Examination of Witnesses (Question Numbers
200-213)
Dr Lee Willett and Mr Jason Alderwick
21 JANUARY 2010
Q200 Lord Crickhowell: Last week, Admiral
Hudson and Commander Dow, the naval force legal adviser, gave
us a great deal of detailed evidence about the problems of getting
sufficient evidence to take the case to court, and talked about
the legal structure set up in Kenya particularly and now the Seychelles.
Would you have anything you would wish to add to the account they
gave us, or any particular comments?
Dr Willett: Just a couple of points. The legal
challenges are well documented, and one only has to look back
a few years to see the issue that the French faced when they took
some pirates, and took them back to France to try them, and had
significant problems trying to find something in legal terms they
could actually charge them with. I stand to be corrected, but
I believe it was something like breaking and entering was the
best that they could do. Of course, you then had the added political
problem of some pirates in a jail in Paris which they might actually
prefer to a jail in Kenya, and the issue of their options for
then requesting political asylum when their time is up, that is
another issue that the Western nations are therefore having to
deal with. Much has been made of the Kenyan situation, and the
utility of investing in Kenya and Somalia itself, if you like,
to give them the capacity to do this. Capacity building is not
just about building ships, it is about building a legal system
to give them the capacity to be able to cope with this. There
is the case that the Kenyan judicial system has been beefed up
by outside investment to make it work, but there are cultural
difficulties; for example, the Somalians might not like the idea
of actually being tried by the Kenyans, there are regional tensions
that one has to address. Now obviously the UK was the first to
get involved with the Kenyans, as I understand it, and then the
US and the EU. The ideal situation, I think, some analysts argue,
would be to create a capacity internally in Somalia to do that,
but the state of the Somali society at the moment means that there
are many that raise the issue of the human rights of the pirates
if they were to be given over to a non-functioning government,
effectively.
Mr Alderwick: I would agree broadly with what
Dr Willett is saying there, it is important that this is dealt
with in a regional context. It is great that we have this multilateral
framework to prosecute pirates, now it is clearly not as robust
as we would like it, because what we have to do is increase our
disruptive actions, i.e. confiscating boats and landing pirates
ashore without the pirate paraphernalia, rather than going for
full prosecution. If you want to conduct a full prosecution, and
give due process, the Kenyan legal system requires you as the
commander of the vessel, you as the boarding officer, you as the
member of the boarding party that conducted the seizure, to appear
in court to give evidence, and that ties up your warship alongside
for a significant period. So what would you rather that warship
do? From the taxpayers' perspective, we would rather it out there,
deterring and disrupting, and not being involved in this process.
So we have to get a fair balance: where a crime has taken place
and they have potentially committed or executed lethal force,
then I think you should pursue them to the nth degree, but whereby
you are deterring and disrupting, you cannot prosecute everyone,
or you will just overwhelm the Kenyan legal system. As is already
the case arguably; there are already 75 detainees, suspected pirates
awaiting prosecution; I think over 200 pirates have effectively
had their gear confiscated and landed back ashore. So if you prosecuted
everyone, you would not be able to do it. But I think another
issue is an argument being advanced that is: okay, the international
community, the international criminal court will set up something
specifically to deal with the piracy problem. That to me does
not seem very logical. Again, we want to keep this in a local
and a regional context, and support the judicial frameworks within
the respective countries to deal with the problem themselves.
There is no good creating something international to deal with
this problem.
Dr Willett: It is strictly criminal activity,
of course, and I would endorse Mr Alderwick's point there. The
last problem this presents to you though is of course these problems
with the judicial issues, the problems with the RoE in terms of
what you as a navy can and cannot do at sea because of the legal
issues, do continue to keep the cost benefit analysis in favour
of the pirates. The pirates do not at the moment see any reason
to change what they are doing. The risks to them are, okay, well,
if we maybe get within the vicinity of a ship while we are conducting
an attack, then we may come into contact with a warship and have
an exchange of fire, but the presence of warships is limited,
as we discussed, and the number of commercial ships is large,
so the chances of getting caught in that way are quite slim; if
you were to be prosecuted, there are problems. So what does not
happen with any of this at the moment is it does not change the
pirates' reasons for doing it, and of course, they still get paid
at the end of what they are doing, and they get paid, for what
others in Somalia earn, very, very well. So there is no reason
as yet to stop them from doing that. Until you find a way of changing
that cost/benefit analysis, by making some significant political
steps forward on a lot of these issues, then the problem will
unfortunately persist, because the pirates have nothing else to
do.
Q201 Lord Swinfen: What do the Chinese,
the Russians and the Indians do when they capture any of these
people?
Mr Alderwick: The incidents that I have seen
where that has taken place, and I confess, I have not come across
every single incident that has happened, but my understanding
is they have generally let them go. So they have deterred, disrupted
and let them go. There have been cases where lethal force—the
Talwar was a classic case of an Indian warship intercepting a
pirate mother vessel that transpired to be, I believe, a Taiwanese
fishing vessel with the crew still embarked as well as the pirates,
but the Indians were fired upon, they took self-protection measures,
and the resulting event was the loss of that ship and the crew,
with the seafarers on board as well as pirates. So the answer
is that they are not recording or releasing enough evidence for
us to be able to say, we can tell you how many boardings they
have conducted, we can tell you how much disruptive activity they
have undertaken. I do not really know, to be honest.
Chairman: We are going to move on to
Lord Sewel and insurance and ransoms.
Q202 Lord Sewel: Can I get there through
a number of stages? First of all, it seems to me, the basic question
we have to ask is: do we have an operational framework in place
that minimises the probability of successful attacks? From what
we have heard from you, the answer is yes, in that the transit
corridor and group travel approach does provide a pretty robust
framework. So the question then is, who is at risk, the answer
is the people most at risk are the freelancers; so then the question
becomes, how do we get the freelancers to behave in a more responsible
way? That means a focus on what shipowners and I would have thought
insurers, with pressure being put upon shipowners to make sure
they do sort of conform with the operating methodology, and insurers
being prepared to basically levy punitive insurance rates on owners
who do not conform.
Mr Alderwick: I would agree, or arguably make
it a precondition of being underwritten in the first place, that
they are in compliance with ISPS guidelines, IMO guidelines or
the IRTC recommendations.
Q203 Lord Sewel: Why is this not being
pursued robustly and rigorously?
Mr Alderwick: Within some elements of the sector,
it is. I think there is a commercial interest here as well. The
premium rates are up, there is no doubt about it. It could simply
boil down to that the impact of the problem commercially and economically
is not significant enough to warrant those kind of measures, i.e.
they are happy to effectively—the return in premiums is
far outweighing the amount that you have to pay off in ransom
demands.
Q204 Lord Sewel: Is it the insurance
companies who are paying the ransom, or the owners?
Mr Alderwick: It depends whether they are carrying
risk on the policy that covers kidnap and ransom. So it is not
a clear-cut case.
Q205 Lord Sewel: But if you have 25%
of the traffic not conforming to the—I mean, there is a
significant opportunity to reduce risk further, is there not?
Mr Alderwick: Absolutely. I think it is about
getting the message out there that if you do take the necessary
preventative actions, if you do register with MSC (HOA) and the
other forces in the region, then you do mitigate the circumstances.
Some people ironically probably view this as a virtual casino,
in terms of, well, the probability, and on balance, if I have
a 1:600 chance of being pirated and I only transit with my ships
through that region five times a year, 1:120 or something of that
order of magnitude, then I might take the risk. You cannot be
held responsible for those foolish business decisions. You cannot
make those people necessarily responsible for their actions in
that way.
Q206 Lord Sewel: Should we do anything
to ride to their rescue when they do behave irresponsibly?
Mr Alderwick: You have an obligation, threat
to life. It is the seafaring code really. You cannot be in a position
to say, actually, you were only going eight knots to save fuel,
to reduce your bunkerage capacity, therefore we are not going
to assist you, we are not going to help you. Again, I think it
would be pretty harsh if we did.
Q207 Lord Swinfen: Is the piracy and
the increased insurance cost increasing the number of ships that
are going round the Cape of Good Hope instead?
Dr Willett: I think there was a big concern
12 months ago that that would be the case. At the time, there
were one or two major shipping companies who were saying publicly
that that would be what they would do. Whether or not that was
to encourage some kind of political response in terms of sending
more ships to the region, I do not know. My analysis would be
that there are some companies that do use that route, but the
predicted increase in that happening has not come to pass.
Q208 Lord Williams of Elvel: To your
knowledge, does anybody in authority actually talk to the insurers?
Is there a dialogue going on, or is there a complete stand-off?
Mr Alderwick: The only dialogue I am aware of
is from the maritime forces involved trying to engage and inform
the insurance services, but other than that, no direct government
involvement that I am aware of.
Q209 Chairman: Can I just be clear on
one thing? One of your themes is that the pirate community is
actually not very sophisticated, it is opportunistic, and because
the risks are low, it is just a good thing to do commercially.
But negotiations with a major insurance company and finding out
where they are, or who they are—is that also not very sophisticated?
Does each individual pirate band have that ability to do that,
or do they have a godfather organisation that tends to sub-contract
that?
Dr Willett: Evidence suggests, my understanding
is that when you go up the chain—the pirates are the foot
soldiers of what is a significant criminal activity, and there
is evidence that there is a significantly robust framework higher
up the chain of different individuals, different clans, different
criminal organisations, from different nationalities, that goes
quite a long way out of Somalia and elsewhere, to the Middle East,
to Europe, etc. So there are very sophisticated people that are
making quite a significant amount of money out of this. The pirates
themselves may not get paid very, very much in terms of their
share of the ransom, but the money clearly is going somewhere,
so it is a very sophisticated business.
Q210 Chairman: So that is potentially
another sort of area of slight squeeze, if you like?
Dr Willett: What happens to the money when it
gets ashore in Somalia and where it goes and who has it, I think
is something that needs looking at.
Q211 Chairman: If we could move on then
to the final question, which is Lord Chidgey, and I know I have
done this to Lord Chidgey before, but I would also like to just
add to the question he is going to ask: are we stuck with this
forever? In the words of the United States generals in Afghanistan,
are we here for 40 years or whatever?
Dr Willett: The key issue is it is an end state
not an end date that we have to keep in mind, and until one changes
the circumstances ashore and finds reasons to discourage the pirates
from doing this, there is the issue of how long the commitment
needs to be.
Q212 Lord Chidgey: Dr Willett, when you
started off giving evidence to us this morning, you made a very
strong point about the limitations on the EU operation, the operation
out there, the maritime operation, and then towards the end of
your evidence, you made the very interesting point that the cost/benefit
analysis in terms of the pirates was such that there was nothing
going on that would stop them committing acts of piracy, which
really embraces the question on the order papers, so to speak:
is the operation that we are undertaking just simply addressing
the symptoms of the problem and not the causes? Would it be feasible
for the international community to assist states in the region
to build up their capacity to police their own territorial waters?
If I can add on to the bottom of that question, would you support
the concept of actually providing training to the Somali forces
to actually police their own territorial waters?
Dr Willett: Absolutely, I do believe that the
issue here is that the EU operation and the NATO and the CMF operation
and/or the national presence is really just doing little more
than addressing the symptoms, that is all it can do. Navies can
use the free space of the sea to deploy there very easily politically,
and to at least address a problem that was very political in its
profile to start with, with concerns of the shipping company,
with the visibility of the issue in the media. But as I mentioned
at the start of my evidence, what you can do though is you can
use the naval operation to increase confidence that something
is being done, and there have been suggestions that the TFG, the
Transitional Federal Government in Somalia, welcomes the idea,
but, of course, it does not control very much of the country at
all, there is the Puntland government and what they can do. So
there is the issue of how you generate a structure ashore that
can start to take advantage of the space that the navies can create
at sea. I certainly agree with the idea that you should be looking
to use the other assets that you have in the region, for example
the commercial private security companies, in other ways, there
must be more that they can do. Can they be used for training purposes,
and if they have vessels, which some of them do, can these ships
be used as coastguard vessels or as training ships?
Q213 Lord Chidgey: Would you support
an EU initiative to provide training for the Somali armed forces?
Dr Willett: As I understand it, the EU itself
is already operating ashore. I would not be sure, off the top
of my head, as to what they were actually doing, but there is—not
an EUNAVFOR, but an EU effort ashore to be able to start doing
something. The capacity building should not just be viewed in
terms of building coastguards or navies, it is building legal
systems, as we have discussed, but it is a significant activity.
One does have things like AFRICOM being stood up with the increasing
interest from the US, one does have things like increasing French
investment in the region, so there are obviously nations that
are very interested in doing this, but it obviously is a significant
commitment. But ultimately, it is a balance between investing
what you need to do in that part of the world from a financial
point of view, from a naval point of view, and bearing in mind
too that Somalia, of course, is just one area. What happens if
we start having similar problems on the west coast of Africa,
what do we do there? There are problems to do with piracy there,
there are oil issues over there, but that is not a huge political
concern at the moment. So I think it is important that one views
the Somalia issue, that of course is now spilling over into Yemen
and elsewhere, as an important issue, but bearing in mind that
there may be others that come in due course, and we need to be
prepared to deal with those, because the problem of the Somali
issue, it sets a precedent; you got involved here, well, what
about there? So it is always a challenge in terms of how you will
spread your resources, both naval resources and financial resources,
and that is something to be borne in mind.
Chairman: Dr Willett, Mr Alderwick, thank
you very much indeed, we have stretched our questioning a little
longer than I had expected, but it has been very useful indeed,
and very comprehensive, and I hope you have enjoyed the experience
yourselves. We will obviously, as I said, send you a transcript,
and eventually the report to the government which we hope to get
out in a couple of months' time, but thank you very much indeed
for your time.
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