Murphy Martin. Small Boats, Weak States, Dirty Money. Piracy & Maritime Terrorism in the Modern World

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what is piracy?

Piracy as an international interest

Common interests rarely result in common deﬁnitions or interpretations.

e international piracy provisions might represent the lowest common

denominator, but if they were to become a matter of dispute or modiﬁca-

tion, and their application consequently circumscribed, then—as Birnie

has calculated—the net eﬀect of uNCLOS would be that under its terms

only 7%-15% of violent incidents at sea would be classiﬁed as piracy.

But why should the combination of a narrow deﬁnition of piracy and the

erosion of the idea of the high seas be of serious signiﬁcance? Most modern

pirates, after all, are not like the buccaneers who prowled the high seas for

their prey. ey are land-based, venturing out to intercept shipping often

no more than twenty miles from shore. In fact, almost all acts of modern

piracy occur within the traditional limit of territorial waters in ports, har-

bours and anchorages. ey are, therefore, a domestic criminal problem

which should be dealt with under domestic law and in which the interna-

tional community has no right to interfere.

e argument fails on a number of counts. First and foremost, while the

perpetrators might be domestic, the victims are often international. In many

cases they are likely to be passing through, carrying international cargoes

to international destinations; if not globally, say from the persian Gulf to

Japan, then regionally, perhaps from Singapore to Indonesia.

Freedom of

navigation is a fundamental interest to all countries for trade and defence.

It is a freedom that needs to be defended vigorously. Safeguarding this

interest, including dealing with the small detail of piracy, cannot be left to

the vagaries of diﬀerent national interpretations.

Second, mobility: even

30 Birnie, ‘piracy: past, present and future’, p. 173. See also p.K. Mukherjee, ‘pi-

racy, unlawful acts and maritime violence’, JIML’, vol. 10, no. 4, Aug.-Sept.

2004, p. 301 and, for a recent example, Bill Gertz, ‘China enacts law extending

its control’, Washington Times, 27 Jan. 2003.

31 See I.D.h. Wood, ‘piracy is deadlier than ever’, uS Naval Institute Proceedings,

vol. 126, no. 1, 2000, pp. 60-4. Also Michael pugh, ‘piracy and armed robbery

at sea: problems and remedies’, Issues of Low Intensity Conﬂict, vol. 2, no. 1,

Summer 1993, pp. 1-18.

32 is notion of internationality is an important aspect of the Rome Convention.

See Tullio Treves, ‘e Rome Convention for the suppression of unlawful acts

against the safety of maritime navigation’ in Natalino Ronzitti (ed.), Maritime

Terrorism and International Law, Dordrecht, Boston and London: Martinus

Nijhoﬀ, 1990, pp. 74-5.

33 Why then did the uSA, which had held out for so long, ﬁnally sign the uNC-

LOS? According to George Galdorisi, it had nothing to do with suppression of

small boats, weak states, dirty money

if the perpetrators are domestic they may sail their prizes into international

waters; thereafter they might transfer the cargo to another vessel, or sail the

entire ship to a second country to dispose of it and its cargo together or

separately. ird, so long as the excuse of “political ends” is available there

is always the risk that states will hide behind it in order to avoid taking

action.

Fourth, no state wants to be known as having a piracy problem;

consequently there is a considerable temptation to discourage incident re-

porting by demanding of any master and crew that reports an incident that

they remain as witnesses while subjecting the ship to a long and expensive

delay. Fifth, most states will only pay attention to piracy once it presents a

threat to their interests; if not, they will do little or nothing even if it takes

place oﬀ their own coasts. (e lack of response from local authorities, even

to pleas for assistance, has been a theme that has run through IMB reports

for many years.) Sixth, some states may be so poor, weak or corrupt that

they lack the will or the means to tackle the problem even if their interests

are aﬀected. Finally, there is a class of crimes so heinous that they invite

universal condemnation. is class includes genocide and the slave trade.

e popular view is that piracy is such a crime. While this might not be

based on sound legal argument, nonetheless pirates’ reputation for violence

piracy and therefore any concerns that might have been felt played no part in

the decision. See Galdorisi, ‘e united States and the law of the sea: Changing

interest and new imperatives’, NWCR, Autumn 1996. It did, however, have a

great deal to do with achieving a consistent international regime and making

sure that the uSA was a participant so that it could inﬂuence the Convention’s

further development. It is therefore salutatory to note that some states have,

either when ratifying the Convention or through their domestic legislation,

already interpreted the Law of the Sea diﬀerently. See Sam Bateman, ‘Sea lane

security’, paper presented at the ApEC high-Level Meeting on Maritime Se-

curity Cooperation held in Manila, 8-9 Sept. 2003, p. 11. Declarations made

on signature, ratiﬁcation, accession or thereafter can be found at http://www.

un.org/depts/los/convention_agreements/convention_declarations.htm

34 See Wood, ‘piracy is deadlier than ever’. Young and Valencia make the point

that some Southeast Asian states fear that the 1988 Convention for the Sup-

pression of unlawful Acts against the Safety of Maritime Navigation (SuA)

could be expanded to allow hot pursuit into territorial waters. Most regional

states have therefore failed to ratify it as they feel it only makes sense for states

that have already established maritime dominance or possess secure maritime

borders: Adam J. Young and Mark J. Valencia, ‘Conﬂation of piracy and Ter-

rorism in Southeast Asia: Rectitude and utility’, Contemporary Southeast Asia,

Vol. 25, No. 2, August 2003, p. 277.

35 See Doug MacKinnon, ‘Transnational dimensions of maritime crime’, paper

presented at the Transnational Crime Conference, Canberra, March 2000, p.

what is piracy?

is well earned even today. Granted, many incidents involve only the threat

of violence and in others there is no violence at all (in fact, if a ship is

moored or if the crew are carrying out an intricate manoeuvre, pirates can

often board and leave undetected) but in all too many cases piracy involves

savage violence.

As Wood writes: “If the same rate of incidents and as-

sociated degree of lethality were to exist in international aerial hijackings,

the world would react in a far more concerted and aggressive fashion”.

Consequently, the international interest, if not paramount in every case, is

substantial in many cases and cannot be easily superseded by domestic law

and local enforcement devoid of an international dimension.

e practical problem is that pirates have never been prosecuted interna-

tionally. until the middle of the last century all international law was law

between states. pirates are, quite obviously, individuals. Except in a very few

cases, individuals can only be prosecuted under domestic law, but because

deﬁnitions of piracy have varied from one state to another and continue to

do so, what was deﬁned as piracy in one jurisdiction might not have been

piracy in another; in fact, in some jurisdictions, it might not even have

been a crime, a situation that in some places is still true today.

At the most

36 For some recent examples, see as ICC piracy Report, 2006, pp. 17-28.

37 See Wood, ‘piracy is deadlier than ever’. peter Chalk makes the point that ‘the

human cost of pirate attacks is something that rarely receives the attention it de-

serves, largely because assaults are directed against less visible targets’: See Chalk,

‘Maritime piracy: A global overview’, Jane’s IR, vol. 12, no. 8, Aug. 2000, pp.

49-50. According to the ICC-IMB, acts of violence against crew and passengers

increased from 58 in 1992 to 644 in 2003, dipping to 317 in 2006. See ICC pi-

racy Report, 2006, p. 10. at violence is a continuing trend is shown in ‘piracy

takes a higher toll of seamen’s lives’, ICC News, 28 Jan. 2004, and ‘Murder of

four sailors marks violent start to shipping year 2004’, ICC New, 13 Feb. 2004;

Donald urquhart, ‘Nine missing as pirates throw crew overboard’, e Business

Times On-Line Edition, 16 July 2004. is trend appears to be continuing. Kill-

ings, which reached their highest level 2000, have been particularly numerous

oﬀ Nigeria but also oﬀ the coasts of Vietnam, Bangladesh and the philippines:

see ‘Killing by pirates on the rise’, BBC News 26 July 2004. Young and Valencia,

on the other hand, suggest that one of the main reasons for reporting a piracy

incident is because violence has taken place and, consequently, the statistics

may contain a bias that paints a picture of piracy as a more violent activity than

it really is. however, they do agree that as the rewards of piracy have increased

so the incentive to use greater violence has increased with them. Young and

Valencia, ‘Conﬂation of piracy and Terrorism in Southeast Asia: Rectitude and

utility’, p. 272.

38 India and Japan for example: on Japan see Susumu Takai, ‘Suppression of mod-

ern piracy and the role of the navy’, NIDS Security Reports no.4, NIDS, Tokyo,

March 2003, p. 49, note 33; on India see William Langewiesche, e Outlaw

small boats, weak states, dirty money

basic level, therefore, the international interest demands that nations enact

uniform legislation in accord with international norms, perhaps along the

lines modelled by the International Maritime Organisation (IMO) and the

Comité Maritime International (CMI).

uniformity, however, cannot be

conﬁned to legal deﬁnitions. It must include a uniformity of response and

extend to associated legal mechanisms such as extradition. Although coastal

states have an international duty to cooperate with ﬂag states this is the

limit of their obligation. Neither is required to take action and those open

is welcome, but the obligation to enforce regulations is not, might be keen

to avoid it.

Simplicity of jurisdiction—or, at least, clarity of jurisdiction—is as es-

sential as capability. As is the will to do something for, as pugh writes,

“whilst it may be relatively easy to codify the rights of states (to suppress

piracy), the international community is disadvantaged when a state either

turns a blind eye to pirates and armed robbers using its territory as sanctu-

ary, or is unable to suppress the attacks through lack of resources.”

Steel

goes further. he points to the restrictive deﬁnitions enshrined in interna-

tional law on one hand and, on the other, the reluctance of many states

to face up to their legal and moral responsibilities. he concludes that it is

“therefore possible to assert with some conﬁdence that there is no inter-

national law of piracy at all, and also to suggest that there has never been

any such law except in the unilateral projections of some states seeking

to expand their jurisdiction, to safeguard their own trade or to establish

imperial interests.”

uniform legislation, therefore, needs to be coupled

Sea, New York: North point press, 2004, p. 76.

39 With regard to the IMO see ‘Combating piracy and armed robbery against

ships–call for an international code’, IMO News, no. 2, 1999, p. 11. In 2001 the

IMO Assembly adopted the Code of Practice for the Investigation of the Crimes of

Piracy and Armed Robbery against Ships in assembly resolution 922. e Code of

practice is available at http://www.imo.org/includes/blastDataOnly.asp/data_

id%3D1880/984.pdf Also in 2001 the Comité Maritime International (CMI)

adopted a Model National Law on Acts of Piracy and Maritime Violence which

is available at http://www.comitemaritime.org/singapore2/singafter/modelgen/

modelgen2.html

40 Michael pugh, ‘Is mahan still alive? State naval power in the international sys-

tem’, Journal of Conﬂict Studies, vol. 17, no. 2, Fall 1996, p. 8.

41 D. G. Steel, ‘piracy–can the order of the oceans be safeguarded?’ RUSI Journal,

Oct., vol. 140, no. 5, Oct. 1995, p. 20.

what is piracy?

with a demonstrable willingness to prosecute and extradite perpetrators,

not merely deport them.

Piracy: ancient and modern

e nature and purpose of piracy have not changed. e causal factors

remain the same: the largely lawless space of the sea, favourable geogra-

phy, weak or compliant states that provide sanctuary, corrupt oﬃcialdom

that can beneﬁt from and protect piracy, economic disruption that opens

markets for stolen goods, and the promise of reward from the proceeds

extracted either from the sale of rich cargoes or from seafarers and coastal

communities too weak or isolated to defend themselves. ese are little dif-

ferent from the factors that drove past Chinese, Mediterranean or Atlantic

piracy; what occurs today cannot be decoupled from the piracy of the past.

It is not a deracinated phenomenon. In the end it is states individually and

collectively that determine whether piracy ﬂourishes or fails. piracy is a

global phenomenon but not a global problem.

CONTEMpORARY pIRACY:

ThE WhO, ThE WhY AND ThE WhERE

piracy is a global phenomenon but not a global problem. It is a phenom-

enon with many shared features, but how they are ordered and how they

relate to one another is speciﬁc to each locality or region. ere is an inter-

national dimension, which in some cases is signiﬁcant, and when it is it is

primarily political.

What are pirates after?

pirates are criminals. ey want money. At the lowest level they prefer

cash, which they will take from ships’ safes and from the crew. ey will

also take anything of value that can be sold readily and turned into money.

ey will take ships’ stores such as paint and rope. ey will take ships’

equipment such as radios and navigational aids. ey will take equipment

from the crews’ quarters such as televisions and DVDs. ey will take the

crews’ personal possessions such as clothes and their valuables such as jew-

ellery and watches. While they are doing these things there is always a risk

they will take crew members’ lives.

piracy is a small group or gang crime. e idea of a lone pirate is slightly

absurd. Being a gang crime, it has the quality of an enterprise. More or-

ganised pirate gangs steal larger and more valuable items including whole

cargos. is could mean they will break into containers to get what they

are looking for or, more usually, take control of a ship and unload its

cargo—which will tend to be some sort of readily disposable commodity

such as reﬁned oil or metal bars—onto another ship or barge. ey might

then abandon the original ship, try to sell it or, in those cases where piracy

merges with maritime fraud, use it to try and obtain other cargoes that they

small boats, weak states, dirty money

will then steal in turn. is is known as a “lost” or “phantom ship” fraud. In

these cases a ship is registered on the basis of false information including the

falsiﬁcation of its previous names, tonnages, dimensions and owner’s iden-

tity such that, once the crime has been committed, it is diﬃcult and often

impossible to trace it, its owners, its cargo and often its crew. Registration is

facilitated by lax or corrupt registration authorities while ownership is hid-

den behind “paper companies” that are often set up only a few days ahead

of an operation and based in temporary oﬃces.

ese sorts of sophisticated

hijackings and frauds have been a feature of Far Eastern piracy, although

incidents also occurred in the Mediterranean during the Lebanese civil war.

Other pirates might simply steal boats or ships to sell. In 2006 the Indo-

nesian authorities captured a gang that did this.

pirates might also kidnap

crew members for ransom; incidents such as this took place in the Malacca

Straits and the Sulu Sea, and have also occurred oﬀ Nigeria. ey can hijack

whole ships and demand ransom for the ship, cargo and crew together, but

because this requires a safe anchorage where the ship can be moored without

any risk of its recapture, in recent years this form of piracy has been unique

to Somalia.

Reasons for piracy

piracy is a low-risk, criminal activity that pays well.

It occurs for one over-

riding reason: opportunity. It is often suggested that poverty is the main

motivator, but this is simplistic.

Not everyone who is poor becomes a

1 ICC-IMB, ‘Organised maritime crime in the Far East’, Jan. 1991, p. 15.

2 Marcus hand, ‘Indonesia holds 16 over vessel hijacks’, Lloyd’s List, 30 June

2006; also ONI, Worldwide reats to Shipping, Marine Warning Informa-

tion (hereafter referred to as WWTTS Report), 6 July 2006, paragraph D.1.

[Reports are available at http://www.nga.mil/portal/site/maritime/]

3 As one researcher wrote, ‘little is know about the motivations of modern-day

maritime pirates, mainly because few are ever caught…’ John L. Worrall, ‘e

routine activities of maritime piracy’, Security Journal, vol. 13, no. 4, Oct. 2000,

p. 45.

4 John S. Burnett, Dangerous Waters: Modern Piracy and Terror on the High Seas.

New York: Dutton, 2002, p. 117. he notes that the increase in Malacca Straits

and South China Sea piracy coincided with the Asian ﬁnancial crisis of the 1990s.

peter Chalk, ‘reats to the maritime environment: piracy and terrorism’, Pres-

entation to RAND Stakeholder Consultation, 28-30 Oct., 2002, p. 3, while ac-

knowledging the same correlation adds that the crisis also meant that regional

states were forced to reduce the resources they made available for surveillance. If

anything this problem became worse after 9/11, which focused security measures

on land. As a consequence, countries such as the philippines and Indonesia had

contemporary piracy: tho who, the why and the where

criminal. Furthermore, to draw the conclusion that because people are poor

they will try piracy as readily as they will turn to street crime or vehicle theft

overlooks the inherent diﬃculty that men cannot survive or operate at sea

without speciﬁc skills and in the absence of even a rudimentary support

network to sustain them.

Economic dislocation has, however, had a role. Signiﬁcant changes in

trade ﬂows have driven piracy in the past and even today changes in circum-

stances have encouraged some to try their hand. e criminologist Jon Vagg

points out that “developing economies frequently suﬀer high crime rates,

partly because development leads to structural changes in the economy and

the dislocation of segments of the working population”.

e consequence of

uncontrolled migration from areas of low investment to areas of high invest-

ment can reach the point where the numbers of migrants outstrip the avail-

able employment. people who have been given the hope of a new life have

seen that hope dashed; furthermore, in the process of uprooting themselves

and moving to live amongst strangers they have left behind the social and

family networks than might have sustained them through disappointment.

e men who Eric Frécon calls the “new” pirates on the Indonesian island of

Batam are arguably one product of such migration.

e Batam Industrial Development Authority (BITA) was created un-

der president Suharto in 1978 to turn the island into a major industrial

and free trade zone. Suharto appointed his then protégé—and eventual

successor—B.J. habibie to be its head. Along with the factories and har-

bours came golf courses, resorts and hotels designed to attract Singapore’s

money and commercial spirit, the Batam development also attracted Sin-

gaporeans eager to let their hair down.

It became, in peter Gwin’s words,

Singapore’s “dark sister”.

e proximity of the city-state, coupled with the

even fewer resources to spend at sea. Chalk, interview with author, Aug. 2004.

More recently the Minister Mentor of Singapore, Lee Kuan Yew, has put the

problem of piracy in the Malacca Straits down to poverty on the Indonesian side

and, while acknowledging that opportunity is a factor, claimed that the problem

will only be solved once the problem of poverty has been solved. Marcus hand,

‘poverty blamed for piracy’, Lloyd’s List, 23 June 2006.

5 Vagg, ‘Rough seas?’ p. 66.

6 Eric Frécon, ‘piracy and armed robbery at sea along the malacca straits: Initial

impression from ﬁeldwork in the Riau Islands’ in Graham Gerald Ong-Webb

(ed.), Piracy, Terrorism and Securing the Malacca Straits, Singapore: ISAS, 2006,

p. 72.

7 ‘Sex trade and exploitation in Batam and Bintan’, AP, 4 Dec. 2000.

8 peter Gwin, ‘Dark passage’, National Geographic, vol. 212, no. 4, Oct. 2007, p.

small boats, weak states, dirty money

laissez-faire attitude habibie encouraged, brought in legitimate investment

mainly from Singapore, Japan and Taiwan but also less welcome elements:

prostitution, gambling, organised crime and corrupt money. e corrup-

tion that welcomed these investments was home grown.

As was the way

under Suharto, habibie, his family and his associates made a great deal of

money.

e poor from other parts of Indonesia who rushed to what prom-

ised to be an El Dorado ended up chasing too few jobs.

Some turned to

crime, including piracy. Data from arrest records during the 1990s shows

that most pirates were men in their thirties with secondary school educa-

tion who came from other parts of Indonesia.

Frécon describes the life of

Marcus uban (not his real name), who drifted from Timor to Jakarta and

then, like so many others, was lured to Batam where he eventually became

a pirate. “Singapore was rich; we were poor,” uban told Frécon;

to es-

cape “a miserable kampong life…we targeted cargo ships.”

Gwin in his

investigation described men with similar experiences lured to piracy partly

for the money but also, as one put it, because “it is fun, an adventure, like

James Bond”.

One that would lead to a “happy, happy” time: after major

hijackings the pirates would spend their money on the expensive delights

of Jakarta; after attacks on smaller ships they would end up in the clubs and

karaoke bars of Batam.

poor kampong dwellers almost certainly lacked

the skills necessary to board ships, but the Batam development arose close

to old pirate haunts such as Nagoya (known formerly as “Lubak Bajak” or

137.

9 ‘Now, habibie Inc.’, Asiaweek, 5 June 1998; Jeﬀrey A. Winters. ‘Notes on B.J.

habibie’, 1 March 1998.

10 Jose Manuel Tesoro, ‘En route to Jakarta’, Asiaweek, 4 Sept. 1998; Johan

Lindquist, ‘Modern spaces, wild places and international hinterlands: e cul-

tural economy of decoupling and misrecognition’, Anthropology Today, vol. 16,

no. 3, June 2000, pp. 15-17.

11 Stefan Eklöf. Pirates in Paradise. Copenhagen: NIAS press, 2006, p. 48; Frécon,

‘piracy and armed robbery at sea along the Malacca Straits, p. 72.

12 Ibid., pp. 48-9, pp. 75-6.

13 Ibid., p. 71.

14 Richel Langit-Dursin, ‘Indonesia key to end piracy in Malacca Straits’, e Ja-

karta Post, 6 Aug. 2006; Frécon, Ibid., p. 71.

15 Gwin, ‘Dark passage’, p. 146.

16 Ibid., pp. 136 & 147. e temptations of dissolute living often extended to

their paymasters. As the IMB commented, ‘Much of the money goes to main-

tain luxurious lifestyles’, ICC-IMB, ‘Organised maritime crime in the Far East’,

p. 33.

Murphy Martin. Small Boats, Weak States, Dirty Money. Piracy &amp; Maritime Terrorism in the Modern World

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Murphy Martin. Small Boats, Weak States, Dirty Money. Piracy & Maritime Terrorism in the Modern World