a standing task, so it is not something on which we are directed politically to focus on a 365-day basis. Nor is it a contingent task that we are currently doing on an enduring basis for a limited time period. It fits outwith those two parameters.

  Q151 Rory Stewart: Will you explain to the amateur what those two definitions mean?

  Dr McCafferty: A standing task would be something that you do for the defence of UK maritime integrity, which would be a task to which frigates are attached for the entire period. There is another task called Atlantic Patrol Task North, which is in the Caribbean and is there for disaster relief during the monsoon season. It deals with counter-narcotics, so that is a task that carries on. We currently have Libya, which is a task to which we have committed a frigate. Piracy is another task that we do when those assets have been allocated.

  Q152 Rory Stewart: Those are the priorities. Is it one way of saying that piracy is a lower priority than your standing and contingent tasks? Do the other commitments take precedence?

  Captain Reindorp: Yes.

  Q153 Rory Stewart: What are the implications of those commitments for the amount of resources that we have left to deploy against piracy?

  Dr McCafferty: Obviously, if you have higher priorities, you put your resources towards those higher priorities. If resources become available, you move to the next level. There is no military commander in the country who will not ask for more resources. We have to live within a budget, and we have to work with the resources and the operational priorities that we have.

  Q154 Rory Stewart: We were talking earlier about vessel protection. What is your sense of the UK's guidance and policy on vessel protection?

  Captain Reindorp: The first point to make clear is that that is not an MOD part of ship, if I may use a naval term; it is a Department for Transport part of ship. We are currently engaged with the Department for Transport and helping it to understand the implications of a change in its current policy. Its current policy is driven by extant UK law, which forbids the carriage of private weapons onboard Red Ensign-flagged ships.

  Dr McCafferty: The Home Office would have the lead on that.

  Q155 Rory Stewart: To repeat, under UK law you currently cannot carry a weapon on a UK-registered ship?

  Captain Reindorp: My understanding of UK law is that the carriage of private weapons onboard most ships is illegal. There are one or two exceptions, of which I am not aware, but I know that they exist.

  Q156 Rory Stewart: If we were able to overcome that prohibition—if the law changed and it became possible for ships to defend themselves properly—what would be the remaining role for the Navy? Let's say these ships got to a situation where they could effectively prevent a pirate from climbing up a rope on to their deck. What would the British Navy be doing?

  Dr McCafferty: If you stopped the pirate attacks, we wouldn't be doing counter-piracy.

  Q157 Rory Stewart: Your assessment is that it's unlikely to stop the pirate attacks?

  Dr McCafferty: To go back to what I said right at the start, the pirates have proven incredibly agile in changing their tactics. It may well be that if you put armed protection detachments on to vessels, you find yourselves in an arms race. It may deter some pirates; it may just encourage pirates, in acts of desperation, to arm themselves more.

  Q158 Rory Stewart: Is there any evidence of that? I agree, as a hypothetical situation, but given what we know about the pirates—given their resources, given the kind of kit they use—there's not much evidence that they are likely to get to a high-tech stage, is there?

  Captain Reindorp: There is very good evidence that they are adaptive. We have seen them adapt their tactics on several occasions. The use of motherships is a change in their tactics which allows them to overcome the monsoon periods which had previously seen fallow periods. Monsoons had strong winds, strong waves: no piracy. The use of motherships allows them to overcome that. So that is evidence of adaption, yes.

  Q159 Rory Stewart: If I put this in very stupid, blunt terms, for my final question: if we look at, for example, fighting the Taliban in Afghanistan, the major concern of the military is not that the Taliban are going to be able to get F-16 fighter jets. They tend, much like your pirates, to rely primarily on Kalashnikovs, RPGs or IEDs of various sorts. The likelihood is that there will be—and continue to be—a massive asymmetry between the potential of the West, our navies, and wealthy shipowners, and these pirates. In Afghanistan, the problem is not usually defending a fixed position. It does not usually involve doing the equivalent of preventing people from climbing on to your deck. The threat is of a different sort. The asymmetric threat isn't one that would lead to well-defended vessels being boarded.

  Captain Reindorp: I think the problem is that we are perhaps focusing on the military as a solution to the problem, but that will only ever be a palliative. It will address the symptoms, but it will not address the cause. To try to drill down into your question, it doesn't have to be simply that pirates get better weapons. It could equally be that they choose to execute their hostages, which is a situation that we would not wish to get into, and would make it even more difficult for us to have whatever effect that we can.

  Q160 Chair: In the Caribbean, the US law enforcement agencies have been using shipriders. Are there any lessons that can be learned from them?

  Captain Reindorp: I am reasonably au fait with what they are doing.. Shipriders are put onboard ships where a bilateral sort of agreement exists between the US and the ships that they board. There isn't that sort of bilateral agreement for counter-piracy, so while it is a model, it is not really an exemplar.

  Q161 Mr Watts: The Committee previously heard that some 94% of pirates that are arrested are released. Is that a correct figure? I think most people would think it strange, if they found someone burgling their house, that they would be arrested and then released the following day. Isn't this an incentive for pirates to continue?

  Dr McCafferty: It may be semantics, but with a burglar in your house, you have evidence of burglary. The challenge in the Indian Ocean, as we've said, is catching the pirates in the act with the evidence. Where we have been able to put evidence together, the UK has been successful in prosecuting pirates, albeit a small number. The challenge is always finding enough evidence that will convince the local authorities or countries in the region to try to prosecute.

  Captain Reindorp: That is one of the key parts. To go back to your analogy, if you find a burglar in your house, there is a defined mechanism and route for him to be dealt with. Unfortunately, there is not one of those with piracy.

  Q162 Mr Watts: Is there anything legally that prevents us from trying these people in the UK?

  Captain Reindorp: Not that I am aware of, but I am not a lawyer.

  Q163 Mr Watts: So where would we normally prosecute pirates?

  Dr McCafferty: We would look to prosecute in Kenya. Because the problem is on their borders, they have taken large numbers of pirates from the international community for prosecution. They do that on a case-by-case basis, depending on identifying a Kenyan nexus—something that identifies it as Kenyan. Similarly, we have an agreement for the Seychelles to take any pirates that we capture where there has been a Seychelles nexus. The Foreign Office works continually with partners in the region to look for other countries that will take pirates. We do that through the form of MOUs. However, as I say, it is a Foreign Office rather than a Ministry of Defence lead.

  Q164 Mr Watts: Why should they prosecute pirates when we do not?

  Dr McCafferty: I do not think that it is the case that we do not. Certainly if there was a case where there was a strong UK nexus, where it was a UK crew or a UK master, then we would look to prosecute. There would be a number of policy challenges around that, but we would look to prosecute. With the other pirates, the reason that the regional partners do it is that they see it—much as I was describing from the BBC article—as a local or a regional issue that they have to tackle.

  Q165Mr Watts: Is the prosecution of pirates something that we should give further thought to and perhaps take more effective action in the future?

  Dr McCafferty: It is another area that could be reviewed. As I said, there is no legal reason why we do not: there has never been a pirate arrested in a case that has had that strong UK nexus.

  Q166 Mr Ainsworth: Continuing with Kenya and others, what is the current status of the agreement with Kenya? Is it extant?

  Dr McCafferty: There is no extant MOU. The MOU was that they would take pirates on a case-by-case basis depending on the evidence that we gathered and whether or not they felt there was a Kenyan locus in the incident. The MOU expired—I cannot remember the precise date—and there was concern at the time that this was a big hole in the armoury. However, since then, the Kenyans have continued to look at prosecutions on a case-by-case basis, and so we have carried on and would still look to use Kenya if we had a locus there.

  Q167 Mr Ainsworth: Is it not true that we have only ever taken 20 to Kenya for prosecutions? We were the first to have an agreement with Kenya, yet there are other nations that have sent more to Kenya for prosecution than the UK.

  Dr McCafferty: I think 20 is the right number for the UK. However, as you rightly identified, they do have large numbers of pirates being prosecuted there from other nations. It is not a deliberate decision not to take pirates to Kenya. It all is to do with the evidence that we collected when we were involved in a piracy incident, or the evidence we have seen of piracy. It is to do with the evidence collected and whether there is a case that can be made and whether that case has a locus in Kenya. It is not a deliberate policy not to go to Kenya.

  Q168 Mr Ainsworth: Do we have an agreement with the Seychelles?

  Dr McCafferty: My understanding is we have a formal MOU with the Seychelles.

  Q169Mr Ainsworth: How many have been sent to the Seychelles for prosecution?

  Dr McCafferty: No one from the UK has been sent to the Seychelles as yet.

  Q170Mr Ainsworth: What people do not necessarily understand—we had evidence last week where we were told that prosecution was potentially the answer to this. Are there circumstances where there is evidence to pursue a prosecution, yet we are not pursuing one, because we do not have a regional agreement or because we are not prepared to bring those people back to the UK?

  Dr McCafferty: I am not aware of any. The case tends to stand or fall on the identification of the evidence and the local nexus.

  Q171 Mr Ainsworth: So you would not feel that prosecution is—

  Dr McCafferty: I think that prosecution has to play a part in this, because it is a constabulary action. Anything that we can do to build up the number of regional partners that are willing to take on prosecutions, and perhaps take on appropriate cases ourselves, all has to be part of the answer, because, as I say, it is a constabulary action, rather than a military action. The challenge is gathering the evidence.

  Q172 Mr Ainsworth: What amount of effort are we putting into new agreements and partnerships, and what countries are we targeting?

  Dr McCafferty: That is probably a question for the FCO. I am not trying to be evasive, but they will be able to give you a much clearer answer in terms of who they are working with.

  Q173 Mr Ainsworth: Can I ask one question on a different issue? I do not know whether there is an answer. This is what Captain Reindorp said earlier. Why is it the area of special forces only on hostage rescue?

  Dr McCafferty: We have to be very careful with what we say about special forces operations. I think the simplest answer is that it is the complexity of the operation, the absolute centrality of the safety of the hostages and the additional training and judgment that the special forces bring that means that, for most hostage rescue operations, you would look to special forces.

  Q174 Mr Ainsworth: That is hard and fast?

  Dr McCafferty: They would be the first port of call.

  Q175 Mr Ainsworth: But they can't be, because there aren't that many of them. They are not necessarily in the right area at the right time.

  Dr McCafferty: That is always going to be an issue, but if you look at the hostage rescue attempts that we have had recently not just in Afghanistan, but also in the Indian Ocean with the Americans and the French, and the fact that most hostages have been killed during hostage rescue attempts, that policy might well be correct.

  Mr Ainsworth: I agree.

  Q176 Sir Menzies Campbell: Who makes the decision about when to prosecute?

  Dr McCafferty: First, the commander of the ship and the people who have done the boarding would look for the evidence and gather it together, then they would seek legal advice from the UK maritime component commander, who is based in Bahrain. Naval lawyers there will look at the evidence that has been gathered and decide—

  Q177 Sir Menzies Campbell: The Judge Advocate, or at least what was once the Judge Advocate.

  Captain Reindorp: Yes. That evidence pack would be presented to whom we think would consider prosecuting. They then have to decide whether the evidence is sufficient—whether they are willing, on the evidence that we can present to them, to accept the case for prosecution—so there is a transactional nature to this business.

  Q178 Sir Menzies Campbell: And while we are doing that, the alleged pirates—given the presumption of innocence—must be kept in custody?

  Captain Reindorp: Yes.

  Q179 Sir Menzies Campbell: Do we do that on board the ship that has picked them up, or is there some land installation?

  Captain Reindorp: There are different ways of doing it, but each will be determined by the legal constraints that we are forced to operate under. We will abide by whatever direction we are given.

  Dr McCafferty: Ordinarily, unless there was a threat to life, we would not look to take the pirates on board the naval vessel, unless we believed that there was a strong possibility of prosecution. If it looked as though their ship was sinking then we would, obviously, take them on board, but ordinarily we would only take them on board if we felt there was a strong case for prosecution. We might subsequently be unable to follow through on that and then we would release the pirates, as you are aware.

  Q180 Sir Menzies Campbell: That puts a very heavy responsibility on the officer in command of the ship. Not only does he have to manoeuvre the ship and carry out the operations, but he must then form a judgment as to the extent to which the evidence that is discovered is sufficient to be referred upwards for the possibility of prosecution.

  Captain Reindorp: He would, though, make that decision based on recommendations and expertise provided to him. The ship's CO will not decide unilaterally; he will have a very well briefed, very knowledgeable legal team, sometimes on board the ship, sometimes on reachback at the various headquarters, sometimes back to us in the Ministry of Defence. However, you are right: it would be his call, based on his judgment of that legal advice.

  Q181 Sir Menzies Campbell: Who decides where to prosecute?

  Dr McCafferty: Once we see the evidence, it may point towards one of our regional partners. A process of negotiation would then begin with their criminal justice system to find out if they accept that the evidence we have is sufficient for prosecution.

  Q182 Sir Menzies Campbell: Not only do you need a forum to prosecute, you need to have a place to put people who may be convicted. How is that arrived at, and is it necessarily the same as the forum in which the prosecution takes place?

  Dr McCafferty: If the Kenyans—to use Kenya as an example—had taken the case on and were prosecuting, the ship would take the pirates to Kenya and there would be a handover, at which point they would be arrested. It would then be for the Kenyans to detain them until trial and, if found guilty, for their sentence.

  Q183 Sir Menzies Campbell: That must depend on whether this Kenyan court has jurisdiction.

  Dr McCafferty: That is the key point. I talked about how the Kenyans have to decide whether there is a Kenyan locus. The question they ask themselves is, "Do we have jurisdiction in this case?"

  Q184 Sir Menzies Campbell: Do I take it that if there is any question of a prosecution by the British authorities, we have to ask ourselves if we have jurisdiction?

  Dr McCafferty: That is correct. We would, hypothetically, be looking for a key UK nexus such as UK hostages or UK casualties. That would give us the jurisdiction.

  Q185 Sir Menzies Campbell: This may be an impossible question to answer, but do we go looking for the nexus? What is our attitude? Are we activist in the issue of prosecution, or do we take a less committed view?

  Dr McCafferty: I do not think there is a commander on a ship in the Indian Ocean working in counter-piracy who does not want to see the end of piracy. It is not that we take the easy option. The professionalism of our commanders is such that they are trying to get the evidence and trying to move towards prosecution.

  Q186 Sir Menzies Campbell: You have given us a very clear account of what is obviously a very complicated process—not even one process, but a set of processes. What I derive from your evidence is that there is an overwhelming need to simplify this, so that the connection between capture, prosecution and, if necessary, sentencing, can be dealt with much more expeditiously, without having to have negotiations with partners who may prove very difficult to negotiate with, for a variety of reasons, political and otherwise.

  Dr McCafferty: A lot depends on the strength of the evidence, and that is where the legal advice that comes to the commander, based on experience of what has happened previously, is absolutely key. The Royal Navy would not take pirates on board a ship unless they felt that there was a strong possibility of a prosecution, because of that aspect of having to detain them potentially for long periods of time if you got into a protracted negotiation. Everything is designed to reduce the likelihood of that.

  Q187 Sir Menzies Campbell: That brings us full circle and comes back to my point about the enormous responsibility you place on the captain of the ship, because it is he who, even with legal advice on board or if he can call back and ask for legal advice, ultimately signs the bottom line. That is true, isn't it?

  Captain Reindorp: It is, yes.

  Q188 Mr Watts: Most of the attacks will be in international waters, but it seems to me that there would be jurisdiction if a British ship was boarded by pirates. What does Kenya get out of this? Why has Kenya been identified as a place where we send pirates? It generally would not have many ships in international waters or any jurisdiction. Why have we chosen Kenya?

  Captain Reindorp: If I can give you a practitioner's view of international law as it sits, from a ship driver's perspective rather than a lawyer's perspective, my understanding is that piracy has universal criminal jurisdiction. Virtually any nation is required to support every nation in suppressing piracy. That includes prosecution, from seizing and taking to prosecution and incarceration. On the one hand you can say that you need a nexus, but on the other hand you can say that there is a universal jurisdiction here.

  The issue turns for me, as a practitioner, on one of simple practice. You could be doing this 1,800 miles out into the Indian Ocean; it would take you five or six days to get a pirate back if you had to steam him back, and you may not want to send your one and only helicopter off to do that, because that might be better used looking out for and trying to deter and interdict pirate operations. This is not simply an issue of jurisdiction; it is also an issue of practice, which comes from the unique maritime environment in which it is happening.

  Q189 Ann Clwyd: Can you tell us a bit more about how crews from other countries may act as hostages but are not hostages at all and are, in fact, hand in glove with the pirates? Do you have any evidence of that?

  Dr McCafferty: I do not think we have evidence of that. What we have seen on a number of occasions is the pirates, as part of this move to using larger motherships, using vessels that they have pirated, and the crew from that pirated vessel is coerced into crewing the ship so that the pirates can go off and pirate other vessels. I am not sure that we have seen any evidence of pirated crews or hostages joining the pirates and working with them.

  Captain Reindorp: We have seen evidence of it working the other way, where you get on board a vessel that has been pirated and the pirates suddenly decide that they are hostages. That presents another practical challenge, particularly if you do not have the ability to understand the language and they have thrown their weapons overboard, or, indeed, everyone else on the boat has an AK47 as well, whether they are an innocent fisherman or a suspected pirate.

  Q190 Ann Clwyd: That makes it very difficult for naval crews trying to determine what to do in those circumstances.

  Captain Reindorp: Yes indeed. That is a classic indication of why a military solution is both practically and theoretically not the answer to this problem.

  Q191 Ann Clwyd: Do you have any information about where pirate ships are being serviced and refuelled?

  Captain Reindorp: There are known locations where they are taken. The anchorages are well known, although I cannot list them off the top of my head. We have intelligence on where their infrastructure is, but I would not want to go into it in this forum.

  Q192 Chair: We are quite interested in this point, but I can recognise why you do not want to go into it. Would you think about how this information could be given to us?

  Captain Reindorp: You are going to visit General Buster's HQ, are you not?

  Chair: We are.

  Captain Reindorp: He would be perfectly placed to help you understand that question.

  Q193 Chair: That is helpful. Dr McCafferty, you are also responsible for counter-terrorism, as we discussed. Do you see any link between terrorism and medium-level crime?

  Dr McCafferty: A large number of intelligence agencies around the world are trying to find that link. There has not been any evidence of a link between the pirates and al-Shabab, the terrorists in Somalia. From the pirate perspective, they have in their eyes a working business model that allows them to take pirate ships. If the linkage to al-Shabab in particular changed that risk-reward calculus for them quite substantially, that link to terrorism would change entirely the international community's view.

  Where you might see the link is in the terrorist financing. I do not think there is a crossover of money, but on Mogadishu high street, there is not a pirate money launderer beside the terrorist money launderer; there is probably a money launderer. If we could get intelligence that allowed us to take out that crossover, then you might well start to have an impact on both terrorism and piracy. As I said, I think people are looking hard for those links.

  Chair: Rory wants to ask a question and he has made it clear to me that it is a short one, preferably with short answers.

  Q194 Rory Stewart: It seems to me that we are not succeeding in defeating the pirates. We are just pushing the problem round the ocean. You are very doubtful that these boats will be able to defend themselves; you do not think there is a military solution. The root cause lies in Somalia and we do not have a solution to that. It is not a priority for us in terms of our tasks and not that much UK shipping is being attacked. So why are we bothering?

  Dr McCafferty: Looking at Somalia as a whole—this is partially with my counter-terrorist hat on—I think Somalia presents a growing threat to the United Kingdom. What we are doing in terms of counter-piracy is part of that wider Somalia strategy. We have to find a way to improve conditions in Somalia, working with the Transitional Federal Government there—the TFG—in a way that stabilises things. That might take decades but we need to contain and allow those benefits to be seen in order to protect the UK from those security threats.

  Chair: Thank you both very much. In a short space of time you have given us a lot of information. The fact that I have let the session overrun by nearly 20 minutes is a tribute to the quality of the information you have given us. Thank you both very much indeed. It is much appreciated.

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Prepared 5 January 2012