Piracy off the coast of Somalia - Foreign Affairs Committee Contents

3  The British and international response

21.  In October 2011, the Prime Minister labelled Somali piracy "a complete stain on our world," and urged the international community "to come together with much more vigour" to tackle the problem.[39] This sentiment echoed that of UN Secretary General Ban Ki-moon, who earlier this year described the threat posed by Somali pirates as "completely unacceptable" and said that it required an urgent and co-ordinated response.[40]

Response from industry: self defence

22.  The shipping industry has long called for more international action against Somali piracy, which has had serious consequences for the shipping and insurance industries. Insurance premiums have more than doubled as Lloyd's widened the risk area to most of Indian Ocean, and defensive measures and/or re-routing has added further to the cost of transiting the region.[41] However, Somali piracy has also constituted a business opportunity for some new and existing British companies, a number of which are involved in insurance, security, airdrops, negotiation consultancy and the transfer of ransom money, as well as what has been referred to as a 'gold rush' of new private maritime security firms.

BEST MANAGEMENT PRACTICES

23.  The shipping industry has been criticised in the past for failing adequately to respond to the problem of piracy and being unwilling to take expensive but necessary defensive measures.[42] Mark Brownrigg, Director General of the Chamber of Shipping, disagreed, stating that that the industry was doing its part:

We are not complacent; this is a serious issue that faces our members and other members and crews on a regular basis. We have given significant attention to it in the industry over the past three years and put significant manpower and resource into engaging from the preventive viewpoint to begin with.[43]

24.  Best Management Practices (BMPs) are the most prominent example of a constructive industry response to piracy. BMPs are guidelines developed by shipping industry organisations in co-operation with the naval operations, to assist ships to avoid, deter or delay piracy attacks off the coast of Somalia. These include recommendations on speed, information on typical pirate attacks, and 'self protection measures' including watchkeeping, manoeuvring practice, water spray and foam monitors and citadels—fortified safe rooms to which the crew can retreat and await military assistance. Ship owners are urged to install more effective security equipment on board, such as motion detection equipment, vessel tracking systems, CCTV, alarms and access control systems, and to register with international monitoring and advice centres in the region.[44] The establishment of BMP guidance appears to have had a positive effect. In 2008, ships targeted by pirates managed to beat off an assault half the time. Now, more than three quarters of the assaults end in failure.[45] UN Secretary General Ban Ki-moon noted in his October 2010 report on piracy that ships following BMP had a significantly lower risk of being hijacked.[46] We commend the maritime industry's work on Best Management Practices and note their success in reducing ships' vulnerability to attack.

VESSEL PROTECTION DETACHMENTS

25.  Some voices in the shipping industry have also called on states to provide small teams of naval or military personnel, called Vessel Protection Detachments (VPDs), to be placed on board their commercial shipping. Some states, including France, Spain, Israel and Italy,[47] already provide VPDs to some of their shipping, and Netherlands, Germany and Norway are reportedly considering providing them. VPDs are also being considered for use on World Food Programme shipments rather than providing a dedicated warship as an escort.[48] Industry witnesses expressed a strong preference for VPDs over private armed guards; Nautilus International stated that VPDs "would ensure there are no concerns regarding training and authority, and we believe this would be cost-effective and provide direct protection to merchant vessels."[49] Mark Brownrigg, Director General of the Chamber of Shipping, echoed this enthusiasm, stating that "we would far prefer to have military guards" and "the industry has expressed itself as willing to pay for that in different ways."[50] The Minister acknowledged industry enthusiasm for VPDs but cautioned that resources are scarce:

We have done it before. We have done it in different strategic areas. It is all a question of availability of resources. At the moment, our armed forces are very heavily committed. If a stage was reached when our armed forces were less committed, I am sure that the MoD would look at a request for providing VPDs.[51]

Vessel protection detachments are an attractive option, but we acknowledge that resources are extremely limited at present. We conclude that the Government should engage with the shipping industry to explore options for the industry to pay for vessel protection detachments of British naval or military personnel on board commercial shipping.

PRIVATE ARMED SECURITY GUARDS

26.  Until recently, it was widely judged that the risks of Private Armed Security Guards (PASGs) on board ships outweighed the benefits, and the International Maritime Organisation, the UK Government and industry organisations all discouraged their use. However, over the last 12 months, the use of PASGs has become increasingly accepted by the mainstream maritime industry. It is estimated that between 15% and 25% of vessels transiting the region already have PASGs on board, sometimes in violation of the flag states' policies.[52] British security companies are exploiting this business opportunity: according to one witness, "probably over 50% of the armed security is provided by UK nationals or foreign companies run by UK nationals".[53] Hitherto, UK policy has not allowed the use of PASGs on board British-flagged ships, but on 30 October 2011 the Prime Minister announced that this policy would be changed and on 6 December, the Department for Transport issued guidance on the use of private armed guards.

Concerns

27.  A number of submissions and witnesses raised fears that the levels of both deliberate and accidental violence would escalate as a result of allowing armed guards on ships. Dr McCafferty, Head of Counter-Terrorism and UK Operational Policy at the MoD, speaking before the change in government policy, observed 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."[54] He added:

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.[55]

28.  Nautilus International, a crew members' organization, agreed, and raised the fear that the use of such guards on some vessels could mean that other vessels are selected for attack on the basis that they do not carry armed guards (for example, LNG carriers and oil tankers),[56] thereby displacing rather than solving the problem. In this regard, we note that in its latest guidance the Government states that only passenger ships and cargo ships of 500 gross tonnage and above are eligible to have armed guards. We recommend that the Government provide in its response to this report any assessment it has made of the likelihood of smaller vessels transiting the area, and to comment upon fears that pirates will increasingly focus attacks on smaller and less well-defended vessels and vessels carrying inflammable materials.

Calls for change

29.  Despite the concerns expressed above, the continuing armed threat in the Indian Ocean has, for some, shifted the balance in favour of using private armed security. The undeniable success of armed guards—several witnesses highlighted the fact that so far no ship with armed guards on board has ever successfully been pirated—gives considerable force to arguments in favour of their use. According to Maritime Asset Security and Training Ltd (MAST), a privately owned UK security company providing maritime security services, alternative security methods are not sufficient for all vessels:

Statistics show that a ship that is fully compliant with BMP is most unlikely to be subject to a successful attack. That said, even with the use of BMP, there remain ships which are very vulnerable to attack (e.g. those with low freeboard and steaming speed). In these circumstances the use of armed guards is appropriate.[57]

Andrew Voke, Chairman of Lloyds Marine Committee, reflected the industry's move towards positive engagement with private armed security guards, noting that "as insurers, there is a credit for using armed guards on your vessel".[58]

30.  A number of European countries have their policy on national flagged ships under review. Earlier this year, the International Maritime Organisation produced revised guidance changing its position from discouraging the use of private armed security guards and adopting a more neutral stance, while emphasising that the decision was one for individual flag states.[59] Major General Howes, speaking on behalf of EUNAVFOR, also appeared in favour of ships taking responsibility for their own protection by hiring PASGs, noting that "they make boarding very difficult. Climbing up a rope when someone is shooting at you? Not easy", and calling armed guards "a significant and effective deterrent to pirate boarding."[60]

Government policy

31.  When the Minister gave evidence to us in July, government policy was strongly to discourage the use of private armed guards on British flagged ships. However, he did indicate to us that this position was changing:

Our view is that the UK Government should not encourage such measures, but we should also not discourage them; we should be neutral. It should be a decision for the shipping industry on a case-by-case basis.[61]

He also told us that the FCO had engaged with the Department for Transport to help it to understand the implications of a change in policy and that a review was underway.[62] We were informed that the Department for Transport would produce a report with proposals and that a Written Ministerial Statement to the House would follow.[63] Following a meeting of the Commonwealth states at which piracy was discussed, on 30 October 2011 the Prime Minister announced that private armed guards would be allowed on British-flagged shipping. Just over a month later, on 6 December the Parliamentary Under-Secretary of State Mike Penning MP made a Written Ministerial Statement to the House and published interim guidance on the use of private armed guards. We conclude that for too long the Government failed to respond to the urgent need for armed protection. However, we welcome the Prime Minister's recent announcement that the Government's position would be reversed and that private armed guards will be permitted on UK-flagged vessels. We agree that the evidence in support of using private armed security guards is compelling and, within legal limits and according to guidance, shipowners should be allowed to protect their ships and crew by employing private armed security guards if they wish to do so.

Interim Guidance

32.  In his Written Ministerial Statement, Mike Penning announced that private armed guards would be permitted on UK-flagged shipping in "exceptional circumstances", which he defined as:

• when the ship is transiting the high seas throughout the High Risk Area (an area bounded by Suez and the Straits of Hormuz to the North, 10°S and 78°E); and
• the latest "Best Management Practices" is being followed fully but, on its own, is not deemed by the shipping company and the ship's master as sufficient to protect against acts of piracy; and
• the use of armed guards is assessed to reduce the risk to the lives and well being of those onboard the ship.[64]

The Government published two documents, alongside this statement: Guidance to UK Flagged Shipping on Measures to Counter Piracy, Armed Robbery and Other Acts of Violence against Merchant Shipping, and Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances. The former covers general advice and recommended practices to deter an attack; the latter offers more specific guidance on the use of armed guards when transiting the High Risk Area off the coast of Somalia and in the Indian Ocean. Ship owners that wish to use private armed guards must now provide to the Department for Transport a Counter-Piracy Plan, which will supplement the usual Ship Security Plan. The plan must include a statement that ship owners have followed the Interim Guidance.

33.  Included in the interim guidance are recommendations on selection of a private security company; the size, composition and equipment of the security team; the Master's authority; the storage, handling and use of firearms; what to do when under attack; and post incident reporting.

Rules on the use of force by private armed security guards

34.  Private armed security guards face a number of challenges in determining whether to use armed force in defending a vessel against a possible armed attack by Somali pirates, including ensuring the safety of the crew and ship, and the use of reasonable force to repel an attack. In addition, they must clearly distinguish between fishermen armed to protect themselves from pirates and pirates engaged in an attack. According to a paper by the law firm Ince & Co, "there has undoubtedly been at least one incident where an armed security team have engaged a fishing boat with devastating effect."[65] Owners of commercial vessels registered in the UK to sail under the Red Ensign flag must consider the applicable laws on the legal use of force by private armed security guards on board. [66] The Interim Guidance on the use of private armed guards states that the rules on the use of force should be agreed between the shipping company and the private security company, and should provide guards with guidance on dealing with these challenges.

35.  It is legal in the UK to use force in self defence or in the prevention of crime so long as the force used was necessary and proportionate in the circumstances.[67] The level of force considered reasonable varies according to the circumstances of the case. The Interim Guidance refers the reader to guidance provided by the Crown Prosecution Service (CPS) on lawful self-defence. This states that in some cases witnesses to violent crime with a continuing threat of violence "may well be justified in using extreme force to remove a threat of further violence", and further notes that there is no rule in law to say that a person must wait to be struck first before they may defend themselves.[68] However, the Interim Guidance assumes a more professional and planned approach, and advises that the security team must use "minimum force necessary" to prevent the illegal boarding of a vessel and protect the lives of those on board, and that the rules should allow for a "graduated response, each stage of which is considered to be reasonable and proportionate to the force being used by the attackers".[69] However, it also notes that:

The decision to use lethal force must lie with the person using the force where they believe there to be a risk to human life. Neither the Master nor the security team leader can command a member of the security team against that person's own judgement to use lethal force or to not use lethal force.[70]

36.  The CPS guidance on self defence was not written with private armed security guards in mind, particularly those defending vessels against heavily armed pirates in the Indian Ocean. For instance, the CPS states that there are various public interest factors that could weigh in favour of prosecution if someone is hurt, including whether the violence was premeditated and the defender had armed his or herself in anticipation of an attack, stating that if "a dangerous weapon, such as firearm, was used by the accused this may tip the balance in favour of prosecution."[71] The Interim Guidance also warns that adherence to the rules would not in itself serve as a defence if criminal charges were brought, and that the applicable laws on self defence "will depend on the court where charges are brought, which may depend on where the offence took place and/or where the victim (or possibly the alleged perpetrator) is from".[72] The Government should in its response to this report assess the risk that private armed security guards, and possibly the masters of ships on which they operate, might face extradition to another state following an incident involving the use of weapons, particularly where that state may not be able to assure a fair trial. The Government should set out the steps it intends to take to minimise this risk.

37.  The Government should not offload responsibility onto ship owners to deal with the most difficult aspects of handling private armed guards. The question anyone would ask is that if a private armed guard on board a UK flagged vessel sees an armed skiff approaching at high speed, can the guard open fire? We conclude that the guidance on the use of force, particularly lethal force, is very limited and there is little to help a master make a judgement on where force can be used. The Government must provide clearer direction on what is permissible and what is not. Guidance over the use of potentially lethal force should not be left to private companies to agree upon. We recommend that the change of policy be accompanied by clear, detailed and unambiguous guidance on the legal use of force for private armed guards defending a vessel under attack. This guidance should be consistent with the rules that would govern the use of force by members of the UK armed forces in similar circumstances, and should include:

• the circumstances in which private armed security guards faced with a clear threat of violence may respond with force, including lethal force, where proportionate and necessary, and
• examples of a "graduated response" to an attack, including confirmation that nothing in UK law or the CPS guidance requires a victim of pirate attack to await an aggressor's first blow before acting in self-defence.

We recommend that the Government take this forward as a matter of urgency, as we understand that private armed guards are already being deployed on some UK-flagged vessels.

PASGs and naval intervention

38.  We also note that PASGs themselves may be at risk in the event of an intervention by naval forces: Major General Howes warned of "a clear risk of our killing those individuals: if a man is armed, a man is armed […] once pirates are on the ship, we do not want to have to discriminate.^" [73] The interim guidance advises ships to remain in contact with the naval forces in the area and to inform them of the presence of armed guards on the ship. However, it does not provide information for private armed guards on what to do in the event of a naval intervention. We recommend that the Government work with the naval operations to issue clear guidance for private armed guards on what to do in the event of a naval intervention, and to provide the Committee with a copy of this guidance in its response to this report.

Regulation

39.  Crew safety is paramount and that the use of private armed security guards should not compromise their security. A number of submissions to our inquiry expressed concern about "cowboy" security companies operating off the coast of Somalia. The Security Association for the Maritime Industry (SAMI) has stated that:

There are more than 60 MSC [Maritime Security Companies] offering armed protection for the region, but the level of service is inconsistent and sometimes illegal. It is clear that there is a requirement for some form of quality control of MSCs.[74]

Andrew Voke, Chairman of Lloyd's marine committee, agreed, and expressed regret that "there is no kitemark to tell us who is good and bad",[75] while Stephen Askins explained that PASGs also wanted a system of accreditation:

The industry wants to be able to distinguish between the good and the bad, and the companies want to put blue water between themselves and those they would regard as the cowboy element.[76]

UK-based private armed security guards, maritime or otherwise, are not subject to government regulation. The Minister has stated that "it is down to the industry to analyse its own risks, decide what security it needs, and who it wants to provide it."[77] However, the Government is conducting a review of industry-based regulation in the UK including for UK vessels at sea. It has also promoted the International Code of Conduct for Private Security Service Providers, a Swiss initiative which aims to establish an industry standard based on international humanitarian and human rights law, and is working to establish a mechanism and standards to monitor compliance with the code.[78] A number of witnesses, including the Minister, noted the work of the Security Association for the Maritime Industry (SAMI), a non-profit body that aims to provide accreditation and regulation of private armed security companies. The Government's Interim Guidance recognises this problem, noting that:

The Government does not currently recognise an accreditation process for PSCs operating in the maritime security sector. Shipping companies must, therefore, be extra vigilant in selecting an appropriate PSC to provide armed security onboard their ships.

The Guidance goes on to provide a number of recommendations as to the selection, size and training of a private security team.

40.  The question of whether PASGs should be self-regulated or subject to government regulation is one that has been considered by the Committee on a number of occasions. When Lord Malloch Brown, then Minister of State for Africa, Asia and the United Nations, appeared before our predecessor Committee's human rights inquiry in 2007, he stated that options for regulation were being considered. The Government subsequently announced that it would pursue a form of industry self regulation. We note our predecessor Committee's recommendation that PASGs should be government-regulated.[79] We conclude that it is vital to ensure that armed guards are properly trained and deployed in sufficient numbers. We urge the Government in its response to this report quickly to bring forward proposals for a national regulatory structure (whether governmental or industry based self-regulation) that would provide a measure of quality assurance.

Licensing of weapons

41.  A change of policy to permit the presence of private armed security guards on vessels would need to be reflected in changes to the UK licensing regime for weapons. According to Stephen Askins, a maritime lawyer, the current system is "simply not formulated with such a problem in mind." This has led to some companies allegedly flouting the law:

Most of the companies are simply ignoring UK licensing laws. BIS and HMRC are waking up to the fact that a whole host of maritime security operators are shifting a large number of weapons around on any given day and are simply not abiding by UK law to do it. [80]

Furthermore, carrying private armed security guards on shipping automatically presents problems relating to carriage of weapons in other port states, some of which, such as South Africa and Egypt, have responded negatively toward foreign licensed arms in their territory.[81] According to Baltic Exchange, the difficulties involved in ensuring compliance with local licensing laws has resulted in:

anecdotal evidence of ships taking armed guards on board for journeys through the Gulf of Aden which subsequently have to dump weapons overboard prior to landing in a port hostile to the principle of weapons being carried on board ships.[82]

42.  Submissions from the security industry, including SAMI, MAST and Baltic Exchange suggested that change to licensing laws was urgently required. the Security Association for the Maritime Industry (SAMI), a non-for-profit organisation told us that:

Unanimously, private maritime security companies (PMSC) believe that they do not have adequate legal structure for their work. […] SAMI believes that current international and domestic law and jurisdiction on maritime security, lack clarity.[83]

43.  The Interim Guidance published by the Government urges Companies to ensure that they stay within the law with regard to transiting foreign territorial seas and ports with firearms on board, but provides little further clarification other than stating that "All laws and requirements of the port state must be respected and complied with fully".[84] In the case of transiting foreign territorial seas with weapons, it recommends that the companies "consider the need to take legal advice". We conclude that the Government should take a more proactive approach to facilitate an effective and safe legal regime for the carriage and use of weapons for the purposes of deterring piracy. We recommend that the Government actively engage with port and coastal states surrounding Somalia to establish an agreement on the carriage and transfer of weapons by private armed guards so that they can be securely removed from vessels once they have exited the high risk area.

Naval response: policing the Indian Ocean

44.  Counter-piracy naval patrols began in 2008, in part as a response to a call from UN Secretary General Ban Ki-moon for assistance in protecting World Food Programme (WFP) shipments of aid to Somalia. There are currently three international operations dedicated to counter-piracy operations in the Gulf of Aden and Indian Ocean:

• NATO Operation Ocean Shield, launched in August 2009. Ocean Shield succeeded two shorter counter-piracy operations dating from October 2008 to protect WFP ships. Counter-piracy operations at sea are its main focus, but it also conducts capacity building efforts to assist regional states, upon their request, in developing their own ability to combat piracy activities;
• EUNAVFOR Operation Atalanta, launched in December 2008. This is the first ever EU naval operation. Launched after only 10 weeks of planning, it took over protection of WFP shipments but quickly expanded to a more general anti-piracy role. Its original mandate was for one year, this was extended in 2009 and 2010 to the end of 2012 and is likely to be extended further, and
• Combined Task Force 151 (CTF-151), a US-led multinational task force and established in January 2009, it took over counter-piracy tasks from CTF-150, which continues to perform other marine security operations. Its mission is actively to deter, disrupt and suppress piracy in order to protect global maritime security and secure freedom of navigation for the benefit of all nations.

In addition to the multi-national operations, a number of countries run their own anti-piracy operations off Somalia, including Russia, India, China, South Korea, Japan, Malaysia and Singapore. China and Russia have assisted EU forces in escorting WFP relief shipments.[85]

CO-ORDINATION

45.  This number of differing operations naturally raises concerns about the degree of duplication and co-operation between those operations. A regular co-ordination meeting, named the Shared Awareness and Deconfliction (SHADE) mechanism, was established in Bahrain in December 2008 to improve co-ordination and minimize duplication between the various counter-piracy operations. However, this initiative has not satisfied all states or organisations; some of whom, including India, continue to call for a single counter-piracy UN operation.[86] In its written submission, crew members' association Nautilus International asserted that "whilst the level of coordination amongst military forces providing protection to shipping is extremely good, it falls short of what could be achieved under a single unitary command structure."[87]

46.  In response to this criticism, the Minister, Major General Howes and Captain Reindorp all praised the SHADE mechanism: "It is very effective. It is probably the best example of maritime security co-operation that we have ever seen". Captain Reindorp, explained the reasons behind the different operations:

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.[88]

Major General Howes agreed that while he would not have started from the current situation, "a strong element of pragmatism has developed over the past three years, since the surge of international endeavour in the Indian Ocean." Adding that "On a tactical, day-by-day level, the forces engaged in the counter-piracy effort will work and co-operate very closely".[89] However, he complained that although many states are taking part in one or more of the counter-piracy operations, some flag states still did not co-operate with international efforts at all:

There are 140 flag states, of which about 40 do not even report their movements, so our ability to manage what we call a white picture—to understand what shipping is doing what in this area and to warn people—is reduced.[90]

47.  We commend the generally strong international co-operation between counter-piracy operations. We conclude that a unified command structure, while it may be the ideal, is of a lower priority than securing the widest possible international participation in counter-piracy operations in the Indian Ocean and the Gulf of Aden, and the maximum number of assets patrolling the waters. The Government should be rigorous, however, in eliminating any duplication between operations.

EFFECTIVENESS OF NAVAL RESPONSE

48.  Since naval operations began at the end of 2008, they have achieved some significant success. Although the number of attempted attacks has almost doubled to 219 per year, the proportion of successful attacks has fallen dramatically, due to a combination of self-defence measures and the effects of the naval patrols.

Graph comparison of total attacks by Somali pirates and total hijackings:

Source: International Maritime Bureau, 9 November 2011[91]

49.  No World Food Programme (WFP) ship has been hijacked since NATO and EUNAVFOR began providing them with escorts in 2008, which has allowed the WFP to deliver over 674,000 tons of food for Somali people.[92] EUNAVFOR also provides escorts to UN chartered vessels supplying the African Union Mission in Somalia (AMISOM),[93] and recently announced its 100^th successful AMISOM escort.[94]

50.  In addition to success in protecting UN shipping, in 2008 naval forces established the Internationally Recognised Transit Corridor (IRTC) through the Gulf of Aden, where many of the attacks were taking place. Commercial shipping is now organized into transit groups and naval forces maintain a high concentration of assets in the IRTC that can respond quickly to distress calls. Major Howes told us that the IRTC had ensured that there had not been a successful pirate attack in the Gulf of Aden since September 2008. Mark Brownrigg, Director General of the Chamber of Shipping, stated that the IRTC:

is a far less hostile place since the group transit system was established through that corridor. From the industry, both UK and international, we would say that that has most emphatically made a difference.[95]

51.  However, a side-effect of this success in the Gulf of Aden has been to displace pirate activity into the Indian Ocean:

At 2.6 million square miles, the Indian Ocean presents a much greater challenge as an area of operations. Naval forces have found it difficult to monitor pirates and to respond swiftly to attacks, and impossible to achieve levels of security comparable to the IRTC. According to Major General Howes, "typically there are somewhere between five and eight assets in the Indian Ocean, and perhaps the same in the Gulf of Aden",[96] whereas 83 would be needed to provide response conditions of half an hour, as they have achieved in the IRTC.[97] Major General Howes emphasised that aircraft substantially increased the amount of ocean that could be monitored.[98] However, he admitted: "Are we able to police the entire area effectively? No, we are not."[99] This has led to concern from shipping organisations, one of which stated: "[…] for trade and merchant shipping there is now no longer a 'safe way' through the Indian Ocean."[100]

52.  We commend the naval operations' success in reducing piracy in the Internationally Recognised Transit Corridor in the Gulf of Aden and in securing the delivery of vital supplies to Somalia. However, this success has not been replicated in the Indian Ocean, where the limited assets are unable to guarantee a safe route for ships transiting the much larger region. We note that autumn 2011 has not witnessed the expected surge in piracy incidents, and the number of successful attacks has fallen from its peak at the start of the year but it is not yet clear if this is a temporary lull or a sign of improvement. However, the number of ships and hostages held and the price of ransoms have all reached new highs during 2011. We conclude that naval forces have so far been unable to make the oceans safe from Somali piracy. Recognising that a substantial increase in conventional naval and air assets is unlikely, we urge the Government to think of novel ways of detecting skiffs and thus improving response times to incidents in Indian Ocean, by exploring technologies such as micro satellite surveillance and/or lighter than air persistent wide area surveillance, such as that being developed by US forces for Afghanistan.

Hostages

53.  One of the most difficult issues for naval forces and governments is what action should be attempted when hostages have already been taken. Captain Reindorp explained UK Government policy:

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.[101]

In their evidence to us, Paul and Rachel Chandler, whose yacht was hijacked by Somali pirates in 2009, disagreed with this approach based on their own experience:

When we encountered a warship we hoped they would take action, despite us being forced to tell them to back off. We believed then and still do now that such operations should be considered as enforcement, not rescue operations, and that the risk to our lives should not outweigh the benefits of sending a clear message, 'We will not tolerate this activity.'[102]

54.  A number of other governments have intervened in situations where their citizens were held hostage. For instance, South Korean commandos re-took the Samho Jewelry after it had been hijacked and released the crew, although the captain was shot and wounded by the pirates during the raid. However, other attempts at intervention have led to the deaths of hostages, including on the French yacht the Tanit in 2009, where one hostage was killed during a rescue operation. After a pirate died during a failed intervention earlier this year by the Seychelles coastguard on the hijacked cargo ship the Beluga Nomination, a hostage was killed in retaliation.[103] Stephen Askins, a maritime insurance lawyer, expressed concern about the consequences of intervention on hijacked ships:

People have talked about the number of deaths caused during those hijackings, but a significant number have been caused as a direct result of military action, so if we are going to get involved in military action, you have to expect that there will be casualties. If you are sensible, you can get a ship out [through negotiation] in 70 or 80 days, with no one hurt, and people would much prefer that.[104]

We conclude that the cautious approach to military operations when hostages are involved is appropriate and agree that protecting the safety of hostages is paramount. However, if the use of violence against hostages continues to increase this may change the balance of risk in favour of military intervention in the future.

UK COMMITMENT

55.  The UK has contributed vessels to all three multinational operations at different times, and hosts the operation HQ for EUNAVFOR's Operation Atalanta and NATO's Maritime HQ at the Permanent Joint Headquarters at Northwood in the UK. While the Minister told us that the MoD considers piracy a "key priority" for the UK, the requirements of other naval operations take precedence. According to 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.[105]

Vessels dedicated to EU and NATO counter piracy operations:

Date	Unit	Force assigned to
08 January 2007-27 July 2007	HMS MONTROSE	(NATO) SMNG2
22 August 2007-21 December 2007	HMS NORTHUMBERLAND	(NATO) SNMG2
21 January 2008-1 August 2008	HMS SOMERSET	(NATO) SNMG2
23 October 2008-5 December 2008	HMS CUMBERLAND	(NATO) Op ALLIED PROTECTOR
8 December 2008-28 February 2009	HMS NORTHUMBERLAND	(EU) Op ATALANTA
25 June 2009-20 August 2009	HMS CORNWALL	(NATO) Op ALLIED PROTECTOR
21 August 2009-8 November 2009	HMS CORNWALL	(NATO) Op OCEAN SHIELD (replaced Op ALLIED PROTECTOR)
26 January 2010-2 July 2010	HMS CHATHAM	(NATO) Op OCEAN SHIELD
29 August 2010-3 December 2010	HMS MONTROSE	(NATO) Op OCEAN SHIELD
25 September 2010-6 December 2010	RFA FORT VICTORIA	(UK) Op CAPRI
5 January 2011-15 April 2011 & 11 June 2011-10 July 2011	HMS RICHMOND	(EU) OP ATALANTA

Vessels dedicated to Royal Navy Operations in the Arabian Gulf, the Gulf of Aden and the coast of Somalia that did not have counter-piracy as a primary task but which may have undertaken counter-piracy roles:

Date	Unit
1 January 2007-3 March 2007	HMS CAMPBELTOWN
21 January-26 August 2007	HMS CORNWALL
1 May 2007-27 May 2007	HMS SUTHERLAND
10 May 2007-19 December 2007	HMS RICHMOND
1 October 2007-3 April 2008	HMS ARGYLL
15 October 2007-23 May 2008	HMS CAMPBELTOWN
1 April 2008-22 October 2008	HMS CHATHAM
20 March 2008-3 October 2008	HMS MONTROSE
15 September 2008-7 December 2008	HMS NORTHUMBERLAND
15 August 2008-27 February 2009	HMS LANCASTER
20 November 2008-3 July 2009	HMS PORTLAND
19 January 2009-29 July 2009	HMS RICHMOND
26 May 2009-3 December 2009	HMS CUMBERLAND
12 June 2009-30 November 2009	HMS KENT
30 September 2009-9 April 2010	HMS MONMOUTH
22 October 2009-27 May 2010	HMS LANCASTER
1 February 2010-5 August 2010	HMS ST ALBANS
20 April 2010-10 December 2010	HMS NORTHUMBERLAND
26 May 2010-2 December 2010	HMS SOMERSET
28 October 2010-25 April 2011	HMS CORNWALL
25 September 2010-16 April 2011	HMS CUMBERLAND
11 January 2011-28 July 2011	HMS IRON DUKE
26 March 2011-	HMS MONMOUTH

Source: Supplementary evidence from the FCO.[106]

At its latest meeting, the Contact Group on Piracy off the Coast of Somalia "expressed its grave concern that the provision of military forces for the anti-piracy operations is likely to fall short of the numbers required; and called upon States to remedy this situation."[107]

Effects of the Strategic Defence and Security Review

56.  The Strategic Defence and Security Review (SDSR) will result in fewer UK assets, particularly frigates and destroyers and in the loss of all the UK's specialist maritime patrol aircraft with only maritime helicopters suitable as lower capability substitutes in the area concerned. The Chamber of Shipping and Nautilus International both expressed concern that the Review will have an adverse impact upon the British contribution to the counter-piracy efforts.[108] In response to these concerns, Dr Campbell McCafferty, Head of Counter-Terrorism and UK Operational Policy at the MoD stated that "there is no intention for the Ministry of Defence or for HMG to reduce what they are doing in terms of counter-piracy".[109] He also highlighted that in coalition operations the balance of assets continually changes, "so it is not the case that if you take away any British asset it leaves a gap".[110] Chris Holtby also noted that the UK was having some success in encouraging its partners to do more and in burden-sharing among new members contributing to the multinational operations such as Thailand, Indonesia and South Africa.[111] The Minister stated that although the Government could not give an "absolute cast-iron guarantee" that particular assets would be used:

given what is at stake for the UK, I have every confidence that the UK will be able to keep up its leadership role and the naval platforms in the area. For example, although our ship that is currently tasked to Atalanta will shortly be coming out of theatre, we will still have a vessel within the NATO force, and I would be very surprised indeed if we did not at all times have a vessel as part of one of the forces providing counter-piracy work."[112]

The Minister also stressed that:

the role the UK is taking is not only a matter of the vessels that we have deployed, but the leadership role that we are supplying, the lead that we have provided on strategy and the thinking behind a number of the different strands. [113]

Since then, Nick Harvey MP, Minister of State (Armed Forces), has stated that "The proposed reductions in budget have so far had limited impact on our at sea counter piracy work."[114]

57.  It is difficult to see how the UK could continue to play a "leading role" in the international response without a visible commitment of UK assets. Implementation of the Strategic Defence and Security Review (SDSR) is not a matter for us, but we urge the Government to continue to provide at least one vessel to counter piracy operations at all times, and to host the European Union Naval Force Somalia (EUNAVFOR) and NATO HQs at Northwood for the life of those operations. We recommend that in its response to this report the Government comment upon concerns expressed by the UN Contact Group on Piracy off the Coast of Somalia that the provision of military forces is likely to fall short.

Are naval forces' tactics robust enough?

58.  Naval forces have been repeatedly criticised in the media, and in one submission to our inquiry, for failing to take 'robust' action against the pirates. [115] It is not always clear exactly what is meant by 'robust' action, but there is clear frustration that the mandate to 'deter and disrupt' (sometimes referred to by critics as 'catch and release') does not go far enough, and also contributes to the perceived failure of naval forces to tackle the pirates' use of motherships.

59.  The actions of UK forces have been compared to those of other nations who are reportedly more willing to use a greater degree of force in responding to piracy. According to Baltic Exchange, this has resulted in UK shipping being more vulnerable to attacks:

Other nations (in particular Russia, India and China) have taken a particularly uncompromising line against pirate vessels. The UK, by contrast, has taken a more cautious line […] Whilst pirate attacks are opportunistic by nature, it is clear that there is a correlation between the nature of a nation's military reaction to the pirate threat and the likelihood of concerted attacks against ships under that nation's flag.[116]

Major General Howes acknowledged that the more robust approach of some flag states had had a deterrent effect:

[…] South Koreans, the Russians and the Indians. Their actions and recourse to significantly more kinetic means than we have applied are matters for them. Has it deterred the pirates? Yes. We have clear recognition of that […] the fact that ships are not pirated close to the Indian subcontinent is not accidental.[117]

The rules of engagement and international law

60.  The limits constraining naval action are governed by the rules of engagement (RoE), which are drawn up by the MoD and are based upon international and national law. There appears to be considerable confusion over these limits, and both international law and the rules of engagement are regularly blamed for a perceived failure of naval forces to take robust action. However, according to Douglas Guilfoyle, a specialist in the international law of the sea, there is nothing in international law that prevents states either from boarding vessels suspected of piracy (such as motherships)[118] or using reasonable force in self-defence, defence of others or in the prevention of a particularly serious crime involving a grave threat to life.[119] He further told us that:

There is no absolute requirement that one exhaust all non-lethal methods before turning to potentially lethal force; warning shots are expected where possible but are not (and could not be) an absolute requirement. In some situations an imminent and serious threat will make the use of lethal force as a first recourse unavoidable, reasonable and necessary […] In practice, many navies have lawfully targeted and killed suspect pirates on precisely this basis, especially in situations of hostage rescue or where piracy suspects present an imminent threat but have not yet fired a weapon.[120]

61.  The naval operations' rules of engagement (RoE) are not published, and witnesses could not comment on them in detail. It appears, however, that steps are being taken to strengthen forces' mandate to act. The Minister told us that there had recently been "a change in the EU Atalanta operating plan to look at enhanced boarding capability",[121] and Lord Wallace of Saltaire, speaking on behalf of the FCO in the House of Lords, confirmed last month that this had been achieved, stating that: "The Government welcome the stronger mandate to act, which has been given to our navy alongside others, including against motherships and hijacked ships at sea".[122] Both Mr Bellingham and Dr McCafferty, Head of Counter-Terrorism and UK Operational Policy at the MoD, highlighted the changing tactics regarding motherships:

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.[123]

62.  British naval forces have recently taken part in two successful interventions, the first on an Italian hijacked ship the MV Monte Cristo after the crew had conveyed to forces that they were safe in a citadel, and the second on a mothership believed to be involved in the same hijacking.[124] The two operations resulted in the arrest of 15 suspected pirates, who were handed to Italian authorities for prosecution. We welcome this evidence of greater capacity and willingness to board hijacked vessels and motherships and take action against the pirates where the safety of hostages is assured. We recommend that the Foreign Office provide in its response to this report an update on the Italian prosecution against the pirates captured by UK forces following their successful boarding of the hijacked ship the Monte Cristo.

Number of Ships Held

Number of Hostages Held

Source: EUNAVFOR Operation Atalanta

63.  The risk to pirates of encountering serious consequences is still too low to outweigh the lucrative rewards from piracy and the continuing increase in the annual number of hijackings shows that more action is required if the threat is to be contained. Better containment requires a continued evolution of tactics, including the deployment of many assets as possible and using to the full extent the legal powers granted under international law. We welcome the strengthening of the forces' mandate to act, but note that there is still some way to go to satisfy industry perceptions. We conclude that simply returning suspected pirates to their boats or to land, while it may temporarily disrupt their activities, provides little long term deterrence and has demonstrably failed to prevent an annual increases in both the number of pirates going to sea and in the number of attacks. We urge the Government to keep naval forces' Rules of Engagement under regular review to ensure that they can respond flexibly to changes in the pirates' tactics.

International co-ordination

64.  Piracy off the coast of Somalia is indisputably an international issue, and has been the subject of various international efforts to contain and solve the problem. Somali piracy has been the subject of nine UN Security Council (UNSC) resolutions, which have authorised the international community to take action against Somali piracy in Somalia's territorial waters, airspace and on land, and have called for all states to ensure national piracy laws are adequate.[125] Resolution 1851 called for the establishment of the Contact Group on Piracy off the Coast of Somalia (CGPCS), which was created on 14 January 2009. The voluntary group now consists of over 70 countries and organisations and meets three times a year at the UN to co-ordinate political, military, and other efforts to counter piracy. In addition, the Contact Group has five working groups which meet more regularly to develop national policies and programs:

• Working Group 1: Military and Operational Coordination, Information Sharing, and Capacity Building, chaired by the United Kingdom, focuses on force generation, operational coordination and capacity-building;
• Working Group 2: Judicial Issues, chaired by Denmark, focuses on judicial mechanisms for deterring piracy;
• Working Group 3: Strengthening Shipping Self-Awareness and Other Capabilities, chaired by the United States, works closely with the commercial shipping industry to enhance awareness and improve capabilities;
• Working Group 4: Public Information, chaired by Egypt, seeks to make clear to the world, and especially to the Somali public, the damage being done by pirates, and
• Working Group 5: Financial Flows, newly established in June this year, chaired by Italy, focuses on the illicit financial flows associated with piracy in order to disrupt the pirate enterprise ashore.[126]

65.  The UN Security Council has also commissioned and debated a report from former French Foreign Minister Jack Lang, now the UN Secretary General's Special Adviser on the legal aspects of piracy. The London-based International Maritime Organisation (IMO), the United Nations specialized agency with responsibility for the safety and security of shipping sponsored initiatives that led to the Djibouti Code of Conduct, which called on governments in the region to commit to implement anti-piracy actions, and has conducted a review of national legislation to prevent, combat and punish acts of piracy and armed robbery at sea. It has also published revised guidance for private armed guards. There have also been various state-led and regional initiatives to counter piracy, including a recent international conference in September 2011 co-hosted by the Seychelles and the South Asia and Africa Regional Port Stability Co-operative.

66.  The FCO states that it has pursued a prominent role in the co-ordinated response at the UN:

The UK is taking a very active role. We are very active on the Contact Group on Piracy off the Coast of Somalia. We chair the Committee on Operational Military Co-ordination and the Regional Capability Development Committee. We are very active on the International Contact Group on Somalia and have also helped to promote debates at the United Nations on the issue of Somalia and piracy.[127]

The Minister also noted the FCO's action at a regional or bilateral level: "We have an ongoing dialogue with the EU and our development partners, and we are working closely with industry and other key parties."[128]

67.  While acknowledging the success of the naval operations in the Gulf of Aden, a number of figures in the shipping industry believe that governments are still failing to act decisively against Somali piracy. According to one shipowner: "Governments need to protect the world's shipping lanes by showing political will, not political indifference".[129] In March 2011, 22 major maritime organisations launched a new campaign called 'SOS—SaveOurSeafarers' calling for "committed action" from governments to crack down on piracy.[130] Four of those organisations, the International Chamber of Shipping (ICS), BIMCO, INTERTANKO and INTERCARGO, representing 90% of the world's merchant fleet, wrote a joint letter to Ban Ki-moon, UN Secretary-General, in August 2011 to demand a "bold new strategy", accusing the international community of failing to take the problem seriously and allowing the Indian Ocean to "resemble the Wild West".[131]

68.  On Monday 14 November, the Prime Minister announced that Britain will host a "major conference" in London next year to focus attention on piracy issues.[132] The FCO stated that the conference would aim to "tackle the underlying causes of these issues and delivering (sic) a new international approach to Somalia".[133]

69.  We conclude that the profile of international efforts needs to be raised further. We welcome the Prime Minister's announcement that the UK will host an international conference and recommend that in its response to this report, the Government provide further information on the conference, including details of who will be invited and what it expects to achieve.

The UK's comprehensive response: cross-departmental co-ordination

70.  The UK's approach to countering piracy off the coast of Somalia involves up to eight government departments.[134] The FCO leads on the Government's overall strategy towards Somalia, and chairs a cross-departmental working group on Somalia and a cross-Whitehall ministerial working group on piracy. The issue has also been considered in the National Security Council.[135]

71.  According to the Foreign Secretary:

The FCO works closely with the Ministry of Defence, the Department for Transport and the Department for International Development on the issue of Somali piracy.[136]

In addition, the FCO is responsible for the Government's response to any hostage situation involving British citizens abroad, including those held by pirates.

72.  The Government's co-ordinated approach has received a mixed response in submissions from industry. The Chamber of Shipping praised the Government's reaction to piracy as "positive and prompt. A clear FCO lead was established from the start and good cross-departmental dialogue and co-ordination of policy have been a notable feature, as have close liaison with industry and very strong civil/military operational links".[137] However, Baltic Exchange tempered its praise, stating that although the main government departments have worked "relatively well" together:

the omission of a clear, single and transparent strategy suggests an absence of joined-up thinking across departments. A single strategy is necessary to draw together the many strands of this immensely complicated problem, to clarify the role of each interested party and to renew confidence in the Government's approach to tackling piracy amongst the shipping community.[138]

73.  We conclude that the Government's comprehensive approach to tackling the problem of Somali piracy aimed at solutions on land and at sea is the correct one. However, we recommend that the FCO provide in its response to this report a statement clarifying which department is responsible for each aspect of the Government's response to Somali piracy, and which department has the overall lead on the UK's response to piracy off the coast of Somalia.

Bringing pirates to justice

74.  Around nine out of 10 piracy suspects detained by forces engaged in multinational operations are released without trial.[139] The fact that most pirates are simply returned to their boats or to Somali land has engendered strong criticism from the shipping industry. According to the Chamber of Shipping, "the repeated images of pirates being released without trial by naval forces, including by the Royal Navy, causes understandable derision".[140] However, Henry Bellingham warned that these release statistics can be misleading, and that most of those released were not actually captured during an attack:

It is also worth bearing in mind that most of the so-called catch and releases have been the result of disruption activities with naval vessels going in quite a lot closer to the shore and intercepting skiffs. Of the cases of actual attacks on vessels and attempted acts of piracy that resulted in capture by the Navy, very few have resulted in catch and release, because if an attack has been made on a vessel, you have the evidence.[141]

The Foreign Secretary also argued that disrupting pirates without detaining them still has merit:

Though unsatisfactory as an outcome, the pirates are at least temporarily disrupted as any equipment which could be used in a piracy attack, such as expensive engines, ladders or weapons, is seized and, most likely, destroyed.[142]

75.  The perceived failure to prosecute piracy suspects has been the subject of considerable criticism from some in the industry, who believe that prosecutions would constitute an important deterrent to the pirates. This criticism was voiced by Baltic Exchange, which accused the UK of holding a particularly poor record:

the UK has gained a degree of notoriety within the international shipping community for its failure to prosecute those caught red-handed in the act of piracy. Once captured, pirates caught by UK forces are widely perceived simply to receive sustenance and medical assistance before being returned to the mainland unmolested. Seventeen countries (including France, Germany, Spain and the United States) placed more than 850 pirates on trial in the 12 months prior to April 2011".[143]

The Government has recently confirmed that in the past two years 21 pirates have been transferred to other states by the Royal Navy for prosecution, and between April 2010 and 11 November 2011, 60 further suspected pirates were released after being encountered during boarding operations because "it was assessed that a successful prosecution was unlikely".[144] Since making this statement, a further seven suspected pirates have been detained by Royal Navy forces and transferred to the Seychelles for prosecution.[145]

76.  In response to this criticism, the Minister argued that prosecutions are indeed taking place, stating that "I can understand the frustration of catch and release occurring, but it is worth saying that more than 1,000 pirates are now in custody around the world, so there is no impunity".[146]

PRACTICAL DIFFICULTIES

77.  Captain Reindorp described the considerable practical challenges of detaining and transferring suspects who are captured in the Indian Ocean:

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.[147]

He expanded on the choice between allocating resources to pursuing prosecutions, rather than conducting deterrent operations:

whilst all this is going on, a ship is not performing its primary role which is deterring pirates, so you have to decide whether you are going to chase an ever-decreasing possibility of a successful prosecution or go back and deter pirates.[148]

Evidence

78.  We heard repeatedly that a major obstacle to achieving more prosecutions was the difficulty in gathering sufficient evidence of the act of piracy. Dr McCafferty stated that:

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. [149]

As Dr McCafferty noted, the pirates are able to dispose of evidence quickly and permanently: "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".[150]

79.  In addition to concrete evidence, witness testimony from those hijacked or under attack is important. The Minister told us that "The captain of a vessel has to be prepared to give evidence and you have to have crew members".[151] However, this evidence is not always easy to secure: Captain Reindorp stated that even in cases in which the UK had captured pirates and liberated hostages, the released hostages were unwilling to testify or to travel to courts in the region. He also noted that "There have been occasions when we take a boat and the first thing that the pirates do is pretend that they are hostages. Actually, it is really quite difficult to differentiate between the two".[152]

80.  It is even more difficult to obtain evidence that suspects intend to commit acts of piracy. Distinguishing between pirates and ordinary Somali fishermen is not as easy as is sometimes supposed. Captain Reindorp described the problem:

We have to be able to differentiate four Somali gentlemen in a small boat with AK47s, which they will usually say that they carry for self-protection from pirates, from pirates, who may well also look like four Somali gentlemen in the same boat, with exactly the same weapons.[153]

Even if suitable evidence is found, a number of states in the region do not have laws against going equipped or with intent to commit piracy, but only against an act of piracy itself. The Minister told us that four states in the region had a law against going equipped or going with intent, and that "what we want is for countries like Kenya, Tanzania and Mauritius to change their laws as well".[154]

81.  We conclude that gathering evidence to secure a successful prosecution for piracy is challenging. However, not all claims made by the Government about the difficulty in securing evidence were wholly convincing: when pirates are observed in boats with guns, ladders and even hostages, it beggars belief that they cannot be prosecuted, assuming that states have the necessary laws in place and the will to do so. We urge the Government to pursue alternative means of securing suitable evidence (such as photos or video recordings of pirates with equipment, and supplying witness testimony by videolink). We urge the Government to engage with regional states to agree consistent and attainable rules on evidence required for a piracy prosecution.

JURISDICTION

82.  The international law surrounding piracy prosecutions is often considered complicated due to the possible involvement of a number of states' citizens and ships. This complexity has been blamed for the low ratio of captures to prosecutions and led some to call for a change in international law. However, according to, Douglas Guilfoyle, a specialist in the international law of the sea:

It is commonly assumed that if, for example, a Royal Navy warship captures Somali piracy suspects on the high seas in the act of attacking a Dutch flagged merchant ship crewed by Ukrainian and Philippine nationals then questions of jurisdiction and applicable law will be unclear and complex. This is not the case. Any State in the world may exercise universal jurisdiction to prosecute any pirate irrespective of any 'nexus' between that prosecuting State and the pirate, the victims or the vessel attacked. Such a prosecution will occur under the prosecuting State's own national law of piracy.[155]

Under modern international law as codified in the UN Convention on the Law of the Sea (UNCLOS), any State can assert jurisdiction to try suspected pirates in their national courts. The International Maritime Organisation told us that its Legal Committee had taken the view that "the development of a new multilateral instrument might be premature, or unnecessary, in light of the existing international legal framework on piracy, which was generally considered to be adequate".[156]

Effectiveness of national laws

83.  Complications arise where national laws do not include laws against piracy, or do not adequately reflect international law. As Douglas Guilfoyle explained:

The difficulty is thus not one of jurisdiction (permission to prosecute) but one of national law and co-operation between national legal systems (ability to prosecute).[157]

He further notes that "universal jurisdiction means every State may (not must) prosecute a pirate";[158] and "unlike some other international crimes, the law of piracy does not oblige States to have an adequate national law to conduct prosecutions."[159] One consequence of the upsurge in piracy in the Indian Ocean has been to expose the fact that many regional and other affected states do not have adequate national laws against piracy. An expert report noted that piracy laws in Somalia itself have been described as "critically out of date, containing numerous inconsistencies and deficiencies".[160] The IMO Legal Committee called in November 2010 for all states "to have in place a comprehensive legal regime to prosecute pirates, consistent with international law".[161]

84.  It is far from clear even that the UK's law is adequate. Unlike other states such as Australia and the Seychelles, the UK has not directly incorporated the provisions of UNCLOS into its statutory criminal law.[162] We recommend that the Government take steps to ensure that all aspects of international piracy are adequately covered by UK law.

85.  Once naval forces have detained pirate suspects, it must be decided where, if anywhere, they are to be prosecuted. As established above, any state can in theory prosecute suspected pirates; the challenge lies in finding a state that is both willing to do so and has adequate national laws. Since the pirates are overwhelmingly Somalis, the natural choice would be to send them for prosecution in Somalia. However, at present Somalia's own judicial capacity is too limited to be considered at present as a destination for transfer, even in the relatively stable areas of Somaliland and Puntland. According to the Lang Report,[163] there are only 120 judges in Somaliland and 76 judges in Puntland, and only 5% of them are legally trained; a UN Modalities Report[164] refers to a further 20 legally trained judges in Mogadishu and estimates that it will require three years of capacity building before trials in Somalia meet international standards. [165] We note that since the Minister gave evidence to our inquiry, the Security Council appears to be prioritising (in the short-term at least): "the establishment of specialized anti-piracy courts in Somalia and other States in the region with substantial international participation and/or support".[166]

86.  Chris Holtby, Deputy Head of Security Policy Department in the Foreign and Commonwealth Office, noted that in addition to evidential problems, prosecutions of those who were not caught 'red-handed' were not pursued because of a lack of prison capacity:

The fundamental capacity concern in the region is that there is not enough prison space to hold all the pirates. That is why these states are primarily focusing on cases in which pirate attacks have taken place.[167]

87.  States are understandably reluctant to fill their prisons with Somali pirates; as noted by Douglas Guilfoyle, "running a piracy trial is expensive, imprisoning a group of persons for 6-25 years each much more so".[168] For this reason, in return for agreeing to prosecute pirate suspects, states have been provided with financial and other assistance in support of prison and judicial capacity. For instance, the agreement between the EU and Mauritius was accompanied by EU and UNODC agreements offering financial support to its court and prison sectors.[169]

Proposals for an International Piracy Tribunal

88.  In January 2011, French former Foreign Minister Jack Lang presented his report on piracy off the coast of Somalia to the UN Security Council, which called for the 'Somaliazation' of the counter-piracy process, and a move toward a situation whereby Somalia was responsible for ensuring the effectiveness of prosecutions. In the report, Mr Lang called for:

• supplementing Somali legislation on piracy;
• constructing two prisons in Somaliland and Puntland;
• establishing a Somali extraterritorial jurisdiction court in Arusha, in Tanzania, later to be transferred to Mogadishu, and
• establishing two further special courts—one in Puntland and the other in Somaliland.

89.  While Mr Lang's proposals were broadly welcomed, the specific recommendation of an extra-territorial Somali court has met with a mixed response in Security Council meetings. Russia, France and Portugal have spoken strongly in favour of it; the US and the UK strongly against it, questioning whether a court in Tanzania would be practicable in such a short time frame. The FCO has opposed the establishment of such a court, stating that "The costs of bringing [an extra-territorial] court up to standard and using it on an ongoing basis would be huge: we reckon that about $100 million a year would be needed".[170] The Minister argued strongly against the proposition:

First, this money would be much better spent in the region; within the region we could get a huge amount of value for one tenth of that sum. Secondly, it is illegal under the Somali constitution to have courts to try Somalis outside Somalia. I also had a long conversation about this with Mohamed Omaar, who is the TFG Foreign Minister. He made it very clear to me that this was an absolute red line as far as the TFG were concerned.[171]

90.  A follow-up report by the UN Office of Legal Affairs noted several significant complications in establishing an extra-territorial Somali court: it could require changes to the Somali constitution; it would require an adequate Somali piracy law and a sufficient number of Somali judges (neither of which exist at present); it would also require a treaty to be concluded with Tanzania; and the report noted doubts as to whether the proposed use of the facilities of the International Criminal Tribunal for Rwanda in Arusha would be viable given the greater number of suspects involved.[172] Douglas Guilfoyle also questioned the viability of an international court, noting that delays would occur while rules of evidence and procedure were established, and that an international court would not deliver capacity building benefits for regional states' justice systems. He also noted that "any type of international tribunal would not solve the issue of where convicted pirates would serve their sentences. It would simply shift the problem from national authorities to the tribunal."

91.  Existing international courts cannot readily be used to handle piracy cases:

neither the International Criminal Court (ICC) nor the International Tribunal for the Law of the Sea (ITLOS) presently has jurisdiction over piracy. Adding piracy to the jurisdiction of either institution would involve amending a major multilateral treaty or concluding an optional protocol—either is a long and complex undertaking, normally involving a lapse of years if it succeeds at all.[173]

However, the idea of establishing specialized courts within national jurisdictions in the region to deal with piracy cases has been gaining favour. UN Security Council Resolution 2015, passed on 24 October 2011, states the Council's intention to consider the establishment of anti-piracy courts and to further consult with Somalia and regional States on the kind of international assistance required to help make such courts operational.[174]

92.  We conclude that the Government was right to oppose the establishment of an extra-territorial Somali court as proposed in the Jack Lang report to try Somali pirates in a third country. We recommend that the Government set out in its response to this report its views on the more recent proposals for specialised anti-piracy courts established within regional states under ordinary national law.

TRANSFER AGREEMENTS

93.  Some states have prosecuted captured suspects in their own national courts, especially in cases which involved one or more of their own citizens. However, it is more common to transfer the suspects to courts in the region. The Government has stated a strong preference for suspects to be tried in local courts:

it is in the interests of trying to solve this problem, of sending a very strong signal to the pirates and the communities that are supporting them that they are prosecuted in the region and detained in the region. It is the same argument that I have applied to the Court Service in this country. If someone commits a serious crime and they are tried near their own community, it will have a bigger deterrent effect and it is going to send a much stronger signal than if they are tried—in this case—many thousands of miles away.[175]

94.  To this end, the UK signed a bilateral Memorandum of Understanding (MOU) with Kenya for the transfer of pirates on 11 December 2008, and a bilateral MOU with the Seychelles on 27 July 2009 to accept the handover of pirate suspects.[176] The EU followed suit, conducting an exchange of letters on the transfer of suspects for prosecution with Kenya in March 2009[177] and with the Seychelles in October 2009.[178] Work continues on extending these agreements to other countries in the region: the EU announced a European Union-Mauritius Transfer Agreement of Suspected Pirates in July 2011, and similar arrangements with Mozambique, South Africa, Tanzania and Uganda are being developed.[179] The Minister expressed his hope that other countries would join them, including landlocked states in the region that nevertheless rely on the security of port states.[180]

95.  As part of the process of agreeing these arrangements, changes in some of those states' laws have been required in order to allow them to prosecute the transferred suspects. The Minister told us that countries such as Kenya, Tanzania and the Seychelles did not originally have a national law offence covering piracy on the high seas, so they had had to change their law to make it an offence under their jurisdiction. He also stated that the UK was now working on getting those countries to institute an offence of going equipped or going with intent to commit piracy. The Seychelles had already done so.[181]

Kenyan agreement

96.   To date, Kenya has accepted by far the most suspects but it suspended its agreements with the UK and EU in late 2010 and now only accepts suspects on a case by case basis. Kenya's government was reportedly unhappy with the lack of support provided for prosecuting and holding pirates. According to Major General Howes:

Bluntly, when we negotiated that agreement, Kenya had no sense of the volumes that they were going to be confronted by. They feel aggrieved that they are the only people, as they see it, who are stepping up their international obligations, but they will not apply any regional leverage on the likes of Tanzania to do the same, which is vexing. They see it as our job.[182]

A recent ruling in Kenya's courts that the Kenyan penal code does not allow for the trial of individuals indicted for committing acts of piracy outside Kenya's territorial waters has thrown into doubt Kenya's ability to continue to accept the transfer of suspects. The Kenyan government appealed the judgment in October 2011 and is awaiting the outcome of the appeal.[183]

97.  Despite the lapse of the agreements, both government and EU witnesses informed the Committee that Kenya was still accepting pirate suspects "on a case-by-case basis, depending on identifying a Kenyan nexus—something that identifies it as Kenyan".[184] Dr McCafferty stated that although there "was concern at the time that this was a big hole in the armoury", the Kenyans have continued to consider prosecutions and the UK "would still look to use Kenya if we had a locus there."[185]

98.  The UK has not had cause to request that the Kenyan government accept captured suspected pirates since the lapse of the MoU but still hopes to re-establish an agreement.[186] The Minister met Kenyan Prime Minister Odinga on 7 July, and told us that Kenya was willing to discuss re-establishing the Memorandum of Understanding.[187]

99.  We recommend that the FCO take more concerted action to re-establish the transfer arrangement with Kenya, and should be prepared to exert more pressure on other states in the region to accept piracy suspects for prosecution. We recommend that the Government provide to the Committee in its response to this report a list of current transfer agreements and those under negotiation, and with an update on its efforts to re-establish the Kenyan Memorandum of Understanding.

100.  The UK has so far transferred 14 pirate suspects to Kenya for prosecution, eight of whom have been convicted and six are currently on trial. They have all been held in Shimo Le Tewa prison, Mombasa.[188] The Minister informed us that the Memorandum of Understanding (MOU) under which the prisoners were transferred contained assurances that the persons accepted for transfer would be held in accordance with international human rights standards, including the 1966 International Convention on Civil and Political Rights and 1984 Convention Against Torture and other Cruel, Inhuman or degrading treatment or Punishment. Douglas Guilfoyle told us that "on paper, such assurances are readily achieved but in practice post-transfer monitoring may be required." The Minister informed us that no FCO officials have visited the transferred men, because "The FCO cannot provide support to other countries' nationals unless there are separate arrangements in place." He said, however, that "There were no complaints of ill treatment by the suspected pirates detained by the Royal Navy either before or after their transfer". The UK now receives reports from the UN Office on Drugs and Crime (UNODC), which carries out regular monitoring of prisoners through its own officers and alongside the non-governmental organisation MEWA.[189]

101.  The Committee has not received information to suggest that there are any problems with the wellbeing of suspected and convicted pirates the UK has transferred to Kenya. However, we are concerned that the FCO seems to indicate that it would not have a right of access to those piracy suspects that they have transferred. We recommend that the FCO include in its future agreements with Kenya and other states a right to monitor the status of detainees it transfers from its control to those states to prosecute for piracy.

Transfers in practice

102.  Even when a transfer agreement is in operation, there is no guarantee that the state will accept pirate suspects from naval forces. Major General Howes described in illuminating detail how, once EU naval forces detain suspects, they must undertake a negotiation with one or more states to obtain agreement to accept them for prosecution:

First, they are taken. We [at EUNAVFOR HQ] ask the captain whether we will be able to produce an evidence pack, such that we have a chance of prosecution. It takes him time to make that judgment. The habeas corpus rules, whatever the nationality of the ship that is responsible for the disruption, will determine how long they can be held for. If it is a Spanish ship, you have 24 hours, so you have to decide within 24 hours whether you are going to release people or whether you can transfer them.

We immediately start negotiating with, for example, Kenya. You have to unlock Kenyan bureaucracy—and it is invariably on a Friday—and say, 'Will you take this prisoner?' They will want to know what the evidence pack is. Before we do that, though, if it is, say, a British flagged ship, we will say, 'Right. Do you have an interest in this? Are you prepared to take them?' If it is a Dutch ship, we say, 'Are you prepared to take them?' If the pirates have murdered a Dutch national, the answer will probably be yes. […]

Sometimes the answer is, 'Yes, we'll take them'—bang! Done. Deal cut. Otherwise you are racing against the deadline of having to release people, because there are laws that say, 'This is what you've got to do. You can't hold them.' I think the record of someone being held at sea without recourse to judgment or legal representation is 47 days. That infringes their human rights.[190]

103.  The Ministry of Defence confirmed that a similar process takes place when UK ships capture suspects, and highlighted the legal advice available to the commander of the ship, who makes the final decision about whether the evidence is enough to prosecute. While this process goes on, the commander must also decide whether to detain the suspects on board, rather than holding them on their own vessel. The Ministry of Defence informed us that:

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. […] We might subsequently be unable to follow through on that and then we would release the pirates, as you are aware.[191]

The Minister recognised that the process was convoluted, but he appeared optimistic that progress was being made:

We want a standardised situation for when the commander of a vessel intercepts pirates, if he thinks there is enough evidence and that is confirmed by the chain of command, as I have mentioned. […] That could well be something like a software programme that shows at any one time what capacity is available and which country is next in line to take prisoners. […] I would hope that within six months we will have seen an important step forward.[192]

PROSECUTION IN THE UK

104.  No piracy suspects have been brought to the UK for prosecution to date. This is in contrast to a number of other states operating counter-piracy patrols in the region:

Source: United Nations Office on Drugs and Crime, 3 November 2011

105.  The UK's record has been criticised by some who have given evidence to the inquiry. Stephen Askins stated: "I think that it is significant that the UK has not prosecuted a single pirate in the last three years." [193] The Government defended its record, noting that it had delivered successful prosecutions in Kenya,[194] and that other states had prosecuted in their national courts in cases where their own nationals had been affected, while there has never been a pirate arrested in a case that has had that strong UK 'nexus'.[195] The Minister assured the Committee that in such circumstances "it would be inconceivable that they would not be brought back here to be prosecuted".[196] He went on to state:

If the pirates have committed a pirate offence and it is in the UK's interests to prosecute them, then we will do so. I made that absolutely crystal clear. I have recently written to the Lord Chancellor and Secretary of State for Justice about that very point.[197]

106.  The Minister denied that the Government feared pirates would claim asylum, but noted that prosecutions would require considerable resources.[198] The Minister clarified what was meant by the UK's interest: "If a UK national was injured, that would be indicative of pretty overwhelming evidence that it is in the public interest to prosecute".[199] The only recent case in which British citizens have been held by Somali pirates is that of Paul and Rachel Chandler. They informed us that seven of the pirates that hijacked their vessel had later been arrested while attempting to attack a French trawler and are now on trial in Mombasa. According to their written submission:

The Metropolitan Police are investigating the possibility that they may also be tried for their part in the attack on Lynn Rival. We have been told by the Met that there is ample evidence, but jurisdiction remains to be negotiated.[200]

We recommend that in its response to this report the Government provide the Committee with an explanation of why jurisdictional issues were seen as an obstacle to the UK prosecuting pirates for their role in the Chandlers' case.

107.  There are clearly difficulties inherent in bringing pirates back to the UK for prosecution. We conclude that prosecuting pirates in local courts should remain the preferred option. However, we also conclude that there is no legal reason for the UK not to assert jurisdiction and try pirates in our national courts, and we urge the Government to consider this as an option if no other country will take suspected pirates captured by UK ships.

108.  Another way to alleviate the burden of prosecuting suspected pirates is through post-sentencing transfer of pirates back to Somalia to serve their sentences. The FCO informed us that the government of Seychelles recently signed such an agreement with the governments of Puntland, Somaliland and the Transitional Federal Government to enable pirates convicted in the Seychelles courts to be repatriated to Somalia to serve their sentences.[201] The Minister expected further progress on this type of agreement throughout the region, stating that :

I would be very disappointed if I was not able to report to this Committee in six months that we had seen really serious progress in the post-trial transfer agreements.[202]

109.  In support of the Seychelles agreement with the governments of Puntland, Somaliland and the Transitional Federal Government, UNODC counter-piracy projects have delivered additional capacity of 360 beds in Hargeisa prison in Somaliland; extra prison capacity of 200 spaces by early 2012 in Puntland; and a new prison in Garowe which will deliver 500 beds by mid to late 2013.[203] The UK has contributed £2,376,623 to UNODC counter-piracy projects in Puntland and Somaliland that have included prison building.[204]

110.  Naval forces continue to be limited by the lack of any guarantee that states will agree to accept suspects for prosecution and a limited prisons capacity: they are asked to act as police without being given the benefit of prisons. We conclude that pre- and post-sentencing transfer agreements are a pragmatic approach but there are too few of them. We recommend that the Government pursue more vigorously its efforts to increase prison capacity in the region and in Somalia itself. We also recommend that the Government investigate whether it would be feasible to transfer pirates from the UK back to Somalia to serve their sentences after prosecution in the UK.

Ransoms

111.  The amount of ransom money being paid to the pirates is a key indicator of the degree of success or failure of the international maritime operation against piracy. Once a ship has been successfully hijacked, a ransom is usually paid to secure its release. Average ransom payments to Somali pirates have increased sevenfold over the last five years, turning piracy into a multi-million dollar business. FCO figures show average ransoms rising from around $600,000 in 2007 to close to $5m in 2011. One witness described the inflation as "like being in a housing boom".[205] The latest information from Northwood HQ is that ransom payments in 2011 have already totalled $135m—a further substantial increase and a new record.[206]

Chart showing ransoms paid each year to Somali pirates

Source: 2007-July 2011 figures from the FCO, see Ev 70; December 2011 figures from NATO at Northwood

We were informed that ransoms are generally paid via airdrop by vessel owners or operators, or their insurance companies, many of whom have contracts with negotiators and crisis management consultancies. The nationality of the crew and the owners, the speed with which the shipowner paid the ransom and the type of vessel involved can all impact upon the ransom price demanded.[207] The highest ransom alleged to have been paid is $12 million.[208] We note that ransom prices have reportedly fallen recently following an incursion by Kenyan troops into Somalia beginning in October 2011, as the pirates have sought quickly to conclude deals in advance of expected battles between the Kenyan troops and Somali militants.[209]

112.  The shipping and insurance industries have faced criticism that, by paying such large ransoms, it is encouraging and funding further piracy. Appearing before the US Senate Appropriations Committee earlier this year, Secretary of State Hilary Clinton expressed exasperation that:

a lot of major shipping companies in the world think it's the price of doing business. They pay the ransom and they just go on their merry way. That has been a huge problem.[210]

However, submissions to the inquiry from the maritime industry stressed that companies had little choice. According to Stephen Askins, a marine insurance lawyer:

we would much rather they were not being paid, but the reality of the situation is that there is no other way to secure the release of the crews. […] We therefore have to go past the moral consequences, engage with the pirates and pay them a ransom.[211]

Other submissions referred to ransom payments as "humanitarian". When questioned about the extent to which the industry co-operates to share information on ransoms and to limit their prices, Mark Brownrigg stated that "We are certainly open to those sorts of discussions and interchanges, as necessary, but at the moment I think it is very much on an individual company-to-company basis. There is no collective engagement".[212]

113.  Ransom payments are not illegal under UK law except for cases in which there was evidence that the payment would trigger another crime. The Government has stated, for instance, that "payment of a ransom to a United Nations designated terrorist group or individual would contravene the al-Qaeda and Taliban sanctions regime established by UN Security Resolution 1267 (1999)".[213] This approach is not shared by all states, some of which are known to have paid ransoms, and/or become involved in the ransom negotiation process when their citizens are held hostage. However, evidence from industry has been broadly supportive of the UK's approach. According to Stephen Askins:

In a commercial sense, we would rather there was minimum government involvement in the negotiation process. They can help where help is called for, but generally we get it, we understand it, we have a process and, on a commercial level, it works.[214]

114.  Despite its stance discouraging the payment of ransoms, the UK has taken steps at the UN to ensure that such payments remain legal. The UK placed a technical hold on a US proposal last year to add two known pirate 'kingpins', Abshir Abdillahi and Mohamed Abdi Garaad, to the list of people subject to sanctions under UN Security Council Resolution 1844. The resolution imposes a travel ban and an asset freeze on people who "engage in or provide support for acts that threaten the peace, security or stability of Somalia", the US proposal was the first time that it had been used against pirates. The Minister explained that the UK had opposed this because of concerns that, unlike other countries, the UK legal system does not have a defence of duress, so "prosecutions could well occur when the payment was made to save lives".[215] The Government's position has been praised in some submissions, which expressed serious concern about possible international attempts to prohibit the payment of ransoms, which "would further endanger the seafarers held captive and any prohibition would serve only to drive ransom payments underground".[216]

115.  It is true that the high payments encourage and fund further piracy. However, the Government should address this through the recovery of ransoms and prosecution of those who have profited rather than by blocking payments, which would endanger seafarers' lives and would be likely to result in driving the practice underground. We commend the Government for its work at an international level to ensure that the payment of ransoms is not made illegal. We conclude that the fact that ransom payments in 2011 have already totalled $135m, another all-time record, should be a matter of deep concern to the British Government and to the entire international maritime community. We conclude that the Government should not pay or assist in the payment of ransoms but nor should it make it more difficult for companies to secure the safe release of their crew by criminalising the payment of ransoms.

Financial tracking

116.  An estimated $300 million has been paid to Somali pirates over the last four years and, aside from a French operation on land following an attack on some it its citizens, none of this ransom money has been recovered. There is very little solid information about where this money goes, in large part because ransom payments are in the form of physical cash and the money trail generally grows cold after the ransom is delivered.[217] Most observers agree that it is to some extent shared between the pirate 'foot soldiers' and investors. However, there are also fears that the money reaches corrupt Somali officials, Somali terrorist groups such as al-Shabab, and international criminal groups who fund the piracy from abroad and channel the proceeds out of Somalia into banks in Dubai and even London.[218]

117.  As the amounts of money involved have increased, international attention has shifted toward efforts to understand the financial flows involved in piracy, both as a way of tackling piracy through apprehending investors and due to concerns that ransom money is funding organized crime or terrorism. INTERPOL, EUROPOL, and UNODC are all involved in addressing the financial aspects of Somali piracy, and in July 2011, the UN Contact Group on Piracy off the Coast of Somalia established a working group to focus on the illicit financial flows associated with piracy in order to disrupt the pirate enterprise on shore.[219] A Financial Action Task Force report developing a typology on the financial flows related to maritime piracy was co-authored by the United States and the Netherlands, with UK officials working closely with them.[220]

118.  The House of Lords European Union Committee pursued this matter with the Foreign Office in the wake of its inquiry into the EU's counter-piracy operation. The Committee noted the lack of information available on ransoms that are collected in the UK, stating that "We remain baffled that so little is done by the authorities to seek detailed information about their activities from those involved".[221] When asked by our Committee about the involvement of the Serious Organised Crime Agency, the Minister admitted that:

It is fair to say that we were possibly slow to look at this area as a priority. […] Serious sums of money are washing around different world financial centres and systems. Understanding where that money goes, disrupting it and going after the kingpins is incredibly important. We have had some success, but there is much more to do.

We are surprised by the continuing lack of information available about those funding and profiting from piracy. We conclude that the Government has been disappointingly slow to take action on financial flows relating to ransom payments, particularly given the information available from British companies involved. The Committee has seen no evidence of ransom money making its way into the UK's financial system; however, we note that such rumours exist, which carry a reputational risk for the UK's banking system and crime agencies. The Serious Organised Crime Agency (SOCA) should make it a priority to address rumours of ransom money making its way into the UK's financial system.

ENGAGEMENT WITH INDUSTRY ON RANSOMS

119.  British companies have built up expertise in a variety of counter-piracy businesses, including insurance, negotiation and ransom consultancy and even delivering ransoms in cash to pirates. In submissions to this inquiry, companies have expressed willingness to share information on ransom payments with the Government. However, the Committee has heard concerning reports of a lack of interest on the part of government agencies when information about ransom drops has been provided to them.[222] We conclude that the Government's laudable principle not to become involved in ransom payments should not extend to the point of failing to collect, analyse, and act upon information concerning ransom payments made by British companies or private individuals. We recommend that the Government establish a mechanism through which intelligence and information about ransom payments and pirate groups and negotiations can be communicated to the Government by those involved.

120.  On 12 October 2011, in a speech to the Chamber of Shipping, the Minister announced the formation of a new "maritime intelligence and information co-ordination centre" to be based in the Seychelles. This UK initiative would bring together military and law enforcement capabilities in fighting piracy by facilitating the tracking of pirates and enforcement action against pirate financiers and leaders, and was "a sign of the commitment of this Government to prioritise action against pirate kingpins".[223] We recommend that the FCO publish details on the new maritime intelligence and information co-ordination centre, including its mandate, funding, and when it is expected to begin operations.

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39   "Somali piracy: Armed guards to protect UK ships", BBC News online, 30 October 2011, bbc.co.uk/news Back

40   "Piracy situation "unacceptable" says UN Secretary-General Ban Ki-moon", IMO Press Briefings, 4 February 2011, imo.org/MediaCentre  Back

41   "The Economic Cost of Maritime Piracy", One Earth Future Working Paper, December 2010, oceansbeyondpiracy.org Back

42   For instance, see Q 89. Back

43   Q 36 Back

44   Best Management Practices Version 4 was published in August 2011 and can be found on the Maritime Security Centre Horn of Africa website, see mschoa.org.  Back

45   "Piracy: No stopping them'", Economist, 3 February 2011 Back

46   UNSC, Report of the Secretary General Pursuant to Security Council Resolution 1897 (2009), S/2010/556, 27 October 2010 Back

47   Italy announced on 11 October that it would deploy vessel protection detachments in 2012. Back

48   Q 261 Back

49   Ev 104, para 4.7 Back

50   Q 32 and Q 37 Back

51   Q 260 Back

52   Q 87 Back

53   Q 65 Back

54   Q 121 Back

55   Q 157 Back

56   Ev 105, para 4.10 Back

57   Ev 108, para 3.4 Back

58   Q 41 Back

59   See IMO Document MSC.1/Circ.1406/Rev.1 and its annex, imo.org. Back

60   Q 106 and Q 87 Back

61   Q 257 Back

62   Q 256 Back

63   Q 258 and Ev 71 Back

64   HC Deb, 6 December 2011, cols 23-24WS Back

65   "Piracy-Issues arising from the use of armed guards", Ince & Co, incelaw.com Back

66   UNCLOS Article 92 Back

67   The use of force in self defence is governed by the common law, while the use of force in the prevention of crime is governed by section 3 of the Criminal Law Act 1967. The Criminal Justice and Immigration Act 2008, Section 7, established a statutory framework (based on existing case law) for assessing reasonableness. An amendment to this section is currently under consideration in the Legal Aid, Sentencing and Punishment of Offenders Bill passing through the House. Back

68   See R v Deana, 2 Cr App R 75 Back

69   Department for Transport, Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances, November 2011, paras 8.3 and 8.5 Back

70   Department for Transport, Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances, November 2011, para 5.6 Back

71   Crown Prosecution Service, Self-Defence and the Prevention of Crime, cps.gov.uk Back

72   Department for Transport, Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances, November 2011, paras 8.6 and 8.7 Back

73   Q 106 Back

74   Security Association of the Maritime Industry, see: marsecreview.com. Back

75   Q 41 Back

76   Q 66 Back

77   Henry Bellingham MP, Parliamentary Under-Secretary of State, speech to the Chamber of Shipping, 12 Oct 2011 Back

78   HC Deb, 21 November 2011, col 53W Back

79   Foreign Affairs Committee, Seventh Report of Session 2008-09, Human Rights Annual Report 2008, HC 557, para 136 Back

80   Q 65 Back

81   See Ev 109, para 3.6 and "Somali piracy: Armed guards to protect UK ships", BBC News Online, 30 October 2011, bbc.co.uk/news  Back

82   Ev 109, para 3.6 Back

83   Ev 112 Back

84   Department for Transport, Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances, November 2011, para 6.11 Back

85   'Piracy off the Horn of Africa' Congressional Research Service, 27 April 2011, R40528, p.3 Back

86   See, for instance, "Shri G K Vasan Calls for a Unified UN Force to Tackle Piracy", Safety4Sea.com, 29 June 2011. Back

87   Ev 103, para 4.2 Back

88   Q 141 Back

89   Q 79 Back

90   Q 90 Back

91   Ev 132 Back

92   See EUNAVFOR, 'Mission', eunavfor.eu. Back

93   AMISOM is mandated to conduct Peace Support Operations in Somalia to stabilize the situation in the country in order to create conditions for the conduct of humanitarian activities and an immediate take over by the United Nations. Back

94   "EU NAVFOR complete 100^th AMISOM escort", EUNAFOR Press release, 2 June 2011, eunavfor.eu Back

95   Q 16 Back

96   Q 80 Back

97   Qs 92 & 93 Back

98   Qs 80 and 94 Back

99   Q 80 Back

100   Ev 62, para 5 Back

101   Q 118 Back

102   Ev 77, para 12 Back

103   "Sailor dies in clash with pirates north of Seychelles", BBC News Online, 1 February 2011, bbc.co.uk/news  Back

104   Q 49 Back

105   Q 150 Back

106   Ev 74 Back

107   "UN-backed group calls for adequate support in tackling piracy off Somali coast", UN News Centre, 18 November 2011, un.org Back

108   Ev 105, para 7.1 and Defence Committee, 6th Report of Session 2010-12, The Strategic Defence and Security Review and the National Security Strategy-Volume II, Ev w35 Back

109   Q 139 Back

110   Q 138 Back

111   Q 244 Back

112   Q 242 Back

113   Q 238 Back

114   HC Deb, 30 November 2011, col 981W Back

115   Ev 77 Back

116   Ev 108, para 3.3 Back

117   Q 96 Back

118   See UNCLOS arts 92(1) and 110. Back

119   UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Back

120   Ev 82 Back

121   Q 248 Back

122   HL Deb, 25 October 2011, cols 144WA  Back

123   Q 117 Back

124   "Navy frees hostages from pirates in Indian Ocean", MOD Defence News,12 October 2011, mod.uk

 Back

125   UNSCRs 1816, 1838, 1846, 1851, 1897, 1918, 1950, 1976, 2015 all deal directly with the issue-others on Somalia mention it in passing. Back

126   See "International Response: Contact Group", US Department of State, state.gov. Back

127   Q 235 Back

128   Q 235 Back

129   "Piracy: High crime on the high seas", Lloyds, 28 Mar 2011, Lloyds.com Back

130   See saveourseafarers.com. Back

131   Letter from the Chairmen of the Chamber of Shipping, BIMCO, INTERTANKO and INTERCARGO to Ban Ki-moon, UN Secretary General, dated 11 August 2011. Back

132   Prime Minister David Cameron, Lord Mayor's banquet speech, 14 November 2011 Back

133   'Prime Minister announces conference on Somalia', FCO Press Release, 15 November 2011 Back

134   The FCO website lists: the Foreign and Commonwealth Office, Ministry of Defence, Cabinet Office, Department for Transport, the Department for International Development, Home Office, Treasury and Ministry of Justice. See fco.gov.uk. Back

135   Ev 71 Back

136   Foreign Affairs Committee, Developments in UK Foreign Policy, oral evidence from the Foreign Secretary on 16 March 2011, HC(2010-12) 881-i Back

137   Ev 62, para 2 Back

138   Ev 108, para 2.3 Back

139   Piracy off the Horn of Africa, US Congressional Research Service, 27 April 2011, R40528. Major General Howes stated that for EUNAVFOR it was 87%, see Q 99. Back

140   Ev 63, para 12 Back

141   Q 264 Back

142   Foreign Affairs Committee, Developments in UK Foreign Policy, oral evidence from the Foreign Secretary on 16 March 2011, HC(2010-12) 881-i Back

143   Ev 108, para 3.2 Back

144   HL Deb, 23 November 2011, col256WA. Prior to April 2010, information on the number of individuals encountered who were suspected pirates was not held centrally. Back

145   "Royal Navy saves Spanish vessel from pirate attack", Ministry of Defence press release, 2 December 2011 Back

146   Q 235 Back

147   Q 188 Back

148   Q 273 Back

149   Q161 Back

150   Q 129 Back

151   Q 246 Back

152   Q 273 Back

153   Q 249 Back

154   Q 249 Back

155   Ev 80 Back

156   Ev 130 Back

157   Ev 80 Back

158   Ev 80 Back

159   Ev 80 Back

160   Report of the Secretary-General on the modalities for the establishment of specialized Somali anti-piracy courts, 21 June 2011, UN Doc S/2011/360 ('Modalities Report'), para. 14. Back

161   Ev 129 Back

162   s 26(1) Merchant Shipping and Maritime Security Act 1997 declares that in any piracy proceedings within the UK relevant provisions of UNCLOS shall be 'treated as constituting part of the law of nations'. This affects the common law crime of piracy (which adopts the definition found in international law): Re Piracy Jure Gentium [1934] AC 586. Back

163   UN Doc S/2010/30 (25 January 2011) Back

164   UN Doc S/2011/360 (21 June 2011) Back

165   Ev 100 Back

166   UNSCR 2015, para 16 Back

167   Q 255. The Minister Henry Bellingham has since stated that he believes that "it is prison space rather than court capacity which remains the key capacity constraint", HC Deb, 11 July 2011, Col 131W. Back

168   Ev 98 Back

169   Statement by High Representative Catherine Ashton on the signature of the EU-Mauritius Transfer Agreement of Suspected Pirates , 16 July 2011, A 285/11. Back

170   Q 277 Back

171   Q 278. TFG stands for the Transitional Federal Government (of Somalia). Back

172   UN Document S/2011/360, 15 June 2011 Back

173   Ev 99 Back

174   UN Security Council Resolution 2015 (2011), 24 October 2011 Back

175   Q 273 Back

176   'Prisoner transfer agreements', FCO website, fco.gov.uk  Back

177   Official Journal of the European Union, 25.3.2009, L 79/49. See eur-lex.europa.eu. Back

178   Official Journal of the European Union, 2.12.2009, L 315/37, See eur-lex.europa.eu. Back

179   Foreign Affairs Council Conclusions 22 March 2010 Back

180   Qs 264 and 289 Back

181   Q 235 Back

182   Q 100 Back

183   See Ev 83-84 and, for example, "Kenya: Ruling on Piracy Trials Illegal, Top Court Told", All Africa, 18 October 2011, allafrica.com. Back

184   Q 163 Back

185   Q 166 Back

186   Q 276 and Ev 73 Back

187   Ev 72 Back

188   Ev 73-74 Back

189   Ev 73 Back

190   Q 105 Back

191   Q 179 Back

192   Q 289 Back

193   Q 51 Back

194   Q 284 Back

195   Q 165 Back

196   Q 269 Back

197   Q 245  Back

198   Q 270 Back

199   Q 272 Back

200   Ev 77, para 10 Back

201   Ev 72 Back

202   Q 286 Back

203   Ev 72 Back

204   Ev 69 Back

205   Q 59 Back

206   Information supplied by the NATO operation at Northwood HQ. Back

207   Q 59 Back

208   Between $10 million and $12 million was reported to have been paid for the release of the Tanker Zirku in June 2011. Prior to this, the South Korean oil tanker the Samho Dream was widely reported in 2010 to have been released for $9.5 million. Back

209   "Kenya's Somali incursion cuts piracy costs in Indian Ocean", Business Daily, 9 November 2011, businessdailyafrica.com Back

210   "US looking at new moves on Somalia piracy: Clinton", Reuters, 2 March 2011, reuters.com Back

211   Q 47 Back

212   Q 23 Back

213   HC Deb, 13 June 2011, col 603W Back

214   Q 48 Back

215   Q 294  Back

216   Ev 63 Back

217   "Organised Maritime Piracy and Related Kidnapping for Ransom", Financial Action Task Force report, July 2011, page 5 para 4 Back

218   See, for example, "Chasing the Somali piracy money trail", BBC News Online, 23 May 2009, bbc.co.uk. Back

219   Ninth Plenary Session of the Contact Group on Piracy off the Coast of Somalia, Communique, 14 July 2011, state.gov Back

220   Letter from Henry Bellingham MP, Parliamentary Under Secretary of State, Foreign and Commonwealth Office, to Lord Roper, Chair, Select Committee on the European Union, 17 March 2011, parliament.uk/hleuf. Back

221   Letter from Lord Roper to James Brokenshire MP, Parliamentary Under-Secretary of State in the Home Office, 8 June 2011, parliament.uk/hleuf. Back

222   Submissions received in confidence. Back

223   Henry Bellingham MP, Parliamentary Under-Secretary of State, speech to the Chamber of Shipping, 12 Oct 2011 Back

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Prepared 5 January 2012