Private Anti-Piracy Navies : How Warships for Hire are Changing Maritime Security 9780739173336, 9780739173329

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Private Anti-Piracy Navies How Warships for Hire are Changing Maritime Security

John J. Pitney, Jr. and John-Clark Levin

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For our families, without whose unwavering support this book would not have been possible.

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Contents

1. Introduction...................................................................... ...1 2. Historical Lessons............................. ............................... ..7 3. The Somali Piracy Epidemic........................................... .. 27 4. Current and Proposed Forces. ........................................... 51 5. Economic Considerations.............................................. .....75 6. Legal and Regulatory Issues.......................................... ..91 7. Operational and Tactical Challenges.................................137 8. Costs, Benefits, and Results..............................................177 9. Prospects and Implications......................................... ..... 195 10. Conclusions.................................................................. .227 Bibliography…………………………… ……………… ….231 Index………………………………………………… ……….267 About the Authors………………………………… ……… .277

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Abbreviations AIS: Automatic Information System AMISOM: African Union Mission in Somalia AQIM: Al-Qaeda in the Islamic Maghreb BIMCO: Baltic and International Maritime Council BMP: Best Management Practices CEP: Convoy Escort Programme CTF 151: Combined Task Force 151 GoAGT: Gulf of Aden Group Transits HRA: High Risk Area IAMSP: International Association of Maritime Security Professionals ICoC: International Code of Conduct for Private Security Service Providers ICS: International Chamber of Shipping ICU: Islamic Courts Union IMB: International Maritime Bureau IMO: International Maritime Organization IRTC: Internationally Recommended Transit Corridor ISO: International Organization for Standardization JLT: Jardine Lloyd Thompson K&R: Kidnap and Ransom MARLO: Maritime Liaison Office MSCHOA: Maritime Security Centre – Horn of Africa NATO: North Atlantic Treaty Organization OBP: Oceans Beyond Piracy OGTCL: Open General Trade Control License PAG: Pirate Action Group PAS: Publicly Available Specification PCASP: Privately Contracted Armed Security Personnel PCAEV: Privately Contracted Armed Escort Vessels P&I: Protection and Indemnity PMSC: Private Maritime Security Company PVI: Protection Vessels International RIB: Rigid Inflatable Boat RUF: Rules for the Use of Force SAMI: Security Association for the Maritime Industry SCEG: Security in Complex Environments Group SUA: Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation TFG: Transitional Federal Government UKCS: United Kingdom Chamber of Shipping UKMTO: United Kingdom Maritime Trade Operations Office UNCLOS: United Nations Convention on the Law of the Sea viii

Foreword

This foreword begins with a story about the past, which helps set today into better perspective, and even help us see the future. A few centuries ago, the British East India Company’s ships in the Indian Ocean—its "merchantmen"—were targeted by local pirates. Pirates were attracted to the increasingly large and sluggish British and other European merchantmen, much as pirates were attracted to the overladen and slow-moving Spanish galleons in the Caribbean. The “Most Honourable Co.” or “John Co.” as it was also called, endured many of its merchantmen being picked clean. This was no laughing matter, as a large square rigger, laden with tea from China and destined for London, in today’s currency would be carrying a cargo of about a billion USD. That's the equivalent of a mega container ship of today full of flat screen televisions and other goodies from Asia for Europe or America. There were rich textiles and spices from India, too. Losses of this magnitude simply could not be tolerated. So the EIC went to the British government and asked for assistance against the Indian Ocean pirates. The Royal Navy politely declined the request for assistance. It simply didn't have the means at its disposal to patrol waters so vast and so distant from home. Not coincidentally, it was pointed out to the EIC that if the firm were to have been a nation state, its economy would have been many times larger than that of Great Britain at the time (by one estimate, 18 times). The Royal Navy was very good, yes, but also very small, or at least not large enough to protect the UK’s interests at home as well as those of the EIC. The EIC was advised to take care of the problem on its own, and rely on its own more ample resources. The Most Honourable Co. therefore fashioned a strategy. The gentlemen would paramilitarize their merchantmen. They’d clear the first cargo deck and install cannons. Pirates who'd approach the merchantmen would be given a rude surprise when they came too close. After the plan's implementation, losses due to piracy in the Indian Ocean dropped considerably. But then the losses to piracy weren’t the only losses. The British EIC was also bearing losses from cargo not carried, because the cannons took its place. Assuming that the new gun deck were to take up even just 10 percent of the cargo space (and surely it was much more—maybe even twice as much, depending on the ship's configuration), that translated to as much as 200 million USD in today’s money of tea not brought home to market. Protecting against pirates by carrying cannons occasionally prevented the loss of whole ships, but it also guaranteed moderate losses on every voyage. And those small, certain losses on every transit soon outweighed the rare, total losses to piracy. The British EIC was losing the equivalent of a tenth or even a fifth of its whole merchant fleet. This solution to piracy was no longer economical. And so, the Company got the idea that the same deterrent effect as ix

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cannons could be gained by painting fake cannons on the hulls, allowing ships to again carry full loads of cargo. For a time, the EIC managed to have its cake and eat it. Losses to pirates as well as losses to gun decks were both brought under control. But pirates have a powerful incentive to be persistent and observant—their livelihoods and very lives depend on it. After a few pirates ventured close enough to the EIC's merchantmen and the cannons didn’t spit fire at them, they wised up and proceeded to take their prizes again. The mounting losses stung the directors in London just when they thought they had solved piracy for good. So the Company returned to the drawing board and redid its numbers. At first, it tried leaving most ships painted with false cannons, but arming a few with real ones—in effect making pirates play a game of “Russian Roulette” with every attack. Modern game theory tells us that this should allow most ships to travel unarmed, with little reduction in safety. But some pirates in the Indian Ocean were so hell-bent, they’d approach anyway and take their chances. Those especially aggressive pirates had to be dealt with, and they had to be dealt with on the EIC's own terms. They had to be hunted down and neutralized far from the merchantmen. So the EIC also decided to create its own private navy, manned partly by sailors rented from Indian kingdoms. Heavily-armed private warships would patrol dangerous waters, escort merchantmen when needed, and even hunt down and destroy pirate groups. This strategy was not merely effective in suppressing piracy—more importantly, it did so in a cost-effective manner. The private navy of the British EIC would prosper and endure. It would eventually become nationalized under Queen Victoria and become the Indian Squadrons of the Royal Navy. And when India got its independence from Great Britain in the 1940s, those squadrons were divided between India and Pakistan, giving birth to their national navies. Fast-forward to today: 2013. There’s no British East India Company today—even Apple, Exxon, Microsoft and IBM put together wouldn’t have the relative wealth and power of the EIC at its height. There’s no single corporation today that has the same wherewithal to build its own private navy. Yet maritime piracy inflicts losses on world commerce that regular navies have not been able to prevent. Five years ago, the start of the Somali piracy epidemic caught the world off guard with its suddenness and severity. The 2008 hijacking of a Ukrainian ship carrying Cold War-era Soviet tanks, soon followed by the seizure of a Saudi supertanker carrying 2 million barrels of crude oil, jolted the problem to the attention of the shipping industry—and of policymakers in Washington and London. The U.N. Security Council soon authorized military action against the pirates at sea, and warships were sent to the Gulf of Aden and a protected corridor was established. Pressure from the navies caused Somali piracy to become diffused over a much wider part of the Indian Ocean, and there were not enough warships to keep up. Many ships were hijacked that way, hundreds of miles from Somalia’s coastline. And the naval task forces really couldn’t do much

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about it, as they were busy keeping the Gulf of Aden corridor safe, and only had two or three dozen warships at any given time. Many more were needed, but a force of warships large enough to stamp out Somali piracy would have cost more than the piracy itself. This forced the shipping industry to look to more cost-effective remedies. Merchant vessels were advised to respect “best management practices,” which meant doing things like transiting at top speed through high risk waters, keeping external doors locked, and sea stairs up and retracted. But for many ships, that wasn’t enough. Tankers, for example, are “low and slow”—they’re easy to board from pirates’ skiff motorboats, and too lumbering to evade attack. Therefore, owners of vulnerable ships sought armed private security. As more and more countries have allowed private security on the merchant ships flying their flags, the most common approach has been so-called embarked guards. Typically, a team of four men armed with assault rifles is posted on a client vessel as protection. They watch the horizon, and if suspicious boats approach, they fire warning shots to deter attackers. If necessary, the guards could fire for effect to neutralize the threat. Many of these personnel are former British military, with large numbers of Americans, Russians, and Israelis as well. By 2012, about half of ships transiting the pirate-threatened waters had teams of armed guards embarked. A smaller but more startling phenomenon has been so-called “private navies.” That is, armed boats operated by private security companies for the dedicated purpose of combat. Today, there isn’t one large private navy on the mold of the East India Company. Nor do these forces involve letters of marque, where private ships are employed by a state to pursue pirates or the warships of another state. Rather, private naval forces today operate exclusively in a defensive role, operating gunboats that escort merchant ships through the danger zone. Individually, these “navies” have been quite small, and few companies operate more than three escort vessels. Collectively, though, they make an important contribution to maritime security—especially for clients with specialized needs, such as passenger ships, drilling vessels, chemical tankers, and tug-and-tow operations. There have also been several—as yet unrealized—attempts to scale the private navy concept up to convoys of ordinary merchant ships. The theory is that say 10 ships can get just as much protection as embarked guards from 20 or 30 men operating a larger private escort equipped with fast reaction boats and a helicopter, but for less cost than putting a four-man guard team on every ship. As one insightful London-based insurance broker pointed out, in the long run, it makes a lot more sense for shipowners to share a bus than for each to pay for their own cab, when they are all headed in the same direction and their budgets are so confining. The “bus” may indeed become the wave of the future for the maritime industry, and not just off East Africa, but also in the Gulf of Guinea, where the numbers of attacks recently surpassed the Somali epidemic. Nigerian pirates there have been striking with extraordinary aggression and violence. As would-be convoy schemes have found, though, it is difficult to strike the right

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balance of overhead and services to form a viable business model. As this book details, there remain many legal and operational hurdles to overcome, and many practical considerations can only be sorted out by hard experience. As of 2013, Somali piracy has been greatly declining for well over a year, partly due to the widespread use of private security. But now there is a great danger that governments, militaries, and the shipping industry will become overconfident. With budget pressures crushing national governments in the United States, the UK, and the rest of Europe, the temptation will be to effectively declare victory and end anti-piracy missions prematurely. Shipowners, too, will be tempted to forgo their costly private security in order to save money. Many of the Somali pirates are still there, though, waiting to see the warships go home, and the merchant ships let their guard down. If policymakers do not understand this danger, they cannot avert it. And so, this book by John-Clark Levin and John J. Pitney, Jr. comes at a critical time. With piracy spiking off West Africa, and threatening to resurge off Somalia, we need now more than ever a full understanding of how private security fits into the picture. There has been much hyperbole and misunderstanding about the private navy phenomenon in particular, and their work helps to get at the truth. The fact is that international law hasn’t had to deal with what are, effectively, private warships since the time of the East India Company. In exploring the many challenges posed by transplanting this concept to modern times, Levin and Pitney remind readers of the lessons to be learned from the subject’s historical context. Instead of focusing only on the headlines, they look at the underlying economic factors that connect the EIC’s warships to the private escorts operating off Somalia today. Thus, when they discuss the implications of current trends, and assess what naval privatization means for maritime security in the future, readers can properly understand these in light of their global significance. The authors have struck a fine balance between academic heft and accessibility to laypersons. This is important because the development of private navies poses questions that people in many fields and disciplines must consider. Readers in academia and policymaking circles don’t want to be overwhelmed with arcane shipping industry jargon. Similarly, shipowners and members of the private security community don’t want a text weighed down with grandiose theories and allusions to the works of mysterious illuminati long dead. This is a work for curious minds, interested in an introduction to an issue that promises not to go away any time soon. Levin and Pitney do not inflict readers with the endlessly repeated conventional wisdom and clichés that hound the industry—grab any weekly magazine and most reports are full of them. Rather, the several hours you spend reading this book will allow you to think critically about the key issues surrounding private navies, and discuss the subject intelligently with friends and colleagues. My firm monitors modern maritime piracy for insurers out of London as well as shipowners, shippers and seafarers from all over—and so you could say

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we are experts in the matter. Nevertheless, from the many conversations I’ve had with John-Clark, I’ve still learned a lot. And from this book, I’ve learned yet again. I trust that you the reader will also find Private Anti-Piracy Navies a very helpful introduction. Michael G. Frodl, Esq. Founder and CEO, C-LEVEL Maritime Risks Washington, DC

Acknowledgments

A subject matter such as ours evolves rapidly. Gaining the relevant information and making sense of it is not a task that can be undertaken on one’s own. We are grateful for the assistance of the many people who helped us and showed us the way forward. This book emerged from research conducted by John-Clark Levin for the Arthur R. Adams fellowship at the Keck Center for International and Strategic Studies at Claremont McKenna College. From the beginning, the Keck Center’s director, Minxin Pei, was the project’s greatest champion. He opened doors for our research, and provided insight and feedback that we deeply appreciate. We must also acknowledge the discerning voice of Michael G. Frodl, who was of inestimable help in our attempts to sift the truth from the mountains of hyperbole and contradictory opinion surrounding the private maritime security sector. His keen grasp of the industry’s workings was a sure and steady guide to our research. We also wish to acknowledge the contributions of those now working in the industry that forms our central subject matter. We keenly appreciate the help of Peter Cook of the Security Association for the Maritime Industry, and a host of gracious private maritime security executives, including Thomas Jakobsson, Jim Jorrie, Andrew Nicholson, Gerry Northwood, Barry Roche, and Jeremy Weiss. Our understanding of the book’s key issues would have been incomplete without the experienced comments of members of the shipping and maritime insurance industries, including John Boreman, Peter Grube, Jakob P. Larsen, Neil Roberts, Nick Roscoe, Gavin Simmonds, and John Stawpert. John Steed at the United Nations Political Office for Somalia lent his astute observations from the point of view of the U.N.’s mission. Those who shared their knowledge off the record were also immensely helpful. In addition, we consulted analysts and scholars in a variety of fields who shared with us their indispensable insights, including Abdihakim Ainte, Peter Chalk, Robert Haywood, David Isenberg, Peter Lehr, Nis Leerskov Matthiesen and Dirk Steffen. A central concern of this book is how private naval forces pose new and unresolved challenges to the present framework of international law. We solicited the perspectives of a diverse group of legal scholars and practitioners, who not only answered our questions, but consistently suggested new angles for us to explore. We are particularly grateful for the contributions of Stephen Askins, Martin J. Davies, Douglas Guilfoyle, Wolff Heintschel von Heinegg, Steven Kay, Eugene Kontorovich, and Edwin M. Smith. We also owe a great debt to all those within the armed services, both active duty and retired, who candidly shared their opinions and led us to further sources, especially General William Crouch, Maj. Gen. William Cohen, Rear xv

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Adm. Terry McKnight, Capt. Matthew M. Sharpe, and Lt. Cmdr. Matthew Noland, Maj. Ted Richard, Maj. Quentin Oates with EU Navfor, and others who spoke with us off the record. Our understanding of the problem of maritime piracy would have been much poorer without the kind assistance of Pottengal Mukundan and Alberto Almaraz at the International Maritime Bureau’s Piracy Reporting Centre. The Centre has collected rich and useful data on piracy around the world since 1991, and generously made its entire database available to us. This book draws some of its conclusions from quantitative work done in collaboration with S. Brock Blomberg and Ricardo Fernholz in Claremont McKenna’s department of economics. That work was greatly aided by the research assistance of Sam Blomberg, Michael Carroll, Mercedes Kastner, Tina Nguyen, Claire Peterson, Sage Piersel, and Samuel Stone. Essential contributions to the quality and consistency of the manuscript came from Kate Flanagan, Nick Morris, Frank Smith, and Nora Taranto. Others providing suggestions, guidance, and support at various stages of the project include Charles C. Johnson, David Shinn, David B. Smith, Jason Soll, Bret L. Stephens, and many others whom we regret to overlook. Finally, we wish to thank Justin Race, Sabah Ghulamali, and Emily Natsios at Rowman & Littlefield and Lexington Books for seeing value in this undertaking, and working tirelessly and cheerfully to see it through to completion. Any remaining shortcomings, errors, or omissions are entirely our own.

John J. Pitney, Jr. and John-Clark Levin Claremont, California July, 2013

Chapter 1

Introduction

The title Private Anti-Piracy Navies is simultaneously a serious misnomer, and an expression of an essential insight. It is a misnomer in the sense that the private security companies that operate armed vessels to protect against maritime piracy have nowhere near the capabilities of regular navies. Individual companies operate no more than half a dozen escorts—often converted patrol boats—and even proposed forces never envision more than twenty. They are not intended to carry out offensive missions, or fight against other warships, as regular navy ships are, nor do they possess the anti-submarine equipment and air defenses considered integral to the capabilities of modern navies. Yet the “private navy” label also captures the insight that these enterprises represent a striking privatization of functions that were previously purely military. For the first time in modern history, civilian contractors now operate armed escorts with the dedicated purpose of combat—by definition, private warships. These vessels accompany vulnerable merchant ships in pirate-threatened waters, with orders to use lethal force against attackers, but do so independently of any military command structure. And although no single company operates a navy-sized force, private escorts collectively account for about as many vessels in an antipiracy role as the world’s combined navies. Journalists were quick to call these forces private navies because the term succinctly encapsulates a naval metaphor that is helpful in understanding this startling new phenomenon. As so often happens, the name stuck. We use it here with full awareness of its shortcomings. The development of the private naval sector came as a response to arguably the worst outbreak of maritime piracy in modern times. In 2008, a simmering piracy problem in the waters off Somalia spiraled out of control. Criminal gangs began hijacking major merchant ships passing through the nearby Gulf of Aden, and ransoming them for seven-figure sums. International navies sent warships to suppress the problem, but it only worsened. Year by year, pirates extended their reach far out into the Indian Ocean— seizing some of the largest and most valuable merchant vessels afloat, and extorting hundreds of millions of dollars for the safe return of ships, cargo s, and crewmen. Additional costs like maintaining naval forces in the region, burning more fuel to transit safer routes at high speed, and retrofitting ships with security countermeasures totaled billions of dollars each year. Several hijackings led to violence and the deaths of hostages, and the resulting un1

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certainty destabilized trade across a wide area. Under this onslaught, the shipping industry turned increasingly to private maritime security comp anies (PMSCs) for protection. Some PMSCs used escort vessels—the “private naval sector”—while many others offered armed guards to embark on merchant ships themselves. Partly due to the prevalence of private security, Somali piracy finally began to decline in late 2011. It dropped sharply throughout 2012, and as of press in 2013, has receded back to a relatively manageable level. Yet experts warn that if resources are shifted away from the Somali threat prematurely, attacks are likely to surge again. At the same time, a new epidemic of piracy is worsening in the Gulf of Guinea off West Africa, and has recently surpassed the Somali epidemic in severity. Thanks to the experience gained over the past five years, the private naval sector is in a position to answer these impending challenges. Yet the sector’s road toward maturity has been neither smooth nor straight. While some firms providing escort vessels have operated with quiet efficiency, other plans have been widely trumpeted in the press, only to fail to materialize. In the meanwhile, more countries have allowed the use of embarked guards on their merchant ships. As a result, most shippers who do not absolutely need escorts now use embarked guards because they are cheaper. This will be a significant impediment to any future private navies capturing a large share of the general PMSC market. Although no ship guarded by armed private security has yet been hijacked, even one failure would send shockwaves through the industry. And although legal and regulatory frameworks have been created to legitimize PMSC forces, there remain many areas of uncertainty. Whether private naval companies are sustainable over the long term will depend on how inte rnational law adapts to meet these challenges. All stakeholders—PMSCs, shipping companies, insurers, protection and indemnity (P&I) clubs, seafarers’ unions, and governments—must work together to clarify their respective rights and obligations as relate to the use of private warships. This book is intended to provide an understanding of the historical origins, current state, and future prospects of this fast-changing sector of the private security industry—and to outline the decisions that will face lawmakers and policymakers in the years ahead. Many of the questions posed here have no clear answers yet. Readers should consider this less a prescriptive plan than a roadmap of the issues in need of resolution. First, the book will explore the history of piracy in the Indian Ocean, with an eye toward how it informs responses to the present situation. We argue that the history will provide two key lessons. The first is that private naval forces have already been used to suppress piracy in the region. Three centuries ago, Britain used the private warships of the East India Company to secure those same waters from both European and native pirates. Then as now, economic forces made private ships a more cost-effective solution than regular navies. This leads to the second lesson: that piracy is a fund amentally asymmetric form of warfare. During both world wars, small num-

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bers of German raiders were able to paralyze shipping in the Indian Ocean through opportunistic tactics similar to those of today’s pirates. Although the Allied navies were eventually able to defeat them, it was only by devo ting vastly disproportionate resources to the hunt. This suggests why regular naval power alone is not a cost-effective solution to piracy. We will then assess the present piracy epidemic off the Horn of Africa, starting with the origins of Somalia’s downfall. With the failure of the U.N. peacekeeping effort there in 1994, the country lapsed into unchecked lawlessness. Civil war persisted for most of the next decade, until the country was one of the most failed states on earth. Seaborne militias developed to drive off foreign ships that took advantage of the anarchy to illegally fish Somali waters, but soon turned criminal. By the first half of the 2000s, these militias were growing in size and organization, and actively raiding innocent shipping along the coast. As hijackings and ransoms became more lucrative, investors both from Somalia and abroad began to finance more sophisticated piracy operations. We will trace how ballooning ransoms spurred a massive increase in piracy in 2008, and how the international community’s efforts at response were unable to reverse the trend for three long years. Then, we will address the factors that turned the tide, causing attacks to decrease dramatically starting from late 2011 through 2013. Next, we will assess the origins of the private naval sector, and how it developed in response to Somali piracy. This is followed by a survey of the state of the sector as of 2013, and an overview of private navy schemes planned for future introduction. Of particular interest are the Convoy Escort Programme and Typhon, two large-scale escort companies that have faced legal hurdles, funding difficulties, and intense skepticism in their efforts to become operational. Then, we will survey incidents of note during the operational history of private anti-piracy vessels in the High Risk Area off Somalia. Through this discussion, we will highlight the parallel development of embarked guards and armed escorts, and examine the particular needs that escorts emerged to fill. This is followed by a look at the economic underpinnings of the private naval market. First, we will address the pirates’ own business model, and seek to dispel misconceptions about how piracy can be suppressed. We will then present the various savings and costs entailed in using escorts, with emphasis on how escorts can allow merchant ships to save fuel by transiting more slowly, and closer to the Somali coast. We view these factors in the context of the total costs imposed by piracy, and the diverse stakeholders it affects. From this, we can show the challenges of creating and sustaining market-driven solutions like private escorts. We evaluate various methods of financing these forces, and examine the prospect of public-private partnerships. After that, we will survey the legal questions surrounding the use of private naval forces. What authority can give them legitimacy? Under what circumstances should they allowed to use lethal force? How can PMSCs

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providing these services be effectively licensed? Since the start of the Somali piracy epidemic, several parallel regulatory frameworks have developed. We discuss the relationships between legislation at the national level, multilateral efforts such as the International Code of Conduct for Private Security Service Providers, and the work of the U.N. through the International Maritime Organization. Other organizations play key roles also, including the BIMCO shipping association and the Security Association for the Maritime Industry (SAMI). Further, we consider to what degree, if any, private warships should be subject to the immunities and obligations of regular warships. We review the issues raised by civilian use of military-grade weapons and ammunition, and how such arms are treated under local laws in the many ports around the Indian Ocean that will see private naval activity. Another set of complex legal questions surrounds issues of criminal jurisdiction—both over pirates who surrender to private warships, and over personnel on PMSC vessels who commit crimes themselves. An escort and client merchant ship that use force during an incident may be subject to the laws of six or more different states. First is the escort’s flag state—the country whose flag it flies, and to whose legal jurisdiction it is subject by default. Additionally, jurisdiction could be asserted by the PMSC’s home country, the home country (or countries) of the escort’s crew, the merchant ship’s flag state, the shipping company’s home country, and the home cou ntry (or countries) of the merchant ship’s crew. International law has not yet sorted out how to adjudicate this many overlapping jurisdictions, which may make contradictory and mutually exclusive demands. We then turn to the uncertainty within the shipping and maritime security industries on the issue of liability, and the efforts within those indu stries to clarify the situation. From its inception, the PMSC industry has been hamstrung by widespread confusion over how international law would apportion liability for whatever mishaps may result. Private escorts could kill innocent civilians by mistake, or even deliberately, and shippers fear being held responsible. Meanwhile, security contractors fear that they would be liable for civilian deaths even if they took every possible precaution and the civilians were at fault. Most ominous is the risk of catastrophic loss if an engagement between pirates and private escorts led to the sinking of a major ship and possible ecological disaster. Because those are lowprobability events that fortunately remain hypothetical, we cannot yet be certain whether insurers are pricing the risk correctly. Next, we describe the key operational concerns of private naval forces—tactical issues, logistical challenges, and rules for the use of force. We assess the pirates’ own tactics, and then the roles played by merchant ships’ adherence to Best Management Practices, and by regular naval task forces in the region. We then address the role of private security in this situation, evaluating in turn the characteristics of embarked guards and escort vessels. Among escorts, we weigh the strengths and weaknesses of various weap-

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ons, types of vessels, and defensive tactics. Perhaps the most important concern is the rules of engagement under which private escorts operate. Private military companies have been viewed with great suspicion in the wake several incidents in Iraq and Afghanistan that resulted in the acc idental killing of civilians. Shippers and insurers want assurance that escorts they hire will take all possible precautions to avoid similar tragedies. On the other hand, if PMSCs are forced to operate under rules for the use of force that are too restrictive, they will be unable to do their jobs well, and pirates will adapt to exploit their weakness. The challenge lies in balancing these two concerns within clear and consistent rules. This is followed by a discussion of the quantitative data available. We explain that although there are too many weaknesses in the extant data to conduct a traditional cost-benefit analysis, it is still possible to anticipate roughly where the costs and benefits of private naval operations will lie. We urge further research in the areas of data deficiency, and sketch how better quantitative information can be gathered. We also address the chief objection to the use of armed PMSCs that was raised at the start of the pir acy epidemic in 2008. Namely, that the presence of private security would only cause pirates to escalate the force and violence of their own attacks. With five years of operations now complete, we can confidently demonstrate the reverse. Finally, we will examine the prospects for the future development of the private naval sector. This begins with a look at trends in Somali piracy. Is the decline in attacks since late 2011 sustainable? Or will navies and shippers let their guard down before conditions on land can be stabilized? We consider what it will take for the root causes of Somali piracy to be resolved, and what obstacles stand in the way. And once pirates are driven from the Horn of Africa for good, what then? We outline the opportunities for private naval companies to transition to anti-piracy work under very different conditions off West Africa. We then assess the chances that the long-delayed Convoy Escort Programme or Typhon will ever come to fruition. Looking to the long term, we discuss potential applications for private naval forces in anti-terrorism security, providing coastguard services in the developing world, fishing and resource extraction, and even taking on some routine functions from navies in the developed world. Will these roles be appropriate for the private sector to assume? We conclude with an attempt to answer that intriguing question.

Chapter 2

Historical Lessons

Piracy in the Indian Ocean is hardly a new phenomenon. A centuries -long history of raiding in those waters offers two key insights into the current situation. First, private navies already have a record of success, playing a major role in suppressing Indian Ocean piracy during the 18th century. We discuss this period at some length here because it has been largely ignored by other commentators, and because those anti-piracy campaigns have direct parallels to the present epidemic. Second: those who prey on merchant shipping enjoy the formidable advantages of asymmetric warfare. Asymmetric warfare is characterized by an inferior force making opportunistic attacks at an enemy’s weak points. Using conventional military power to defeat forces fighting asymmetrically requires vastly disproportionate resources. Hence, there is a need for more cost-effective solutions. Understanding these historical precedents will allow observers to grasp the d ynamics that drive the private naval sector today, and will shape its future.

The East India Company’s Private Navy The Indian Ocean is the third largest body of water on earth, encompassing about 68,556,000 square kilometers. 1 Its relatively calm waters made it suitable for trading ships early in classical antiquity, and by the time of the Roman Empire, a thriving commercial network had emerged between ports in Egypt, Arabia, East Africa and India. From at least the 1st century C.E. onward, this western part of the ocean—including the Red Sea, Arabian Sea, and Persian Gulf—has contained some of the most economically vital sea-lanes in the world. 2 Paralleling the land-based Silk Road to the north, these trade routes carried fabulous wealth westward: spices and porcelain from China; and ivory, gemstones, saffron, and pepper from India. The ships would then load European gold, metalwork, wine, and grain, and carry them eastward after the summer monsoons. Unlike the Mediterranean, though, the Indian Ocean was not ringed by dominant naval powers. Arabian and Indian corsairs operated freely well into the Middle Ages with little concerted opposition. When regional po wers did attempt to suppress the pirates, they did so by invading their coastal havens, not by challenging them on the high seas. The Umayyad Caliphate, for example, sent a series of punitive expeditions to Sindh between 711 and 7

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715, in response to attacks by Hindu pirates. 3 Led by the teenage prodigy general Muhammad bin Qasim, these ended with the conquest and Islamization of the Sindh. 4 Yet because no state could control all the wild coastline bordering the western Indian Ocean, piracy persisted. By the 16th century, much of India’s west coast had become a haven for pirates, such as Timoji, who terrorized both Muslim and Hindu shipping on behalf of the Vijayanagara Empire. 5 Without significant regular navies, rulers had little choice but pay the ransoms and endure the losses. It was not until the 17th century that major naval powers entered the Indian Ocean. In the century since the opening of India by Vasco da Gama in 1498, Europeans had become steadily more interested in trading directly with the Subcontinent, hoping to cut out the Arab middlemen and secure a colonial presence of their own. Establishing these possessions—the Dutch in 1605, the British in 1612, and the French in 1668—they suddenly found their own shipping at the mercy of pirates. 6 Yet fighting piracy with naval power was impractical. The sea voyage from Europe around the Cape of Good Hope was over 10,500 nautical miles 7 and took about six months. 8 In those brave early days of sail, each such journey meant grave risk to wa rships and their sailors, and even those that weren’t lost to storms or disease would be unavailable for use in Atlantic waters for at least a year. With the small navies of the day, and the delicate balance of power in Europe, col onial nations could not afford to send powerful fleets for anti -piracy duty in Indian waters. The most powerful colonial entity in India, the English East India Company, quickly realized this reality. In 1612, it formed its own private naval force, called the India Marine, consisting of the 38-gun former privateer ship Red Dragon and the galleons Hoseander, James, and Solomon. 9 These private warships promptly dealt a decisive defeat to a large Portuguese naval fleet at the Battle of Swally, precipitating the decline of Port uguese influence in the region. 10 Company-run ships had proven themselves formidable in combat, and operated according to military discipline. Indeed, captains of EIC warships were styled ‘commander’ rather than simply ‘master,’ following the regular naval practice. Charged with defending the Company’s interests against both pirates and rival Europeans, the India Marine acquired another ten light vessels over the following three years. Initially, their operations were focused na rrowly on the waters off India, but in time, the Company sought to expand its naval reach. In 1622, it sent five more heavily armed ships, the Dolphin, Jonas, Lion, London, and Whale to the Strait of Hormuz to contest Portuguese trading there. 11 At this time, the pirate menace was limited to native vessels—dhows, urus, and feluccas that sheltered along the lawless Malabar Coast. Such ships posed a threat to light merchants, but the Company’s purpose-built ‘Indiamen’ were large and powerful merchant ships that were more than a match for the local corsairs.

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By 1686, the India Marine was renamed the Bombay Marine, and patrolled far out into the Indian Ocean.12 Now, the native corsairs were joined by a new threat. European pirates arrived in larger flutes and frigate -type ships, eager to exploit their governments’ inability to adequately defend the far-flung eastern sea-lanes. These vessels were far more formidable, mounting as many as 40 cannons, giving them firepower equivalent to most navy vessels. Some of these European raiders plundered dozens or even hundreds of ships during their short and violent careers. 13 It was during this era that some of the great figures of pirate legend made their names. William Kidd, Thomas Tew, Henry Every—all were drawn to the Indian Ocean by the fantastic wealth flowing from the East. Thomas Tew, known as the “Rhode Island Pirate,” achieved his first stunning haul in the Red Sea in 1693, looting a lumbering merchantman carrying £100,000 in luxuries bound for the Ottoman Empire. 14 Appetite for treasure whet, he went back to America and raised a second expedition in the winter of 1694-1695. Returning to the Red Sea that August, he joined forces with the immensely successful pirate Henry Every in an attack on a large Mughal convoy. 15 Tew was killed in action, but Every, in the powerful 46-gun Fancy, managed to chase down and engage the Mughal flagship, the Ganj-i-Sawai. She was a 62-gun monster, teeming with some five hundred soldiers and as many unarmed passengers, but Every’s pirates battered her into submission in a vicious multi-hour boarding action. 16 The great ship’s holds contained a fortune rivaling those of Spain’s legendary Manila galleons, worth as much as £600,000. 17 This prize instantly made Every the both the richest pirate alive and the most infamous. England’s Privy Cou ncil and the East India Company jointly placed a £1,000 bounty on Henry Every’s head, initiating what has been called the first worldwide manhunt in history. 18 News traveled slowly in the 17th century, though, and in 1696, a year after Thomas Tew was killed in battle, King William III personally signed a letter of marque authorizing a privateer named William Kidd to hunt down Tew and several other pirates and bring them to justice. 19 Arriving in the Indian Ocean, Kidd struggled to find any legitimate targets, and soon b ecame desperate. Sighting a rich-looking Armenian-flagged vessel, the Quedagh Merchant, Kidd attacked on the dubious pretext that she was sailing with passes guaranteeing protection by the French crown. 20 The details of what happened next are still the subject of fierce historical debate. The traditional view holds that Kidd descended into further acts of outright p iracy, while revisionists argue that Kidd was unjustly branded a pirate by Tory opponents of his prominent Whig backers in parliament. 21 Whatever the truth, he was turned over to the authorities by one of his investors, and after a sensational trial, was hanged at the Execution Dock along the Thames. Rumors that he had buried a vast treasure excited the public ima gination, earning him a perhaps unearned place in legend that persists to this day.

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As Captain Kidd’s gibbetted corpse hung in garish warning to would -be pirates, Henry Every had slipped off the pages of history. He is believed to have escaped to Ireland or the Caribbean and lived out a snug and quiet retirement, one of the era’s only pirate captains to have done so. 22 The rest were playing out careers that typically lasted no more than a few years— most either died in battle or were captured, tried and executed when the East India Company finally caught up with them. But the prospect of booty was enough to draw new adventurers to take their places. So steady was the influx that the Indian Ocean came to be part of what was called the “Pirate Round,” as a long line of treasure-seekers entered its waters, raided shipping, and tried to escape back into the Atlantic before they could be captured.23 To combat the worsening pirate threat, the Company built still larger and faster ships of its own. Like the earlier galleons the Spanish used to carry wealth from the New World, the East Indiamen were designed to blend long-distance carrying capacity with potent defensive armament. On the whole, they were sturdy, reliable vessels—not as maneuverable as the average pirate ship, but faster with the wind. During this period, emplo yment with the regular navy was highly unstable, so the Company often had the pick of the excess manpower left without work during the lulls between major wars. 24 These men were more used to wartime discipline and the rigors of combat than ordinary merchant sailors, and the Company could afford to pay them competitive wages. The quality of the crews led to an increasing professionalism throug hout the Bombay Marine, even though the Company could not draw upon a mass of unemployed naval officers as it could with the men. The Marine’s captains and lieutenants were largely of merchant background, with career colonial service. Through a succession of victorious sea actions, the Co mpany gradually won a fearsome reputation. The waters between India and the Horn of Africa still held the world’s most valuable trade routes, but the risk to pirates was becoming too great to justify the rewards. Yet just as the activity of the Pirate Round was receding, the Company found itself challenged by a threat greater than even the most flamboyant English or French raider. The Mahratta Empire was the successor to the Mughals as the dominant land power in India, and during the 17th and 18th centuries, it developed a powerful navy as well, patterned after the Europ ean model. Under the gifted admiral Kanhoji Angre, the Mahratta navy i nflicted a string of humiliating defeats on the colonial powers, often against superior fleets. 25 In 1712, Angre captured the Algerine, an armed galley serving as the personal yacht of the British Governor of Bombay, William Aislabie. 26 During the same attack, the Mahrattas had also killed a major Company official, Thomas Chown, and taken his wife prisoner. Angre demanded an exorbitant ransom for both the ship and the lady, and Aislabie gave in, paying the equivalent of £3,750 for their safe return and an agre ement to cease attacks on East India Company ships. 27

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The truce proved short-lived. Governor Aislabie was recalled to England and replaced by Charles Boone, who renewed efforts to capture Angre. For four years, Governor Boone tried, sometimes working in concert with Portuguese allies, to bring Kanhoji Angre to heel, but the shrewd admiral evaded him at every turn. In 1722, Boone left for home, to be replaced by William Phipps. The newcomer had less stomach for fighting than his two predecessors, and the conflict subsided as the Company once more was forced to pay extortion money. As Angre’s power grew, he contracted an increasing number of European pirates into his service, including a large number of Dutchmen freed up by the Peace of Utrecht. At its peak before his death in 1729, the Mahratta navy boasted more than a hundred armed ships. 28 Faced with one disheartening dispatch after another, the Company’s d irectors in London struggled to understand how a supposedly uncivilized nation was keeping European might in check. In preference to the unpalat able reality that the East India Company was being outmatched by an organized and advanced native navy, the British press painted Angre as a base pirate. 29 To be fair, the admiral certainly enriched himself personally by his exploits, but the same can be said of Royal Navy captains from Sir Francis Drake to Lord Cochrane, who were seen at home as legitimate naval officers. By any objective estimation, Kanhoji Angre was no pirate. In 1698, the Chhatrapati (emperor) of the Mahrattas had formally appointed him Adm iral of the Mahratta fleet. 30 Indeed, whatever the politicians in England said, the reality in India was that Angre was recognized by the Company as a lawful representative of the Chhatrapati. They concluded treaties with him, received his emissaries, and honored his demands for tribute when sailing through the waters between Goa and Bombay. 31 Within his own fleet, Angre was treated with the dignity of a naval admiral, and he appears to have enforced regular naval discipline upon his men. 32 Quite like in European navies, Angre’s sailors were admonished that “not a needle or a pie was allowed to be retained” as plunder. 33 In short, the label of pirate was applied almost purely as a political convenience, born more of colonial prejudice than of fact. After Kanhoji died in 1729, his son Sekhoji assumed his father’s command until his own death in 1733, whereupon his brothers Sambhaji and Manaji wrestled each other for control. For a time, the momentum of Kanhoji’s leadership and organization seems to have kept the campaign in the Mahrattas’ favor. On December 26, 1735, they managed to ambush and capture the Derby, a heavy East Indiaman34 bound for Bombay with a year’s worth of the East India Company’s gold. 35 It was likely the richest prize ever taken in those waters. Soon after the taking of the Derby, though, the Mahrattas’ union of purpose began to disintegrate. As Sambhaji and Manaji squabbled over their father’s holdings, attacks on Company ships started to ebb.

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The menace posed by the distracted Mahrattas subsided to the point that by 1742, the East India Company’s directors began to question the necessity of their current defensive scheme. An Indiaman bristling with ca nnons and guarded by large numbers of private soldiers was both highly e xpensive to maintain, and much reduced in its capacity for valuable cargo. Wary pirates could pick and choose the most vulnerable targets anyway, so it did not make sense to pay for defenses that were going unused. So the Company decided on a retrenchment plan that pared the Bombay Marine to three dedicated warships for patrol and convoy escort, as well as a reduction in the armed guards sent aboard regular merchant vessels. 36 In 1743, though, Sambhaji and Manaji were succeeded by their half brother Tulaji, who energetically renewed Mahratta attacks on British shi pping. 37 European pirates, too, caught wind of the Company’s vulnerability, and came streaming back into the Indian Ocean with visions of easy plu nder. The sea-lanes soon became so dangerous that Indiamen bottled up in port, unwilling to risk the voyage back to England. In 1747, two French privateers even managed to accost and sink the 28-gun Anson within sight of Bombay itself. 38 With growing confidence, Tulaji Angre began to target the Company’s handful of warships specifically. In the face of these mounting losses, the Company’s directors naturally sought to re-expand the Bombay Marine. When they did, however, their focus was not powerful defenses for all merchant ships, but on increasing the number of dedicated warships that could be used for actively hunting down pirates and Mahrattas alike. This new round of ships, such as the 44 gun Protector, were square-rigged vessels built to the same patterns as the Royal Navy’s heavy frigates. 39 Going into the 1750s, this leaner, more aggressive Bombay Marine was better suited to offensive operations in concert with Royal Navy squadrons. Together, Crown and Company forces turned the tide against the Mahratta navy—not by defeating them at sea, but by invading and overrunning their bases on land. In 1755, Commodore Wi lliam James took the last of Tulaji’s major strongholds, Severndroog, and then captured Tulaji himself in February of the following year. 40 With that, the western Indian Ocean was largely secure for commercial shipping. One exception remained along the southern coast of the Persian Gulf, from which Arabian corsairs still raided passing merchantmen into the 19th century. Although this region came to be romantically named the “Pirate Coast” in British sources, the relative economic impact of these attacks was significantly less than those of the Mahrattas, or of the Pirate Round during its heyday. Still, the ships trading in the Gulf and around the Strait of Ho rmuz were smaller and less heavily armed than the big Indiamen, and found themselves quite vulnerable. The French envoys in the region did their best to inflame the pirates against the British, and soon their haven at Ras alKhaimah on the Arabian coast had become a serious thorn in the East India Company’s side. In 1805, about forty corsair vessels swarmed and nearly captured the Bombay Marine’s 24-gun warship Mornington.41 Emboldened,

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they pressed their raids farther into the Arabian Sea and closer to India. By 1808, they had appeared in force off Gujarat, and then later in the year a great fleet of 50 ships ravaged at leisure along the coast near Sindh. 42 It was then clear that the Arabian pirates had to be suppressed. In 1809, the Royal Navy reckoned the pirates’ total strength at some 60 large bhagalas and over 800 dhows and lighter vessels—manned by as many as 25,000 men. 43 That summer, the British authorities in India marshaled their forces for an expedition: the frigates HMS Caroline and HMS Chiffone, joined by eight Company warships from the Bombay Marine. 44 These were to decant significant infantry forces onto the Pirate Coast to deny the raiders their base of operations. Under the overall command of Commodore John Wainwright, the fleet sailed from Bombay on September 17, but a string of delays during the crossing ruined the element of surprise. When Wainwright arrived at Muscat, the designated rendezvous, the sultan there warned him that over 20,000 Bedouin warriors had come down from the interior to repulse the expedition. 45 Realizing that he had insufficient forces to engage in an extended occ upation of the pirate havens, Wainwright directed his attention toward a sudden raid against Ras al-Khaimah. The local Qawasim tribesmen there were not expecting such a large force, and the British scattered them from the harbor and stormed the local sheik’s palace. The landing parties then burned dozens of major corsair ships and destroyed the city’s ammunition supply before sailing for the Persian port of Linga. 46 There, they burned 20 more dhows after the inhabitants fled, and continued on to the strategically placed stronghold at Luft on Qeshm Island, straddling the Strait of Hormuz. Following a bloody assault on November 27, the British expedition ca ptured the fort and put 11 more large pirate ships to the torch. 47 After several smaller anti-piracy actions, Wainwright’s fleet returned to Bombay in January 1810. The Gulf corsairs were much weakened by the 1809 expedition, but while the Royal Navy shifted its attention to Napoleon and the raging war in Europe, the corsairs gradually resumed their raiding. The Bombay Marine was similarly distracted, and unable to stop them. The war had spread to the belligerents’ colonial possessions in the East Indies, and the Comp any was focused on protecting its interests there. By 1819, the Gulf pirates’ activities had worsened back to the level of a decade before, and with the war in Europe over, Britain was finally free to suppress them once and for all. Rear Admiral Sir Richard King, commander-in-chief in the East Indies, ordered Captain Francis Collier to assemble a naval force at Bombay, and ferry a new punitive expedition to the Pirate Coast after the monsoons were over. Three thousand men under Major General Sir William Keir loaded into transports and sailed west, protected by three Royal Navy frigates and six Company warships. 48 Along with a small number of allied Omani vessels, they arrived off Ras al-Khaimah on December 2. After a six-day siege, Keir’s forces entered the city and razed it to the ground. The dozens of p i-

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rate ships lying helplessly at anchor were sunk or burned. Leaving 1,200 British and sepoy troops at the devastated city to prevent recapture, the e xpedition turned up the coast to lay waste to a string of smaller fortified ha rbors such as Ajman and Umm al-Quwain. These operations were enormously successful, accounting for 184 pirate ships, and the sheikhs were quickly forced to the bargaining table. 49 On January 8, 1820, General Keir imposed a General Treaty of Peace on sheikhs Hassun bin Rahmah and Razib bin Ahmed. Article 1 was firm in its demands: “There shall be a cessation of plunder and piracy by land and sea on the part of the Arabs, who are parties to this contract, forever.” 50 Over the next two months, all nine major sheikdoms on the Pirate Coast signed. Raids against British shipping were effectively ended, but intermittent sea battles continued between the Qawasim and the rival Bani Yas tribe. In 1835, the British declared a General Maritime Truce effective du ring the annual pearling season. 51 In 1838 the truce was made year-round, and in 1853 established permanently through a “Treaty of Maritime Peace in Perpetuity.” 52 The Perpetual Maritime Truce, as it came to be called, put a final end to organized piracy in the region, and laid the foundation for six decades of peace in the Indian Ocean. Following the Mutiny of 1857, control of India passed from the Honourable East India Company to the British crown, bringing an end to more than two centuries of private monopoly. The Bombay Marine was renamed Her Majesty’s Indian Navy and eventually brought under full Admiralty control. 53 Together with squadrons of the regular navy’s East Indies Station, these forces spent the remainder of the 19th century subduing the last hostile stretches of African coastline, although by this time, their primary concern was not pirates but rather slavers and smugglers. Unchallenged on the seas, the British Empire was content to use its navy as an instrument of diplomacy and geopolitics, confident that its maritime interests were secure.

Merchant Raiders during the World Wars Despite the greatest confidence in London, maritime peace on the Indian Ocean was not perpetual. In August 1914, with war hot on the horizon, the Admiralty gathered warships from all over the world to build its forces in the North Sea. There, the German Empire’s large and modern navy waited to strike from its bases along the Frisian coast. Unlike the Royal Navy, which was charged with protecting Britain’s vast sea empire, the Kaiserliche Marine was designed with one goal in mind: sinking British battleships. If the Kaiser’s High Seas Fleet were allowed to break out and engage the Grand Fleet in a pitched battle, even a British victory might e ntail crippling losses. An outright defeat could be the death knell of the E mpire itself. And so, even though the officers hungered for battle, the watch-

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word at the Admiralty was containment. If only overwhelming naval sup eriority could be amassed and maintained, the theory went, the Germans would be afraid to sortie, and could be safely bottled up in port.54 In Berlin, German planners were under no illusions about the Royal Navy’s decisive numerical advantage. Rather than seek a Trafalgaresque all-or-nothing showdown, they would try to lure out the Grand Fleet in dribs and drabs, matching local superiority against isolated British units in hopes of whittling it down gradually. The Germans also realized that the Royal Navy’s colonial responsibilities were a vulnerability that could be exploited. The Empire relied on tens of thousands of miles of open sea lanes, connecting possessions on every inhabited continent to the home i slands, and supplying Britain’s military with strategic resources in times of war. If even a slight threat could be imposed on those supply lines, the Bri tish would be forced to waste inordinate naval forces in defending them. 55 Perhaps the most vulnerable body of water was the Indian Ocean. Surrounded on three sides by Imperial possessions, it was known popularly as a “British Lake.” The British Lake was crisscrossed by a dense web of shi pping lanes between the surrounding ports. Unarmed and antiquated merchantmen pulled up to the quays at Cape Town, Durban, or Mombasa, and confidently loaded cargos bound for Port Said, Bombay, Madras, Calcutta or Fremantle. Others filled their holds with goods bound for Liverpool or Belfast. None of their sailors or masters had known anything but peace, and ships traveled unescorted and with their lights on. Even though the Indian Ocean is smaller than the Pacific and Atlantic, its traffic is more diffuse. It also has huge unused reaches to the south into which raiders could disappear. Thus, although the German East Asia Squadron was not strong enough to defeat the British, French, Russian, and Japanese squadrons in battle, it could still cause significant disruption to merchant shipping. When war finally came on August 2, it was immediately clear to the Germans that their Chinese colony and naval base at Tsingtao would soon be surrounded and overrun by the Entente. So Vizeadmiral Maximilian von Spee, the East Asia Squadron’s commander, decided to steam across the Pacific with the bulk of his force in hopes of reaching Germany, but detach the light cruiser Emden into the Indian Ocean for commerce raiding. 56 The Emden, under Korventtenkapitän Karl von Müller, was a slender threefunneled ship—beautiful, but widely recognizable among the seamen in that part of the world, who called it “The Swan of the East.” 57 So Captain von Müller built a dummy fourth smokestack on his ship so it would closely resemble the British HMS Yarmouth, which was also operating in those waters. On August 28, the newly disguised Emden slipped through the Lombok Strait and into the British Lake. 58 Few British merchantmen were armed at war’s beginning, and the Emden had easy going—accounting for eight unsuspecting ships before Winston Churchill’s Admiralty even realized she was on the loose. On Septe mber 14, at last comprehending that a major German warship was at large, the

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Admiralty shut down all shipping on the Colombo-Singapore route. The maritime industry went into an uproar. As the Royal Navy searched in vain, the Emden continued to claim new victims. By the end of the month, Captain von Müller had sunk or captured 13 British vessels. 59 With each new report of a ship overdue, uncertainty grew around the whole basin of the Indian Ocean. Insurance rates skyrocketed, and soon, it was prohibitively expensive for merchant steamers to even leave port. Reluctantly, the Admiralty diverted an increasing number of warships from other duties to join the hunt, but they still came up short. Whenever British cruisers started to close in, von Müller simply faded back to a quieter part of the ocean until the heat was off. That a single enemy cruiser could effectively halt shipping on the British Lake was a source of enormous embarrassment to the Admiralty and to Herbert Asquith’s government. Warships from four navies were now on the hunt, but throughout October, they had made no progress, and more merchant steamers were still going overdue at ports all around the Indian Ocean. Finally, on November 9, the Emden arrived off Direction Island in the Cocos Islands, where it was ambushed by the cruiser HMAS Sydney. The German ship was battered into submission and most of the crew taken pri soner. Although the material losses inflicted by the Emden were substantial—20 ships at the time of her sinking—they were hardly crippling. 60 What appealed to the Germans, though, was the wholly disproportionate impact she had achieved. Her cruise had forced the Royal Navy to shift significant resources away from the main theater of war to protect interior supply lines that it had thought secure. For every ton of matériel sent to the bottom, hundreds of tons were delayed in harbor and thereby denied to the troops fighting in Europe. With the Emden finally sunk, the Kaiser’s admirals were without raiding capability in the Indian Ocean, and could not send regular warships across thousands of miles of hostile waters to disrupt Allied shipping. So they converted several cargo ships into auxiliary cruisers—disguised merchant raiders that could strike without warning and then melt back into mu ltitude of ordinary steamers plying the busy shipping lanes. Several of these scored spectacular successes, but none more so than the Wolf, the only one to operate in the Indian Ocean. 61 Unlike the Emden, she was not a regular warship. The Wolf was a decidedly unglamorous ship—lacking armor and only able to make a sluggish 11 knots. But she did have the fundamental advantage of disguise. While Emden was unmistakably a cruiser, Wolf was indistinguishable from a harmless freighter even at point-blank range. At her captain’s command, the panels concealing her six heavy guns could swing open in a matter of seconds. After capturing or sinking an enemy merchantman, she could skulk away from the scene without arousing susp icion. On an epic cruise lasting 451 days during 1916-1918, the Wolf led the Allies’ combined navies on a wild goose chase every bit as frustrating as

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the Emden had. Once again, the Germans had all the advantages. While the Wolf could strike at the time and place of its own choosing and then spend weeks lying low, the numerous warships hunting her had to regard every innocent-looking merchant vessel with suspicion—and struggled to remain constantly fueled, provisioned, and in repair to engage in battle at a moment’s notice. After accounting for 30 ships totaling approximately 140,000 tons, 62 Captain August Nerger steered the Wolf back through the British blockade and returned to Kiel in triumph early in the war’s final year. Although the old Kaiserliche Marine ceased to exist after the fall of the monarchy, many of its career officers stayed on in Weimar Germany’s small navy. These men were all too pleased when Adolf Hitler came to power with visions of restoring their service to its former glory. Yet the Führer’s rearmament program progressed more rapidly for the army than for the n avy, and when war again loomed in 1939, the Kriegsmarine was nowhere near ready to contend against the Royal Navy on even terms. Once again, the asymmetry of raider warfare offered Germany a chance to inflict di sproportionate losses. What had been a haphazard auxiliary cruiser campaign during the First World War was now more systematic, with veteran raider captains solicited for advice on design, training and tactics. The high co mmand converted 11 merchant ships into auxiliary cruisers, with nine of th ese entering enemy shipping lanes. Six—Kormoran, Michel, Orion, Thor, Atlantis, and Pinguin—operated in the Indian Ocean. 63 In the two decades since the last war, technology had moved forward substantially. Virtually all merchantmen were now equipped with powerful radios, and long-range aircraft could now patrol far out to sea. Some of the ships were armed for self-defense. Yet even all these technological advantages did not allow the British to quickly secure their sea -lanes. The auxiliary cruisers were able to improvise and innovate, jamming victims’ distress calls, imitating recognition codes, and sending out mislead ing radio reports. As a result, Germany’s Second World War raiders were even more successful than their predecessors, despite Allied navies’ improved technolog ical means of finding them. The Atlantis, for example, remained at large for a record 602 days, accounting for 22 ships totaling 144,384 tons. 64 The Pinguin scored 28 ships for 136,642 tons on a 357-day cruise. 65 By the time the Allies swept the last of the auxiliary cruisers from the seas in 1943, the German raiders had sunk or captured 142 ships, totaling more than 870,000 tons. They had remained at large, collectively, for 3,769 days, despite worldwide search efforts involving hundreds of warships and aircraft. 66 Millions more tons of vital war supplies were rerouted or delayed. The raiders’ primary theater, the Indian Ocean, was subjected to constant fear and uncertainty, and colonial subjects’ faith was shaken in the Empire’s ability to protect them. In all, the impact was far greater than could have been achieved through conventional warfare. Although it did not change the outcome of the Second World War, this campaign convincingly demonstra t-

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ed the ability of profoundly inferior forces to prey on shipping for a su stained period through asymmetric warfare, despite the overwhelming n umerical and technological superiority of the defenders.

Lessons to be Learned The historical background of merchant raiding in the Indian Ocean is not merely included here for context and completeness. Rather, the two key insights it offers get to the very heart of the private naval sector. The first, as stated previously, is that private navies already have a record of success. The Bombay Marine of the East India Company was created because there was a gap between the rewards of pirating the Company’s trade routes, and the risks of being caught by the Royal Navy. Because Britain could not adequately increase the number of regular navy warships in the Indian Ocean, the Company had to employ a market-driven solution. Essentially, by preventing pirate attacks that hurt the Company’s bottom line, the Bombay Marine financed its own creation and maintenance. Similarly, pr ivate navies can only be sustainable today if they prevent more losses due to piracy than it costs to create and maintain them. Yet unlike the East India Company, which was a single great monopoly that formed a single private navy, the modern shipping industry is not a monopoly. Trade through the Indian Ocean is carried by hundreds of shipowners and charterers, and their risk is aggregated and transferred through maritime insurance and reinsurance. The additional challenge for modern private navies, then, is formula ting a business model that can turn risk reduction into profit. It is also important to recognize that the East India Company’s private navies went through a repeated cycle of development, retrenchment, and rebirth over the course of more than two centuries. As pirate activity wor sened, the Company would expand its forces. But when piracy declined, it was hard to justify the continued costs, and the Bombay Marine shrunk. Yet the underlying causes of piracy remained. So as soon as the risks for pirates declined, attacks spiraled out of control again. The importance of this le sson cannot be overstated. Somali piracy began a decline in late 2011, and dropped by half in 2012. By summer 2013, many observers are declaring victory. Insurance premiums have fallen, international naval presence may be reduced, and the shipping industry may lapse into a pre-2008 mindset. It will be very tempting for financially strapped shippers to cut back on private security, relax anti-piracy best practices, transit more slowly to conserve fuel, and route ships closer to the Somali coast. If they do, piracy is bound to flare up again, just as it did when the East India Company let down its guard in 1742. The experiences of the East India Company also tell us that private warships have significant advantages over armed merchant ships. Arming

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merchant ships to fight pirates is often cheaper than using dedicated anti piracy vessels, but results in any combat directly involving the merchant. Private warships can engage pirates at a distance from merchant ships, and theoretically have the flexibility to actively assist regular navies when the situation demands. The Bombay Marine’s shift toward dedicated private warships allowed them to optimize those ships for a combat role without compromising the design of cargo ships. In the same way, modern private navies’ using purpose-built patrol vessels lessons the burden of retrofitting merchant ships with countermeasures. The history of the East India Company also dispels the misconception that private navies are a replacement for regular navies. The Bombay M arine was only able to stamp out Indian Ocean piracy by working in concert with the Royal Navy. Rather, private navies provide defense against piracy more cheaply than regular navies, because they do not need the firepower required by regular navies’ other roles. This frees the regular navies for offensive operations against pirates. As the Company’s efforts show, this model gradually suffocates piracy by lowering its economic returns. Confusion in the media makes it essential to draw a distinction between the sort of private navy that the East India Company ran and the activity of privateering. With privateering, governments formally authorize private warships to attack foreign vessels, and pay them prize money for those they capture. 67 These formal authorizations, called letters of marque, entitled privateers to treatment as legitimate combatants under international law— exercising force on behalf of the issuing government in much the same way as regular navies. When proposals for private anti-piracy navies first hit the public consciousness as a response to the crisis off Somalia, some observers seem to have conflated this with privateering. Ron Paul, an influential and unorthodox American congressman, argued in 2009 that “Congress [should] act within the Constitution and issue letters of marque and reprisal, deputizing private organizations to act within the law to disable and capture those engaged in piracy.”68 This is based on a faulty reading of the history. Privateering was common during the 16th through 19th centuries, when it allowed European powers a fast and easy means of mobilizing warships against enemy merchant shipping. The vast majority of privateers were used for this explicitly anti-commerce purpose—against flagged shipping of belligerent states. This form of privateering was explicitly forbidden by the Paris Declaration Respecting Maritime Law of 1856.69 Granted, letters of marque were occasionally issued for the purpose of hunting down pirates, but got their value from the overflowing treasure holds of the era’s pirate ships. Somali pirates are quite different. They fly no flags, and operate in almost worthless motorboats. The few large “motherships” they control remain the legal property of the owners from whom they were hijacked, and therefore could not be used as prizes for privateers. There is historical precedent for the issuance of bounties for the capture of pirates, such as that for Henry Every, but modern piracy is not characterized by larger-than-life figures in the mold of Every and his contemporaries.

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Somali pirates operate anonymously, and usually in service of investors on land. International intelligence on the Horn of Africa is insufficient to reliably place bounties on named, individual pirates. Funding privateers through bounties on unnamed Somali pirates is even less feasible. The same incentives that encouraged many historical privateers to turn to criminality would increase the chance of modern PMSCs capturing innocent Somalis for profit. In sum, privateering under letters of marque makes it impossible for the international community to keep incentives for private navies where it wants them—deterrence, and if necessary, defense. The second key lesson from history is that raiding merchant shipping is a fundamentally asymmetric form of warfare. 70 The raiders—whether German auxiliary cruisers or modern Somali pirates—can strike at vulnerable targets at the time and place of their own choosing. Defenders, meanwhile, must guard all targets at all times over a wide area. They must always be ready for combat, and on terms most favorable to the enemy. The warships of regular navies are designed for operations against ot her navies’ warships. They cost hundreds of millions of dollars each, and are highly expensive to fuel and maintain when on patrol for extended pe riods. Such warships can defeat Somali pirates in battle even more easily than their predecessors could defeat German auxiliary cruisers. Unfortunately, such asymmetric opponents almost always avoid combat with them. Thus, most of a modern frigate’s sophisticated modern firepower is concentrated on a small area at any one time. The problem is rather like fighting small house fires with airdropped flame retardant from a DC-10—workable if one’s firefighting budget is infinite, but a grossly inefficient alloca tion of resources. For this reason, a small number of powerful ships will be less effective at protecting against pirates than a large number of cheaper, smaller ships. They can guard a larger number of ships and a wider sea area at any given time. This is a critical factor, because the time between pirates being sighted and boarding a target is usually too short for distant warships to respond. 71 Modern anti-piracy forces do have an advantage that the Allies during the World Wars did not have against German auxiliary cruisers. Namely, pirates are motivated by profit rather than patriotism. So while Germany’s merchant raiders (and U-boats) persevered against what eventually became almost suicidal odds, Somali pirates decrease their activities as risks i ncrease. Private navies can tailor their capabilities to increase those risks more economically than regular warships can. As long as pirates cause more economic damage than private navies cost, they can be, in theory, a useful solution to maritime piracy. The challenges, rather, lie in putting that theory into practice. Much work remains to be done to ensure that private navies operate with legitimate legal authority, within a sound regulatory framework, and under workable rules of engagement. Funding private navies is, counterintuitively, more difficult now that world markets aggregate and

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transfer risk so effectively. And because private navies are subject to the forces that shape those markets, they must have the flexibility to adapt to evolving threats, fluctuating economic conditions, and shifting hotspots around the world. Above all, though, history tells us that the only permanent solution is on land. The East India Company’s private navy was able to suppress rai ding temporarily, but as soon as soon as it reduced its forces, the plundering resumed. The Indian Ocean was not secured until the Mahratta strongholds on land were captured, and the Gulf Corsairs’ havens invaded. Similarly, raiders during the World Wars were not eliminated until land campaigns against Germany left it unable to sustain the commerce war. If piracy off the Horn of Africa is to be ended permanently, law and order must be restored to Somalia.

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Notes 1. Central Intelligence Agency, “Indian Ocean,” CIA World Factbook, last modified November 15, 2012, https://www.cia.gov/library/publications/the-world-factbook/geos/xo.html (accessed April 3, 2013). 2. For a more extensive treatment of the economic history, see K.N. Chaudhuri, Trade and Civilisation in the Indian Ocean: An Economic History from the Rise of Islam to 1750 (Cambridge: Cambridge University Press, 1985). 3. Ashirbadi Lal Srivastava, The Sultanate of Delhi, 711-1526 A.D.: Including the Arab Invasion of Sindh, Hindu Rule in Afghanistan and Causes of the Defeat of the Hindus in Early Medieval Age [5th ed.] (Agra: Shiva Lal Agarwala, 1966), 12. 4. Derryl N. Maclean, Religion and Society in Arab Sind (Leiden: E.J. Brill, 1989), vii. 5. Gazetteer of the Bombay Presidency 15, no. 2 (Bombay: Government Central Press, 1883), 101-111. 6. For a thorough account of the early colonial period, see Jaswant Lal Mehta, Advanced Study in the History of Modern India 1707-1813 (New Delhi: Sterling Publishers Pvt. Ltd), 2005. 7. “Ship Building – The Routes to India, China, and Australia,” Great Industries of Great Britain 21 (London: Cassell & Company, 1884), 123. 8. Peter J. Marshall, The Making and Unmaking of Empires: Britain, India, and America C.1750-1783 (Oxford: Oxford University Press, 2005), 126. 9. Beckles Willson, “Beginning of British Power in India,” in The Great Events by Famous Historians: A Comprehensive and Readable Account of the World’s History, Emphasizing the More Important Events, and Presenting These as Complete Narratives in the Master-words of the Most Eminent Historians 11, eds. Rossiter Johnson, Charles F. Horne, and John Rudd (New York: The National Alumni, 1905), 37-38. 10. Willson, 38. 11. A.W. Stiffe, “The Island of Hormuz (Ormuz),” in Geographical Magazine 1 (1874), 15. 12. S.M. Edwardes, “The Company’s Marine,” in The Cambridge History of the British Empire: British India, 1497-1858 4 ed. H.H. Dodwell (Cambridge: Cambridge University Press, 1929), 144. 13. Detailed at length in Angus Konstam, Pirates: The Complete History from 1300 BC to the Present Day (Guilford, CT: Globe Pequot, 2011). 14. Frank Sherry, Raiders and Rebels: A History of the Golden Age of Piracy (New York: HarperCollins, 2008), 28. 15. Sherry, 96. 16. Sherry, 77-79. 17. Konstam, 257. 18. Douglas R. Burgess, The Pirates’ Pact: The Secret Alliances between History’s Most Notorious Buccaneers and Colonial America (New York: McGraw-Hill, 2008), 144. 19. Jack Whitehouse, Fire Island: Heroes & Villains on Long Island’s Wild Shore (Stroud, UK: The History Press, 2011), 33. 20. A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783 14, ed. Thomas Bayly Howell (London: Longman, Hurst, Rees, Orme and Brown, 1816), 17273.

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21. Sherry, 188. 22. Konstam, 258. 23. Konstam, 249-71. 24. In many respects, the Royal Navy seaman evolved out of the mercantile mariner, a process that continued into the 19th century. See Leslie Cope Cornford, The Merchant Seaman in War (London: Hodder and Stoughton, 1918), xi-xii. 25. R.P. Anand, Origin and Development of the Law of the Sea (Leiden: Martinus Nijhoff, 1983), 114. 26. John Biddulph, The Pirates of Malabar: And an Englishwoman in India Two Hundred Years Ago (London: Smith, Elder, & Co., 1907), 264. 27. Biddulph, 264-65. 28. Herbert William Richmond, The Navy in India 1763-1783 (London: E. Benn, 1931), 59. 29. Keshav Balkrishna Vaidya, The Naval Defence of India (Bombay: Thacker, 1949), 131. 30. G.S. Chhabra, Advanced Study in the History of Modern India 1 (New Delhi: Sterling Publishers, 1971), 29. 31. Yogesh Sharma, Coastal Histories: Society and Ecology in Pre-Modern India (New Delhi: Primus Books, 2010), 60. 32. Chhabra, 66. 33. Shripad Rama Sharma, The Founding of the Maratha Freedom (Bombay: Orient Longman, 1964), 42. 34. East Indiamen, or Indiamen, were large, armed merchant ships designed for long voyages and vigorous self-defense. 35. Detailed contemporaneously in Philoleutherus, A Faithful Narrative of the Capture of the Ship Derby (London: S. Osborn, 1738). 36. Charles Rathbone Low, History of the Indian Navy (1613-1863) (London: R. Bentley and Son, 1877), 117-9. 37. Surendra Nath Sen, Early Career of Kanhoji Angria and Other Papers (Calcutta: University of Calcutta, 1941), 34. 38. George Forrest, Selections from the Letters, Despatches, and Other State Papers 1 (Bombay: Government Central Press, 1887), xli. 39. “The Life of Sir William James, Baronet,” Edinburgh Magazine, or Literary Miscellany 10 (August 1798), 122. 40. Marguerite Eyer Wilbur, The East India Company and the British Empire in the Far East (New York: Richard R. Smith, 1945), 194. 41. Farhang Mehr, A Colonial Legacy: The Dispute over the Islands of Abu Musa, and the Greater and Lesser Tunbs (Lanham, MD: University Press of America, 1997), 79. 42. Mohamed Reda Bhacker, Trade and Empire in Muscat and Zanzibar: Roots of British Domination (London/New York: Routledge, 1992. Reprint, 2002), 58-59. 43. Richard Woodman, The Victory of Seapower: Winning the Napoleonic War, 1806-1814 (London: Chatham Publishers, 1998), 89. 44. Anne Bulley, Free Mariner: John Adolphus Pope in the East Indies 1786-1821 (London: BACSA, 1992), 185. 45. Woodman, 90. 46. Andrea B. Rugh, The Political Culture of Leadership in the United Arab Emirates (New York: Macmillan, 2007), 128. 47. Shiri Ram Bakshi, British Diplomacy and Administration in India, 1807-13 (New Delhi: Munshiram Manobarlal, 1971), 66.

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48. Jim Krane, City of Gold: Dubai and the Dream of Capitalism (New York: St. Martin’s Press, 2009), 15. 49. Oxford Business Group, The Report: Sharjah 2007 (Oxford: Oxford Business Group, 2007), 88. 50. Malid Khadduri, Major Middle Eastern Problems in International Law (Washington, DC: American Enterprise Institute for Public Policy Research, 1972), 100. 51. James Onley, The Arabian Frontier of the British Raj: Merchants, Rulers, and the British in the Nineteenth-Century Gulf (Oxford: Oxford University Press, 2007), 46. 52. Onley, 46. 53. “Marine Regulations,” The Cambridge History of India: The Indian Empire, 1858-1918 ed. H.H. Dodwell (Cambridge: Cambridge University Press, 1932), 149. 54. The British strategy is expounded by one of its key architects in John Rushworth Jellicoe, The Grand Fleet, 1914-1916: Its Creation, Development, and Work (New York: Doran, 1919). 55. The German strategy of threatening Britain’s distant supply lines is excellently described in Paul Schmalenbach, German Raiders: A History of Auxiliary Cruisers of the German Navy, 1895-1945 (Annapolis, MD: Naval Institute Press, 1979). 56. Edwin P. Hoyt, the Last Cruise of the Emden (New York: Macmillan, 1966. Reprint, Guilford, CT: Globe Pequot, 2001), 61-63. 57. Hoyt, 15. 58. Hoyt, 74-76. 59. Hoyt, 111. 60. Hoyt, 136. 61. The war cruise of the Wolf is recounted stirringly in Richard Guilliatt and Peter Hohnen, The Wolf: How One German Raider Terrorized the Allies in the Most Epic Voyage of WWI (New York: Simon and Schuster, 2010). 62. Guilliatt and Hohnen, 305-6. 63. The German auxiliary cruiser campaign in the Second World War is described thoroughly in August Karl Muggenthaler, German Raiders of World War II (Englewood Cliffs, NJ: Prentice Hall, 1977). 64. Ulrich Mohr and A.V. Sellwood, Ship 16: The Story of a German Surface Raider (London: T. Werner Laurie, 1955. Reprint, Stroud, UK: Amberley Publishing, 2008), 89. 65. Schmalenbach, 139. 66. John Asmussen, “Hilfskreuzer,” Bismarck-Class,dk, http://www.bismarckclass.dk/hilfskreuzer/hilfskreuzer_introduction.html (accessed April 4, 2013). 67. Pasquale Fiore, International Law Codified and its Legal Sanction: Or, the Legal Organization of the Society of States trans. Edwin M. Borchard (New York: Baker, Voorhis and Company, 1918), 597-8. 68. Ron Paul, “Responses to Piracy,” Ron Paul Blog, last modified April 20, 2009, http://ronpaulblog.com/2009/04/20/ron-paul-responses-to-piracy (accessed April 6, 2013). 69. Fiore, 597. 70. The theory of asymmetric warfare was first widely popularized in Andrew Mack, “Why Big Nations Lose Small Wars: The Politics of Asymmetric Conflict,” World Politics 27, no. 2 (January 1975), 175-200. A more contemporary analysis of asymmetric warfare that acknowledges its deep roots in prior military theory is given in Adam Lowther, “Asymmetric Warfare and Military Thought,” London Security Policy Study 3 ed. Glen M. Segell (London: Glen Segell, 2006).

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71. This problem is expressed clearly by one of the writers who popularized the “private navy” term in Dan van der Vat, “Can a ‘Private Navy’ see off Somalia’s Pirates?” Guardian, February 21, 2011, http://www.guardian.co.uk/commentisfree/2011/feb/21/somalia-pirates-escorted-convoy (accessed July 29, 2013).

Chapter 3

The Somali Piracy Epidemic

With the suppression of the German raider threat in 1943, the Indian Ocean was secure for merchant shipping for nearly half a century. In that time, India became a stable and autonomous nation, the Gulf States achieved prosperity with newfound oil wealth, and the former colonies of East Africa gained their independence. Although countries such as Yemen, Kenya, and Tanzania had minor chronic problems with sea robbery during the 20 th century, it rarely affected major foreign shipping, and attracted little international notice. 1 None of the region’s coastal states suffered the severe economic and governmental breakdown required for piracy to take hold .

Collapse and Civil War In 1991 the regime of Somali president Siad Barre collapsed, creating a power vacuum that led to civil war. As the conflict worsened, state services ceased functioning in many parts of the country. A serious drought was a lready underway, and the combination of crop failure and political instab ility brought on catastrophic famine. Soon, half the population of 4.5 million was in danger of starvation. 2 The United Nations tried to broker a ceasefire, but more than 300,000 Somalis had died before one could be signed in March 1992. 3 U.N. Security Council Resolution 751, adopted on April 24, established a formal peacekeeping mission and authorized the deployment of international military observers to Mogadishu, the Somali capital. 4 The resolution also sought to bolster enforcement of a complete arms embargo against Somalia that had been established the same year under Resolution 733.5 That summer, 947 international military personnel were sent to ove rsee the ceasefire under the auspices of the United Nations Operation in S omalia I (UNOSOM I). 6 Yet the U.N.-mandated peacekeepers were working under restrictive rules of engagement, which limited them to using force only in cases of self-defense. 7 Without the latitude to intervene in killings or arrest warlords who disobeyed the ceasefire, the mission was unable to enforce the will of the Security Council. With the humanitarian crisis worsening again, the United States established the Unified Task Force (UNITAF), a multi national military operation aimed at stopping the violence that was choking 27

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off the flow of aid. Unlike the UNOSOM I peacekeepers, the 37,000 UNITAF personnel were authorized to use “all necessary means” to ensure that relief could reach those affected by the famine. 8 This included deadly force against the warring clans. Arriving in December of 1992, UNITAF was able to stabilize the situation in the country, and the famine abated. By March of 1993, conditions in Somalia had improved to the point that the U.N. took over the mission again, establishing UNOSOM II, consisting of 28,000 troops from 30 countries, and 2,800 international and local support staff. 9 The famine was under control, but the civil war was still smoldering. A powerful warlord named Mohamed Farrah Aidid was vying for power in the capital, and his militias clashed first with rival clans and then with the peacekeepers. On June 5, fighters loyal to Aidid attacked a unit of Pakistani soldiers and killed 24 of them. 10 The next day, the U.N. Security Council passed Resolution 837, authorizing UNOSOM II to “take all necessary measures against those responsible for the armed attacks.” 11 This was, in effect, a declaration of war against Aidid and his Habr Gidr clan. Admiral Jonathan Howe, the Special Representative for Somalia to the U.N. Secr etary General, announced a $25,000 reward for information leading to Aidid’s capture. 12 Throughout the summer, clashes escalated, and several units of elite American soldiers went to Mogadishu to hunt for Aidid and his associates. On the afternoon of October 3, 1993, U.S. Army Rangers and Delta Force commandos stormed a compound in Mogadishu where two of Aidid’s top lieutenants were meeting. The mission went awry when two American hel icopters were shot down over the city, and thousands of militiamen and a ngry civilians flocked toward the battle, trapping and nearly overrunning 160 U.S. soldiers in an overnight siege. 13 By the time an armored convoy extracted them the following day, 18 Americans had been killed. Soon, the world media showed the mutilated bodies of helicopter crewmen being dragged through the streets by chanting mobs. Most Americans had been at best dimly aware of the military presence in Somalia, and were shocked to learn that a full-fledged battle had claimed the lives of so many servicemen. Under political pressure from both Republicans and Democrats, President Clinton ordered an end to combat operations. The remaining U.N. peacekeepers were not nearly as effective without American support, and the last of them were withdrawn on March 3, 1995. 14

Slide into Piracy A decade of lawlessness, famine and intermittent civil war followed, lea ving Somalia one of the world’s poorest nations—a failed state in the fullness of the term. Despite some economic recovery in the early 2000s, a fierce struggle for power in the middle of the decade set the country back

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considerably. In 2006, the Islamic Courts Union (ICU), a fundamentalist Islamist faction attempted to wrest power from the Transitional Federal Government (TFG), taking over large swaths of the country, and capturing Mogadishu in June.15 Civil war was rekindled, as the Ethiopian-backed TFG fought back, along with a coalition of secular warlords called the All iance for the Restoration of Peace and Counter-Terrorism (ARPCT).16 The modern firepower of the Ethiopian army dealt the ICU fi ghters several costly defeats, and by January 2007, they were effectively beaten. The prime minister of the TFG, Ali Mohammed Ghedi, began an attempt to disarm the estimated 53,000 militiamen mobilized throughout Somalia. 17 Peace did not come easily, though. In 2007, an Islamic Courts Union offshoot known to observers as al-Shabaab renewed the insurgency with several deadly attacks in Mogadishu. 18 The Ethiopian troops defending the city responded harshly. UNICEF documented numerous human rights viol ations, including widespread “sexual violence and rape” by both TFG militiamen and the Ethiopians. 19 The ongoing battle caused between 600,000 and 700,000 of the capital’s nearly two million inhabitants to flee, with some 6,000 civilians killed in the fighting. 20 The prolonged violence left large areas of Somalia out of the TFG’s control. In addition, warlords controlled long stretches of coastline in the autonomous regions of Puntland and Galmudug. 21 With law enforcement ineffectual, the small-time pirates who had long preyed on coastal Somali boats turned their attention to richer prizes. 22 Sheltered by the local warlords, they began robbing and sometimes hijacking passing cargo vessels with regularity—sometimes well out of sight of land. By bringing hijacked ships to ports not under the control of the internationally-recognized government, the pirates could move their hostages well out of reach of foreign powers, who were not willing to engage in land-based military interventions. Even though boarding merchant ships on the high seas entailed great danger, there was no shortage of men willing to risk death for a chance at fat ransoms. 23 In a country where GDP per capita is barely $600, 24 it was easy for pirate leaders to leverage six-figure paydays into armaments, manpower, and patronage from local clans. The pirates themselves claimed that they were acting as a coastguard force in defense of Somali waters against illegal fishing and toxic waste dumping by foreign vessels. 25 Since the collapse of Siad Barre’s government in 1991, Somalia had been unable to prevent foreign fishing oper ations from exploiting the bountiful stocks of tuna, shrimp, and lobster in its exclusive economic zone. Some estimates had these operations accounting for around $300 million a year of fish. 26 According to a 2013 World Bank report, “despite the fact that fisheries were never a leading economic activity in Somalia, this ‘Robin Hood’ interpretation has by now become a powerful legitimizing narrative.”27 The report continued that available data does not suggest that illegal fishing actually led to depletion of Somali fishing stocks. 28

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Far more sinister is the claim of toxic waste dumping. Somalis and some outside observers allege that once the Barre government fell, ships began appearing from all over the world to dump harmful substances in Somali waters. 29 Instead of paying to have them treated properly, corporations could simply toss them overboard, confident that there was no government capable of stopping them. These claims gained international atte ntion in the wake of the 2004 Indian Ocean Tsunami, which allegedly washed leaking waste barrels onto the Somali coast. 30 Early reports said these contained hazardous substances including lead, mercury, and even radioactive waste that sickened the coastal population. 31 Subsequent investigation by the U.N. Development Programme concluded in 2005 that “dumping of toxic and harmful waste is rampant in the sea, on the shores and in the hinterland.” 32 Although the political situation in Somali has precluded conclusive testing, an October 2011 report by the U.N. SecretaryGeneral supported the likelihood of illegal dumping: “Information about illegal hazardous waste dumping off the coast of Somalia is unconfirmed, but stems from reputable sources and related data.”33 Yet whatever the truth of the claims of illegal fishing and dumping, the larger self-serving narrative they support is not borne out by the facts. Although some seaborne militias appear to have formed in an effort to drive off foreign interlopers, this does not explain the piracy epidemic as a whole. Somalia had experienced sporadic piracy in the 1980s and 1990s, and eve n during those early incidents, pirates attacked ships for personal gain. “When the statistical records are examined,” says piracy scholar Stig Jarle Hansen, “it is the easiest and most valuable targets, slow-moving cargo ships usually with no ties whatsoever to illegal fishing, that [were] the most popular victims.” 34 Statistics compiled by the International Maritime Bureau’s Piracy Reporting Centre show that from 1993 through 1999, at least 30 non-fishing vessels were attacked in Somali waters. 35 These included private yachts, cargo liners, and other ships not plausibly involved in waste dumping. Jarle Hansen speculates that the coastguard narratives advanced by the pirates “might serve psychological needs for self-justification.” 36 To whatever extent there were legitimate coastguard militias, it is almost impossible for outsiders to distinguish clearly between the militias and the true pirates. This is uncertainty is reflected linguistically. Some Somalis refer to what Western journalists call pirates using the term burcad badeed, which literally translates as “ocean robber” or “sea bandit.” 37 But the pirates and those who support them prefer badaadinta badah, which means “saviors of the sea,” and reinforces the coastguard mystique that they cultivate. 38

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The Epidemic Begins As the pace of attacks intensified, even the pretense of legitimacy became harder to sustain. From an average of 17.8 piracy incidents a year off the Horn of Africa from 2000-2004, there were an average of 36.3 a year from 20052007.39 More importantly, the location and nature of the attacks was shifting. Each year, the pirates extended their reach, striking larger targets fu rther out to sea. And where the pirates had initially favored robbing ships’ valuables and kidnapping crew, they turned increasingly toward hijacking whole ships for ransom. 40 One of the key examples of this transition is the 2005 hijacking of the MV Feisty Gas, a liquefied natural gas tanker that was one of the first large ships taken. It was ransomed for $315, 000 after a very brief captivity—signaling to pirates that major paydays awaited the daring. 41 When the Islamic Courts Union took power in 2006, it largely suppressed piracy on the grounds that it is contrary to religious law. 42 The interruption was brief, though. The ICU lost control of coastal pirate havens in late 2006, and the pirates soon came back with a vengeance. 43 By the middle of 2007, Somali pirates were more aggressive than ever. In May, the United States Navy issued an advisory that warned merchant ships of all nationalities to stay at least 200 nautical miles off the Somali coast. 44 Up to that point, vessels that had increased speed and taken evasive action had managed to avoid being boarded. On June 3, the Danish merchantman MV Danica White was ambushed in international waters by three skiff motorboats full of pirates, who quickly came aboard and hijacked the ship. 45 The American destroyer USS Carter Hall raced to the captured ship’s position, but under existing rules of engagement tried to i nduce the pirates to surrender by firing warning shots. 46 The Carter Hall eventually sank the skiffs with its 25 mm autocannon, but the pirates were already in control of the Danica White and escaped into Somali waters, where the Americans lacked authority to follow them. The pirates demanded $1.5 million for the ship and captive crewmen. After the shipowner paid the ransom, they were released on August 22. 47 Then, on the night of October 28, Somali pirates successfully hijacked the Japanese chemical tanker MV Golden Nori.48 The Panamanian-flagged ship had been sailing along the Somali coast near Socotra, off the tip of the Horn of Africa. The crew sent out a distress call that was picked up by the American dock landing ship USS Gunston Hall. The destroyer USS Porter was patrolling nearby, and sped to the scene. The Porter appears not to have known that the Golden Nori was filled with benzene, a highly flammable and toxic solvent. The destroyer opened fire on and sank the two p irate skiffs being towed behind the tanker. Fortunately, the shooting was accurate, but the hijacked ship tried to escape to the coast. Another destro yer, the USS Arleigh Burke, arrived to give chase, and obtained permission from TFG authorities to follow the Golden Nori into Somali territorial wa-

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ters. 49 This was the first instance in which an American warship was allowed to cross the 12 mile limit while pursuing pirates. The Arleigh Burke continued shadowing the hijacked tanker at a distance throughout Nove mber, aiming to maintain contact but avoid provoking violence that might harm the crewmembers being held hostage. By December 4, the pirates reached the port of Bosasso in Puntland, where they demanded a $1 million ransom. 50 The American and German naval units on scene threatened imminent action against the hijackers, who apparently did not expect such a forceful response. The pirates freed the crew on December 12 and fled ashore. 51 It remains unclear whether they received any of their expected ransom. Despite the stiffening naval response, the high-profile hijackings of the Danica White and Golden Nori taught Somalia’s pirates that they could seize valuable ships on the high seas and take them back to the coast in d efiance of the world’s most powerful navies. Analysts predicted that the problem would get worse, but 2008 saw an explosion in piracy off the Horn of Africa that surpassed all expectations—a full-blown epidemic. In April 2008, the government of Puntland stopped paying its police forces, and piracy began to increase more sharply.52 The pace of attacks left the international warships in the region unable to respond effectively. On September 26, Somali pirates captured the MV Faina, a freighter carrying 33 Soviet-made T-72 tanks and other munitions. 53 Despite the best efforts of the widely scattered naval forces in the area, the hijackers reached the Somali coast with the valuable cargo. Yet the pirates lacked the capacity to unload their booty, and even if they could, main battle tanks are of little u se in Somalia’s low-grade civil war. Eventually, they agreed to release the Faina along with crew and cargo for a $3.2 million ransom. 54 For the moment, attacks were still focusing on ships that strayed into the 200-mile danger zone decreed by the U.S. Navy. On November 15, though, Somali pirates operating about 450 nautical miles off Kenya hijacked the MV Sirius Star, a 318,000-ton supertanker carrying 2,000,000 barrels of crude oil en route to the United States. 55 This was the first Very Large Crude Carrier (VLCC) 56 and the largest ship of any kind captured to date. Weighed down by a full cargo worth at least $100 million —equivalent to a quarter of Saudi Arabia’s daily output—the Sirius Star was riding low in the water. 57 The low freeboard and calm sea made it easy for the pirates to clamber aboard. Armed with automatic weapons, they took the crew ho stage without resistance. The tanker was sailing under the Liberian flag to take advantage of that nation’s labor laws, but had a Polish captain and crewmembers from five different countries. 58 The pirates anchored the massive ship at the lawless port of Harardhere and issued a demand for an u nprecedented $25 million ransom. 59 If the full amount was not paid within 10 days, they said, they would “take action that could be disastrous.” 60

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Yet most world governments have policies against paying ransoms, and the pirates began to realize that collecting the money would be harder than they expected. On November 24, four days after their initial demand, they lowered the amount to $15 million. 61 Some Islamist factions onshore began to condemn the hijacking, arguing that because the Sirius Star was owned by a subsidiary of Saudi Aramco, it was a “Muslim” ship. 62 Still, the hijackers dithered, seemingly bewildered about how to extract cash from thei r magnificent prize. The ship and its cargo combined were worth almost a quarter of a billion dollars, but the pirates had no means to offload so much oil, and no place to sell it. Ransom was the only option, but the pirates’ p osition was weakening with each passing day. Although world governments took a hard line against ransom payments, the shipowners were negotiating for the return of ship and crew, and on January 9, 2009, the hijackers settled for $3 million in cash parachuted onto the supertanker’s deck.63 Despite a peaceful resolution, the hijacking of the Sirius Star rattled the shipping industry. The price of oil had gone up by over $1 per barrel on news that the ship had been taken, 64 and the whole industry was suddenly aware that even the largest crude carriers were now vulnerable. The threatened area was now so large—some 2.8 million square kilometers 65 —that it was impossible to simply divert shipping around the problem. Pressure mounted on international navies to step up their presence in the Gul f of Aden and off the Horn, but analysts warned that simply sending more warships was not the solution. The danger zone was simply too vast. “You cannot stop piracy with 30 international warships,” said Roger Middleton of the British think tank Chatham House. 66 Rather, he said, “You will need hundreds of warships.” 67 Such a vast commitment was never remotely plausible. During 2008, Somali pirates had attacked 111 ships, and successfully hijacked 42 of them, 68 netting what Middleton estimated to be “between 50 and 80 million dollars in ransom.” 69 In the face of mounting uncertainty, a small minority of shipping companies began hiring armed guards to sail aboard their ships while transiting the most vulnerable waters. Early data had been promising—the guards had repulsed every attempted attack 70—but uncertainty about legal liability prevented most shipowners from using them.

The Problem Worsens The first months of 2009 saw further intensification, as the pace of attacks in January and February showed a tenfold increase over the same period in 2008.71 The success rate of attacks had declined, though, and pirates were still avoiding American-flagged ships. Still, on April 7, the U.S. Maritime Administration extended the piracy advisory zone to 600 nautical miles off the Somali coast. 72 The next day, pirates boarded the MV Maersk Alabama

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350 nautical miles offshore—within the new danger zone, but outside the 200-mile zone that had been in force when it had left port. 73 The Maersk Alabama was an American-flagged container ship carrying general cargo and humanitarian supplies, bound for Mombasa, Kenya. The hijacking went wrong when most of crew locked themselves in a safe room and disabled the bridge controls, leaving the pirates unable to steer the ship. The c aptain, Richard Phillips, and several other crewmen were taken hostage. As the pirates searched the ship for the missing members of the crew, the chief engineer ambushed their leader in the engine room and took him prisoner. After a failed prisoner exchange between the two sides, the remaining three pirates took Captain Phillips and fled the ship in a motorized covered lif eboat. 74 The destroyer USS Bainbridge hurried to assist, and began shadowing the lifeboat, which was making for the Somali coast. The Americans hoped that by maneuvering this powerful warship between the lifeboat and land, they could slow its attempt to reach safety. If the pirates could get Captain Phillips ashore, it would be almost impossible to rescue him. Meanwhile, four large vessels previously captured by pirates sailed to the scene with reinforcements and 54 hostages as human shields. 75 The United States sent several more navy ships to join in the chase and discourage a confrontation. Experienced FBI hostage negotiators coached the captain of the Bainbridge in communicating with the pirates. 76 As with the Sirius Star hijacking, the pirates were getting panicky as the standoff dragged on. They had likely taken khat77 or other stimulants before the start of the attack, and the sleep deprivation of constantly guarding against a rescue mission was wearing down their nerves. The pirates were seen squabbling with each other, and eventually fired an automatic weapon at one of the shadowing warships. The American frigate drew back out of range, not wanting to provoke a deadly confrontation while negotiations continued. Then, the lifeboat ran out of fuel. With winds and seas picking up, the pirates became highly agitated again, but the Bainbridge’s captain persuaded them to let the destroyer take them under tow. By this time, global media outlets were riveted by the unfolding drama. President Barack Obama was aware of the implications if Captain Phillips were killed, and reaffirmed standing orders to use lethal force against the pirates if he were in imminent danger. 78 In the dark of night on April 12, sailors on the Bainbridge observed through their night-vision equipment that the pirates were behaving strangely. The captain determined that they might kill their hostage at any moment, and gave the Navy SEAL snipers positioned on the destroyer’s fantail authorization to open fire. At a moment when all three pirates in the lifeboat were visible, the snipers opened fire, killing them all almost instantly. 79 Captain Phillips was rescued, and his homecoming was a cause of interna-

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tional celebration. The fourth pirate, who had surrendered, was taken to New York, where he was indicted by a federal grand jury a month later. 80 The story of the Maersk Alabama had riveted the world—a vivid, dramatic incident not unlike the Emden’s epic raiding cruise in 1914. The general public was now widely aware of the piracy epidemic off the Horn of Africa. Again and again the question came up: why can’t the world’s grea test navies suppress a ragtag group of third-world pirates? Two answers emerged. First, the international fleets patrolling the threatened waters were small. Often, only half a dozen warships would be on station in the princ ipal danger zones, with little hope of reaching a ship under attack before it was boarded. The second problem was a legal one. The states with a naval presence off the Horn were reluctant to take responsibility for prosecuting and incarcerating captured pirates, so many were simply released. One skiff, for example, unsuccessfully attacked the Marshall Islands-flagged tanker Handytankers Magic. A Dutch frigate tracked them to a captured vessel operating as a “mothership” and forced them to surrender. But b ecause the Dutch were operating on a NATO mission and outside the ausp ices of the EU Naval Force Somalia, they lacked the legal authority to detain the pirates, and released all seven. 81 In Britain, the Royal Navy was given standing orders to release captured pirates, based on fears that they could claim asylum if taken back to the UK for trial. 82 U.S. Secretary of State Hillary Clinton called for more robust legal remedies, stating that letting captured pirates go free “sends the wrong signal.” 83 Three days later, international donors pledged more than $250 million at the request of U.N. Secretary-General Ban Ki-moon to finance peacekeeping in Somalia. 84 All parties agreed that establishing a stable, functioning government in Mogadishu was the only long-term solution to suppressing piracy in the region. “Piracy is a symptom of anarchy and insecurity on the ground,” Ban said. 85 “More security on the ground will make less piracy on the seas.” 86 But without a willingness by NATO or the U.N. to undertake a costly intervention on land like the one during the early 1990s, more sec urity on the ground was hard to come by. In total, 2009 saw 217 attacks by Somali pirates, leading to 47 hijac kings and 867 crewmembers taken hostage. 87 The 21 percent success rate represented a steep drop from the previous near, 88 which appears attributable in part to active countermeasures taken by merchantmen. Even ships sailing hundreds of miles from Somalia’s coast were instituting improved watch procedures and security plans, and were quicker to take evasive a ction if a suspicious boat approached. An increasing number of vessels were equipped with water cannons or acoustic weapons to repel boarding attempts. 89 Also, crews were now familiar with incidents in which pirates had been thwarted even after coming aboard, such as that of the Maersk Alabama, and copied successful techniques. Many ships were retrofitted with fortified safe rooms and emergency communications equipment.

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Although those efforts thwarted some pirate activity, the problem was still getting worse. 2010 saw a rebound in the success rate of attacks, and Somali pirates seized 49 major vessels, taking 1,016 hostages in the process, more than half of whom were still being held for ransom at the end of the year. 90 The use of a growing stable of large motherships was extending pirates’ reach into waters within a 1,200-mile radius of the Somali coast.91 Diverting shipping all the way around the danger zone was expensive and impractical. Regardless of the danger, 30 percent of the world’s oil had to pass through those vulnerable waters every day.92 By 2010, there were three major naval task forces on anti-piracy duty in the High Risk Area—the Gulf of Aden, Arabian Sea, and western Indian Ocean. 93 The European Union Naval Force Somalia (EU Navfor) carried out Operation Atalanta, while the NATO task force worked under the name Operation Ocean Shield. Meanwhile, Combined Task Force 151 conducted anti-piracy operations for the Combined Maritime Forces, a U.S.-led 27-nation naval partnership for security in the greater Indian Ocean. Nations including China, India, Russia, and South Korea contributed independent naval units.94 In all, the international navies contributed several dozen warships, although rarely more than a dozen were on dedicated anti-piracy duty. Despite the growing naval presence, judicial efforts to prosecute captured pirates remained inconsistent. On March 23, 2010, pirates attacked the Panamanian-flagged cargo ship MV Almezaan, which was carrying an armed private security detachment.95 The guards exchanged fire with the would-be hijackers and drove them back. The Spanish frigate Navarra responded to the Almezaan’s distress call and engaged the pirates as they fled to a mothership. Six of them survived the brief battle, and were taken into custody aboard the frigate. The crew of the Almezaan refused to testify against the pirates in court, though, likely fearing retribution, so the Spanish set the prisoners free. 96 A week later, on April 1, the American destroyer USS Farragut engaged pirates who had unsuccessfully tried to board the tanker MV Evita off the Seychelles. Their mothership was destroyed, and 11 pirates were captured, but they were all released. The same day, the USS Nicholas captured five pirates, who were taken to Norfolk, Virginia to stand trial in federal court, and subsequently sentenced to life in prison.97 The Russians, meanwhile, took harsher measures to avoid legal uncertainties. On May 6, their destroyer Marshal Shaposhnikov intercepted pirates who had hijacked the Russian tanker MV Moscow University. Under covering fire from a helicopter and the destroyer itself, marines in speedboats boarded the ship and overpowered the pirates in a short but violent firefight. The Russians allegedly took most of the Somalis alive, but may have set them adrift in a boat, causing them to die, and thereby avoiding a lengthy and complex prosecution.98 While the navies off the Horn grappled with the legal challenges of disposing of captured pirates, conditions on land were getting worse. By 2011, most of Somalia was facing acute food insecurity classified as either Phase 4 (Emergen-

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cy) or Phase 5 (Catastrophe/Famine).99 A two-year drought, the worst to strike the region in sixty years, ravaged food supplies, driving up prices and forcing hundreds of thousands into starvation. The economic desperation only made piracy more attractive, and worsening piracy further threatened the flow of aid into the country. Despite pirates’ growing desperation, hostage and ransom negotiations continued to presume that pirates would act reciprocally by releasing ships and crews safe and sound upon payment of the money. 100 It was only the assurance that hostages would be harmed if and only if a rescue were attempted that brought world powers to the bargaining table. But the capture of a private yacht off Oman turned all those assumptions on end. On February 18, 2011, the SV Quest, with two American couples on an around-the-world sailing trip, was boarded by a large force of 19 pirates.101 The hijackers began sailing the Quest toward Puntland, while U.S. forces mobilized to answer the distress call. A task force led by the aircraft carrier USS Enterprise steamed to intercept the pirates before they could make landfall with the hostages, catching up with them on February 21. The Enterprise, like many NATO and EU warships had done in similar incidents, opened negotiations with the pirates. The next morning, as the Americans were still trying to ascertain the pirates’ demands, a pirate fired a rocket-propelled grenade at one of the destroyers. Gunfire was heard from within the yacht. Several of the pirates emerged with their hands raised in surrender. Navy SEALs approached the Quest in inflatable speedboats, not knowing what they would find. Storming the yacht, they quickly subdued the remaining pirates after a short firefight, and found all four Americans alive, but mortally wounded.102 The Somalis insisted that the U.S. Navy had initiated an attack on the yacht, but this is unlikely. With negotiations ongoing, the Americans had every reason to believe that the situation could be resolved without risk to either the civilians or the sailors. The 14 captured hijackers were sent to Norfolk to stand trial on charges of piracy and kidnapping.103 The Quest incident sent ripples of uncertainty throughout the maritime community. Vice Admiral Mark Fox, commander of the U.S. Fifth Fleet, called it a “game-changer.”104 If the pirates can no longer be expected to honor the implicit rules of a hijacking, the thinking went, civilians have more reason to resist capture, and navies have less reason to show restraint. If hostages may be murdered without warning, commanders have more reason to authorize risky and violent rescues.

The Tide Turns Through the middle of 2011, the month-by-month pace of attacks was still rising compared to 2010, but pirates’ success rates were falling. 105 Many factors played a role. Compliance with Best Management Practices (BMP) was greatly improving, as shipowners took seriously the need for adequate precautions. Vigilant

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watchkeeping and disciplined operating procedures made it harder for pirates to board before being noticed. More ships were being fitted with citadels—fortified refuge rooms—into which crews could retreat if hijackers came aboard. This facilitated military rescues, because boarding teams could engage pirates more aggressively if they knew crewmembers were all safely accounted for in the citadel.106 Shipowners were also more willing to incur the high fuel costs required to transit the High Risk Area at the recommended 18 knots. Despite these improvements, observers perceived the overall problem of Somali piracy as still worsening. Pressure mounted from the shipping industry for national governments to allow firearms aboard merchant ships for selfdefense. In February, the International Chamber of Shipping, the world’s principal umbrella shipping organization, decided to endorse the use of private security.107 Yet this was still a highly controversial idea. Many analysts feared that stationing armed guards aboard merchant ships would prompt pirates to attack even more violently.108 Seafarers’ unions were especially nervous, because their members would be placed in immediate personal danger by any battles.109 Nonetheless, as navies proved unable to suppress Somali piracy, authorities became more open to the use of private armed security. Starting in May, the International Maritime Organization, the U.N. agency responsible for maritime security, issued a series of circulars giving shipowners and flag states guidance on the use of armed PMSCs in the High Risk Area.110 Soon, major maritime nations were changing their policies. The government of Norway gave an influential boost to the acceptance of private security with changes to its maritime security and firearms laws that went into force on July 1, 2011.111 The Norwegians stressed that the intent of this legislation was not to encourage use of private security, but rather to ensure its responsible regulation. The new rules specified the responsibilities of the shipping industry with regard to several factors, including: vetting of PMSCs, due diligence, insurance requirements, operating procedures, use of force, and incident reporting. 112 Notably, the Ship Safety and Security Act, one of the acts governing the use of PMSCs, explicitly provides for Norwegian authorities to prosecute PMSC personnel or a ship’s master if they exceed the legal limits on the use of force. 113 That October, the United Kingdom followed suit, when David Cameron’s government announced plans to allow its merchant fleet carry armed guards in threatened waters as an exception to its stringent gun laws. Cameron told the BBC: “The fact that a bunch of pirates in Somalia are managing to hold to ransom the rest of the world and our trading system is a complete insult and the rest of the world needs to come together with much more vigor.”114 In November, Greece followed suit, announcing that “an initiative has been taken to draft legislation for the embarkation of armed individuals on commercial ships.” 115 These strong signals of openness to PMSCs increased confidence throughout the shipping industry—even among shipowners whose countries did not technically forbid armed guards—that private security was a legitimate preventative measure. PMSC use was further facilitated by two other developments. In May 2011,

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the Baltic and International Maritime Council (BIMCO), the world’s largest shipping association, promulgated guidelines for the use of PMSCs against Somali piracy.116 Also, the Security Association for the Maritime Industry (SAMI) was rapidly coming into its own as a regulatory trade association for the private maritime security industry.117 Together, these developments led to a rapid increase in the use of armed private security by ships operating off the Horn of Africa. By the autumn of 2011, Somali pirate attacks finally began to abate.118 Many factors played a role. The international navies on anti-piracy missions had improved their reconnaissance and coordination so as to intercept more pirate action groups (PAGs) at sea before they could initiate attacks. There was somewhat better stability and policing on land, reducing the safe havens available to pirates. Adherence to Best Management Practices continued to improve. And, to an increasing extent, embarked guards and private escort vessels were deterring pirates with the threat of force. The first major piracy incident of 2012 was not a daring hijacking or massacre of innocents, but rather a near international incident. In the first week of January, Iran rattled its saber at the United States, attempting to assert dominance over the strategically vital Strait of Hormuz. The Iranian military conducted war games in the Persian Gulf, in which it was reported to have “test fired three missiles—including a new cruise missile—designed to sink warships.” 119 When the American aircraft carrier USS John C. Stennis passed through the Strait of Hormuz on its way out of the Gulf, Iran solemnly warned it not to return, or face the “full force” of the Iranian military.120 In the midst of this drama, a U.S. Navy helicopter received a distress signal from an Iranian fishing vessel near the Strait, saying that it had been taken over by Somali pirates. The destroyer USS Kidd responded, sending a boarding team that captured the pirates and freed the Iranian crewmen. 121 Fortunately, no further escalation occurred. Later that month, on January 25, the United States military finally conducted a raid on land in Somalia. A unit of Navy SEALs parachuted close to the town of Gadaado, and in a lightning operation rescued two aid workers who were being held hostage. All nine of their captors were killed. 122 Although it remains unclear whether those nine had direct ties to pirate groups, the raid sent a clear message to pirates that America was willing to put “boots on the ground” in the country it had limped away from in 1993. In March, the European Union decided to follow suit, authorizing strikes by EU Navfor on coastal pirate bases.123 On May 15, it launched the first such attack, an air strike via helicopter gunship.124 Throughout 2012, pirate activity continued to decline. There were 14 successful hijackings in 2012, compared to 28 the year before, and overall attacks dropped by over two thirds over the same period.125 So far, 2013 has seen much improved security throughout the Indian Ocean. 126 Between 40 and 60 percent of merchant ships in the High Risk Area are now protected by

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private security. 127 Previously wary governments have warmed to use of PMSCs as they have demonstrated their effectiveness. On October 26, 2012, U.S. Assistant Secretary of State Andrew J. Shapiro gave them a ringing endorsement: “The ultimate security measure a commercial ship can adopt is the use of privately contracted armed security teams.”128 He was especially impressed with their spotless defensive record—not a single ship protected by private armed security has been hijacked by Somali pirates as of summer 2013.129 Yet the outlook is far from certain. The recent gains off the Horn of Africa will likely lead international militaries to draw down their naval presence sooner than expected. Shippers—and here we use the term loosely to mean owners, charterers, and operators—will be tempted to relax compliance with BMP4, and to forgo private security. If these things happen while the situation on land remains tenuous, piracy is likely to return. Meanwhile, piracy is festering in several other hotspots around the globe, and surging sharply off West Africa. 130 This outlook suggests that private maritime security will have enduring relevance as a tool for protecting commerce on the high seas. Despite embarked guards’ growing popularity, they are not suitable for all clients. Just as the East India Company learned four hundred years ago, there are circumstances in which it is undesirable to arm merchant ships themselves. Slow speeds, volatile cargos, and still-murky domestic laws are all reasons why shipowners may seek the protection of independent armed escort vessels. And so, a variety of private naval forces have emerged to meet the market’s need.

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Notes 1. Along the lines of the low-level opportunistic piracy described in Hans Tino Hansen, “Distinctions in the Finer Shades of Gray: The ‘Four Circles Model’ for Maritime Security Threat Assessment,” in Lloyd’s MIU Handbook of Maritime Security, eds. Rupert Herbert-Burns, Sam Bateman, and Peter Lehr (Boca Raton, FL: Auerbach Publications, 2008), 80. 2. United Nations, “United Nations Operation in Somalia I (UNOSOM I) – Background,” UN.org, http://www.un.org/en/peacekeeping/missions/past/unosom1backgr2.html (accessed April 4, 2013). 3. United Nations, “UNOSOM I – Background.” 4. United Nations, “UNOSOM I – Background.” 5. United Nations, “UNOSOM I – Background.” 6. United Nations, “United Nations Operation in Somalia (UNOSOM I) – Facts and Figures,” UN.org, http://www.un.org/en/peacekeeping/missions/past/unosom1facts.html (accessed April 4, 2013). 7. Glenn J. Antizzo, U.S. Military Intervention in the Post-Cold War Era: How to Win America’s Wars in the Twenty-First Century (Baton Rouge, LA: LSU Press, 2010), 108. 8. Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (University Park, PA: Penn State Press, 2003), 12. 9. United Nations, “United Nations Operation in Somalia II - (UNOSOM II),” UN.org, http://www.un.org/Depts/DPKO/Missions/unosom2b.htm (accessed April 4, 2013). 10. Robert B. Oakley, Michael J. Dziedzic, and Eliot M. Goldberg, Policing the New World Disorder: Peace Operations and Public Security (Philadelphia: DIANE Publishing, 1998), 202. 11. United Nations, “United Nations Operation in Somalia II - (UNOSOM II) Background (Full text),” UN.org, http://www.un.org/en/peacekeeping/missions/past/unosom2backgr2.html (accessed April 4, 2013). 12. Liz Sly, “Hunt for Somalia Scapegoat: Fingers Point at American UN Envoy,” Chicago Tribune, October 20, 1993, http://articles.chicagotribune.com/1993-10-20/news/9310200220_1_gen-mohamed-farrah-aidid-jonathan-howe-finger (accessed April 4, 2013). 13. Narrated grippingly in Mark Bowden, Black Hawk Down, (New York: Atlantic Monthly Press, 1999). 14. United Nations, “UNOSOM II – Background.” 15. “Islamists Claim Mogadishu Victory,” BBC News, last modified June 5, 2006, http://news.bbc.co.uk/2/hi/africa/5047766.stm (accessed April 4, 2013). 16. Eben Kaplan, “Somalia’s High Stakes Power Struggle,” Council on Foreign Relations, last modified August 7, 2006, http://www.cfr.org/somalia/somalias-high-stakespower-struggle/p11234 (accessed April 4, 2013). 17. Somali Joint Needs Assessment, “Demobilization of the Militia,” United Nations & World Bank Coordination Secretariat, http://www.somali-jna.org/downloads/ddr.doc (accessed April 4, 2013). 18. “Al-Shabaab - Terrorist Groups,” National Counterterrorism Center, http://www.nctc.gov/site/groups/al_shabaab.html (accessed April 4, 2013). 19. Agence France-Presse, “Sexual Violence on Rise in Somalia, UNICEF Warns,” AFP / Daily Star (Lebanon), December 8, 2007, http://www.dailystar.com.lb/News/Mid-

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dle-East/Dec/08/Sexual-violence-on-rise-in-Somalia-UNICEF-warns.ashx#axzz1kJsHF1vw (accessed April 4, 2013). 20. Steve Bloomfield, “Call for Inquiry into US Role in Somalia,” Independent (UK), May 7, 2008, http://www.garoweon-line.com/artman2/publish/World_23/Call_for_inquiry_into_US_role_in_Somalia_gazette.shtml (accessed April 4, 2013). 21. Described excellently in “Somalia’s Future – A Ray of Hope,” Economist, February 25, 2012, http://www.economist.com/node/21548291 (accessed April 4, 2013). 22. Although pirates sometimes targeted foreign ships in the 1980s, 1990s, and 2000s, their actions were on a small scale, and usually limited to robbery of cash and goods. Hijacking for ransom of ships, cargo, and crew did occur, but was rare. Counterintuitively, the worst periods of the civil war actually suppressed ransom-based piracy, because conditions were too chaotic to maintain and secure hijacked ships. For a fuller account of this early Somali piracy, see Stig Jarle Hansen, “Piracy in the Greater Gulf of Aden: Myths, Misconceptions and Remedies,” Norwegian Institute for Urban and Regional Research (2009), 19-23. 23. Quy-Toan Do, “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” World Bank, working paper, April 11, 2013, available for download at http://siteresources.worldbank.org/INTAFRICA/Resources/pirates-of-somalia-main-report-web.pdf (accessed July 23, 2013), 111. 24. Central Intelligence Agency, “Somalia,” CIA World Factbook, last modified April 2, 2013, https://www.cia.gov/library/publications/the-world-factbook/geos/xo.html (accessed April 4, 2013). 25. Johann Hari, “You are Being Lied to About Pirates,” Independent (UK), January 5, 2009, http://www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-you-are-being-lied-to-about-pirates-1225817.html (accessed April 4, 2013). 26. Paul Salopek, “Off the Lawless Coast of Somalia, Questions of Who is Pirating Who,” Chicago Tribune, October 10, 2008, http://articles.chicagotribune.com/2008-10-10/news/0810090770_1_somalia-ground-for-industrial-waste-pirates (accessed April 4, 2013); Peter Lehr and Hendrick Lehmann, “Somalia: Pirates’ New Paradise,” in Violence At Sea: Piracy in the Age of Global Terrorism, ed. Peter Lehr (Oxford: Routledge, 2007), 13. 27. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 57. 28. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 58. 29. Salopek, “Who is Pirating Who.” 30. Salopek, “Who is Pirating Who.” 31. “Waves ‘Brought Waste to Somalia,’” BBC News, last modified March 2, 2005, http://news.bbc.co.uk/2/hi/africa/4312553.stm (accessed April 4, 2013). 32. United Nations Environmental Programme, National Rapid Environmental Desk Assessment – Somalia (2006), available for download at http://www.unep.org/tsunami/reports/tsunami_somalia_layout.pdf, (accessed April 4, 2013), 129. 33. United Nations Security Council, Report of the Secretary-General on the Protection of Somali Natural Resources and Waters, October 25, 2011, S/2011/611, http://www.unhcr.org/refworld/docid/4ec50ee62.html (accessed April 4, 2013), 13. 34. Jarle Hansen, 10. 35. Based on piracy data compiled by the ICC International Maritime Bureau’s Piracy Reporting Centre, and made available to the authors upon request. 36. Jarle Hansen, 10. In addition to these psychological justifications, piracy scholar Jatin Dua also describes religious justifications. From his fieldwork among pirates in Somalia, Dua reports: “Oftentimes, [the pirates] would say, ‘This is haram, you know,

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unlawful. We know it.’ But then they would say, ‘We’ll do this for the short term, make some money, and then once I become a legitimate businessman, I’ll marry and have a wife, and we can move to Europe or somewhere else, and then I will go on a to [sic] hajj to Mecca and atone for my sins and everything will work out.’” Quoted in: McKnight and Hirsh, 43. 37. Somalia has a tradition of sea robbery stretching back thousands of years. By the 1st century C.E., this was noted in The Periplus of the Erythraean Sea, a geographic and cultural survey of the Indian Ocean written by an anonymous merchant. In describing Azania, a region associated with the Horn of Africa, he says: “Along this coast live men of piratical habits, very great in stature, and under separate chiefs for each place.” Sea robbery in the region continued on a small scale through the 19th century, when Somalis along the rugged Cape Guardafui became infamous for plundering the wrecks of the many ships driven aground there. See: “Ancient History Sourcebook: The Periplus of the Erythraean Sea: Travel and Trade in the Indian Ocean by a Merchant of the First Century,” Internet Ancient History Sourcebook, http://www.fordham.edu/halsall/ancient/periplus.asp (accessed April 4, 2013). 38. David F. Marley, Modern Piracy: A Reference Handbook (Santa Barbara, CA: ABC-CLIO, 2011), 273. 39. United Nations Office on Drugs and Crime, Transnational Organised Crime Threat Assessment – Maritime Piracy, UNODC, 2010, available for download at www.unodc.org/documents/data-and.../tocta/9.Maritime_piracy.pdf (accessed April 4, 2013), 193. 40. Michael G. Frodl (maritime risk consultant), author interview, telephone, October 18, 2011. 41. Claude G. Berube, quoted in: Terry McKnight and Michael Hirsh, Pirate Alley: Commanding Task Force 151 off Somalia (Annapolis, MD: Naval Institute Press, 2012), 110; Africa Economic Development Institute (AEDI), “Pirates of Somalia,” AEDI Exclusives 1, no. 1 (March 2, 2009), available for download at http://priv.asiaeconomicinstitute.org/resources/uploads/africa/articles/1_1/1237478297Africa_Exclusives_Vol1_No1_20 09-03-02_RO.pdf (accessed July 29, 2013), 4; “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 4. 42. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 74. 43. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 74. 44. Stefano Ambrogi, “U.S. Navy Warns Ships off Somali Pirate Coast,” Reuters, May 21, 2007, http://www.reuters.com/article/2007/05/21/us-somalia-shipping-warningidUSL2156577720070521 (accessed April 4, 2013). 45. Associated Press, “Navy: U.S. Ship Fired at Pirates off Somalia,” USA Today, June 6, 2007, http://www.usatoday.com/news/world/2007-06-06-us-navy-pirates_N.htm (accessed April 4, 2013). 46. Associated Press, “Fired at Pirates.” 47. “Ransom Paid to Free Danish Ship,” BBC News, last modified August 23, 2007, http://news.bbc.co.uk/2/hi/africa/6959729.stm (accessed April 4, 2013). 48. “Crew Wins Deadly Pirate Battle off Somalia,” CNN, last modified October 30, 2007, http://articles.cnn.com/2007-10-30/world/somalia.pirates_1_andrew-mwanguraseafarers-assistance-program-golden-nori?_s=PM:WORLD (accessed April 4, 2013). Although the ship was Japanese-owned, it flew the flag of Panama. The significance of this is that many merchant ships choose to fly so-called “flags of convenience,” allowing them to be legally governed by states like Panama and the Marshall Islands. This saves

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shipping companies money, because flag states of convenience have looser labor laws and environmental standards than the shipowners’ home countries. 49. CNN, “Crew Wins Deadly Battle.” 50. Agence France-Presse, “Pirates Demand Huge Ransom or Kill Japanese Tanker Crew: UN,” Garowe Online, December 10, 2007, http://www.garoweonline.com/artman2/publish/Somalia_27/Pirates_off_Somalia_threaten_to_kill_tanker_crew_UN_printer.sh tml (accessed April 4, 2013). 51. U.S. Fifth Fleet Public Affairs, “Golden Nori Released,” United States Central Command, http://www.centcom.mil/press-releases/golden-nori-released (accessed April 4, 2013). 52. Jarle Hansen, 32-33. 53. Financial Action Task Force, “Organised Maritime Piracy and Related Kidnapping for Ransom,” Financial Action Task Force/Organisation for Economic Co-operation and Development (July 2011), 15. 54. Financial Action Task Force, 15. 55. Lee Glendinning and James Sturcke, “Pirates Take Over Oil Tanker with British Crew on Board,” Guardian, November 17, 2008, http://www.guardian.co.uk/world/2008/nov/17/oil-tanker-pirates (accessed April 4, 2013). 56. A VLCC is defined according to the Average Freight Rate Assessment system as a tanker with a deadweight tonnage of 160,000–319,999. See Edward G. Hinkelman and Sibylla Putzi-Ortiz, Glossery of International Trade [5th ed.] (Petaluma, CA: World Trade Press, 2009), 19. 57. Donna J. Nincic, “Maritime Piracy: Implications for Maritime Energy Security,” Journal of Energy Security, February 19, 2009, http://www.ensec.org/index.php?view=article&catid=92%3Aissuecontent&id=180%3Amaritime-piracy-implications-formaritime-energy-security&tmpl=component&print=1&page=&option=com_content&Itemid=341 (accessed April 4, 2013). 58. Colin Freeman, “Pirates are Treating us Well, Says Briton on Board Hijacked Sirius Star Oil Tanker,” Telegraph, November 25, 2008, http://www.telegraph.co.uk/news/worldnews/piracy/3520514/Pirates-are-treating-us-well-says-Briton-on-board-hijacked-Sirius-Star-oil-tanker.html (accessed April 4, 2013). 59. Agence France-Presse, “We’ll Fight Back, Somali Pirates Warn,” ABS-CBN News, last modified November 23, 2008, http://www.abs-cbnnews.com/world/11=/23/08/well-fight-back-somali-pirates-warn (accessed April 4, 2013). 60. Xan Rice and Matthew Weaver, “Sirius Star PIrates Demand $25m Ransom,” Guardian, November 20, 2008, http://www.guardian.co.uk/world/2008/nov/20/piracysomalia (accessed April 4, 2013). 61. Graham Bowley, “Ransoming the Sirius Star: $15 Million May Do,” New York Times Blogs - The Lede, November 24, 2008, http://thelede.blogs.nytimes.com/2008/11/24/ransoming-the-sirius-star-15-million-may-do/ (accessed April 4, 2013). 62. David Williams, “Fears Grow for Hijacked Supertanker Crew as “HeavilyArmed Islamists Prepare to Attack Pirates who Seized Muslim Ship,” Daily Mail, November 21, 2008, http://www.dailymail.co.uk/news/article-1087978/Fears-grow-hijacked-supertanker-crew-heavily-armed-Islamists-prepare-attack-pirates-seized-Muslim-ship.html (accessed April 4, 2013). 63. Mohammed Ibrahim and Graham Bowley, “Pirates Say They Freed Saudi Tanker for $3 Million,” New York Times, January 9, 2009, http://www.nytimes.com/2009/01/10/world/africa/10somalia.html (accessed April 4, 2013).

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64. Xan Rice, “Somali Pirates Seize Tanker Carrying Oil Worth $100M,” Guardian, November 17, 2008, http://www.guardian.co.uk/world/2008/nov/18/piracy-somalia (accessed April 4, 2013). 65. David McKenzie, “Pirates Take ‘Super Tanker’ Toward Somalia,” CNN, November 20, 2008, http://edition.cnn.com/2008/WORLD/africa/11/17/kenya.tanker.pirates/index.html?eref=rss_world (accessed April 4, 2013). 66. Agence France-Presse, “Warships ‘No Solution’ for Somalia Piracy,” AFP, May 20, 2009, http://www.google.com/hostednews/afp/article/ALeqM5hg1JhwsdGkEQycS2njCnl8SnKw8g (accessed April 4, 2013). 67. Agence France-Presse, “Warships No Solution.” 68. ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships: Annual Report 1 January – 31 December 2008,” International Chamber of Commerce (January 2009), 9. 69. Quoted in: Andrew Fowler, “Pirateland,” Australian Broadcasting Corporation, April 28, 2009, http://www.abc.net.au/foreign/content/2009/s2553682.htm (accessed April 4, 2013). 70. Even three years later, private security companies’ spotless record of preventing hijackings was influential in governments’ deliberations over whether to allow ships on their registers to use them. See: Brian Reyes, “Gib Maritime Admin Analysing Whether Gib will Follow UK Decision to Allow Armed Guards on Merchant Ships,” Gibraltar Chronicle, November 2, 2011, http://www.chronicle.gi/headlines_details.php?id=23122ates_Bribe_Way_out_of_Jail (accessed April 4, 2013). 71. Associated Press, “Pirates Hijack Two Tankers Within 24 Hours Off Somali Shore,” Fox News, March 26, 2009, http://www.foxnews.com/story/0,2933,510766,00.h tml (accessed April 4, 2013). 72. Marine Engineers’ Beneficial Association, “MARAD Piracy Advisory, Guidance,” MEBA Telex Times 17, April 24, 2009, http://mebaunion.org/2009_TELEX_TIMES/telex2009-04-24-09.htm (accessed April 4, 2013). 73. “U.S. Warship Near Boat Carrying Pirates,” CNN, April 8, 2009, http://articles.cnn.com/2009-04-08/world/ship.hijacked_1_maersk-alabama-maersk-linecrew-members?_s=PM:WORLD (accessed April 4, 2013). 74. “U.S. Negotiators Try to Persuade Pirates to Free Captain,” CNN, April 9, 2009, http://articles.cnn.com/2009-04-09/world/ship.hijacked_1_maersk-line-maersk-alabamaship/2?_s=PM:WORLD (accessed April 4, 2013). 75. Katharine Houreld and Malkhadir M. Muhumed, “Pirates Summon Reinforcements Who Are Using Russian, German Hostages as Human Shields,” CNS News, April 10, 2009, http://cnsnews.com/news/article/pirates-summon-reinforcements-who-areusing-russian-german-hostages-human-shields (accessed April 4, 2013). 76. Associated Press / Fox News, “U.S. Warship, Hostage Negotiators Join Standoff as Pirates’ Options Dwindle,” Fox News, April 9, 2009, http://www.foxnews.com/story/0,2933,513536,00.html (accessed April 4, 2013). 77. A leaf with stimulant properties widely chewed in East Africa and the Arabian Peninsula. 78. Andrea Stone, “Obama Promises United Effort Against Piracy,” USA Today, April 15, 2009, http://www.usatoday.com/news/world/2009-04-12-captain-rescued_N.htm (accessed April 4, 2013). 79. Stone, “Obama Promises United Effort.”

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80. Luis Torres de la Llosa, “Somali Pirate Suspect Pleads Innocent in New York,” Agence France-Presse, May 21, 2009, http://www.google.com/hostednews/afp/article/ALeqM5gSRnM0ow2ku4OQ6r8fMjw2mL6_sQ (accessed April 4, 2013). 81. “‘Somali Pirates are Getting Wilder’: Belgian Ship Nabbed,” CNN, April 18, 2009, http://articles.cnn.com/2009-04-18/world/pirates.foiled_1_somali-pirates-belgianship?_s=PM:WORLD (accessed April 4, 2013). 82. Nick Britten, “Navy Regularly Releases Somali Pirates, Even When Caught in the Act,” Telegraph, November 29, 2009, http://www.telegraph.co.uk/news/worldnews/piracy/6684210/Navy-regularly-releases-Somali-pirates-even-when-caught-in-the-act.html (accessed April 4, 2013). 83. Elise Labbott, “Clinton Says Releasing Pirates Sends ‘Wrong Signal,’” CNN, April 20, 2009, http://articles.cnn.com/2009-04-20/politics/clinton.pirates_1_somali-coast-maersk-alabama-pirates?_s=PM:POLITICS (accessed April 4, 2013). 84. Slobodan Lekic, “Donors Pledge Over $250 Million for Somalia,” Guardian, April 23, 2009, http://www.guardian.co.uk/world/feedarticle/8469782 (accessed April 4, 2013). 85. Lekic, “Donors Pledge over $250 Million.” 86. Lekic, “Donors Pledge over $250 Million.” 87. ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships: Annual Report 1 January – 31 December 2009,” International Chamber of Commerce (January 2010), 25. 88. Tony Perry, “Gulf of Aden Pirates are Having Less Success,” Los Angeles Times, March 10, 2010, http://articles.latimes.com/2010/mar/10/world/la-fg-pirates102010mar10 (accessed April 4, 2013). 89. Acoustic weapons were found to be ineffective early in the conflict, though. See: David Osler, “Sonic Solution may not be Sound Investment,” Lloyd’s List, December 2, 2008, http://www.lloydslist.com/ll/sector/piracy-and-security/article48918.ece (accessed April 4, 2013). 90. “Pirates Seized Record 1,181 Hostages in 2010,” BBC News, last modified January 18, 2011, http://www.bbc.co.uk/news/world-africa-12214905 (accessed April 4, 2013). 91. Jeffrey Gettleman, “Somali Pirates Hijack Vessels 1,200 Miles Offshore.” New York Times, April 20, 2010, A9. 92. Agence France-Presse, “Somali President Urges All Round Fight Against Piracy,” AFP, October 1, 2008, http://afp.google.com/article/ALeqM5jM5mY8cZQwwQK2fYC7BPF50s4ZBA (accessed April 4, 2013). 93. The naval force buildup was gradual, starting with the European Union’s Operation Atalanta in December 2008, Combined Task Force 151 in January 2009, and NATO’s Operation Ocean Shield in August 2009. More units were sent to the High Risk Area (as defined by early BMP documents, and updated by subsequent versions) as the epidemic continued to worsen. Described clearly and concisely in Susanne Kamerling and Frans-Paul van der Putten, “Enhancing Maritime Security Governance: European and Asian Naval Missions against Somali Piracy,” in The Asia-Europe Meeting: Contributing to a New Global Governance Architecture eds. Sebastian Bersick and Paul van der Velde (Amsterdam: Amsterdam University Press, 2011), 143-56. 94. Kamerling and van der Putten, 143-56. 95.“EU Force Frees Somali ‘Pirates,’” BBC News, last modified March 25, 2010, http://news.bbc.co.uk/2/hi/8586729.stm (accessed April 4, 2013). 96. BBC News, “EU Force Frees.”

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97. Associated Press, “Somali Pirates Sentenced in Va. to Life in Prison,” NBC News, March 14, 2011, http://www.nbcnews.com/id/42077002/ns/us_news-crime_and_courts/t/somali-pirates-sentenced-va-life-prison/#.UV5jnyOeCBA (accessed April 4, 2013). 98. Mansur Mirovalev, “Russia Says Freed Pirates Didn’t Reach Land,” Bloomberg Businessweek, May 11, 2010, http://www.businessweek.com/ap/financialnews/D9FKN8L84.htm (accessed April 4, 2013). 99. Famine Early Warning Systems Network, “Estimated Food Security Conditions, 4th Quarter 2001,” USAID, October-December 2011, http://www.fews.net/pages/region.aspx?gb=r2 (accessed April 4, 2013). 100. Wolff Heintschel von Heinegg (international law scholar), author interview, telephone, December 12, 2011. 101. “Four Americans Killed On Yacht Hijacked by Somali Pirates,” Fox News, February 2011, http://www.foxnews.com/world/2011/02/22/americans-aboard-yacht-captured-pirates-reportedly-killed/ (accessed April 4, 2013). 102. Fox News, “Four Americans Killed.” 103. “Suspected Pirates Accused of Killing 4 Americans in Federal Court,” CNN, last modified March 10, 2011, http://www.cnn.com/2011/CRIME/03/10/virginia.pirates.court/ (accessed April 4, 2013). 104. Tony Capaccio, “Pirates Kill 4 Hostages on U.S. Yacht, U.S. Military Says,” Bloomberg, last modified February 22, 2011, http://www.bloomberg.com/news/2011-0222/four-americans-killed-by-somali-pirates-after-capture-of-yacht-u-s-says.html (accessed April 4, 2013). 105. Based on data provided to the authors by the ICC International Maritime Bureau’s Piracy Reporting Centre, and confirmed by experts including Dirk Steffen (risk consultancy executive), correspondence with authors, email, February 11, 2013. 106. Attested in the guidelines given in Maritime Security Centre Horn of Africa, “Guidance Relating to the Construction and Use of Citadels in Waters Affected by Somalia Piracy – July 2011” (2011), reproduced at http://www.oceanprotectionservices.com/wordpress/?p=70 (accessed April 6, 2013). 107. “U.K. Ships Allowed Guards to Ward off Pirates,” Navy Times, October 30, 2011, http://www.navytimes.com/article/20111030/NEWS/110300314/U-K-ships-allowed-guards-to-ward-off-pirates (accessed April 5, 2013). 108. Ince & Co, “Piracy: Issues Arising from the Use of Armed Guards,” Ince & Co / Incelaw.com, http://incelaw.com/misc/Piracy-issues-arising-from-the-use-of-armed-guards/Piracy-Issues-arising-from-the-use-of-armed-guards (accessed April 5, 2013). 109. Triton Risk Maritime Security Specialists, “Somali Pirates Release Tanker but Keep 4 Korean Crew,” Triton Risk, last modified December 2, 2011, http://www.triton-risk.com/2011/12/02/somali-pirates-release-tanker-but-keep-4-korean-crew/ (accessed April 5, 2013). 110. International Maritime Organization, “Interim Guidance on Use of Privately Contracted Armed Security Personnel On Board Ships Agreed by IMO Maritime Safety Meeting,” IMO.org, May 20, 2011, http://www.imo.org/mediacentre/pressbriefings/pages/27-msc-89-piracy.aspx (accessed July 23, 2013). 111. Security Association for the Maritime Industry, “Use of Armed Guards on Board Norwegian Ships,” SAMI Briefing Document, August 2011, 1. 112. Security Association for the Maritime Industry, “Use of Armed Guards,” 3-9. 113. Security Association for the Maritime Industry, “Use of Armed Guards,” 9.

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114. Agence France-Presse, “Armed Guards to Defend British Ships from Pirates,” AFP, October 31, 2011, http://www.google.com/hostednews/afp/article/ALeqM5iriGK1zXljsOsis3jsKer8mn9GLA?docId=CNG.da3f6e58764d826ac0b9ee28d0e73a75.761 (accessed April 4, 2013). 115. Agence France-Presse, “Greece to Allow Armed Guards on Cargo Ships Against Piracy,” News.com.au, November 26, 2011, http://www.news.com.au/breakingnews/greece-to-allow-armed-guards-on-cargo-ships-against-piracy/story-e6frfku01226206654122 (accessed April 4, 2013). 116. In May 2011, BIMCO released its “Industry Guidelines for the Use of Private Maritime Security Contractors (PMSC) as Additional Protection in Waters Affected by Somali Piracy.” In March 2012, it released “Guidance on Rules for the Use of Force by Privately Contracted Armed Security Personnel in Defence of a Merchant Vessel,” and GUARDCON, a standardized contract for hiring embarked guards. Together, these substantially increased the use of embarked guards in the High Risk Area. These documents are all available at: Sié Chéou-Kang Center for International Security and Diplomacy, “Industry Regulation – Baltic and International Maritime Council,” University of Denver, http://psm.du.edu/industry_initiatives/bimco.html (accessed April 6, 2013). 117. Dirk Steffen (risk consultancy executive), author interview, telephone, January 11, 2013. 118. ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2011,” International Chamber of Commerce (January 2012), 7-68. 119. “Iran Warns US Warship,” Bangkok Post, January 3, 2012, http://www.bangkokpost.com/breakingnews/273553/iran-warns-us-warship (accessed April 4, 2013). 120. “Iran Ramps up Warning to US over Strait of Hormuz,” Telegraph, January 5, 2012, http://www.telegraph.co.uk/news/worldnews/middleeast/iran/8992227/Iran-rampsup-warning-to-US-over-Strait-of-Hormuz.html (accessed April 4, 2013). 121. Larry Shaughnessy, “U.S. Navy Rescues Iranian Sailors,” CNN, last modified January 9, 2012, http://www.cnn.com/2012/01/06/world/meast/iran-us-navy-rescue/ (accessed April 4, 2013). 122. Julian E. Barnes, Nathan Hodge, and Adam Entous, “Navy SEALs Rescue Hostages in Somalia,” Wall Street Journal, January 26, 2012, http://online.wsj.com/article/SB10001424052970203806504577182422284560592.html (accessed April 5, 2013). 123. Yara Bayoumy, “EU Helicopters Strike Somali Pirate Base on Land,” Reuters, May 15, 2012, http://www.reuters.com/article/2012/05/15/us-somalia-piracy-idUSBRE84E0YN20120515 (accessed April 5, 2013). 124. Bayoumy, “EU Helicopters Strike.” 125. There is some discrepancy in reported sources over the number of successful Somali hijackings in 2011. Here, we use the numbers of the International Chamber of Commerce, which says that 14 vessels were hijacked in 2012, and 28 in 2011. The ICC’s IMB Piracy Reporting Centre substantiates specific incident data for 28 hijackings in 2011, and 14 individual hijackings for 2012, with four of those in the Gulf of Aden. Total attacks for the same period dropped from 237 in 2011 to 75 in 2012. See: ICC Commercial Crime Services, “Piracy Falls in 2012, but Seas off East and West Africa remain dangerous, says IMB,” ICC-CCS.org, January 16, 2013, http://www.icc-ccs.org/news/836-piracy-falls-in-2012-but-seas-off-east-and-west-africa-remain-dangerous-says-imb (accessed April 6, 2013); ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” International Chamber of Commerce (January 2013), 5-6.

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126. Peter Apps, “Have Hired Guns Finally Scuppered Somali Pirates?” Reuters, Feruary 10, 2013, http://www.reuters.com/article/2013/02/10/us-somalia-piracy-idUSBRE91902J20130210 (accessed April 6, 2013); Michael G. Frodl, author interview, telephone, June 6, 2013. 127. Likely considerably higher than the roughly 35 percent officially reported. The 40-60 percent estimate is corroborated by several independent analysts, including Michael G. Frodl, author interview, telephone, April 18, 2013. 128. Andrew J. Shapiro, “Turning the Tide on Somali Piracy,” Remarks to the Atlantic Council, Washington DC, October 26, 2012, http://www.state.gov/t/pm/rls/rm/199927.htm (accessed April 4, 2013). 129. Peter Cook (SAMI founder and director), author interview, telephone, March 19, 2013; Michael G. Frodl, author interview, telephone, July 9, 2013. 130. Afua Hirsch, “Piracy in West Africa Reaching Dangerous Proportions, Says Watchdog,” Guardian, October 19, 2012, http://www.guardian.co.uk/world/2012/oct/19/piracy-west-africa (accessed April 4, 2013).

Chapter 4

Current and Proposed Forces

Before the Somali piracy outbreak grabbed headlines 2008, perhaps the most serious modern piracy epidemic had been in the Malacca Strait, pea king roughly 1999-2004.1 Yet that conflict differed in a key respect from the one off the Horn of Africa—the Malacca shipping lane runs almost entirely through territorial rather than international waters. 2 This means that any private security protecting merchant shipping would be subject to the stringent domestic firearms laws of Malaysia, Indonesia, and Singapore. Further, the United Nations Convention on the Law of the Sea states that inte rnational shipping’s right of innocent passage through territorial waters is voided by “any exercise or practice with weapons of any kind.”3 Another impediment was that maritime insurers had little incentive to approve private security. Malaccan pirates favored robbery, cargo theft, and kidnapping, 4— risks at that time insured on shippers’ hull policies, which had deductibles high enough that insurers often did not have to pay claims. 5 As a result of these factors, armed private security did not see widespread use against Malacca pirates. Nonetheless, some maritime security contractors offered anti-piracy protection for ships transiting the Strait. In 2004, Malacca Straits Maritime Security began quietly offering escort services, charging $10,000 per day for a small escort vessel with four to six armed guards.6 For a much heftier fee of $100,000 a day, clients could get that escort plus the 410-foot MV Glenn Braveheart, a former British logistics ship—with a scout helicopter, six fast craft, 150 crew, and a bevy of small arms.7 Other companies entered the market as well, most notably Background Asia Risk Solutions, which was reported to be offering an armor-plated escort boat for $50,000 per transit.8 Agence France-Presse sources estimated in 2005 that there were up to seven firms providing armed escorts in the region.9 These companies faced intense disapproval from the International Maritime Organization, which feared that armed vessels would lead to escalation. 10 Ultimately, Indonesia banned private armed security from operating in its part of the Strait, 11 and as increased naval patrols suppressed attacks, the anti-piracy escort business there largely evaporated. When the industry came to life again in response to Somali piracy, it was largely different companies from those that had operated in the Mala cca Strait. The pirates themselves had very different tactics—preferring to hijack ship, cargo, and crew together, and hold them captive for long per i51

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ods to extort six- and seven-figure ransoms. By the time of the Somali epidemic, piracy was typically covered under war risk policies, which did not have deductibles, meaning that insurance companies had a strong incentive to encourage measures that would prevent losses. 12 Yet the PMSC industry was in its infancy, and private naval companies were still effectively re learning the anti-piracy escort business from scratch. There was, however, one major precedent for the use of private armed vessels in the waters around the Horn. To the PMSCs entering the region afterward, it was a ca utionary tale. In late 1999, Somalia’s semi-autonomous state of Puntland hired Hart Security Maritime Services Ltd, a British private security contractor, to assist in the formation of a coastguard. 13 Initially, Hart used a 65-meter trawler, the MV Celtic Horizon, with three small boats and a force of about 70 Puntlanders to interdict illegal fishing operations. 14 Hart was to be paid primarily from the sale of fishing licenses, which Jay Bahadur reports it “split almost evenly with the Puntland government,” and cash fines to vi olators. 15 Yet the tribal forces at work in Puntland politics proved too much for the British outsiders. Hart withdrew during a brief 2001 -2002 civil war that fractured the coastguard’s Puntlander personnel according to tribal lo yalties—and was subsequently muscled out of the contract by the well connected Abdiweli Ali Taar, who founded the Somali-Conadian Coast Guard, or SomCan. 16 The United Arab Emirates-registered SomCan operated six armed patrol ships and had 300-400 marines at its height. 17 Bahadur says it “claimed to have identified and arrested a total of thirty illegal foreign fishing vessels.” 18 SomCan also thwarted toxic dumping operations, most notably by the Dutch-owned, Philippine-flagged MV Cormo Express—which SomCan prevented from offloading its cargo of diseased Australian sheep in Puntland. 19 Yet there was also widespread corruption. In 2003, United N ations observers found that “the sale of licenses to foreign vessels in exchange for fishing rights has acquired the features of a large-scale ‘protection racket,’ indistinguishable in most respects from common piracy.”20 In 2005, SomCan’s contract was terminated after some of its personnel hijacked a Thai fishing trawler, the Sirichainava 12, and demanded an $800,000 ransom for the vessel and the lives of the crew.21 The Hart-SomCan debacle made subsequent entrants to the PMSC market realize that working for authorities on land was the wrong business model. Foreign contractors did not have the knowledge of local politics and political clout required to succeed long-term. 22 So instead, they sought to work for the shipping industry, much like the firms that had operated against Malacca pirates.

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Blackwater The first highly publicized entry into the private anti-piracy sector off Somalia came in October 2008, when Blackwater Worldwide floated a plan for operations off the Horn of Africa. Blackwater had purchased and ren ovated a retired survey ship, the 55-meter MV McArthur, for a total cost of $4.6—5.3 million, and hoped to use it to escort merchant ships through the Gulf of Aden. 23 Reports have varied widely as to the ship’s capabilities, but the most accurate is probably that of Claude Berube, who interviewed Blackwater founder Erik Prince aboard the McArthur. According to Berube, it had been converted to carry two light MD530 helicopters, three rigidhulled inflatable boats (RIBs), and up to 35 armed security personnel. 24 It was probably the most powerful private warship afloat—deemed capable of protecting up to three ships at a time. Blackwater eagerly solicited clients, and let slip that if the McArthur proved successful, it would build two or three smaller anti -piracy vessels. 25 Yet the market in 2008 was not yet ready for private armed security, least of all Blackwater. Just the year before, Blackwater guards working for the U.S. State Department in Iraq had shot and killed 17 civilians in Nisoor Square, Baghdad. 26 The incident provoked international outcry, and though a series of investigations never conclusively determined what happened, Blackwater lost its license to operate in Iraq. 27 The company’s name was publicly tainted, and with a cloud of litigation still hanging, the shipping industry was wary of even being associated with it. 28 Worse, shipowners feared that they could be liable for wrongful death if they hired the McArthur and it mistakenly killed civilians. Because the legal risks could easily run into the tens of millions of dollars, shippers protected by Blackwater would need substantial liability insurance. Yet maritime insurers did not understand the situation any better than the shipping companies. Without a reliable sense of how courts would treat potential liability, they could not confidently factor the risk into their premiums, which would have made it difficult for shipowners who hired McArthur to get insurance.29 “Blackwater spoke to three dozen companies that represented over 1,000 ships,” Berube says, “but few were willing to hire them.” 30 To cut costs and be able to offer clients more attractive rates, it scrapped the hel icopters from the plan. A subsequently leaked State Department cable revealed that they were replaced with a small aerial drone, and that the North Carolina-based company was still hoping to charge around $200,000 per transit—prohibitively high, given the market’s lingering uncertainties. 31 In early 2009, U.S.-flagged McArthur deployed to the High Risk Area, hoping to find clients on arrival. Logistics soon became a problem, though. According to Berube, “Oman would not entertain the possibility of allowing the ship to resupply in any of its ports. Contracting with Yemen was nearly impossible because

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of political considerations.” 32 So Blackwater tried to persuade the government of Djibouti to let it base its operations there, with easy access to the Gulf of Aden. The leaked State Department cable, dated February 12, 2009, states: “Hassan Said Khaireh … Djibouti’s national security advisor, head of the security/intelligence service, and director of President Guelleh’s Military Office—has given [Blackwater] permission to operate its armed ship in Djibouti.”33 This followed an earlier meeting in Washington, DC between Erik Prince and Cofer Black (former CIA counterterrorism chief and Blackwater vice president), and Robleh Olhaye, the Djiboutian ambassador to the United States. 34 The cable continues that Blackwater had arranged for access to the French military hospital in Djibouti, and intended to have a contingency plan with Kenya, because “the only facilities in the area capable of repai ring [the McArthur] are located in Mombasa.” 35 Yet Berube says the deal ultimately fell through. The McArthur was sent to Aqaba, Jordan while Blackwater tried in vain to drum up business. 36 Months passed without results. Facing a frustrating lack of clients, Blackwater recalled the McArthur and scrapped the operation later that year.

Gulf of Aden Group Transits Blackwater’s failure did not scupper the private naval industry, though. Other firms entered the market at around the same time and did well — correctly judging that even though shippers were put off by the Nisoor Square scandal, there was a real need for armed escorts off Somalia. B ecause of the high costs and long delays entailed in acquiring, converting, and deploying private armed vessels, some PMSC executives got the idea to use regional military vessels already in service. One of them was Nick Davis, whose UK-based Gulf of Aden Group Transits (GoAGT) partnered with the Yemeni PMSC Lotus Maritime Security to hire out vessels from Ye men’s navy and coastguard. 37 Starting in 2009, GoAGT arranged contracts with shippers, who would pay about $55,000 for a Yemeni warship to escort them on a three-day transit through the Gulf of Aden. 38 Yemen reportedly placed up to 10 armed patrol boats at GoAGT’s disposal, including a “heavily armored 37.5 meter Yemen Navy Austal patrol boat” and two American-made 27-meter Protector-class boats. 39 These services were particularly attractive to the tanker market, where low speed and low freeboard make ships vulnerable to hijacking, but volatile cargos make it unsafe to use embarked guard detachments. In January 2011, GoAGT found itself at the center of a minor furor when the Wall Street Journal covered its unusual arrangement with the Yemeni government. 40 Many observers were uncomfortable with the idea of hiring out public armed forces for the benefit of private clients, and the news also raised hackles in Washington, which had given Yemen $155 mil-

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lion in military aid that year. 41 The Americans were unhappy to learn that Yemen, as one article put it, “pimps” out to merchant shipping companies aid that was ostensibly given in support of the Global War on Terror. 42 The Yemeni government cut off the arrangement in late February 2011, and GoAGT transitioned to providing embarked guards and consultancy services. 43 Yet although GoAGT and Lotus are private companies that provided clients with armed anti-piracy escorts, they cannot be considered true private naval firms in the sense that they did not operate private warships themselves. Yemeni boats on contract escort work were crewed by Yemeni personnel, and remained under Yemen’s control at all times.

Current Private Naval Companies The first PMSC to find success operating its own private armed vessels was Protection Vessels International (PVI). Founded in 2008 by ex-Royal Marine Dom Mee, PVI has quietly operated a small fleet of armed patrol boats in the High Risk Area since January 2009. 44 One of PVI’s principal selling points, which served to reassure worried clients, is its rigorous operative screening process. Escort vessel crews are recruited exclusively from among five-year veterans of the Royal Marines, with emphasis on those who have already distinguished themselves in small craft service. 45 As of 2013, PVI operates three UK-flagged armed patrol boats. 46 The 22-meter AL 345 is a high-performance interceptor purchased from the Royal Omani Police, with a top speed of 35 knots, and suitable for escorting fast ships like cruise liners. It carries 7-10 crew, mounts up to three .50caliber machine guns, and has a range of 800 nautical miles. PVI also has two 23.4-meter S 200 vessels, the AM 230 and DM 234. They are armed like the AL 345, carry 6-8 crew, and have an obviously military appearance. These are the company’s workhorses, accounting for over 100 escorts, mainly with clients transiting at 12 knots or less. Although the S 200s can only reach 19 knots, they can cruise 2,000 nautical mi les before refueling. All three are capable of refueling at sea, but by 2010 PVI had arranged to operate in six countries around the HRA: Djibouti, Oman, Seychelles, South Africa, Sri Lanka, and Tanzania. 47 This wide logistical base was an advantage over early competitors, and allowed PVI to carve out a large share of the private escort market during the early years of the Somali pir acy outbreak. Because escorts avoided the logistical hassle of embarking and disembarking guard detachments and their firearms, PVI’s rates were not much different from embarked guards—averaging around $50,000 for an eight-day voyage. 48 The next most experienced private naval firm is Naval Guards Ltd, which began escort vessel services in January 2011. Headquartered in the UK, it operates similarly to PVI in most respects, and charges roughly

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comparable rates. While PVI flags its vessels with the UK and recruits from Britain’s Royal Marines, though, Naval Guards flags with Mongolia, and recruits its crews exclusively from among Ukrainian Navy veterans. As of 2013, Naval Guards operates a fleet of five armed escorts from its main base in Djibouti, with smaller operations in Galle, Sri Lanka; Fujairah, UAE; and Durban, South Africa. 49 There are four 22-meter ex-Swedish Navy patrol boats: Marshal-1, Marshal-2, Marshal-3, and Marshal-4. With top speeds ranging from 18 to 22 knots, and ranges of 2,500 to 3,000 miles, they carry 4-6 crew, and are believed to mount several machine guns each, which are held in secure storage between missions. Naval Guards’ largest vessel is the 42-meter Marshal-5, formerly the Swedish minesweeper HMS Tjurkö. 50 The Marshal-5 is slower than its smaller cousins, at 17 knots, but has a range in excess of 5,000 miles, and is optimized for slow escorts at as little as 2 knots. It carries a fast RIB, and accommodations for up to 22 s ecurity personnel. It is likely armed with machine guns like the other vessels, but is also armored heavily enough that the company advertises it as “bu lletproof.” 51 All five vessels are painted in camouflage or military paint schemes, in order to present as obvious a deterrent as possible to any pirates who may be considering an attack. Because this fleet is well -suited to longrange, low-speed missions, Naval Guards has given particular emphasis to developing the specialty escort market—providing security to fishing ships, cable laying vessels, survey ships, and vulnerable towing operations.52 Aside from PVI and Naval Guards, there is a group of about half a do zen PMSCs that have regularly operated in the private naval sector, but on a more limited scale. Britannia Maritime Security, which began operating in mid-2011, has two 27-meter escort vessels custom built in Sweden: SS Seaguard and SS Vanguard.53 Both vessels have 6-8 crew, and a Zodiac fast response boat “for rapid deployment of a four man armed team.” 54 Britannia markets its escort service as “SHIELD 360,” and runs transits from Suez, Djibouti, and Oman. 55 Similar escort vessel services are offered by firms including Advanfort, Decatur Maritime Security, Marque Star, and Trident. 56 Some of the early escort firms have since largely or wholly withdrawn those services. Espada was one of the earliest entrants to the sector, buying a small number of patrol vessels 22-27 meters long and operating its first paid transits in 2009. 57 According to Espada CEO Jim Jorrie, crews found protracted sailing in rough seas unpleasant, and with legal and logistical obstacles mounting, the company exited the escort sector the same year. 58 In 2011, the full-service risk consultancy firm Drum Cussac began offering the services of an exclusively chartered vessel, the MV Swordfish Guardian, a UK-crewed escort with a top speed of 25 knots. 59 As of 2013, Drum Cussac no longer has a vessel in steady use, but instead contracts with vessel charterers to meet client needs. Most of these, about eight at any given time, are manned by regular military forces, and used for defense of off-

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shore projects in host countries’ territorial waters, especially in the oil and gas sector off West Africa.60 Drum Cussac still occasionally provides privately-operated escorts for ship transits, but no longer focuses on those se rvices.61 About twenty other companies advertise armed escort services, but most either contract them out to one of the firms above, crew and arm unarmed vessels chartered from other companies, lease vessels out to PMSCs that operate them, or operate their own vessels for escort purposes on an irregular basis as clients request. For example, Afloat Leasing was apparently founded as a subsidiary of the British-South African security firm Saracen International—which was hired in 2010 to train a private “antipiracy army” in Puntland.62 Afloat purchased four vessels, including the Blackwater’s MV McArthur, which it renamed the Eaton, and offered for escort work for up to one month at a time. 63 It appears, though, that the Eaton was used primarily in support of Saracen’s business. As another example, a PMSC founded in 2011 called Port 2 Port has offered the services of the MV Sea Patrol, a 42-meter escort/offshore support vessel. The Panama-flagged Sea Patrol has an 18-knot maximum speed, can cruise for 12 days and 3,000 nautical miles, and carries two RIBs for tactical response. It has 14 regular crew, but can accommodate up to 32 embarked personnel. 64 Port 2 Port charters this vessel as needed from a third party that actually owns it. 65 Additional companies offering similar arrangements include Arch Shipping, Aspida, Atlas International Security, Envoy 360, ESS&SA, FTS – Maritime Security, Fulcrum Security Solutions, Grosvenor Global Risk, Guardian Maritime Services, Hart, Helicon Security Group, Infinite Security Solutions, LGS Matrix, Mercator International, Moran Security Group, Origin Security Group, Poseidon, Schütz Swart International, Securewest International, and Seraph Protection Group.66 Many of these firms also provide embarked guards, usually considering that their primary market by volume. Many other PMSCs normally only provide embarked guards, but may be willing to crew chartered escort vessels on an ad hoc basis if clients request. 67 A few companies, such as Apolake Security Training Services, focus on providing crewing for other PMSCs. Some firms hoping to operate escort vessels go to services like Apolake to arrange qualified personnel.68 Finally, some companies have put up websites and advertised escort services without actually providing any. 69 The private security boom of 2010-2012 brought many inexperienced entrants to the market, hoping to capitalize on governments’ and shippers’ increasing openness to armed PMSCs. These firms seem to have seriously misjudged the nature of the business. While it is possible to provide embarked guards with only five figure startup costs, armed escort vessels are a much more capital-intensive service, generally requiring millions of dollars of investment before oper ations can begin. 70 Some would-be private naval firms started offering es-

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corts without having any on hand—evidently hoping to land contracts that would allow them to quickly purchase, outfit, and crew a vessel. In total, industry analysts estimate that 40-60 percent of merchant shipping in the High Risk Area is protected by some form of armed private s ecurity as of 2013. 71 The great majority of these transits, well over 90 percent, are undertaken by embarked guards, accounting for between $1.15 billion and 1.53 billion in annual revenue.72 The remainder are protected by private escorts. Estimates vary widely, but there are most likely about 10 companies that own or manage their own escorts, accounting for 10-15 vessels presently in regular operation, with at least 25-30 when occasional-use vessels are counted. 73 To date, they have collectively escorted somewhere over a thousand transits in the Indian Ocean and off West Africa—in the process, repelling several attacks, and deterring an unknown number more. 74 In all those incidents, no merchant vessels have been hijacked, and no personnel of private escorts or the crew they protect are known to h ave been killed or seriously injured. Although embarked guards have occasio nally killed civilians in error, no erroneous killings have been reliably a ttributed to private escorts. 75 In all, the private naval sector has operated with remarkable quietness and efficiency.

Convoy Escort Programme The idea of a “private navy” was most dramatically injected into the public consciousness in the fall of 2010, when a group of British maritime insurers publicly announced plans for an armed escort force of their own. The Convoy Escort Programme (CEP) was designed to let insurance firms effectively “cut out the middleman”—instead of giving clients discounts for hiring PVI or Naval Guards, they could operate an anti-piracy fleet themselves, and gain all the profit. The international press was by turns smitten with or alarmed by the idea, with the result of extensive coverage in outlets inclu ding The Times of London, The Independent (UK), and The Economist’s Cassandra blog. Sean Woollerson, the head of the CEP project, even called it a private navy, telling Bloomberg: “We are working on a unique concept to create a legitimate private navy for the shipping industry to complement the existing naval forces to stop this kind of piracy escalating.” 76 The joint undertaking was spearheaded by Jardine Lloyd Thompson (JLT), one of the world’s largest shipping insurance companies, with coo peration from London’s Ascot Underwriting, Chartis (the spun -off “property casualty” division of American International Group), and major shipping firms. 77 The Baltic and International Maritime Council (BIMCO), the world’s largest shipping association, agreed to explore the concept. 78 Other stakeholders brought into the planning and solicited for funding included EU Navfor, the International Maritime Organization, the UK’s Department

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for Transport and Foreign Office, and the U.N. Contact Group on Piracy off the Coast of Somalia. The plan initially envisioned deploying around 20 high-speed patrol boats to suppress piracy in the Gulf of Aden, with estimated startup costs of £10 million ($15.9 million).79 JLT assured The Independent in September that its private naval force would work “under the direct control of the military.” 80 On December 10, Woollerson estimated to Tradewinds that if 27 percent of merchant traffic in the Gulf of Aden used the escort service, the CEP would be able to provide its protection at no greater expense than shipowners were already facing in insurance premiums. 81 Tradewinds reported that the patrol boats would be equipped to launch smaller rigid inflatable boats, but would not have fixed machine gun emplacements. 82 The scheme was projected to be operational by the middle of 2011. In January 2011, JLT awarded a contract to Dobson Fleet Management, a Cyprus-based maritime management firm, to run the CEP. 83 The announcement revealed that the firm would be headquartered in London, with a regional office at an in-theater location yet to be decided. 84 Yet the projections given several months earlier began to slip. A January 23 article in Business Insurance indicated that the planned fleet was down to 16 patrol boats. 85 And by February 18, The Times reported that estimated startup costs had ballooned to $27.5 million—for 18 vessels, each with eight armed security personnel and four crewmembers. 86 Still, the clout of JLT and its partners lent the Convoy Escort Programme credibility and a big name, which Lloyd’s List opined “should confer greater respectability on the process.” 87 The CEP benefitted from top-tier consulting, with the Moore Stephens accountancy group brought on to offer business advice, and the Ince & Co and Holman Fenwick Willan law firms to provide legal counsel. The organizers announced plans to package the escort service with seven days of war-risk insurance from Ascot Lloyd’s Syndicate 1414. 88 Any profits from the scheme, JLT said, would go to the anti-piracy trust fund set up by the U.N. Contact Group. 89 The CEP’s backers entered serious discussions with two promising flag states, Cyprus and the Marshall Islands. The Marshallese government agreed to register 18 patrol boats—each now reported to have a fixed gun emplacement after all. 90 But the U.S. State Department vetoed registering with the Marshall Islands, which it regards as a flag of convenience. As JLT wrangled with governments over registry, piracy off Somalia continued to worsen. The PMSC industry expanded to meet increasing demand—both through private escorts, and embarked guards, which were becoming more widely accepted. In a June 2011 hearing, Lloyd’s Market Association M arine Committee Chairman Andrew Voke testified before the UK’s House of Commons that about 25 percent of vessels transiting the Gulf of Aden and Indian Ocean already employed private security. 91 In July, the Chinese shipping giant COSCO announced that it would be hiring armed private

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security to act as embarked guards on all its ships transiting off the Horn of Africa. 92 Yet the demand for armed escorts that had been spurred by the CEP’s initial flurry of media coverage was starting to wilt. Shippers who had pa rticular need of escorts—such as passenger ships, tankers, cable layers, and survey vessels—had already hired them before the Convoy Escort Programme was announced. Those who had been intrigued by the idea from reading about it from The Economist largely turned to embarked guards, frustrated by the CEP’s overlong gestation. Finally, in October 2011, Cyprus agreed to act as flag state for the CEP’s escorts. 93 Then, in November, Convoy Escort Programme Ltd announced that it would begin operations within five months with a smaller force than originally planned. 94 The new plan would use seven patrol boats formerly in naval service, at a total cost of $30 million. 95 If this first phase were successful, the company said it would consider expanding by an add itional 11 escort vessels, raising the cost to $50 million. 96 The CEP’s supposed resurrection prompted another flurry of news st ories, and again piqued the interest of the shippers. 97 Savvy analysts cautioned against enthusiasm, though, having been burned one too many times by the CEP’s empty promises. 98 Sure enough, legal and financial hurdles delayed the scheme’s implementation, and the planned April rollout never happened. By the middle of 2012, it was becoming clear that attacks were dropping sharply, and the project’s sense of urgency dwindled. Altho ugh the Convoy Escort Programme remains ostensibly in development as of 2013, it is unlikely that it will see the light of day. According to many observers, the CEP has fatally lost credibility within the shipping industry. 99 Even if piracy worsens again to the point that an insurer-funded private navy would be viable, it would likely have to be a fresh start with a new e nterprise.

Typhon In November 2011, just as confidence in the Convoy Escort Programme was ebbing, Reuters reported that a new company had taken up a similar idea.100 Typhon, named after the father of monsters from Greek mythology, proposed to create an anti-piracy fleet to protect convoys of up to ten ships at a time. 101 Yet unlike the insurer-funded CEP, Typhon sought backing from shipping companies and private investors. It was the brainchild of British tech entrepreneur Anthony Sharp, and Simon Murray, chairman of the Anglo-Swiss commodities giant Glencore.102 Reuters said that Typhon had already secured the support of “two major Asian shipping companies.”103 By January 2012, The Telegraph reported that Typhon had secured several high-profile advisors, including Lord Dannatt, Britain’s former Chief of the

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General Staff, General Sir Jack Deverall, former commander of Allied Forces Northern Europe, Admiral Harry Ulrich, former head of U.S. naval forces in Europe, and Peter Ahlas, former chief of marine and insurance for the HSBC banking conglomerate.104 The Abu Dhabi-based convoy scheme was described as consisting of a mothership carrying RIBs, all manned by ex-Royal Marines.105 Typhon claimed to be completing an opening $15 million round of funding. 106 Within the next 24 months, Sharp said he hoped to have 10 vessels in operation.107 “We’ll build this business over three years,” Sharp said, “and sell it to someone like [security contracting conglomerate] G4S or a US equivalent.” 108 He claimed to have a letter from a maritime insurance broker at Lloyd’s, saying that ships traveling with a Typhon convoy could get a 50 percent discount on premiums.109 Typhon’s development continued throughout 2012. At the end of May, the BBC reported on the scheme, disclosing that Typhon was buying three vessels, which it said were “currently being fitted out in Singapore.”110 Each one would be armed with machine guns, and carry about 40 armed personnel and 20 crew. With the aid of the RIBs, Typhon would enforce a 1,000-meter “exclusion zone” around its convoys to prevent pirates from even initiating attacks on client ships.111 Sharp told the BBC: “I have spoken to the underwriters at Lloyds and the expectation is that there will be a 50% to 80% reduction in premiums for customers who use our services.”112 Preparations were then largely quiet until an explosion of coverage in early 2013. On January 6, The Sunday Times of London reported that Typhon would begin operations within the “next few months,” and went on to d escribe the vessels and armaments to be used by the 240 ex-military personnel that the company was seeking to hire. 113 Each 10,000-tonne mothership would be accompanied by “high-speed armoured patrol boats” with speeds up to 40 knots, and “able to withstand Kalashnikov fire.” 114 A former commodore in the Royal Navy was to be in overall command. Notably, The Sunday Times reported that Typhon “aims to sail under a sovereign flag which gives them the legal right to carry weapons into harbour.” 115 Taken at face value, this is inaccurate—merely being flagged to a sovereign state does not confer the right to carry weapons prohibited by local laws on civilian firearm use. This suggests that Typhon may have been seeking status as an official military auxiliary, although this was never made explicit. As Anthony Sharp expressed to The Times, his anti-piracy fleet was intended to be a more cost-effective countermeasure than expensive naval assets. Said Sharp: “Deploying a billion-pound warship against six guys [pirates] with $500 of kit is not a very good use of the asset.”116 Other press coverage that week suggested that Typhon envisioned occasionally including yachts in its convoys—a market that established companies like PVI and Naval Guards generally avoid.117 The Economist added that Typhon “plans to have three large ships by the year end, with at least one based in the Gulf of Guinea, a hotspot for pirate attacks last year, and ten by 2016.” 118 It would also integrate unmanned aerial vehicles into its convoy defenses.

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A Wired feature on January 23 characterized Typhon’s business plan as filling the gap to be left by international navies when they reduce anti-piracy forces due to budget cuts. “The policemen,” Sharp analogized, “are going off the beat.”119 Less than a week later, Typhon released a statement that the “winddown of the [EU Navfor] naval presence in the Gulf of Aden in 2014 is likely to coincide with a major escalation in piracy in the Indian Ocean.” 120 It also highlighted the worsening threat off West Africa, where “there is no UK, [EU Navfor] or US Naval presence (nor is there planned to be).” 121 It continued: “[M]aritime crime is escalating and is spiraling to such levels that the UN Security Council has recognized it as a specific threat to international security (Resolutions 2018 [2011] and 2039 [2012]). It is estimated that the state of Nigeria is losing $1 billion of crude oil through theft every month.” 122 With growing threats to shipping in the offing, some investors saw Typhon primed for success. Sharp claimed to Wired to have raised $40 million in two years,123 implying that $25 million had been raised over the previous twelve months, despite plummeting attacks during that period. According to Wired, Typhon planned to charge shippers $1,000 per day to keep a “virtual watch” on their vessels via “nine different sources” of information.124 Transiting with a convoy would cost $5,000 to $10,000 per day. 125 Yet much remained to be done. Although Sharp insisted “We’ve got personnel. We’ve got clients,” he still hadn’t hired anything but a management team of 15 people.126 Nor had he inked an agreement with Lloyd’s to secure for clients the deep discounts he had spoken of. Nonetheless, Typhon aimed to launch in London on February 7, and have at least one Panamanian-flagged escort in operation by April.127 Yet Sharp and Typhon seem to have been thrown off schedule, likely due to the same diminished sense of urgency that smothered the Convoy Escort Programme. With pirate attacks greatly reduced, and months passing without successful hijackings, both shippers and investors likely questioned the scheme’s viability. On March 24, Sharp was quoted in a press release emphasizing the grave inconvenience caused by even unsuccessful pirate attacks. “Ships who report acts of piracy are then required to dock for long periods lasting up to a year to undergo investigation,” he said.128 “This means severe disruption at a high cost to ships carrying valuable cargo.”129 Further, Sharp warned of the impending drawdown of military forces off the Horn: “It is undisputable that the imminent reduction of Naval presence around the Gulf of Aden will quickly result in increased levels of piracy. Typhon’s unique model will fill the void left by naval withdrawals as we offer a convoy system that will avoid many of the dangers associated with on board armed guards.”130 He continued: “As piracy diversifies, we will also offer off shore protection to rigs and port protection.” 131 It was clearly a bid to resuscitate flagging interest in the company. On March 31, The National, a government-owned daily from Abu Dhabi, reported that Typhon planned to begin operations in July—with no mention of the previous April target.132 The piece changed the starting force back to three

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large motherships, each to carry four to six fast patrol boats to enforce the convoy exclusion zones.133 According to The National, Typhon had already bought the first mothership, and was soliciting conversion bids from yards in Asia and the UAE.134 Then in May, Typhon experienced a reshuffling of its leadership. This was likely partly driven by lingering skepticism of the company within the shipping industry. Anthony Sharp comes across as informed and convincing, but he lacks maritime experience. The Telegraph reported that his career included investment in “start-up travel ventures from lastminute.com to GoAmerica,” taking the independent ATM operator Cashbox public, and launching the commodities distributor Earthshine.135 Perhaps most troubling was Sharp’s remark: “I had the idea for Typhon playing polo one afternoon, thinking about what my next business might be.”136 Taken together with Sharp’s stated intent to sell Typhon off after three years, shippers could not place full confidence in the venture. And so, Sharp stepped down “to take an advisory role on the board,” and was replaced as chief executive by investment banker Penny Freer. 137 With Freer in charge, Typhon put its plans for a private navy on hold, citing the recent drop in attacks off Somalia and competition from cheaper embarked guards.138 Typhon joint operations director Jason Scott told Lloyd’s List that the company still aspires “to develop a fleet of ships,” and that although “it may be that they [will be] involved in a convoy programme … it could equally turn out that they are sent to carry out other duties.”139 Possibilities include operations against illegal fishing, and counter-piracy work off West Africa.140 If Typhon is to see the light of day, though, it must convince clients that it has learned from the CEP’s failures, and that its leadership is serious-minded. That will be a significant challenge, but not an insurmountable one. Even if attacks surge again off Somalia, Typhon is not guaranteed success. Established firms like PVI and Naval guards have long experience, solid credibility among shippers, and the proven effectiveness of their small-fleet model—which may combine to give them a prohibitive advantage in the private naval market.

Key Incidents The private naval forces in operation over the past five years have had r emarkably few notable incidents. The menacing appearance of armed escorts has proven a much more effective deterrent than embarked guards, because pirates can see from afar that a ship is defended, without having to approach and initiate an engagement. On the rare occasions that pirates have attacked an escorted vessel, it has usually been due to misidentification or desperation. On March 2, 2011, the Naval Guards Ltd escort Marshal-5 was sailing in company with a client ship, the Dutch motor yacht Capricorn, in the central Arabian Sea. At around 10:50 AM local time, both ships came under

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fire from a skiff of pirates. 141 While the owners of the Capricorn retreated to designated hiding places, the Marshal-5 took evasive action and began returning fire with its machine guns. After an intense shootout, the pirates gave up. Shortly after the incident, Naval Guards’ operations chief Thomas Jakobssen gave an interview to the maritime security website gCaptain detailing the engagement and expressing surprise that the pirates dared to a ttack the yacht with an armed escort sailing just 100 meters away. “The p irates are becoming more aggressive,” Jakobssen said. 142 “Our team was on board a grey ship with military markings in very close proximity to the Capricorn. These pirates were likely on their way home empty-handed and desperate for whatever they could get.” 143 The only serious adverse incident so far occurred in late December 2010, when a PVI escort boat carrying four armed guards was forced to make an unscheduled stop for repair and resupply at the port of Massawa, Eritrea. 144 Before their stop, the men had been en route to an anti-piracy escort mission in the Gulf of Aden. Outfitted for combat, and apparently wishing to avoid scrutiny from the local authorities, they deposited some of their arms and equipment in a hidden cache on a nearby island, including “sniper weapons fitted with silencers, telescopes, distance -monitoring equipments,” and “optics, radios, helmets, body armour and navigation equipment.” 145 On Christmas Eve, the men tried to leave Eritrean waters without pe rmission from the authorities, and vessels from the Eritrean navy tried to intercept them. They made “an attempt to flee,” not stopping until the Eritreans fired warning shots into the sea around them with their machine guns. 146 After their arrest, the escort boat was searched, and the men repor tedly admitted the existence of the weapons cache. The find stunned and outraged the government of the small Red Sea nation, which released a te levised statement asserting that “there is high possibility that such military hardware is intended for perpetrating acts of terrorism and sabo tage.” 147 According to Eritrea’s foreign ministry, the British nationals “fully a dmitted” having carried restricted armaments onto its sovereign soil and ha ving tried to escape. 148 The men, who had no access to lawyers, had “expressed regret for their actions,” the Eritreans said. 149 Convinced of their criminality, the authorities denied them access to their counsel, even as di plomatic relations with the UK frosted over as a result. On February 10, a Foreign Office spokesperson announced that it had been “urgently seeking consular access since [it] became aware of their detention.” 150 The requests had been rebuffed. “We are deeply concerned,” the spokesperson continued, “at the failure of the Eritrean authorities to allow us to speak to or visit the men. The minister for Africa, our ambassador and other officials continue to demand access.” 151 Protection Vessels International released a statement insisting that the weapons had been cached on the island of Romia for innocent reasons. The

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men, it said, wished to avert the “potentially threatening presence of an armed security company making a normal port call for resupply.” 152 Weeks dragged by, then months, but still the Eritreans held PVI’s crew incommunicado. The company took on a contrite tone, acknowledging “that its personnel mishandled the situation.” 153 The statement added: “We deeply regret the situation we find ourselves in ... We simply needed to conduct a port call and we very much regret any misconception of presenting a threat to the president of Eritrea and to the Eritrean people." 154 At the start of May, the UK’s Foreign Secretary William Hague was r eported to have instructed the British embassy in Asmara to “raise the urge ncy of the issue ‘as a matter of priority.’” 155 With the men’s captors still not budging, the Foreign Office informed the Eritrean ambassador in London that sanctions were being enacted, effective immediately, to restrict the movements of Eritrea’s diplomats in the United Kingdom. 156 On May 20, the Tory-Liberal government added further pressure by informing Asmara that it was in breach of the Vienna Convention on Diplomatic Relations through a tax it was levying on Eritrean citizens living in the UK. 157 Only then did the Eritrean government relent and return PVI’s four employees, who were released in the second week of June. 158 Although the episode was resolved peacefully, the maritime security industry learned that the dangers of its operations extend far beyond combat with pirates. Sove reign states, the UK in particular, learned of the diplomatic entanglements that can stem from the actions of contractors over which they have little oversight. On the whole, the first five years of private escort operations against Somali pirates have been strikingly uneventful. In part, this is due to escorts vessels’ scarcity relative to embarked guards, but also owes to high stan dards of professionalism. The capital investment and expertise required to run anti-piracy escorts discourages the sorts of amateurish firms that have entered the embarked guards market. Indeed, firms providing escort services have been and remain at the forefront of industry-led regulation. As we will explain in Chapter 5, they have significant economic incentives to do so.

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Notes 1. Based on piracy data compiled by the ICC International Maritime Bureau’s Piracy Reporting Centre, and made available to the authors upon request. 2. Catherine Zara Raymond and Arthur Morriën, “Security in the Maritime Domain and Its Evolution Since 9/11,” in Lloyd’s MIU Handbook for Maritime Security, eds. Rupert Herbert-Burns, Sam Bateman, and Peter Lehr (Boca Raton, FL: Auerbach Publications, 2008), 8. 3. United Nations General Assembly, United Nations Convention on the Law of the Sea (UNCLOS), adopted December 10, 1982, 1833 UNTS 3 (entered into force November 16, 1994), Article 19, https://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm (accessed May 26, 2013). 4. Under the United Nations Convention on the Law of the Sea and other relevant documents in international law, piracy must by definition occur in international waters. When the same crimes occur in territorial waters, they are technically considered sea robbery. Thus, most Malaccan piracy was not legally piracy at all. But even using the broader definition of piracy as crime against civilian shipping at sea, there are major functional differences between the Malaccan and Somali piracy epidemics. Data compiled by the ICC-IMB Piracy Reporting Centre shows that the great majority of successful attacks on ships in the areas of Indonesia, Malaysia, and the Malacca Straits were merely boardings. Those pirates would rob cash and valuables from crew and cargo, and sometimes kidnap persons for ransom. By contrast, the majority of successful attacks in the Gulf of Aden, Red Sea, and Somalia areas were hijackings, in which ship, cargo, and crew were sailed to the Somali coast and all ransomed together. 5. Neil Roberts (Lloyd’s Market Association executive), correspondence with authors, email, April 10, 2013. 6. Tracy Sua, “For Hire: Guardians of the Sea,” Straits Times, April 15, 2005. 7. Sua, “For Hire.” 8. Agence France-Presse, “Malaysians Reject Private Armed Escorts,” China Post, May 21, 2005, http://www.chinapost.com.tw/news/2005/05/21/62727/Malaysians-.htm (accessed April 6, 2013). 9. Agence France-Presse, “Malaysia to Allow Armed Escorts in Malacca Strait,” Taipei Times, June 6, 2005, http://www.taipeitimes.com/News/front/archives/2005/06/06/2003258144 (accessed April 6, 2013). 10. Mark J. Valencia, “Mercenaries in the Strait of Malacca,” Jakarta Post, July 28, 2005, http://www.thejakartapost.com/news/2005/07/28/mercenaries-strait-malacca.html (accessed April 6, 2013). 11. Wahyudi Soeriaatmadja, “Indonesia Rules out Private Armed Escorts in Malacca Strait,” Bloomberg, May 2, 2005, http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aRlpGcMYBSME&refer=asia (accessed April 6, 2013). 12. Neil Roberts, April 10, 2013. 13. United Nations Security Council, “Report of the Monitoring Group on Somalia Pursuant to Security Council Resolution 1811 (2008),” December 10, 2008, S/2008/769, paragraph 40, http://www.unhcr.org/refworld/docid/494900240.html (accessed April 7, 2013). 14. Jay Bahadur, The Pirates of Somalia: Inside their Hidden World, (New York: Pantheon Books, 2011), 78. 15. Bahadur, 84. 16. Bahadur, 86.

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17. The 2008 United Nations monitoring group report estimated SomCan’s strength at 300 personnel. The estimate of 400 comes from Bahadur, 87. 18. Bahadur, 87. 19. Jonathon Gatehouse, “This Cabbie Hunts Pirates,” Hiiraan Online, last modified January 12, 2009, http://www.hiiraan.com/news4/2009/jan/9336/this_cabbie_hunts_pirates.aspx (accessed April 7, 2013). 20. United Nations Security Council, “Report of the Panel of Experts on Somalai Pursuant to Security Council Resolution 1474 (2003),” November 4, 2003, S/2003/1035, paragraph 147, available for download at www.poa-iss.org/CASAUpload/ELibrary/S-2003-1035.pdf (accessed April 7, 2013). 21. Bahadur, 90. 22. There is one notable exception. Nordic Crisis Management has operated successfully for several years now in Somaliland, training that autonomous region’s maritime security forces. The key difference, though, is that Somaliland’s domestic security and stability are vastly better than in Puntland or other parts of Somalia, making it easier for foreign PMSCs to work with its government. 23. Claude G. Berube, “Anti-Piracy Escorts in the Gulf of Aden,” in Maritime Private Security: Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century, eds. Claude Berube and Patrick Cullen (London/New York: Routledge, 2012), 79. 24. Berube, 79. 25. William Pentland, “Blackwater Floats Private Navy to Fight Pirates,” Forbes, last modified October 23, 2008, http://www.forbes.com/2008/10/23/blackwater-pirates-somalia-biz-logistics-cx_wp_1023blackwater.html (accessed April 7, 2013). 26. James Glanz and Alissa J. Rubin, “From Errand to Fatal Shot to Hail of Fire to 17 Deaths,” New York Times, October 3, 2007, http://www.nytimes.com/2007/10/03/world/middleeast/03firefight.html?pagewanted=all (accessed April 7, 2013). 27. James Risen and Timothy Williams, “U.S. Looks for Blackwater Replacement in Iraq,” New York Times, January 29, 2009, http://www.nytimes.com/2009/01/30/world/middleeast/30blackwater.html (accessed April 7, 2013). 28. Dirk Steffen (risk consultancy executive), correspondence with authors, email, April 10, 2013. 29. Michael G. Frodl (maritime risk consultant), author interview, telephone, April 18, 2013. 30. Berube, 79. 31. U.S. State Department cable reproduced at “A Selection From the Cache of Diplomatic Dispatches: Blackwater Launches an Anti-Pirate Ship,” New York Times (online), last modified June 19, 2011, http://www.nytimes.com/interactive/2010/11/28/world/20101128-cables-viewer.html#report/blackwater-09DJIBOUTI113 (accessed April 6, 2013). 32. Berube, 79. 33. State Department cable, “Blackwater Launches an Anti-Piracy Ship.” 34. State Department cable, “Blackwater Launches an Anti-Piracy Ship.” 35. State Department cable, “Blackwater Launches an Anti-Piracy Ship.” 36. Berube, 80. 37. Margaret Coker, “U.S. Military Aid is Available for Hire in Yemen,” Wall Street Journal, January 4, 2011, http://online.wsj.com/article/SB10001424052970204204004576049660513491614.html (accessed April 6, 2013). 38. Coker, “Available for Hire.”

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39. Ellen Knickmeyer, “The Privateers of Yemen,” Foreign Policy, November 17, 2010, http://www.foreignpolicy.com/articles/2010/11/16/the_privateers_of_yemen (accessed April 6, 2013). 40. Coker, “Available for Hire.” 41. Although Ellen Knickmeyer’s piece for Foreign Policy preceded the Wall Street Journal piece by about six weeks, the WSJ coverage grabbed broader attention, and provoked more intense debate. 42. Spencer Ackerman, “Yemen Pimps U.S. Ships for Pirate Protection,” Wired.com, last updated January 4, 2011, http://www.wired.com/dangerroom/2011/01/big-pimping-yemen-uses-u-s-ships-for-side-gigs/ (accessed April 6, 2013). 43. Gerry Northwood (GoAGT Chief Operating Officer), author interview, telephone, April 5, 2013. 44. Barry Roche (PVI Chief Executive Officer), author interview, telephone, March 25, 2013. 45. Charlotte Eagar, “To Catch a Pirate: The British Ex-Servicemen Battling to Protect International Shipping from the Clutches of Somali Pirates,” Daily Mail, December 20, 2011, http://www.dailymail.co.uk/home/moslive/article-2071108/British-ex-servicemen-battling-protect-international-shipping-Somali-pirates.html (accessed April 7, 2013). 46. Protection Vessels International, “Our Vessels,” PVI Ltd, http://www.pviltd.com/ (accessed April 7, 2013). 47. Dom Mee, interview with Peter Cook, Maritime Security Review, last modified September 22, 2010, http://www.marsecreview.com/2010/09/interview-with-dom-meeof-protection-vessels-international/ (accessed April 7, 2013). 48. Isaac Arnsdorf, “Ex-Marines Fighting Pirates off Africa as World Shipping Lanes Attacked,” Bloomberg, October 18, 2011, http://www.bloomberg.com/news/201110-17/ex-royal-marines-fighting-somali-pirates-as-world-shipping-lanes-attacked.html (accessed April 7, 2013). 49. Thomas Jakobsson (Sea Marshals Chief Executive Officer), correspondence with authors, email, April 8, 2013. 50. Jerker Svensson, “Välkommen till min Hemside,” jerkersvensson.se (Swedish language), http://jerkersvensson.se/ (accessed April 7, 2013). 51. Naval Guards, “Marshal-5 (Larger Vessel),” navalguards.com, last modified November 17, 2010, http://www.navalguards.com/index.php?option=com_content&view=article&id=11&Itemid=10 (accessed April 7, 2013). 52. Thomas Jakobsson, author interview, telephone, May 28, 2013. 53. A third sister ship, the SS Guardian, is on contract in a different industry, and not presently in the anti-piracy escort market. Jordan Paisley (Britannia Maritime Security executive), correspondence with authors, email, April 15-16, 2013. 54. Security Association for the Maritime Industry, “Britannia Maritime Security,” SAMI, http://www.seasecurity.org/directory/britannia-maritime-security/ (accessed April 7, 2013). 55. Britannia Maritime Security, “Escort Vessels,” britanniamaritimesecuirty.com, http://www.britanniamaritimesecurity.com/360-shield/ (accessed April 7, 2013). 56. All these companies still advertised escort vessel services as this book goes to press in summer 2013, but none would speak to the authors on the record about their operations. See: Advanfort, “Counter-Piracy Solutions,” Advanfort, http://www.advanfort.com/index.php?page=services&services=counter-piracy-solutions (accessed July 26, 2013); Decatur Maritime Security, “Decatur ‘Challenger,’” Decatur Maritime Security, http://decatur-ms.com/DECATUR_MARITIME_SECURITY/Capabilities.html (accessed

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July 26, 2013); Marque Star, “Our Services,” Marque Star, http://marquestar.com/services.html (accessed July 26, 2013); Trident, “Anti-Piracy & Escort Services,” Trident Crisis Management Group, http://www.tridentcmg.com/SecurityCT/piracy.html (accessed July 26, 2013). 57. Jim Jorrie (Espada Chief Executive Officer), author interview, telephone, April 16, 2013. 58. Jim Jorrie, April 16, 2013. 59. Drum Cussac, “Vessel Escorts,” drum-cussac.com, http://www.drum-cussac.com/divisions.php?division_id=5&service_id=89 (accessed April 7, 2013). 60. Andrew Nicholson (Drum Cussac executive), author interview, telephone, April 9, 2013. 61. Andrew Nicholson, April 9, 2013. 62. Mark Mazzetti and Eric Schmitt, “Private Army Formed to Fight Somali Pirates Leaves Troubled Legacy,” New York Times, October 4, 2012, A1, available online at http://www.nytimes.com/2012/10/05/world/africa/private-army-leaves-troubled-legacyin-somalia.html?pagewanted=all (accessed July 26, 2013); United Nations Monitoring Group on Somalia and Eritrea, Report of the Monitoring Group on Somalia and Eritrea Pursuant to Security Council Resolution 1916 (2010), United Nations Security Council, June 20, 2011, U.N. Document S/2011/433 (2011), available for download at http://reliefweb.int/sites/reliefweb.int/files/resources/Full_Report_1869.pdf (accessed July 25, 2013), Annex 6.3, 273 and Annex 6.4, 301. 63. In September 2010, the Eaton arrived in Djibouti, where Afloat Leasing represented the vessel to local authorities as an “OSV” (offshore supply vessel), and obtained a 30-day operating license to operate from the port with armed personnel aboard. According to the U.N. Monitoring Group on Somalia and Eritrea, “the Djiboutian license permitted Afloat Leasing to equip their securit y personnel with 9 AK47 assault rifles and one Browning BAR.208 automatic rifle, leased from the Djibouti Government.” At a subsequent port of call in Mombasa, Kenya, the Eaton’s personnel gave “vague and inconsistent replies” as to its purpose— variously as a research vessel, support vessel, and piracy-fighting vessel. This was part of a pattern of suspicious transits that led the Monitoring Group to believe that Afloat Leasing was part of an effort by Saracen International to bring weapons into Somalia in violation of the U.N. arms embargo. See: Report of the Monitoring Group on Somalia and Eritrea Pursuant to Security Council Resolution 1916 (2010), 255, 3028; International Code of Conduct for Private Security Service Providers Association, “The International Code of Conduct for Private Security Service Providers Signatory Companies: Complete List as of 1 June 2013 – Version with Company Details,” ICOCPSP, June 1, 2013, available for download at http://www.icoc-psp.org/uploads/Signatory_Companies_-_June_2013_-_Composite_List.pdf (accessed July 25, 2013), 7. 64. MV Sea Patrol, “Vessel Specification,” mvseapatrol.com, http://www.mvseapatrol.com/vessel-specification/ (accessed April 7, 2013). 65. Martin Broughton (Port 2 Port Senior Operations Manager), correspondence with authors, email, April 12, 2013. 66. For links to some of these companies’ websites, see Security Association for the Maritime Industry, “SAMI Members,” SAMI, http://www.seasecurity.org/directory/ (accessed April 7, 2013); The International Code of Conduct for Private Security Service Providers Signatory Companies: Complete List as of 1 June 2013 – Version with Company Details.” 67. Andrew Nicholson, April 9, 2013.

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68. “The International Code of Conduct for Private Security Service Providers Signatory Companies: Complete List as of 1 June 2013 – Version with Company Details,” 17. 69. This has been a significant problem for shippers, because it is quite easy to set up a formidable looking website before actually hiring personnel or obtaining vessels, or conducting protection of a single transit. The Security Association for the Maritime Industry (SAMI) and the ISO 28007 standard, discussed more fully in Chapter 6, have been very helpful in this area. By publicizing the standards to which PMSCs should be held, and establishing a trusted accreditation process, it is easier to weed out incompetent firms. Although some shippers will still voluntarily hire those companies in an attempt to save money, accreditation reduces the risk of shippers being harmed by deceptive business practices. 70. Barry Roche, March 25, 2013. 71. Likely considerably higher than the roughly 35 percent officially reported. Based on estimates including Michael G. Frodl, author interview, telephone, November 29, 2012. 72. In general, PMSC industry observers agree that embarked guards account for somewhere over 90 percent of the market. Accurate estimates are elusive, though, because an unknown proportion of shippers hire unaccredited and unreported embarked guards. SAMI director Peter Cook concurred as of April 2013 with the “more than 90%” figure, but other analysts privately caution against attempting a more precise estimate. Peter Cook (SAMI founder and director), correspondence with authors, email, April 15, 2013. Estimates by the Oceans Beyond Piracy project, taking into account only embarked guards, placed the size of the sector at between $1.15 billion and $1.53 billion for 2012. See: Jonathan Bellish, “The Economic Cost of Somali Piracy 2012,” Oceans Beyond Piracy / One Earth Future Foundation, working paper, 2013, available for download at http://oceansbeyondpiracy.org/sites/default/files/ecop2012final_2.pdf (accessed April 17, 2013), 20. 73. One of the most credible estimates comes from Dirk Steffen, Director of Consultancy at the Danish risk consultancy firm Risk Intelligence. Steffen estimates that 20-25 vessels are in relatively frequent use as of early 2013, although many of these are also sometimes used as floating armories for embarked guards. Dirk Steffen (risk consultancy executive), author interview, telephone, January 11, 2013. 74. The Oceans Beyond Piracy project of the One Earth Future foundation, which has conducted the most thorough quantitative research on piracy-related data, estimates that in 2012, there were 66,612 transits through the High Risk Area. See: Jonathan Bellish, “The Economic Cost of Somali Piracy 2012,” Oceans Beyond Piracy / One Earth Future Foundation, working paper, 2013, available for download at http://oceansbeyondpiracy.org/sites/default/files/ecop2012final_2.pdf (accessed April 17, 2013), 23. If, quite conservatively, 40 percent of those had PMSC protection, and 2.5 percent of those had escort vessels, that is 666 transits per year. This is roughly consistent with the 780 transits if an average of 15 vessels made one transit per week each. Over the course of the three previous full years, at least that many transits again would have been completed, bringing the total to somewhere over 1,332. These numbers are, unavoidably, quite speculative, but better information is not presently available. Similarly, information about escort vessels that have come under attack is quite limited, so while it is possible that a higher number of incidents have occurred, only one has received independent press verification, and even privately, PMSC executives only acknowledge a few incidents that escalated beyond routine warning shots.

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75. Peter Cook, April 10, 2013. 76. Carolyn Bandel and Kevin Crowley, “Somali Pirate Attacks Sink Premiums as Insurers Leap Aboard,” Bloomberg, August 2, 2010, http://www.bloomberg.com/news/2010-08-02/somali-piracy-attacks-surge-premiums-sink-as-more-insurers-leap-aboard.html (accessed April 7, 2013). 77. “A Mercenary Solution to Somali Piracy,” Economist Blogs – Cassandra, December 20, 2010, http://www.economist.com/blogs/theworldin2011/2010/12/mercenaries_hunt_somalias_pirates (accessed April 8, 2010). 78. Baltic and International Maritime Council, “BIMCO’s Executive Committee Meets in Copenhagen,” BIMCO, last modified Novemebr 25, 2010, https://www.bimco.org/en/News/2010/11/25_BIMCOs_Executive_Committee.aspx (accessed April 8, 2013). 79. Cahal Milmo, “Insurance Firms Plan Private Navy to Take on Somali Pirates,” Independent (UK), September 28, 2010, http://www.independent.co.uk/news/world/africa/insurance-firms-plan-private-navy-to-take-on-somali-pirates-2091298.html (accessed April 8, 2013). 80. Milmo, “Insurance Firms Plan Private Navy.” 81. Jim Mulrenan, “‘Private Navy’ is Close to Kick-Off,” Tradewinds, December 10, 2010, 3. 82. Mulrenan, “‘Private Navy’ is Close to Kick-Off.” 83. Michael Bradford, “JLT Plans Launch of Private Navy,” Business Insurance, January 23, 2011, http://www.businessinsurance.com/article/20110123/ISSUE01/301239976 (accessed April 8, 2013). 84. Bradford, “JLT Plans Launch of Private Navy.” 85. Bradford, “JLT Plans Launch of Private Navy.” 86. Miles Costello, “Private Fleet to Fight Pirates,” Times (London), February 18, 2011, http://www.thetimes.co.uk/tto/news/world/africa/article2917975.ece (accessed April 8, 2013). 87. David Osler, “Dobson to Run Anti-Piracy Scheme,” Lloyd’s List, January 25, 2011, 3. 88. Paul Lim, “London Insurance Firms Plan Own Private Escort to Fight Pirates,” International Freighting Weekly, February 22, 2011, available at http://en.shippingchina.com/sailingnews/index/detail/id/23754.html (accessed April 9, 2013). 89. Bradford, “JLT Plans Launch of Private Navy.” 90. Costello, “Private Fleet to Fight Pirates.” 91. “Examination of Witnesses (Question Number 1-41),” UK House of Commons, June 22, 2011, available at http://www.publications.parliament.uk/pa/cm201012/cmselect/cmfaff/1318/11062202.htm (accessed April 9, 2012). 92. Adam Rawnsley, “New Data Shows Pirates Trying More, Succeeding Less,” Wired.com, July 14, 2011. http://www.wired.com/dangerroom/2011/07/new-data-showspirates-trying-more-succeeding-less/ (accessed April 9, 2013). 93. Michelle Wiese Bockmann, “Somalia Piracy Spurs Private Gulf of Aden Navy to Start Within Five Months,” Bloomberg, November 7, 2011, http://www.bloomberg.com/news/2011-11-07/somalia-piracy-spurs-private-gulf-of-aden-navy-to-start-within-fivemonths.html (accessed April 9, 2013). 94. Wiese Bockmann, “Private Gulf of Aden Navy.” 95. Wiese Bockmann, “Private Gulf of Aden Navy.” 96. Wiese Bockmann, “Private Gulf of Aden Navy.” 97. The shipping industry was especially keen to hear about the whether the CEP could find a flag state backer. In February 2011, Lloyd’s List noted with interest that JLT

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intended to “set up its Gulf of Aden anti-piracy fleet as an international private/public partnership of a novel type, according to a confidential business plan for the venture.” It said the CEP would be classed as a “flag naval company,” a term that is not attested anywhere else in the literature. When the CEP secured flagging from Cyprus, it dropped all mention of the flag naval company designation. See: “Controversial Anti-Piracy Plan Revealed,” Lloyd’s List / Lloyd’s List Australia, last modified February 4, 2011, http://www.lloydslistdcn.com.au/archive/2011/02-february/04/controversial-anti-piracy-plan-revealed (accessed April 18, 2013). 98. Perhaps most prescient in his skepticism was Claude Berube (author and scholar on private maritime security), correspondence with authors, email, October 4, 2011. 99. A malaise among investors and lack of urgency among other stakeholders conspire to reduce of the confidence of shipping companies as they plan security for the years ahead. 100. Neil Maidment and Myles Neligan, “UK Security Firms Take up Arms Against Pirates,” Reuters, November 21, 2011, http://in.reuters.com/article/2011/11/21/idINIndia60647820111121 (accessed April 13, 2013). 101. Maidment and Neligan, “UK Security Firms.” 102. Maidment and Neligan, “UK Security Firms.” 103. Maidment and Neligan, “UK Security Firms.” 104. Jonathan Sibun, “Typhon Fights Back Against Pirates,” Telegraph, January 15, 2012, http://www.telegraph.co.uk/news/worldnews/piracy/9016188/Typhon-fights-backagainst-pirates.html (accessed April 13, 2013). 105. Sibun, “Typhon Fights Back.” 106. Sibun, “Typhon Fights Back.” 107. Sibun, “Typhon Fights Back.” 108. Sibun, “Typhon Fights Back.” 109. Sibun, “Typhon Fights Back.” 110. Martin Plaut, “Private Patrol Boats to Tackle Somali Pirates,” BBC News, May 30, 2012, http://www.bbc.co.uk/news/world-africa-18209357 (accessed April 14, 2013). 111. Plaut, “Private Patrol Boats.” 112. Plaut, “Private Patrol Boats.” 113. Nicholas Hellen, “Private Navy Goes to War on Somali Pirates,” Sunday Times, January 6, 2013, http://www.thesundaytimes.co.uk/sto/news/uk_news/Defence/article1189106.ece (accessed April 14, 2013). 114. Hellen, “Private Navy Goes to War.” 115. Hellen, “Private Navy Goes to War.” 116. Hellen, “Private Navy Goes to War.” 117. Mike Schuler, “Millionaire’s Private Navy Ready to Take on Somali Pirates,” gCaptain, January 7, 2013, http://gcaptain.com/private-navy-ready-to-take-on-somali-pirates/ (accessed April 14, 2013). 118. “Privateers – Pirates Facea New Foe: A Private Navy,” Economist, January 12, 2013, http://www.economist.com/news/international/21569386-pirates-face-new-foe-private-navy-privateers (accessed May 2, 2013). 119. Spencer Ackerman, “This Tech Entrepreneur is About to Launch the Blackwater of the High Seas,” Wired.com, January 23, 2013, http://www.wired.com/dangerroom/2013/01/private-navy/all/ (accessed April 14, 2013). 120. “Typhon Launches Private Maritime Security Service Against Piracy,” Typhon press release, January 29, 2013, available at insurancejournal.com, http://www.insurancejournal.com/news/international/2013/01/29/279187.htm (accessed April 14, 2013).

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121. Typhon, “Typhon Launches Private Maritime Security Service Against Piracy.” 122. Typhon, “Typhon Launches Private Maritime Security Service Against Piracy.” 123. Ackerman, “Blackwater of the High Seas.” 124. Ackerman, “Blackwater of the High Seas.” 125. Ackerman, “Blackwater of the High Seas.” 126. Ackerman, “Blackwater of the High Seas.” 127. Ackerman, “Blackwater of the High Seas.” 128. “Unreported Piracy Incidents Blur Overall Statistics,” Typhon press release, March 24, 2013, available at ae-africa.com, http://www.ae-africa.com/read_article.php?NID=4710 (accessed April 14, 2013). 129 Typhon, “Unreported Piracy Incidents Blur Overall Statistics.” 130. Typhon, “Unreported Piracy Incidents Blur Overall Statistics.” 131. Typhon, “Unreported Piracy Incidents Blur Overall Statistics.” 132. David Black, “Private Navy Set to Tackle Piracy Threat with Convoys,” National (Abu Dhabi), March 31, 2013, http://www.thenational.ae/thenationalconversation/industry-insights/shipping/private-navy-set-to-tackle-piracy-threat-with-convoys (accessed April 14, 2013). 133. Black, “Private Navy Set to Tackle Piracy Threat.” 134. Black, “Private Navy Set to Tackle Piracy Threat.” 135. Sibun, “Typhon Fights Back.” 136. Sibun, “Typhon Fights Back.” 137. Liz McMahon, “Typhon Rethinks its Business Model as Somalia Threat Dwindles,” Lloyd’s List, May 22, 2013, http://www.lloydslist.com/ll/sector/regulation/article423135.ece (accessed July 26, 2013). 138. McMahon, “Typhon Rethinks its Business Model.” 139. McMahon, “Typhon Rethinks its Business Model.” 140. McMahon, “Typhon Rethinks its Business Model.” 141. “Pirates Carry out 3 Attacks in 24-Hours in Gulf of Aden and Indian Ocean,” OceanusLive.org / ForbesWallace Limited, March 3, 2011, http://www.oceanuslive.org/main/viewnews.aspx?uid=00000132 (accessed April 14, 2013). 142. Rob Almeida, “Yacht Crew Rescued from Pirate Attack by Private Security Firm,” gCaptain, March 3, 2011, http://gcaptain.com/yacht-crew-rescued-pirate-attack/?22456 (accessed April 14, 2013). 143. Almeida, “Yacht Crew Rescued.” 144. “FCO Presses Eritrea for Access to Britons Held as Spies,” BBC News, June 10, 2011, http://www.bbc.co.uk/news/uk-13714501 (accessed April 14, 2013). 145. BBC News, “FCO Presses Eritrea.” 146. BBC News, “FCO Presses Eritrea.” 147. Zoe Flood, “Eritrea Accuses Four Detained Britons of ‘Espionage’ and ‘Terrorism,’” Telegraph, June 10, 2011, http://www.telegraph.co.uk/news/worldnews/africaandindianocean/eritrea/8568409/Eritrea-accuses-four-detained-Britons-of-espionage-andterrorism.html (accessed April 14, 2013). 148. BBC News, “FCO Presses Eritrea.” 149. BBC News, “FCO Presses Eritrea.” 150. “Four British ex-Marines Held for Two Months in Eritrea Accused of Spying,” Daily Mail, February 11, 2011, http://www.dailymail.co.uk/news/article-1355888/Arrested-spies-British-ex-marines-held-months-Eritrea.html (accessed April 14, 2013). 151. Daily Mail, “Four British ex-Marines Held.” 152. BBC News, “FCO Presses Eritrea.”

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153. BBC News, “FCO Presses Eritrea.” 154. BBC News, “FCO Presses Eritrea.” 155. Kunal Dutta, “Plea to Free Captured Britons Dismissed by Eritrea’s President,” Independent (UK), May 2, 2011, http://www.independent.co.uk/news/world/africa/plea-to-free-captured-britons-dismissed-by-eritreas-president-2277679.html (accessed April 14, 2013). 156. “Britons Held as ‘Spies’ in Eritrea Have Been Released,” BBC News, June 12, 2011, http://www.bbc.co.uk/news/uk-13742725 (accessed April 14, 2013). 157. BBC News, “Britons Held as ‘Spies’ in Eritrea.” 158. BBC News, “Britons Held as ‘Spies’ in Eritrea.”

Chapter 5

Economic Considerations

Maritime piracy is an industry like any other—when risks are low and profit margins high, piracy flourishes. In Somalia, that industry employs between 1,500 and 3,000 people.1 Investors on land buy shares in a piracy venture, funding weapons and equipment in exchange for a stake in any ransom. 2 These ransoms are typically paid by shipowners’ insurers, or by the families of the hostages.3 The value of a ransom is influenced by the size and worth of the ship, but just as important is the nationality of the captive seafarers. According to the World Bank: “On average, having a crewmember from a high-income [$11,000+ nominal GDP per capita] country increases the ransom payment by 31-38 percent.”4 Although an alternate calculation method yields an increase of only 20 percent, the World Bank concludes that it still “seems clear that pirates indeed use crew nationality information to extract higher ransoms.” 5 Hostages from poor countries may languish for months or years while relatives try to raise the funds—of the 589 held captive in 2012, a mere 2 percent came from OECD6 countries.7 Still, a combined $315-385 million in ransoms has poured into Somalia, fueling over a thousand attacks since 2005.8 And despite 13 U.N. Security Council resolutions and counter-piracy operations by more than 40 nations, governmental responses were not enough to suppress piracy on their own. 9 The reason is that even though navies scored many successes against the pirates, the return on investment for piracy was still high enough for the industry to thrive. The percentage of attacks that led to successful hijackings varied between 20 and 35 percent for the early part of the epidemic, only dropping below that once merchant ships took better precautions and use of private security increased.10 During 2012, pirates’ success rate actually rose from 14 percent to 41 percent, largely because the remaining pirates learned to be more judicious in their attacks. To decisively suppress piracy, its return on investment must be made unfavorable.11 A 2013 World Bank analysis concluded that this might require that pirates’ “success rate would have to fall to as low as 2.85 percent,” and could be no higher than 11.5 percent.12 Put bluntly, the challenge isn’t killing pirates—it’s killing their profits. For the purpose of driving down pirates’ success rate, and therefore return on investment, conventional militaries are not a good fit for the task.13 Navies have overwhelming firepower, but it is concentrated in a small number of powerful warships. By contrast, pirate boats are cheap and numerous, and threaten an area larger than Western Europe. As Stephen L. Caldwell, director of maritime 75

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security at the U.S. Government Accountability Office, puts it: “If you look at the resource equation, you’ve got a billion-dollar warship—whether it’s U.S. or Dutch or German or Chinese or Indian—you’ve got this billiondollar flyswatter to swat a fly.” 14 Although regular navies vastly improved their effectiveness through better reconnaissance and coordination over the past three years, the sheer scale of the ocean meant that warships could only protect a small fraction of potential targets. A vivid analogy author John-Clark Levin likes to draw when speaking on the subject is FIFA football. Navy warships are like Iker Casillas, the top goalkeeper in the world. Although Casillas can block almost any shot he can reach, if a dozen small children are taking shots on goal simultaneously, even Casillas cannot keep all the balls out of the net. In conceptual terms, private maritime security exists to fill an economic mismatch between the threat, pirates—and the standard remedy, international navies. Ruining pirates’ return on investment requires shrinking the pool of ships that are vulnerable targets. Armed PMSCs both limit pirates’ opportunities for ransom, and introduce substantial risk to hijack attempts. For the most part, pirates are profit-seeking criminals with no desire to die needlessly. Just by making their presence known, and firing warning shots if pirates approach, embarked guards and escort vessels can almost always persuade would-be hijackers to wait for easier prey. As unguarded ships become harder to find, more pirate gangs must return to port empty-handed, and backers ashore see their return on investment collapse. The past three years have strongly confirmed this way of looking at the problem. Naval patrols on their own were unable to turn the tide against Somali pirates from 2008 through 2010. Despite many successful anti-piracy operations, the overall problem continued to worsen. Yet 2011 saw two major changes— increased PMSC use, and better adherence to Best Management Practices. Both of those factors made large numbers of ships safe from piracy, strangling pirate gangs’ flow of income.15 This significantly contributed to the decline in attacks throughout 2012, and into 2013. Unlike regular navies, which must also have the capability to defeat other blue-water navies, and to defend themselves from aircraft and missiles, PMSCs can narrowly tailor their capabilities to meet the task of dete rring lightly armed pirates. Just as importantly, they have the flexibility to adapt to changing threat conditions more nimbly than militaries can. The free market gives firms feedback about which services are cost-effective for clients, and which are not. In this way, the private security industry natura lly conforms to the needs of other stakeholders. Policymakers in government lack this feedback mechanism when deciding how to commit military assets to anti-piracy operations. PMSCs are subject to one fundamental economic imperative—they must save the private sector more money than they cost. This is equally true of both of embarked guards and escort vessels. Individual shipping comp anies have varying security needs, and each must weigh the costs of various

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types of private security against the benefits they offer. Collectively, these calculations determine the size of the market for PMSCs in general, and also the proportion of shippers that choose to hire escort vessels.

Savings and Costs of Using Private Security There are several ways in which PMSCs can save clients money. The most obvious is direct loss prevention—that is, when private security thwarts or deters attacks that would deprive clients of valuable property. Yet the mo dern shipping industry has a highly efficient market for aggregating and transferring risk through insurance. Thus, although the shipping industry as a whole bears the cost of piracy through premiums, the direct risk from a ttacks is usually borne by insurers and re-insurers. This gives the insurance industry an incentive to encourage the use of private security, through di scounted premiums, lobbying for more permissive PMSC laws—or even, as with the still-unrealized Convoy Escort Programme, private navies of its own. An even larger saving can come from reducing the need for even more expensive anti-piracy countermeasures. The Best Management Practices outlined in BMP4 urge merchant ships to transit threatened waters at over 18 knots, because no ship traveling at that speed has yet been hijacked by Somali pirates. 16 Yet such speeds burn frightful amounts of fuel. For some ships, this can amount to hundreds of thousands of added dollars per transit.17 At any rate, large bulk carriers and supertankers usually are not fast enough to reach 18 knots even if they want to. 18 Within the faster container trade, many shipping companies adopted the practice of “slow steaming” to cut back on fuel costs when the 2008-2009 Great Recession clobbered chartering rates. Slow steaming lowered co ntainer ship speeds from about 25 knots to 20 knots. 19 This 20 percent reduction in speed reduced fuel consumption by 40 percent. 20 Even greater savings can be achieved through the practice of “super slow steaming,” which reduces speeds to 15 knots or less. 21 The Maersk shipping line has pioneered super slow steaming at only 12 knots, reportedly slashing fuel co nsumption by an additional 30 percent, and saving tens of millions of dollars per year. 22 Yet for a valuable containership to loaf along at 12 knots through the HRA is to invite hijacking attempts. Although BMP4 explicitly cautions against using private security to replace other precautions like high speed, many shippers feel that armed protection counterbalances the added risk of a slower transit. 23 Quantitative research shows the significance of this trend. Satellite data gathered from ships’ Automatic Information System (AIS) reports shows that ships are transiting the High Risk Area more slowly. From 2011 to 2012, the excess fuel costs of steaming at higher than-optimal speeds plummeted 43.3 percent, amounting to a $1.17 billion

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saving for the shipping industry. 24 Much of this is attributable to use of PMSCs. 25 A related issue is ship routing. In May 2007, the U.S. Navy warned merchant ships to stay at least 200 nautical miles off the Somali coast, but by April 2009, this was revised to 600 miles. By 2010, pirate action groups were reaching as much as 1,200 miles out into the Indian Ocean. 26 Diverting ships around this ballooning High Risk Area became highly inconve nient, entailing additional fuel and upkeep costs while delaying shipments and reducing the number of transits ships could make in a given year. Worse, pirates threatened the eastern route to the Suez Canal as it passed through the Gulf of Aden, Bab-el-Mandeb strait, and Red Sea. Ships wishing to avoid that risk entirely were forced to take an alternate route t hat stretched all the way down the west coast of Africa, around the Cape of Good Hope, and back into the Indian Ocean. The Cape route tacked several thousand miles and about 15 days onto a typical voyage. 27 By using private security, shippers have felt more comfortable taking the riskier but more direct routes. While the Cape route was a relatively common means of avoiding the HRA in 2010, it became much less common in 2011, and dropped a further 10 percent in 2012. 28 Finally, private security may reduce risks in some areas of shippers’ liability. For example, shipowners may be liable for injuries or death of crewmembers as a result of pirate attacks, especially if sufficient anti piracy precautions were not taken. 29 Seafarers may also sue shippers for compensation for time spent as hostages or the trauma of a pirate hijacking. 30 In May 2012, 11 crewmembers from the 2009 MV Maersk Alabama hijacking filed lawsuits for nearly $50 million against the Maersk, the ship’s owner, and Waterman Steamship, its operator. 31 The suits alleged that both companies were negligent for sailing the ship too close to Som alia, resulting in the hijacking and deadly standoff over the hostage captain. Other cases are underway, even against owners and operators of vessels flying flags of convenience, such as that brought by two crewmen held ho stage for eight months after the Marshall Islands-flagged MV Marida Marguerite was hijacked in 2010. Notably, the Marida Marguerite plaintiffs argued that their shipping companies failed to provide adequate security against piracy. 32 Courts have not yet set a precedent explicitly requiring the use of PMSCs, but such a ruling is not wholly implausible. Although the legal situation—which we discuss in more detail in the next chapter— remains murky, the potential liability if crewmen fall into the hands of p irates suggests some additional monetary value to the protection provided by private security. On the other side of the ledger, using PMSCs imposes a variety of d irect and indirect costs on the private sector. The exact details of these costs are closely guarded secrets within the shipping and maritime insurance i ndustries, but it is still possible to sketch their general breakdown. As of

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2013, embarked guards typically charge roughly $30,000 to $50,000 to pr otect a single transit, 33 with private escorts charging between $50,000 and $100,000. 34 These price ranges can represent significant variance in quality and professionalism, especially among companies providing embarked guards. Yet most observers believe that the shipping industry is quite co nscious of this fact, and that shippers who hire cheaper security know that they are getting service inferior to that of the top PMSCs. 35 Notably, although the most expensive embarked guards charge comparable rates to the cheapest escorts, the most expensive escorts charge a few times what the cheapest embarked guards do. Indirect costs of using private security are harder to measure. During the early part of the Somali piracy epidemic, shippers would have to spend considerable effort vetting PMSCs and coordinating their integration into a vessel’s security plan. Some of this screening would be done P&I clubs, or maritime insurance brokers like Marsh, while other shippers would hire independent risk assessment and consultancy firms to do this work, at a cost of perhaps $10,000 to $20,000. 36 Yet the development of SAMI and the ISO 28007 certification process—discussed at length in the following chapter— has streamlined this process, and drastically reduced the vetting burden on shipping companies. For embarked guards, the 2012 publication of the GUARDCON standardized contract simplified the hiring process further. Escort vessel contracts have been influenced by some of the thinking b ehind GUARDCON, but are entirely separate, and not standardized across the industry. 37 Other costs arise from the logistics of picking up embarked guards or meeting private escorts. In some places, such as Djibouti, Oman, and Sri Lanka, local laws allow private security teams to embark on merchant ships. 38 Elsewhere, such as Yemen, Egypt, and Kenya, laws still forbid or tightly restrict armed guards. 39 Ships sailing from those ports must sometimes make a stop elsewhere to pick up their security detachment. Altern atively, they embark unarmed guards at their port of origin, and then travel to a PMSC-run “floating armory” ship to pick up weapons. 40 Similarly, armed escort vessels must typically meet clients in international waters where they are not subject to domestic firearms laws. The proposed convoy escort schemes—CEP and Typhon, principally—would require clients to rendezvous with groups of other merchant ships sharing protective escort. Time spent moving to rendezvous or waiting for convoys to form would cause some delays in shipping. As of 2013, this is not an issue for most shippers, because low chartering rates and the advantages of slow steaming actually incentivize some delays. 41 As the world economy rebounds, though, there will be more pressure on the shipping industry to move goods to market quickly. The least clear cost of private security is liability. During the first few years of the Somali piracy epidemic, there was great uncertainty within the

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shipping industry about the legal status of PMSCs. 2011 to 2013 have seen rapidly improving professionalization and regulation, and SAMI and the GUARDCON standard contract have done much to reassure shippers. 42 Still, some legal questions remain unanswered, and the resulting potential for liability is unsettling. With the scarcity of legal precedents or authorit ative international declarations, maritime insurers must be unusually spec ulative in pricing the risk of that liability. If courts were to unexpectedly rule against a shipping company after a major disaster, the uninsured losses could be crippling. The silver lining to such a development is that it would allow the industry to better adjust its liability expectations for the future. And so, shipowners and charterers must decide for themselves how the savings and costs described above apply to their own particular circu mstances. For ships and routes that can benefit from super slow steaming, for example, PMSCs may be highly cost-effective. Meanwhile, container ships on fast service from ports hostile to private security may be better off rel ying on their speed and other Best Management Practices to prevent hijackings. Among those that do need PMSC services, some will require escort vessels, some will only be able to use embarked guards, and some will be open to either—making their decision based on what the market offers. For example, cable-laying ships will need escort vessels because embarked guards cannot effectively defend vessels unable to freely maneuver. By contrast, small freighters without wealthy owners may only be able to a fford unaccredited guard teams from Southeast Asia. Between those two extremes are shippers who could afford escort vessels, and might prefe r their defensive capabilities, but will use embarked guards if they can hire them much more cheaply. 43 Supertankers often fall into this category. As discussed in the previous chapter, increasing legal acceptance of embarked guards in 2011 and 2012 allowed them to capture the vast majority of the market. Under this status quo, new private navy schemes are unlikely to win back those shippers that are now happily using embarked guards. One PMSC executive went so far as to characterize the market for escorts of general merchant shipping as “dead.” 44 That said, if new threats such as maritime terrorism render embarked guards inadequate protection, some shippers would switch to escorts quite readily.

The Costs of Piracy The same imperative that drives individual firms’ decisions of whether to hire PMSCs—whether doing so saves them more money than it costs—also applies in principle to the global economy as a whole. In order to unde rstand the situation, then, we must examine the overall costs of piracy. B y doing so, we can assess which affected stakeholders can most plausibly fund private security.

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It is exceedingly difficult make accurate estimates of the full economic toll. A 2013 report by the World Bank studied second-order costs in the form of disrupted trade. It found that “all other things being equal trading partners for which the shortest sea route is through the Affected Region saw the value of their bilateral trade drop by 7.4 percent.” 45 This was the equivalent of “a hypothetical 1.1 percent ad valorem tax on all bilateral goods traded through the Gulf of Aden.”46 Based on this methodology, the World Bank calculated the global cost of piracy in 2010 (the most recent year studied) to be $18 billion with a margin of error of $6 billion.47 While that is certainly a heavy burden, it is spread over large segments of the world’s population, and thus too di ffuse for affected parties to be able to jointly fund private anti -piracy forces. And so, we should constrain ourselves to first-order costs. The most comprehensive analysis to date is that of the Oceans Beyond Piracy (OBP) project of the Colorado-based think tank One Earth Future Foundation. Here, we draw upon its “Economic Cost of Piracy (ECoP) 2012” report, which pegged the total first-order cost of Somali piracy that year at between $5.7 billion and $6.1 billion. 48 According to OBP’s estimate, governments bear roughly 19 percent of this, devoting $14.89 million to prosecuting p irates, and $24.08 million to multilateral organizations aimed at reducing piracy and stabilizing Somalia. 49 As of 2012, the largest governmental cost is military expenditures, which OBP says cost $1.09 billion. 50 Calculating the burden of military operations is a thorny issue, because of disagreement over how to attribute costs. While warships, aircraft, pe rsonnel are all used on anti-piracy missions, they are already budgeted for normal peacetime use, and would have to be paid for whether or not they were operating off the Horn of Africa. Conservative estimates focus on costs like extra fuel consumption, redeployment to the Indian Ocean, and anti-piracy training and equipment. OBP’s report limits itself to studying these additional costs, which would presumably not be incurred normally. 51 The $1.13 billion governmental burden is shared by hundreds of millions of taxpayers around the world—and therefore just as diffuse as second-order costs. The most feasible approach is getting funding from stakeholders in the private sector. According to OBP, the remaining 80 percent of the burden falls mainly on the shipping and insurance industries, where the losses are more direct, and largely concentrated among hundreds, rather than hundreds of millions, of parties. 52 The greatest expense in 2012 was security equipment and PMSCs, which cost shippers between $1.65 billion and $2.06 bi llion. 53 This is a particularly difficult cost to assess because of security co mpanies’ unwillingness to disclose their financial information, and because recent years have seen an influx of unaccredited embarked guards, who u ndercut the rates of more respectable PMSCs, but whose use goes largely unreported. 54 The next largest expense was increased speeds by merchant ships in the High Risk Area to reduce the risk of attacks. The extra fuel

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consumption from traveling faster than optimal cost the shipping industry about $1.53 billion in 2012. 55 Re-routing ships through safer waters imposed an additional $290.5 million. 56 Another $471.6 million was hazard pay for crews and lost productivity by hostages. 57 Also difficult to assess are the costs of ransoms and insurance, because that information is rarely disclosed publicly. OBP estimates that in 2012, pirates were paid $31.75 million in ransoms—a highly encouraging 80.1 percent drop from the year before. 58 There were also ancillary costs, namely “the cost of delivering the ransom, damage caused to the vessel while it is held, and the cost of negotiators, consultants and attorneys’ fees.” 59 Perhaps the largest factor is a hijacked ship’s lost income. “At a hire rate of $17,500 per day,” the 2012 report notes, “a bulk carrier held hostage for six months could cost as much as $3.15 million in unrealized rates alone.” 60 Some estimates suggest that all these associated costs amount to several times the cash value of ransoms. Stephen Askins of the Ince & Co law firm, for e xample, places the ratio at five-to-one. 61 OBP preferred to use a much more conservative one-to-one ratio in the ECoP 2012, though, bringing the total cost of recovering hijacked vessels to about $63.5 million. 62 Ransoms and ancillary expenses are typically paid through kidnap and ransom (K&R) insurance. Meanwhile, risks of injury to crew and damage to vessels are covered by war risk insurance. War risk coverage is mandatory for merchant ships transiting the war risk area, as defined by the Joint War Committee of Lloyd’s Market Association. 63 There is substantial disagreement about the profitability of these insurances. According to OBP, “Some analysts and commentators have reported rate decreases resulting from the decrease in reported attacks, while others have predicted across-the-board rate increases due to the continued risk and questions about underrepor ting.” 64 Still, the ECoP report is intended to assess piracy-related costs across the international economy as a whole, so even if insurers profit, shippers lose money that they could—but for piracy—put to a more productive use. 65 OBP estimates that war risk premiums for a transit through the High Risk Area cost approximately 0.10 percent of a ship’s total hull value. 66 This can be discounted in several ways. Insurers offer a “no claims bonus” for not having filed piracy-related claims, and may add an additional discount for purchasing K&R insurance. 67 Discounts for using PMSCs likely reduce premiums by about 40 percent. 68 Meanwhile K&R premiums depend heavily on how vulnerable similar vessels have been in the past. Merchant ships are generally divided into two broad risk categories. “Low and slow” vessels like tankers and bulk carriers often have freeboard low enough to facilitate boarding, and don’t move fast enough to evade pirate skiffs. OBP found that buying K&R insurance for one transit by a low and slow vessel averages $12,500. 69 By contrast, “high and fast” container ships, rollon/roll-off ships, and car carriers are much harder to hijack, and may only

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be charged $7,500 per transit. 70 In total, piracy imposed about $550.7 million in insurance costs during 2012. 71 The two areas of the private sector that bear most of the above burdens are shipping companies and insurance companies. The concentration of losses among these stakeholders is sufficient to allow them to financially support private security forces. The past five years have demonstrated that, at least over the short term, some form of PMSC protection is economically attractive to a majority of the merchant shipping in the High Risk Area. The discounts insurers have consistently offered to PMSC-protected ships confirm the benefit to the maritime insurance industry. As discussed previously, private escort vessels are numerically only a small part of the PMSC industry. This was principally for two reasons. First, embarked guards are usually cheaper to hire than escort vessels. S econd, as demand for private security increased, PMSCs could expand embarked guards services much more easily than they could purchase and equip escort vessels. 72 For escorts to remain viable—and for larger private navy schemes like Typhon to become viable—they must cater to those segments of the market whose ship types, routes, and cargos are appropriate for the use of private warships. Purchasing, outfitting and deploying private warships is a capital intensive business, and two funding models have emerged to support it. The first is that which has already been in operation since 2008, in which shi pping companies pay PMSCs, who hire out private warships on a per -transit basis. Because the firms who entered the market during these years were small, deploying no more than a few armed escort vessels, the need for large capital infusions was lessened. The second model is that proposed by the Convoy Escort Programme, in which insurers fund a private navy the mselves. This model relies on economies of scale. That is, insurers take on considerable costs in creating a large anti-piracy force, hoping to cut out the profits of independent PMSCs, and thereby achieve lower per-vessel costs. Deploying a fleet of armed vessels like that envisioned by the CEP or T yphon would entail startup costs of $40 million to $50 million. 73 Because changed firearm laws allowed embarked guards to capture so much of the PMSC market, it is doubtful that the private sector will offer funding on that scale in the near future.

Prospects for Public Funding When the Convoy Escort Programme was first trying to secure financing, its organizers hoped to receive at least partial funding from the European Union or the United Nations—perhaps through the U.N.’s Trust Fund to Support the Initiatives of States to Counter Piracy off the Coast of Somalia. For a time, this seemed plausible. In April 2011, a major summit was held in Du-

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bai jointly organized by the United Arab Emirates’ Ministry of Foreign A ffairs and port operator DP World, entitled “Global Challenge, Regional Responses: Forging A Common Approach to Maritime Piracy.” 74 The conference addressed both public and private options for dealing with Somali pirates, and resulted in pledges of over $5 million to the U.N. anti -piracy trust, which was approximately equal to the funds it disbursed that year in the course of its operations. 75 Yet as U.N. Office on Drugs and Crime fund manager Tuesday Reitano told International Freighting Weekly, the trust would need to take in some $20 million a year to be “internationally c redible.” 76 With the trust itself struggling to achieve credibility, and the regul atory situation still uncertain, the CEP was unable to secure public funding. Yet public funding for private naval forces could again become plaus ible. As will be discussed further in Chapter 9, international navies are unlikely to continue the present pace of anti-piracy missions indefinitely. As of early 2013, Somali piracy has fallen so dramatically that some governments have been lulled into a false sense of security. Major naval task forces have already been reduced—in 2012, EU Navfor was trimmed from 5-10 vessels to 4-7, and NATO warships cut from four to two.77 Although deployments by independent countries increased, those commitments may be reduced as well. If naval presence is reduced too quickly, the economic incentives to piracy may cause a renewed flare-up. Merchant shipping in the area would have to rely much more heavily on private security. In that situation, governments would be torn between the need to protect shipping, and the need to avoid expensive naval deployments. Some public funding of PMSCs—whether through national budgets or international agencies—would be a compromise. Although governments were intensely wary of private security at the start of the epidemic, better regulation and a record of success have changed many policymakers’ minds. In 2012, U.S. Assistant Secretary of State Andrew J. Shapiro said: “The ultimate security measure a commercial ship can adopt is the use of privately contracted armed security teams.”78 Shapiro’s deputy Thomas Kelly said the teams are “demonstrably effective in repelling attacks.”79 Such confidence among governments could potentially translate into funding for PMSCs after the naval drawdown. Still, while the U.S. government strongly encourages the use of embarked guards, it officially reserves judgment on private naval forces in independent vessels.80 Before escort ventures can hope for any public support, they will need to allay governments’ fears about the legal issues discussed in the following chapter. Further, for some form of public-private partnership to be viable, stakeholders would need to share an explicit understanding of its goals and methods. Who’s in operational control? Who sets the rules for the use of force? How should personnel be vetted? Disagreement on any of those questions would derail a public-private venture. Finally, since it is not possible to measure with certainty the losses averted by PMSCs receivi ng public funding, stakeholders would need to agree in advance how to estimate

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their effectiveness. Unless shippers, insurers, and governments could agree on how to measure results per dollar, such a scheme would be unable to improve and adapt over time.

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Notes 1. Quy-Toan Do, “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” World Bank, working paper, April 11, 2013, available for download at http://siteresources.worldbank.org/INTAFRICA/Resources/pirates-of-somalia-main-report-web.pdf (accessed July 23, 2013), 110. 2. Viola Gienger, “Piracy Syndicates Selling Shares to Finance Attacks, U.S. Navy Chief Says,” Bloomberg, April 21, 2011, http://www.bloomberg.com/news/2011-04-21/piracy-syndicates-feed-off-ransom-income-u-s-navy-chief-says.html (accessed July 25, 2013). 3. Jonathan Bellish, “The Economic Cost of Somali Piracy 2012,” Oceans Beyond Piracy / One Earth Future Foundation, working paper, 2013, available for download at http://oceansbeyondpiracy.org/sites/default/files/ecop2012final_2.pdf (accessed April 17, 2013), 13; Heidi Blake, “Paul and Rachel Chandler: Decision to Pay Ransom ‘Will Put Other Pleasure Sailors at Risk,” Telegraph, November 15, 2010, http://www.telegraph.co.uk/news/worldnews/piracy/8133613/Paul-and-Rachel-Chandler-decision-to-payransom-will-put-other-pleasure-sailors-at-risk.html (accessed July 25, 2013). 4. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 96. 5. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 96. 6. The Organisation for Economic Co-operation and Development, an organization of 34 of the world’s wealthiest countries. 7. Kaija Hurlburt and D. Conor Seyle, “The Human Cost of Somali Piracy 2012,” ICC-IMB and One Earth Future Foundation, working paper, June 18, 2013, available for download at http://oceansbeyondpiracy.org/sites/default/files/hcop2012forweb_6.pdf (accessed July 19, 2013), 4. 8. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 1. 9. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 1. 10. Based on data provided to the authors by the Risk Intelligence consultancy firm. Dirk Steffen (risk consultancy executive), correspondence with authors, email, February 11, 2013. 11. “The Human Cost of Somali Piracy 2012,” 3. 12. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 167. 13. If international militaries were allowed to act more aggressively against pirate bosses and bases on land, they would be a much better solution. Unfortunately, this has proven politically unfeasible, often leaving militaries in a defensive, reactive role to which they are poorly suited. 14. Quoted in: Terry McKnight and Michael Hirsh, Pirate Alley: Commanding Task Force 151 off Somalia (Annapolis, MD: Naval Institute Press, 2012), 74. 15. In 2011, Somali pirates received about $159.62 million in ransoms. That plummeted 80.1 percent the following year, so that only $31.75 million in ransoms was paid in 2012. See Jonathan Bellish, “The Economic Cost of Somali Piracy 2012,” Oceans Beyond Piracy / One Earth Future Foundation, working paper, 2013, available for download at http://oceansbeyondpiracy.org/sites/default/files/ecop2012final_2.pdf (accessed April 17, 2013), 3. 16. UK Maritime Trade Operations (UKMTO) Office, et al., BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, Witherby Publishing Group, advice and information booklet, August 2011, available for download at http://www.mschoa.org/docs/public-documents/bmp4-low-res_sept_5_2011.pdf (accessed April 17, 2013), 7.

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17. Oceans Beyond Piracy estimates, for example, that “one very large crude carrier (VLCC) that transited the HRA during October 2012 steaming at 17.9 knots, 5.1 knots above its ideal speed of 12.8 knots, incurs $88,681.74 in additional costs per day.” Over a transit of 3-10 days, that amounts to several hundred thousand dollars. See “The Economic Cost of Piracy 2012,” 22. 18. Automated Information System (AIS) data analyzed by Oceans Beyond Piracy suggests that only 5.39 percent of all tankers transited the HRA at 18 knots or faster during 2012. Virtually all of those will have been smaller, faster tankers. See “The Economic Cost of Piracy 2012,” 24. 19. John Vidal, “Modern Cargo Ships Slow to the Speed of the Sailing Clippers,” Observer (UK), July 24, 2010, http://www.guardian.co.uk/environment/2010/jul/25/slowships-cut-greenhouse-emissions (accessed April 17, 2013). 20. Vidal, “Modern Cargo Ships Slow.” 21. “Slow Steaming, Uphill,” Economist Blogs – Schumpeter, August 1, 2012, http://www.economist.com/blogs/schumpeter/2012/08/shipping-industry (accessed April 17, 2013). 22. Vidal, “Modern Cargo Ships Slow.” 23. Michael G. Frodl (maritime risk consultant), author interview, telephone, February 1, 2013. 24. “The Economic Cost of Piracy 2012,” 3. 25. Michael G. Frodl, February 1, 2013. 26. As described more fully in Chapter 3. The pirates’ range seems to have peaked as of 2012. See “The Economic Cost of Piracy 2012,” 31. 27. Jonathan Saul and Asma Alsharif, “Egypt Unrest Raises Re-Routing Risk after Suez Toll Rise,” Reuters, March 20, 2013, http://www.reuters.com/article/2013/03/20/egypt-suez-shipping-idUSL6N0C6DFZ20130320 (accessed April 17, 2013); For a table of shipping distances via the Suez Canal versus the Cape of Good Hope, also see: Helen B. Bendall, “Cost of Piracy: A Comparative Voyage Approach – Section 1: Shipping Market Analysis,” conference paper, IAME 2009, Copenhagen, available for download at www.maritrade.com.au/publications/IAME-09.pdf, 7. 28. “The Economic Cost of Piracy 2012,” 3. 29. PMSCs are careful to protect themselves against such liability in their hire contracts, according to prominent maritime security law expert Stephen Askins of the Ince & Co law firm. According to these contracts, he says, “hijack of a vessel is not in itself a breach of contract,” as PMSCs can make no absolute guarantees about the effectiveness of their service. These provisions have yet to be tested in court, because no PMSCguarded vessel has yet been hijacked. Stephen Askins (maritime law expert), author interview, telephone, April 10, 2013. 30. Keith Wallis, “Supertanker Crew Aim to Sue over Hostage Ordeal,” South China Morning Post, August 15, 2012, http://www.scmp.com/article/1000406/supertank-ercrew-aim-sue-over-hostage-ordeal (accessed April 17, 2013). 31. Associated Press, “Maersk Alabama Crew Members Sue Ship Owner,” AP / Navy Times, May 26, 2012, http://www.navytimes.com/article/20120526/NEWS/205260306/Maersk-Alabama-crew-members-sue-ship-owner (accessed April 17, 2013). 32. Chris Coughlin, “Rescued from Somali Pirates, Seamen Sue,” Courthouse News Service, June 19, 2012, http://www.courthousenews.com/2012/06/19/47583.htm (accessed April 18, 2013). 33. Based on off-the-record comments by PMSC executives and risk analysts, and supported by Oceans Beyond Piracy calculations. OBP estimates an average daily per-

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guard cost of $1,115.94, with an average transit protected by a three-guard team costing $34,500, and with a four-man team costing $46,000, with small additional costs of SAMI accreditation passed on to clients as well. See “The Economic Cost of Piracy 2012,” 1920. 34. No executives at companies currently providing private escort services spoke to the authors about their rates. However, a rough $50,000 to $100,000 range can be inferred from statements by earlier companies that did publicly reveal their rates, and has been deemed plausible by several observers, most recently Michael G. Frodl, author interview, telephone, April 18, 2013. 35. This is an observation widely shared among industry members and analysts interviewed by the authors, both on and off the record, including Dirk Steffen, author interview, telephone, January 11, 2013; Jeremy Weiss (PMSC executive), author interview, telephone, January 15, 2013. 36. Michael G. Frodl, author interview, telephone, April 18, 2013. 37. Barry Roche (PVI Chief Executive Officer), author interview, telephone, March 25, 2013. 38. “Laws and Guns: Armed Guards on Ships Deter Pirates. But Who Says They are Legal?” Economist, April 14, 2012, http://www.economist.com/node/21552553 (accessed April 18, 2013). 39. David Isenberg, “The Rise of Private Maritime Security Companies,” Huffington Post, May 29, 2012, http://www.huffingtonpost.com/david-isenberg/private-militarycontractors_b_1548523.html (accessed April 18, 2013); as recently as March 2013, the key Red Sea port of Jeddah, Saudi Arabia closed to armed guards. See: “Ports Close to Armed Guards,” IntelligenceOnline.com, March 27, 2013, http://www.intelligenceonline.com/corporate-intelligence/2013/03/27/ports-close-to-armed-guards,107951266-ART (accessed April 18, 2013). 40. Katharine Houreld, “Piracy Fighters Use Floating Armories,” Associated Press / Bloomberg Businessweek, March 22, 2012, http://www.businessweek.com/ap/2012-03/D9TLKOVO0.htm (accessed April 18, 2013). 41. Michael G. Frodl, February 1, 2013. 42. Stephen Askins, April 10, 2013; Douglas Guilfoyle (international law scholar), author interview, telephone, April 15, 2013. 43. Michael G. Frodl, author interview, telephone, April 16, 2013. 44. PMSC executive (off the record), author interview, telephone, January 8, 2013. 45. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 5. 46. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 5. 47. “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 5. 48. “The Economic Cost of Piracy 2012,” 1. After receiving intense criticism for its 2010 and 2011 reports, Oceans Beyond piracy greatly improved its methodology for its 2012 report, which was audited and endorsed by the BIMCO shipping association. “The Economic Cost of Piracy 2012,” i. 49. “The Economic Cost of Piracy 2012,” 3-4. 50. “The Economic Cost of Piracy 2012,” 3. 51. “The Economic Cost of Piracy 2012,” 8-10. 52. “The Economic Cost of Piracy 2012,” 1,3-4. 53. “The Economic Cost of Piracy 2012,” 3. 54. Several PMSC industry members argue that by 2013, the presence of unaccredited, low-quality embarked guards has diminished. Andrew Nicholson, a Drum Cussac executive, said that while such guards are still present in the market, they are “much less

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[prevalent] than 12 to 18 months ago.” This is a welcome trend, but Nicholson warns that there remains a “rush to the bottom” of the PMSC market, largely “driven by financial pressure” and threatening quality of service: Andrew Nicholson (PMSC executive), author interview, telephone, April 9, 2013. 55. “The Economic Cost of Piracy 2012,” 3. 56. “The Economic Cost of Piracy 2012,” 3. 57. “The Economic Cost of Piracy 2012,” 3-4. 58. “The Economic Cost of Piracy 2012,” 3. 59. “The Economic Cost of Piracy 2012,” 12. 60. “The Economic Cost of Piracy 2012,” 12. 61. “The Economic Cost of Piracy 2012,” 12-13. 62. “The Economic Cost of Piracy 2012,” 13. 63. “The Economic Cost of Piracy 2012,” 31. 64. “The Economic Cost of Piracy 2012,” 31. 65. “The Economic Cost of Piracy 2012,” 32. 66. In an exceptionally critical review of Oceans Beyond Piracy’s 2011 report, Venetia Archer and Robert Young Pelton argued that “OBP gets started on the wrong foot by failing to distinguish ‘costs’ from ‘profit.’” Likely influenced by this line of criticism, OBP was explicit in its 2012 report that it considered money spent to mitigate piracy to be a cost of piracy, even if someone ultimately profited. See: Venetia Archer and Robert Young Pelton, “Can We Ever Assess the True Cost of Piracy?” SomaliaReport.com, February 21, 2012, http://somaliareport.com/index.php/post/2867/Can_We_Ever_Assess_the_True_Cost_of_Piracy_ (accessed April 18, 2013). 67. “The Economic Cost of Piracy 2012,” 31. 68. “The Economic Cost of Piracy 2012,” 32. 69. “The Economic Cost of Piracy 2012,” 32. 70. “The Economic Cost of Piracy 2012,” 32. 71. “The Economic Cost of Piracy 2012,” 32. 72. Michael G. Frodl, April 18, 2013. 73. Based on the most recent public estimates of the CEP and Typhon at $50 million and $40 million in startup costs, respectively. In addition to purchase and modification of vessels, such schemes also face steep costs in recruiting, equipping, and training large numbers of personnel. 74. “Dubai Hosts Anti-Piracy Conference,” Al Jazeera, April 18, 2011, http://www.aljazeera.com/news/middleeast/2011/04/20114186721819166.html (accessed April 18, 2013). 75. “Final Declaration of the United Arab Emirates Ministry of Foreign Affairs High-Level Counter-Piracy Conference 2011, co-organised with global ports operator DP World,” ME NewsWire, April 21, 2011, http://www.me-newswire.net/news/3409/en (April 18, 2013). 76. Richard Meade, “Anti-Piracy Fund Poised to Run out of Money Soon,” Lloyd’s List, April 19, 2011, 1, available online at http://www.imo.org/KnowledgeCentre/CurrentAwarenessBulletin/Documents/CAB%20174%20April%202011.pdf (accesed July 31, 2013). 77. “The Economic Cost of Piracy 2012,” 13. 78. Andrew J. Shapiro, “Turning the Tide on Somali Piracy,” Remarks to the Atlantic Council, Washington DC, October 26, 2012, http://www.state.gov/t/pm/rls/rm/199927.htm (accessed April 18, 2013).

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79. Michelle Wiese Bockmann and Alan Katz, “Shooting to Kill Pirates Risks Blackwater Moment,” Bloomberg, May 8, 2012, http://www.bloomberg.com/news/201205-08/shooting-to-kill-pirates-risks-blackwater-moment.html (accessed April 18, 2013). 80. Officials at the U.S. Department of State, correspondence with authors, email, April 18, 2013.

Chapter 6

Legal and Regulatory Issues

Although private naval forces have a history dating back centuries, they still occupy a murky corner of international law. Developments since 2011 have significantly clarified the situation, but there remains a series of fundamental legal issues that must be settled before armed PMSC vessels can gain wide acceptance. First, there is uncertainty about the basic legitimacy of private naval forces. All stakeholders need a clear understanding of the authority under which security contractors use lethal force, and which responsible authorities can license and regulate them. They also need clarity on private navies’ immunities and obligations under international law, and the nature of their relationships to clients. Further, the domestic laws of nations in the region should be explicit about how they treat private warships in territorial waters and in port. There are also questions about who should have jurisdiction over pirates who surrender to PMSC vessels, and what sort of evidentiary burden would fall upon the captors in order to o btain convictions in court. Finally, the law must clarify how stakeholders will share the legal liability that arises from private naval operations.

Legitimacy In 1919, sociologist Max Weber described the state as having a “monopoly of the legitimate use of physical force.”1 The idea is that the state and its organs reserve to themselves the use violence to suppress the lawlessness that would result if everyone were allowed to use force freely. Thus, the military can use lethal force, because it is part of the state. The police can use lethal force, if necessary, because they are part of the state. Yet civilian companies are not part of the state, and do not share in the monopoly. So how can PMSCs use force? No international treaty explicitly governs the legitimacy of private s ecurity companies’ use of lethal force. When private armed vessels are ope rating in an anti-piracy role, their legitimacy comes from a combination of 91

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customary international law and the laws of their flag states. International law has traditionally declared pirates hostis humani generis (“enemy of the human race”), liable to be hunted and killed with legal impunity by an yone. 2 Indeed, piracy is considered the paradigmatic example of universal jurisdiction in international law. Yet the idea of hostis humani generis evolved at a time when summary execution of outlaws was considered a cceptable, and thus does not solve the present problem of bringing pirates to justice. Surer legal footing is needed. The preeminent document in international maritime law is the United Nations Convention on the Law of the Sea (UNCLOS). 3 Article 105 authorizes any state to seize pirate ships or aircraft, and arrest those on board. 4 The courts of that state are authorized to decide the penalties. UNCLOS Article 107 defines these rights as applying to “warships or military ai rcraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.” 5 So if a flag state is willing to provide a private naval company with the imprimatur of its sovereign authority, that company can act legally in the flag state’s name. Jurisdiction over any captured pirates would then pass to the flag state by default. 6 Further, UNCLOS refers to “seizure on account of piracy,” a phrasing that suggests that Article 107 authorization might extend to offensive antipiracy operations, rather than purely defensive ones. 7And so, for any PMSCs that receive official state sponsorship through Article 107, it a ppears that they would have carte blanche to act against pirates in every way a regular warship could. As of 2013, though, Article 107 authorization has not yet been invoked. Instead, private naval companies have exclusively used self-defense as a legitimacy paradigm. 8 Customary international law has long recognized a fundamental right to self-defense when under attack. 9 In 1945, this was explicitly affirmed in the United Nations Charter, which acknowledges in Article 51 an “inherent right of collective or individual self defense.” 10 And so, it is largely uncontroversial that when under direct fire by pirates or other attackers, personnel on a PMSC vessel could respond with lethal force. Yet this most stringent definition of self-defense is inadequate for many real-world defensive situations. Must private escort personnel let a pirate with an RPG fire it at them before shooting back? Certainly not. Since the 19 th century, self-defense has been broadened to justify some cases where force is used preemptively, according to a formulation called the Caroline test. 11 It originates from litigation over the 1837 British destruction of the SS Caroline, in which U.S. Secretary of State Daniel Webster argued that preemptive self-defense can only be used if the necessity is “instant, overwhelming, and leaving no choice of means, and no moment for deliber ation,” and that the use of force extends to “nothing unreasonable or exce ssive.” 12 The Caroline test enshrined these principles as two requirements

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that must both be met in order to justify using lethal force before coming under physical attack. First, an act must be “necessary” —in that less violent alternatives must be either exhausted or unavailable. 13 Second, the act must be “proportionate” to the threat. 14 Yet as leading international lawyer Steven Kay notes, the Caroline test was devised to address the legitimacy of uses of force by sovereign states, and “not intended as between private actors.” 15 This does not mean that it is not applicable—merely that the test doesn’t solve the problem on its own. We must look to subsequent legal developments to see how its principles are applied to the conduct of private individuals. The Rome Statute, a treaty adopted in 1998, established the International Criminal Court for the purpose of prosecuting individuals for grave offenses such as war crimes and crimes against humanity. Article 31 of the Rome Statute excludes a pe rson’s criminal responsibility for an act if “[t]he person acts reasonably to defend himself or herself or another person … against an imminent and u nlawful use of force in a manner proportionate to the degree of danger.” 16 Subordinating judgments of imminence and proportionality to a test of reasonableness is an important innovation. This focuses the issue on how pe rsons should behave given the facts available to them in the heat of the m oment, and protects users of force from being unfairly second -guessed with the benefits of hindsight. According to Kay, the signal precedent for the reasonableness standard in maritime law is the MV Saiga case, in which the International Tribunal for the Law of the Sea held that “use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances.” 17 In addition to international law, most countries’ domestic law addresses the issue of self-defense. If a private escort uses force on the high seas, it is subject to the laws of its flag state—if it uses force in territorial waters, it is subject to local law. 18 These laws vary from jurisdiction to jurisdiction. Under United Kingdom law, for example, both defense of others and preemptive self-defense are considered justified. Writing in Beckford v R (1988), Lord Griffiths said: “The common law has always recognised as one of these circumstances the right of a person to protect himself from attack and to act in the defence of others and if necessary to inflict violence on another in so doing.” 19 Further, Griffiths wrote, “a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.” 20 Notably, he concluded that “self-defence, if raised as an issue in a criminal trial, must be disproved by the prosecution,” otherwise the defendant must be acquitted. 21 Later, R v Owino (1996) held that “a person may use such force as is (objectively) reasonable in the circumstances as he (sub jectively) believes them to be.” 22 This builds on Palmer v R (1971), in which Lord Morris wrote: “It will be recognised that a person cannot weigh to a nicety the exact measure of his necessary defensive action.”23 By contrast, though, UK law generally does not allow lethal force to be used purely in defense of property. Some

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British homeowners have been prosecuted for shooting burglars caught red handed.24 In the United States, protections for persons who use force in self-defense are arguably even more robust. Statutes exist in most states affirming the “Castle Doctrine” that persons in their own homes have no duty to retreat from an assailant before using force.25 California Penal Code Section 198.5 says: “Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril … when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters.” 26 In some states, socalled “stand-your-ground” laws state that there is no duty to retreat anywhere. 27 In other countries including France, Germany, and Australia, self-defense statutes are not quite as extensive, but their legal tests still center around the criteria of necessity, reasonableness, and proportionality that are so common in international law.28 Laws in non-Western countries often treat self-defense differently. In Somaliland and Puntland, it is addressed by Legislative Decree No. 5, dated December 16, 1962, which set forth the Penal Code of the former Somali Democratic Republic. 29 The Code is also influential in other parts of Somalia, as the Federal Government works with international assistance to resu rrect its judiciary. Article 34 (Private Defence) states: “Whoever has committed an act, having been compelled by the necessity of defending his own or another person’s right against the actual danger of an unlawful injury, shall not be punishable provided that the defence is proportionate to t he injury.” 30 In West Africa, another emerging hotbed of piracy, the Nigerian Criminal Code takes a similar position. Article 286 states: “If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary.”31 Article 288 affirms the right to defend others: “In any case in which it is lawful for any person to use force in any degree for the purpose [of] defend defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force” to defend him.32 In the Indian Penal Code, Section 106 (Right of private defence against deadly assault when there is risk of harm to innocent person), there is a notable principle that persons are allowed to exercise self-defense rights even if these carry some unavoidable risk to innocent persons. The Code imagines that a man “is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob.” 33 In such a case, the man “commits no offence if by so firing he harms any of the children.” 34

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Taken together, international law and prevailing domestic laws limit private armed vessels to acting in strictly defensive roles. They will probably be accorded the flexibility to engage attackers who pose an imminent threat but have not yet opened fire—and also to engage attackers who target the client ship exclusively. As will be discussed in Chapter 7, rules for the use of force (RUF) governing PMSC operations are intended to ensure that the conditions for self-defense are met. By using force only in a necessary and reasonable manner, proportionate to the honestly perceived threat, e scorts can probably avoid illegality. It should be noted that this paradigm does not empower PMSC vessels to carry out arrests, and effectively precludes several potential applications of private naval forces. Offensive a ctions against pirates would lack the legitimacy of self-defense, as would smuggling interdiction operations, or armed protection of whaling oper ations against nonviolent environmental activists. Further clarification is also needed as to the spatio-temporal immediacy required for a private escort to exercise self-defense rights on behalf of a merchant ship. For example, it is likely that self-defense rights would be transmitted to the escort when the merchant and escort vessels are sailing together in close proximity and pirate skiffs fire on the merchant —but “oncall” support is a hazier case. 35 Would a helicopter launched from a private armed vessel be allowed to fly in from over the horizon in response to a distress call, and then machine-gun a pirate skiff? And do self-defense rights “time out”? If pirates have already boarded a ship and subdued the crew, can a private escort arrive fifteen minutes or an hour later and open fire on the pirates under the doctrine of self-defense? International law scholar Douglas Guilfoyle says that the law “might not allow self-defense [justification]” in such cases, which amount to “private hostage rescue.” 36 The question remains unresolved, though, because the deadly peril entailed in a hijacking is ongoing and uncertain—quite unlike a knife fight on land, which has a brief period of observable combat, and then definitively ends. Yet the alternative to self-defense—Article 107 authorization under UNCLOS—has even graver problems. While domestic self-defense laws have clear judicial enforcement mechanisms, the UNCLOS regime does not specify the consequences of violating the Convention. 37 In fact, if a private ship not “clearly marked and identifiable as being on government service” conducts a “seizure on account of piracy,” it does not actually break any law per se.38 Thus, it is unlikely that a warship from a foreign navy would have grounds to arrest PMSC personnel who undertook offensive anti piracy operations beyond those justifiable as self-defense. 39 Complaints would have to be directed to the private escort’s flag state, and that state may not wish to take action. 40 Some commentators have proposed yet another option: legitimizing private security through the issuance of letters of marque against pirates. 41 As discussed in Chapter 2, that approach is extremely dubious. Even if courts interpreted anti-piracy operations as falling outside the definition of

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privateering, which is prohibited by the 1856 Paris Declaration, letters of marque are an inappropriate tool. Historically, letters of marque were i ssued by states to privately-operated warships to raid the flagged merchant shipping of another sovereign state on behalf of the issuing state. Such o ffensive operations were acceptable in circumstances when the combatants were clearly defined. But the difficulties in distinguishing Somali pirates from innocent civilians make it dangerous to incentivize private firms to take on such an offensive role. A final, glaring question has dogged private naval companies’ legitimacy. Are they mercenaries? Protocol I of the Geneva Conventions specifies that to be considered mercenaries, persons must, among other things, “take a direct part in the hostilities” and be “neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict.” 42 This definition was affirmed by Article 1 of the United Nations Mercenary Convention, which took effect in 2001. 43 As long as a PMSC does not take part in offensive anti-piracy operations, and limits itself to defensive work protecting merchant ships, it is not taking a direct part in hostilities. 44 Even if private navy personnel were considered to be taking direct part in hostil ities, and not nationals of parties to the conflict, the use of mercenaries is only explicitly illegal for signatories to the U.N. Mercenary Convention. The United States and United Kingdom, two of the largest providers of PMSC services, did not sign. Although international law recognizes certain “peremptory norms” that prohibit all nations from things like genocide, slavery, and maritime piracy, there is no widely recognized peremptory norm against mercenarism. 45 This gap in international law is one of the arguments in favor of a binding U.N. convention regulating private security companies—but so far, none has been adopted. 46

Licensing and Regulation Following from the question of legitimacy is the practical challenge of e nsuring that the companies and individuals using force are qualified to do so. Unlike embarked guards, which are subject to the laws of clients’ flag states, private warships have flag states of their own. These states bear pr imary responsibility for regulating the PMSC vessels that fly their flags. In some cases, those states are up to the task. The United States and the United Kingdom both have robustly-regulated shipping registers, and the rule of law in those countries is generally strong. 47 By contrast, the International Transport Workers’ Federation designates 34 countries as flags of conve nience, whose registers are often used to dodge safety regulations and labor laws. Notable entries on this list include Cyprus, Liberia, Malta, Marshall Islands, Mongolia, Panama, Sri Lanka, and St. Vincent and the Grenadines. 48 A flag of convenience could plausibly authorize unqualified for-

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eigners to act as private naval forces, and then shield them from prosecution if they commit crimes. 49 Flag states know that the international community is unwilling to go to war, or even impose tough sanctions, to rectify such abuses—so they have insufficient incentive to enforce better regulation. As of 2013 the private naval sector has fortunately maintained a clean record, but the vulnerability to flag state exploitation remains a serious problem. Among more conscientious flag states, the Somali piracy epidemic prompted widespread legal changes to facilitate the licit use of PMSCs. At the start of the epidemic in 2008, most governments prohibited civilian use of guns for maritime self-defense. As attacks worsened, and military action proved unable to turn the tide, the shipping industry sought to turn to what Deborah D. Avant calls the “market for force.” 50 And so, shippers lobbied their governments to be allowed to hire private security. In the United States, authorities were particularly quick to recognize the advantages of PMSC protection. In November 2009, just half a year after the Maersk Alabama was famously hijacked, the ship was attacked again off Somalia. This time, there was a team of embarked guards, who deterred the pirates with gunfire. 51 Since then, U.S.-flagged ships have been repeatedly encouraged to use PMSCs, with endorsements by officials up to Assistant Secretary of State Andrew J. Shapiro. 52 Yet while the stance on embarked guards has been explicitly supportive, the United States still reserves judgment on the use of armed escort vessels. 53 State Department officials worry that the role of such vessels is insufficiently defined with respect to their interaction with regular navies, unescorted merchant ships, and suspected pirate ve ssels. 54 They are also concerned that private naval forces could expand beyond their present strictly defensive role, and eventually take on more o ffensive roles. 55 Still, the United States does not interfere with companies wishing to hire what it calls PCAEVs—Privately Contracted Armed Escort Vessels. In 2011, other major maritime nations began changing their policies on PMSC use. On July 1, Norway issued exemptions to its domestic firearms laws, permitting shipping companies threatened by piracy to use armed guards on Norwegian-flagged vessels.56 The rule change required shippers to provide documentation of the vetting and training of security personnel to the Norwegian Maritime Directorate. 57 They would additionally need to apply for a firearm permit from local police, which would authorize ca rriage of automatic weapons up to 7.62 mm, or semiautomatic weapons up to 12.7 mm. 58 As noted in Chapter 3, these new rules also specified shippers’ obligations with regard to due diligence, insurance, operating procedures, use of force, and incident reporting. Perhaps most importantly, Norway’s Ship Safety and Security Act explicitly authorizes prosecution of PMSC personnel or a ship’s master for excessive or improper use of lethal force. 59 This clear, comprehensible framework was hailed by shippers and lawyers alike, with Chris Greiveson of the Wikborg Rein law firm telling Lloyd’s List: “Norway has done a great service to its shipowners.” 60 Less than a week after Norway’s

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changes, Panama—the world’s largest flag state by tonnage—issued Merchant Marine Circular MMC-228. This circular authorized Panamanianflagged ships to carry embarked guards, and set forth the documentation requirements for those that chose to do so. 61 In October 2011, the United Kingdom followed suit, when Prime Minister David Cameron stated that his government would allow UK -flagged ships to carry armed guards as a defense against piracy. Under Britain’s Firearms Act of 1968, civilian use of guns has been tightly regulated, and until Cameron’s announcement, the government had “strongly discouraged” the use of PMSCs. 62 “We are now going to say to British flag ships that they will be licensed if they want to have security guards, armed guards, on those ships,” Cameron said. 63 The Home Office took on the task of overseeing licensing, but this focused on regulating the carriage and use of firearms and ammunition. The Home Secretary also oversees an independent body that regulates British PMSCs themselves. The Security Industry Authority administers the UK’s Approved Contractor scheme, and facilitates partne rships between the government and security industry trade organizations. 64 The Security in Complex Environment Group (SCEG) is the official Indu stry Partner, taking the lead in national-level accreditations and promotion of best practices. 65 The British Association of Private Security Companies has similar goals. None of these groups have a maritime focus, though. The month following the British about-face on PMSCs, Greece announced a similar measure, which allowed firearms on Greek-flagged ships, and also provided guidance on private security use by the roughly 500 Greek-owned ships flying flags of convenience. 66 Then, in February 2012, the UK strengthened its new pro-PMSC stance by creating the Open General Trade Control License (OGTCL). The OGTCL streamlined export co ntrols for PMSCs transferring weapons and controlled goods through other countries, but with several regulatory preconditions such submitting copies of standard operating procedures and rules of engagement. 67 Over the following year and a half, more nations followed suit with legislative changes of their own.68 These reforms by flag states gave a tremendous boost to the fight against Somali piracy—increasing the number of PMSC-protected ships, and driving down pirate backers’ return on investment. Yet there was a troubling side-effect. Rapidly expanding demand drew numerous inexperienced and ill-prepared entrants into the PMSC industry. According to Will McManus, CEO of REDfour Security Group, many of these were “fly-bynight companies started up around people’s kitchen tables.” 69 McManus worried that without swift regulatory action, unfit contractors would cause unsafe situations: “Cowboy opportunists are embarrassing the industr y and pulling the wool over shipowners' eyes. Regulation has to be right across the board and government-led.” 70 Yet governments lacked the inclination to undertake detailed evaluations of PMSC quality. This left shipowners, ship

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operators, P&I clubs, and maritime insurers in need of independent vetting and regulation. The first broad international effort to regulate private security comp anies is the International Code of Conduct for Private Security Service Pr oviders (ICoC). 71 The ICoC regime is an outgrowth of the initiative that created the Montreux Document—a joint effort of Switzerland and the International Committee of the Red Cross to “describe international law as it applies to the activities of private military and security companies” and “assist states in implementing their obligations under international law through a series of national measures.” 72 It was signed in September 2008 by 17 states including the USA and the UK, and by 2013 has grown to i nclude 44 participating states and the European Union. 73 It is not binding, but rather takes a “humanitarian, apolitical approach” in guiding responsible use of private security. 74 Soon after the Montreux Document was drafted, its creators realized the need for a standard concerning the conduct of private security companies themselves. In November 2010, the Swiss government partnered with stakeholders from industry, governments, and humanitarian organizations to create the International Code of Conduct for Private Security Service Pr oviders. ICoC aims to “clarify international standards for the private security industry” and “improve oversight and accountability.” 75 Principally, this means ensuring that private security companies fulfill their obligations u nder international humanitarian law. The Code has two sections of particular bearing on private naval operations, though. First, ICoC implicitly supports the right of private escorts to act in defense of a client ship, even if the pirates do not fire on the escort. Its prohibition on use of firearms against persons contains exceptions for “self-defence or defence of others” and “to prevent the perpetration of a particularly serious crime involving grave threat to life.” 76 Second, ICoC specifies the conditions under which security contractors can detain pe ople. The Code stresses that private security “[may] not take or hold any persons except when apprehending persons to defend themselves or others against an imminent threat of violence, or following an attack or crime committed by such persons against Company Personnel, or against clients or property under their protection.” 77 This would seem to allow a private escort vessel to take pirates into custody if they surrender during an attack. Yet ICoC also requires “the handover of such detained persons to the Competent Authority at the earliest opportunity,” and insists that private security personnel “only guard, transport, or question detainees if … the Company has been specif ically contracted to do so by a state.” 78 In a maritime environment, this causes significant problems, because in order to hand over suspected pirates to competent authorities, they typically must be transported. As of 2013, it does not appear that any private naval companies have received specific state authorization to do so, suggesting that unless regular military forces are able to promptly take custody of detainees, private security forces must

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release them. This will require explicit clarification if PMSC vessels capture pirates more frequently in a future conflict. It is important to recognize, though, that these are not actually innovations in international law. Like the Montreux Document, ICoC is not in binding per se, although many of its provisions refer to national and international laws. 79 Rather, it serves to marshal and encourage voluntary compliance. As of June 2013, ICoC has been signed by 659 private security companies. 80 Signatory firms will not actually be able to claim ICoC certification until they have been assessed and approved by the Code’s official oversight mechanism. From February 19-22, 2013, stakeholder representatives met in Montreux, Switzerland to finalize the Charter for the Oversight Mechanism of the International Code of Conduct for Private Security Se rvice Providers. 81 The mechanism, which will be based in Geneva, is incorporated as an association of members from three “stakeholder pillars”: pr ivate security companies, governments and international organizations, and civil society organizations such as human rights groups. 82 Under the leadership of a board of directors and executive director, it will be “responsible for certifying that a company’s systems and policies meet the Code’s pri nciples and the standards derived from the Code and that a company is undergoing monitoring, auditing, and verification, including in the field.” 83 It will also formulate “a process to address alleged violations of the code,” including “fair and accessible grievance procedures.” 84 It will select neutral, independent entities to conduct the assessments, and will be empowered, in case of violations, to “take action, which may include suspension or term ination of membership.” 85 Once the ICoC evaluation criteria are finalized and the certification process is operational, companies will begin underg oing audits and becoming certified. According to the organizers, the formal launch of the oversight mechanism is slated for late 2013. 86 Yet even when operational, ICoC will not be sufficient regulation on its own. The Code applies to providers of a very broad array of security services—from guarding diplomats in warzones, to operating aerial drones, to risk management. Although a growing proportion of signatories provide maritime services, ICoC itself is focused primarily on humanitarian issues, rather than defensive competence. And so the shipping industry demands vetting and consultancy specific to the anti-piracy sector. Since the start of the Somali outbreak, this had been provided by a relatively small number of firms—such as Risk Intelligence, Maritime & Underwater Security Consultants, and EOS Risk Management. 87 These companies developed close familiarity with shippers’ needs, and identified the markers of professiona lism among security providers. In September 2010, the Danish firm Risk Intelligence published infl uential guidelines for the shipping industry in screening PMSCs. General considerations start with: “Is the security provider certified or otherwise accredited in its home country? If so, for which services?” 88 Further: “Is the

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company accredited, or does it possess valid permits, for transferring and/or carrying arms on vessels of the flag state (if applicable), in the country of embarkation/disembarkation or in the coastal states that may be passed or in whose EEZ operations may take place?” 89 Also: “If restrictions for armed private security exist for the operation, is there a verifiable relationship with local law-enforcement or military?” 90 Finally, Risk Intelligence urges shippers to determine “legal implications including liability, detention risks and flag/crew state legal positions.” 91 Once a contractor makes a bid, Risk Intelligence advises clients to ask: “Is the proposed interaction of different elements of defensive concept (i ncluding passive defences) explained?” 92 Next: “Has the adverse impact of customer’s operational requirements on proposed security measures been identified, described and contingencies provided?”93 Perhaps most importantly: “Are rules of engagement (ROEs) explicitly explained and not just referenced to (e.g. voluntary principles)?” 94 As will be discussed further in Chapter 7, the rules of engagement (often called rules for the use of force) used by PMSCs are essential to maintaining legal legitimacy. Parallel to the bespoke vetting services provided by risk consultancy firms, there were also efforts to establish consistent international standards for private maritime security. With the wave of national firearms law changes, there was confusion in the shipping industry over how to legally and responsibly hire PMSCs. So BIMCO, the world’s largest s hipping association, decided to help clarify the situation. In November 2011, BIMCO’s Documentary Committee decided to place highest priority on drafting “a standard contract for the employment of security guards on vessels.” 95 The drafting committee first met the following month, and worked quickly— finalizing the first draft on March 16, 2012. 96 Called GUARDCON, the contract provided shippers and PMSCs with a much-needed framework for understanding their respective rights and obligations. The contract set forth basic requirements of PMSCs providing embarked guards, most notably in the areas of weapons licensing, insurance, and liability. 97 Although GUARDCON clearly disavowed applicability to escort vessel services, it soon became so widely used that its principles influenced the escort market as well. 98 Meanwhile, intergovernmental organizations were also trying to clarify the regulatory picture—most notably the International Maritime Organization (IMO), the United Nations agency responsible for maritime sa fety issues. Starting in May 2011, the IMO’s Maritime Safety Committee issued a set of circulars intended to guide stakeholders on the use of PMSCs in the Indian Ocean. 99 MSC circular 1405 provided guidance to shipowners, ship operators, and ship masters, while MSC 1406 was directed to flag states, MSC 1408 to port and coastal states, and 1443 to PMSCs themselves. 100 “The Organization,” MSC 1405 said, “whilst not endorsing the use of [PMSCs], understands that shipping companies may find it difficult to ide ntify reliable, professional private providers of armed security.” 101

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Therefore, the IMO urged that due diligence on PMSCs include inve stigation of their ownership, finances, and insurance cover. 102 It said that a company should be able to provide detailed information on its personnel, including criminal background checks, and “records of medical, physical, and mental fitness … (including drug and alcohol testing).” 103 PMSCs should also be able to document “both initial and refresher training” for personnel, including weapon-specific training for any armaments they use.104 As to operations, MSC 1405 urged that PMSCs must have “written procedures on management” and a “clearly defined and documented” co mmand and control structure between the ship operator, the PMSC, and their respective personnel. 105 The circular stressed that PMSCs’ “primary function is the prevention of boarding using the minimal force necessary to do so.”106 To that end, they “should provide a detailed graduated response plan to a pirate attack as part of its teams’ operational procedures,” and only use force in self-defense. 107 After any discharge of firearms, meticulous records should be kept, and PMSC personnel should “[p]hotograph (if appropriate), log, report and collate contemporaneous written statements from all persons present at the incident in anticipation of legal proceedings.” 108 The next two circulars, MSC 1406 and MSC 1408, added guidance for national governments. Flag states, MSC 1406 said, “should have in place a policy on whether or not the use of [PMSCs] will be authorized and, if so, under which conditions.” 109 It urged flag states to set minimum criteria for PMSC compliance, and then to establish “a process for authorizing the use of [PMSCs] which have been found to meet minimum requirements for ships flying its flag.” 110 Coastal states, in turn, were encouraged by MSC 1408 to formulate procedures for documentation, identification, and notif ication of PMSC activity. 111 Finally, MSC 1443 was titled “Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Pe rsonnel On Board Ships in the High Risk Area.” 112 In it, the IMO noted that the International Code of Conduct is not directly applicable to maritime operations, and therefore provides insufficient guidance to PMSCs operating in an anti-piracy role. 113 Thus, MSC 1443 was “intended to assist in the development of an international standard and certification process for PMSC[s] … and to assist PMSC[s] in demonstrating their competence and professionalism to shipowners in the interim.” 114 Ultimately, it said, PMSCs “should seek certification with relevant national and international private maritime security service standards when these are established.” 115 In content, MSC 1443 is quite similar to MSC 1405, with several notable amplifications. It enjoined PMSCs to seek prior approval from their own countries of registry, from any flag states whose ships they will be protecting, and from any countries in whose ports or waters they will be operating. 116 Regarding recruitment and training, it said that companies “should have ver ifiable, written internal policies and procedures for determining the suitabi l-

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ity of persons to be deployed.” 117 MSC 1443 was particularly stern on the use of force, warning that it must be used “exclusively for the protection of life of persons on board and the ship from armed pirate attacks.” 118 It continued: “the use of force should not exceed what is strictly necessary and reasonable in the circumstances and … care should be taken to minimize damage and injury and to respect and preserve human life.” 119 Throughout all four IMO circulars, the focus is distinctly aimed at e mbarked guards, with no explicit mention of private escorts. This is likely for two reasons. First, by mid-2011, embarked guards had already attained dominant market share. Second, reputable flag states and the shipping industry were preoccupied with what happened on their own vessels, and much less concerned about private escorts largely flying flags of convenience. While the International Maritime Organization was working to encourage industrywide standards for private security, PMSCs and their personnel were recognizing the need for self-regulation. In 2010, the International Association of Maritime Security Professionals (IAMSP) was founded as a voluntary association of both companies and individuals, intended to uphold and enable high standards of professionalism. 120 John Dalby of Maritime Risk Management, one of IAMSP’s founders, told Reuters: “There are literally hundreds of Iraq and Afghanistan 'expatriates' setting up shop, never having been aboard a ship before … We have fears that a glut of inexperienced and unqualified so-called maritime security operators are bringing the legit guys into disrepute.”121 Another IAMSP founder, David Buston of Red Cell, complained: “Security companies and individual professionals who are trying to operate to high standards get undercut by,” under-qualified competition.122 For these reasons, in May 2011, IAMSP published the Maritime Security Professionals Voluntary Professional Code of Practice, also known as the MarSecPro Standard. 123 This code primarily addressed ethical issues such as complying with all applicable laws, avoiding bribery, and honestly repr esenting capabilities to clients. It dictates: “You shall not claim any level of competence that you do not possess. You shall only offer to do work or provide a service that is within your professional competence.” 124 Further, “if your professional judgment is overruled,” by a superior or a client, “you shall indicate the likely risks and consequences.” 125 IAMSP has also released a standard for the vetting of PMSC training methods, and another for vetting security-related technologies. 126 As will be discussed in Chapter 7, it also published a guidance document for PMSCs on formulating rules for the use of force. 127 An even more influential industry organization is the Security Associ ation for the Maritime Industry (SAMI), which was founded in 2011. 128 Much like IAMSP, the aim of SAMI was to establish recognizable, transparent standards of professionalism for the PMSC industry. Yet unlike IAMSP, membership in SAMI is restricted to companies. This allowed SAMI to focus on the main regulatory problem—shipping companies, P&I

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clubs, and insurers were struggling to distinguish qualified PMSCs from unqualified ones. By building its brand as a touchstone of competence, SAMI could ease the shipping industry’s due diligence burden and allow it to hire private security more confidently. Unfortunately, SAMI formed just as substandard PMSCs were flooding the market, and it was criticized for membership standards that proved too loose. 129 To its credit, SAMI took the criticism seriously, and endeavored to formulate a more rigorous vetting process. In February 2012, it released the long-awaited SAMI Accreditation Programme. 130 It was developed to incorporate the guidance offered by the MSC circulars, as well as the International Code of Conduct, and input from a wide range of industry stakeholders. 131 SAMI announced that it was contracting the vetting to an independent certification body, the National Security Inspectorate (NSI). 132 NSI, in turn, is accredited by the United Kingdom Accreditation Service, which is the UK’s sole governmentallyrecognized body for assessing organizations that provide “certification, testing, inspection and calibration services.” 133 The Programme was to entail a three-stage process. Stage 1, SAMI said, “consists of a due diligence process, and assesses the financial, legal and insurance status of the applicant and whether it has the right risk cover and legal support, and whether it has the finances to remain a viable pr ovider of security services.” 134 Stage 2 entailed: “an in-depth analysis of the company’s infrastructure, which includes physical verifi cation of premises, systems and documentation.” 135 Here, NSI certifiers would conduct a thorough onsite audit, visiting the applicant’s headquarters for around two days. They would assess a PMSC to ensure that it meets rigorous standards in 32 evaluation areas including culture and ethics, finances, insurance, operations, logistics, operational reporting, training, and weapons and equi pment. 136 Companies passing this stage would proceed to Stage 3, an “operational review and check” in which the “applicant PMSC’s personnel will be assessed either pre- or post-operation to ensure that the standards, equipment, knowledge and experience are all in order.” 137 Upon completion, the PMSC would receive full SAMI accreditation. The Accreditation Programme was an ambitious undertaking, though, and could not be implemented overnight. The vetting process for Stage 2 took longer to launch than expected, and as months passed, still no comp any had passed beyond Stage 1 certification. 138 Further, governments and the shipping industry remained uncomfortable with the idea of self-regulation. Flag states wanted assurance that compliance would be assessed by certification bodies that were credible and independent. And so, there was pre ssure to create an objective regulatory standard that would be recognized by a wide range of stakeholders. The International Maritime Organization was the natural body to establish such a standard. The IMO commissioned the International Organization for Standardization (ISO) to oversee its cre ation. 139 In studying the issue, the ISO realized that the foundation had al-

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ready been laid with a Publicly Available Specification (PAS) released in 2007. ISO/PAS 28000, titled Specification for Security Management Systems for the Supply Chain, was designed to help companies mitigate security risks occurring anywhere in their supply chain. As SAMI puts it “it was seen that the threat of piracy fitted into this remit.”140 Further inspiration came from ISO/PAS 9001, a standard for implementing quality management systems that many PMSCs were already following. 141 This, together with the fact that ISO 28000 was “already in government-recognised use with critical supply chains,” 142 made it seem best not to reinvent the wheel. And so, the ISO formulated a PAS numbered 28007, called Guidelines for Private Maritime Security Companies (PMSC) Providing Privately Contracted Armed Security Personnel (PCASP) On Board Ships. The specification is intended to “[set] out the guidance for applying ISO 28000 to Private Maritime Security Companies.”143 Development went quickly, and on July 26 and 27, 2012, the ISO convened various stakeholders for an informative meeting at INTERPOL headquarters in Lyon, France.144 There, they discussed and debated the proposed standard, which was met with general approval. SAMI had been represented on the drafting team, so ISO 28007 was favorably received by most PMSCs as well. 145 Less than five months later, on December 15, the first edition of ISO/PAS 28007 was formally released. It largely overlapped with the evaluation areas for Stage 2 of the SAMI Accreditation Programme, so in early 2013, SAMI decided to substitute ISO 28007 as its key standard for accreditation. 146 Under the new regime, SAMI’s Stage 1 certification will be followed by ISO 28007 certification, and finally the Stage 3 operational review to ensure compliance. The new ISO 28007-compliant Accreditation Programme differs in several significant respects from the original version devised by SAMI. Most prominently, the new standard contains robust requirements for incident reporting. This has been an issue since late 2011, when industry insiders observed that the plunge in reported attacks was partly due to significant underreporting by PMSCs.147 Now, they are required to meticulously document every incident, and submit “a written report of details of any attack or use of force to appropriate international liaison and to the authorities of the flag state, as well as to client and insurers.”148 Further, “where possible and practicable a visual (and audio) record of any attack” must be made.149 Also, PMSCs are required to have procedures in place for crime scene management and the protection of evidence. 150 As discussed later in this chapter, this is essential for subsequent prosecutions. Another development is that ISO 28007 clearly recognizes the danger of insufficient armament. It says: “Firearms should be high velocity and have sufficient effective range (minimum 500 m) and sights to allow effective deterrence by the firing of warning shots, and be equipped with enough ammunition to defend the ship effectively.”151 Next, the new standard mandates procedures for handling client complaints, and requires explicit protections for internal whistleblowers.152 This will be important for ensuring transparency, and lowering the chance of a major scandal. Finally, the one difference that may prove problematic con-

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cerns the care of wounded pirates. SAMI’s original Stage 2 standards required PMSCs to “brief Security Teams on their responsibilities towards hostile or neutral casualties.” 153 The ISO 28007 specification does not have such language. As will be discussed in Chapter 7, international law might obligate a private escort to turn back to assist incapacitated attackers. Without a co nsistent industrywide policy on how to treat such cases, PMSCs will be more vulnerable to litigation by victims’ families. In order to phase in the ISO 28007-compliant accreditation scheme, SAMI is overseeing a pilot program. In March 2013, MSS Global, a UKAS-accredited certifier, announced the first two PMSCs for its Pilot Audit of Certification— Castor Vali Security Risk Management, and Port 2 Port Maritime Security, which provides both embarked guards and chartered escort vessels. 154 In May, Lloyd’s Register Quality Assurance, another certification body, announced that Protection Vessels International was being included in the pilot. 155 A third prospective certifier, RTI Forensics, joined in June, working to certify Bowline Defence, Control Risks Group, Securewest International, and Zeal Global Maritime Solutions.156 As of press, the pilot is making good progress157 and winning praise from observers, including the BIMCO shipping association. 158 It appears that the direct costs of accreditation will not be high. SAMI charges PMSCs annual dues of £1,600 to £2,400, depending on their size. 159 Fees for the audit will vary based on a company’s structure and location, but will likely fall between £10,000 and £15,000, plus expenses.160 SAMI expects the pilot audits to be completed by December 2013,161 which will enable the full-scale accreditation process to be operational by early 2014. In general, the set of regulatory efforts described above is quite rigorous— comprising national-level licensing and firearms laws, ICoC certification for ethical and humanitarian issues, and SAMI accreditation for maritime-focused operational competence. This regime will likely lead the PMSC industry to the sort of long-term stability it never enjoyed before the Somali piracy epidemic. It is cause for some concern that none of these schemes have directly addressed the needs of the private escort market—and there remains need for escortspecific guidance. But because most PMSCs that operate escorts also offer embarked guards, standards like GUARDCON and ISO 28007 indirectly benefit escort vessels as well. Another concern is that the prestige of fully-accredited SAMI membership may not induce some low-tier PMSCs to maintain high standards. This is because some shippers willingly hire such firms in order to cut costs. According to Risk Intelligence’s Nis Leerskov Mathiesen: “Some shipping companies have doubtable standards themselves for these types of operations.” 162 They will, Mathiesen says, “employ sub-standard armed teams only to satisfy some owner, charterer or insurance requirements.” 163 Fortunately, though, the escort market caters to higher-value clients who have specific reasons for needing separate armed vessels. This makes escorts an unlikely option for shipowners trying to cut corners. Thus, private

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naval companies have considerable incentive to achieve full regulatory compliance. More importantly, private naval companies have powerful incentive to support overall regulation for the PMSC industry. Strong regulation prevents the “race to the bottom” wherein low-quality embarked guards firms enter the market, undercut the established companies, and cannibalize their business. A well-regulated market is one in which escort services can prosper. Further, the whole industry is at the mercy of public opinion. A string of wrongful killings could ignite outrage among policymakers, and convince shipowners to seek alternative means of protection. Thus, it behooves top-tier PMSCs to close ranks and prevent a few “bad apples” from tarnis hing their image. Having escort companies’ interests actually aligned in favor of regulation is an encouraging state of affairs.

Immunities and Obligations One of the fundamental tensions underlying private naval operations is the gap between the law and reality. In the legal sense, private navies are not navies at all, but they do possess what is arguably the single most defining trait of navies—vessels with the dedicated purpose of combat. Similarly, although armed PMSC vessels are not generally recognized as warships under the law, they are by definition warships. The Concise Oxford English Dictionary defines a warship as “a ship equipped with weapons and designed to take part in warfare at sea.”164 Warfare, in turn, can be understood merely as “engagement in or the activities involved in war or conflict.”165 In this literal sense, it is quite clear that private escorts fitted with machine guns, and operated for the chief purpose of, if necessary, engaging in combat against heavily armed pirates—are warships.166 Moreover, most of these vessels were expressly designed as warships, and served as such with the militaries that originally owned them, before being sold off into private use. This is of great significance. Although there is considerable precedent for the arming of merchant ships in times of unreliable maritime security, private warships have rarely been used, and never before in the modern era. Throughout the age of sail, me rchantmen were frequently armed with small numbers of cannons for self defense. Again during World War I and World War II, merchant ships mounted guns to protect themselves against submarines or auxiliary crui sers. This is similar to the contemporary use of embarked guards off the Horn of Africa. By contrast, private warships were used more than two centuries ago by the British East India Company, but not since. As such, legal doctrine has much less experience in how to treat them. The private escorts presently in operation are not deemed warships b ecause they use force only with the legitimacy of civilian self-defense rights. 167 Yet if future PMSCs receive UNCLOS Article 107 authorization

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from a flag state, the question would become much thornier. This is because Article 107 authorizes private ships to act as warships against pirates, but without making explicit whether such ships would be considered warships in any other respects. For example, under Article 110, regular warships are entitled to stop merchant ships on reasonable suspicion of illicit activity. A warship may board foreign vessels if it suspects that “(a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade ... (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.” 168 These conditions encompass most of the circumstances under which private warships might be useful in the foreseeable future—anti-piracy operations, fisheries enforcement, and general coastguard duties. Yet Article 110 is not explicit about whether it refers narrowly to regular warships, nor does it include, as do Articles 107 and 111, provisions allowing authorized private ships to act in some respects like a warship. 169 Most crucial is the question of immunity. Article 95 of UNCLOS states: “Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.” 170 Article 96 extends this to all ships in government service: “Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State.” 171 Private escorts would not meet Article 29’s definition of a warship as “a ship belonging to the armed forces of a State bearing the e xternal marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State ... and manned by a crew which is under regular armed forces discipline.” 172 With this in mind, international law scholar Douglas Guilfoyle argues that Article 107 is unlikely to confer warship status on armed PMSC vessels. 173 On the other hand, if acting under Article 107 authorization, such vessels might qualify as auxiliaries, which also benefit from sovereign immunity. They would be “immune from arrest and search, whether in national or international waters ... exempt from foreign taxes and regulation, and [able to] exercise exclusive control over all passengers and crew with respect to acts performed on board.” 174 Since unscrupulous PMSCs would likely register private warships with flag states of convenience, possibly with financial inducements to those states, the lone power with jurisdiction over such ve ssels would be unlikely to prosecute any crimes they might commit. This conflict of interest undermines the viability of Article 107 authorization— and will induce the international community to discourage its use. With the immunities enjoyed by warships come obligations, and to whatever extent that private escorts are considered warships, both may a pply. The most relevant responsibility is articulated in U.N. Security Council Resolution 1838, which “Calls upon states whose naval vessels and military aircraft operate on the high seas and airspace off the coast of Somalia to use

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on the high seas ... the necessary means ... for the repression of acts of piracy.”175 This is reaffirmed with similar language in UNSCRs including 1844, 1846, 1851, 1897, and 1918. 176 Obligations, both customary and legal, to use warships for the suppression of piracy to the fullest extent possible, create a tension with the normal profit motive of private warships, and with the responsibilities they have to clients who hire them. For example, a pr ivate escort would ordinarily never break company with a client merchant ship during a transit. Yet if it is legally considered a warship, it might be obligated to leave the client in order to assist another vessel under attack nearby. Such obligations would force a PMSC to incur unremunerated expenses for fuel, ammunition, and lost hire time. In the case of private convoy schemes, freeloader ships might tag along with a convoy without pa ying the hire fee, hoping that the escorts would be legally bound to protect them from pirates in the event of an attack. This would ruin the viability of private convoys. According to Douglas Guilfoyle, “[e]very flag state must obligate masters to aid those in distress at sea, if they can reasonably do so.” 177 Yet because combat assistance goes far beyond typical safety and lifesaving and assistance, Guilfoyle argues that no such obligation could be universal, but rather, would “always be a judgment call of the master.”178 For this reason, even if Article 107 authorization becomes widespread—and even if PMSC vessels acting as auxiliaries are accorded sovereign immunity—it is unlikely that there would be a mechanism for obliging those vessels to fulfill the attending responsibilities of regular warships.

Territorial Laws Another issue of concern is the evolution of domestic laws among the n ations around pirate-threatened waters, with regard to the treatment of private naval forces. Regardless of what international consensus forms about what sorts of armaments are appropriate for PMSC escorts, once those ve ssels cross into territorial waters or enter port, they are subject primarily to the law of the local country. These laws vary widely. As of 2012, for example, the Seychelles would send police aboard to lock ships’ armories during their time in port—while in Mauritius, authorities actually take weapons off civilian ships and hold them in safekeeping until departure. 179 Ships passing through the Suez Canal with weapons are required to submit docume ntation in advance specifying the nature of weapons and security personnel aboard. 180 Since the start of the Somali piracy epidemic, several coastal states have changed their laws to facilitate private security operations— with regulations sometimes changing so rapidly that “ships may put out to sea with armed guards onboard only to find rules have changed once the ship has reached its destination.”181 As of 2013, private escorts operate

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from Djibouti, Sri Lanka, Oman, the United Arab Emirates, and elsewhere. In other places, such as Saudi Arabia, Sudan, and Eritrea, the authorities are hostile to them.182 Eritrea’s arrest and extended detention of Protection Vessels International personnel in 2010-2011 demonstrates the consequences that can result. Meanwhile, the surging piracy problem off West Africa has even more unfavorable local laws. Nigeria, Benin, Togo, and the other states around the Gulf of Guinea almost uniformly forbid armed foreign PMSCs from operating within their jurisdiction. 183 In many ports on both sides of Africa, corruption makes it difficult for PMSCs to secure the licenses necessary to operate. But even without corruption, firearms statutes tend to be stringent—sharply limiting the arms, ammunition, and equipment that can be carried into territorial waters. Although those laws were not written with security contractors in mind, states with ports around the western Indian Ocean have had to decide whether to make legal exceptions for contractors on anti-piracy missions. In the event that piracy worsens there again, more countries may choose to relax their firearms laws. In the meanwhile, the sharp decline in attacks means that new legislation is a low priority. As such, PMSCs operating escort vessels have had to adapt to reality. They have had to make arrangements with whatever regional governments are willing to open their ports to them as bases. These arrangements are not always enough, though. Private escorts may need to make unanticipated stops for refueling, resupply, or repair. If the legal framework for such ca ses is not worked out in advance, diplomatic incidents or even violence could result. For example, customary international law generally requires ports to offer refuge to ships in distress. Yet if domestic law forbids civilian firearm carriage, the obligation to accept distressed escorts would bring national and international laws into conflict. 184 The key question, then, is whether a coastal state could refuse refuge to an armed PMSC vessel in distress. According to the International Maritime Organization, UNCLOS Article 2 extends to “the right of States to regulate entry into their ports.” 185 The IMO Guidelines on Places of Refuge affirms that, excepting cases where safety of life at stake, there is “no international requirement for a State to provide a place of refuge for vessels in need of assistance.” 186 This means that cases like the PVI incident in Eritrea, in which a private escort needs fuel or repairs, the coastal state can deny it access. On the other hand, where safety of life is involved, such as serious injury to PMSC personnel, humanitarian concerns would probably be co nsidered paramount. 187 This could lead to a private escort claiming the right to enter a port, even while carrying weapons illegal under local law. In ca ses of conflict, says the IMO, “granting access to a place of refuge could involve a political decision which can only be taken on a case-by-case basis.”188 Until international law evolves to better clarify states’ and PMSCs’ rights and

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obligations, governments around pirate-threatened waters should make their policies explicit. Since the first years of the Somali piracy epidemic, some Indian Oce an ports have looked the other way—tacitly allowing PMSC activity, but without actually changing firearms laws. This facilitated the growing use of private security, but left the private sector with deep uncertainty over where stakeholders will stand in the event of an adverse incident. In 2011, India realized that it was unwise to sustain a “see no evil” policy in ports like Cochin and Nhava Sheva, where an unusually high proportion of private security personnel were freelance guards. 189 These guards, often recruited from Southeast Asia by non-Western firms, were often poorly vetted and unreported. So the government authorized merchant ships to carry armed guards, specifying that: “All Indian ships visiting Indian ports are to furnish details of security personnel on board, the fire–arms carried by them and the details of license issued etc. to the Port authority, Customs, Coast Guard & the Navy.”190 Going forward, the problem for private escorts will likel y be that firearms-related laws such as India’s are written primarily for embarked guards. As long as embarked guards occupy a commanding market share — which will be the case for the foreseeable future—legislation will be slow to address the legalities of dedicated PMSC escort vessels.

Jurisdiction The use of private warships complicates both the prosecution of pirates they encounter, and the prosecution of PMSC personnel in the event they co mmit crimes. In the former case, it complicates prosecution because most courts have strict standards of evidence and procedure that must be met in order to obtain convictions. Long gone are the days when it was acceptable to hang captured pirates from the yardarm as enemies of humankind. 191 Instead, modern courts treat pirates not much differently from criminals on land. 192 The judicial process begins with the prisoner intake of captured pirates, which typically includes determining their names and dates of birth, and collecting biometric information. Parallel with prisoner intake, a warship’s crew carries out, where applicable, crime scene analysis intended to satisfy judges’ high expectations of evidence and rigorous procedure. 193 Naval personnel collect physical evidence (e.g. weapons, shell casings, and bloody clothing) and catalog them much as police investigators on land do. 194 If the pirates were captured following a hijacking attempt, crewmembers of the merchant vessel will be interviewed and contact information recorded in case they are later called to testify in court. It has been difficult to secure testimony from local witnesses, if there were any, but interviews may be

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taken anyway. The United Nations Office on Drugs and Crime has sometimes subsidized the costs of witness attendance, as have the states of c apturing warships, and even the shipping industry itself. 195 The next steps— trial and imprisonment—depend on jurisdiction. Although piracy is a crime with universal jurisdiction, laws regarding piracy are not universal. Countries vary widely in the strictness of their anti-piracy laws, and the willingness of their courts to prosecute pirates. When regular navy forces capture pirates on the high seas, it is rather straightforward for that country to assume responsibility for prosecuting them—or to transfer that responsibility to another state according to some consensual agreement. In the case of pirates who surrender to a private e scort after a failed attack on a merchant ship, six or more countries might be able to claim jurisdiction. The flag state of the victim merchant ship may claim jurisdiction under its own laws prohibiting piracy. 196 The state of the shipowner could also claim jurisdiction if any damages have been incurred during the attack. Legal scholars believe that the flag state or states of the master and crew could claim jurisdiction according to their own, possibly different, piracy laws. 197 The flag state of the escort could claim jurisdiction if the pirates fire on the escort at all, as could the state of the private naval company which operates the ship, and the flag state or states of the escort’s crew. 198 In practice, nations have not been squabbling over the privilege of prosecuting captured pirates. Rather, it has been the reverse, due to a collective action problem. 199 Piracy trials are inconvenient, and incarceration entails a commitment for sentences that may last decades. The prosecuting state bears great expense, while the benefits are shared by all nations. So in cases where multiple states have claims of jurisdiction, they have oft en argued amongst themselves trying to avoid responsibility for detention and trial. As a result, by bringing potentially half a dozen states into the situ ation, private escorts make it easier for each of those states to palm captured pirates off on the others. With the diffusion of responsibility comes risk of delay in prosecution—or worse, incentive to let pirates simply go free to avoid the international wrangling over their fate. So far, these concerns have prompted most if not all PMSCs to adopt policies of not accepting the surrender of any pirates they might encounter. At most, pirates are detained at the scene and referred to the nearest regular warship for formal arrest. At that point, suspected pirates are treated as though they had surrendered to the responding military in the first place, and that nation’s domestic courts would bear responsibility for prosecuting them. But what if a responding warship is from a nation with an unaccept able policy toward pirates? Would a flag state have an obligation not to let surrendering pirates fall into the hands of another state that might execute them without due process? International law is not clear on this point. Although flag states have humanitarian obligations to persons they detain, if a

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private armed vessel never actually takes pirates into custody, those obligations may not apply. 200 Conversely, could a flag state allow an escort flying its flag to turn over pirates caught red-handed to a state with a policy of simply giving them provisions and releasing them? This, too, is unclear. The 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) goes beyond the concept universal jurisdiction, which gives states the option to prosecute pirates. Rather, SUA actually “obliges Contracting Governments either to extradite or to prosecute” suspected pirates. 201 It would clearly violate SUA for a warship of a party state to release captive pirates. And it would probably violate SUA for a warship of a party state to extradite or transfer suspected pirates to a state that it knew would then violate its own SUA obligations by releasing them. But it is more difficult to interpret SUA as demanding that party states regulate the actions of civilians in furtherance of piracy suppression.202 The second broad jurisdictional problem is even thornier: who will prosecute the crew of a private armed vessel if it commits a crime? Although observers’ fears often center on an incident like the Nisoor Square shooting, that case is not very instructive here. While Blackwater was typically under the operational control of the U.S. State Department, private naval forces are not responsible to external authorities, and exist altogether outside any formal chain of command. Further, the battlefields of Iraq and Afghanistan were under the jurisdiction of their respective national go vernments, and subject to status of forces agreements governing criminal jurisdiction over American personnel. By contrast, most private anti-piracy escort missions take place in international waters. As regards criminal j urisdiction against private naval vessels, this brings numerous parties into play. Least controversially, the escorts will be under the jurisdiction of their own flag states. For purposes of firearms laws, to training mandates, to the types of drugs private security personnel can ingest in their bunks, jurists agree that the flag state’s domestic law is paramount. 203 In some cases, though, the laws of the state in which the security contractor is registered may be applicable. As an analogy, American authorities prohibit child sex tourism, and prosecute underage sex crimes according to U.S. law, even if they are outside U.S. territorial jurisdiction, and legal in the locality in which they are committed. 204 So too might a PMSC’s state of registry prosecute personnel if they were suspected of something particularly hei nous— torturing suspected pirates, perhaps, or facilitating human trafficking. International law also recognizes rights of jurisdiction of a ship’s flag state over anyone who commits crimes against it on the high seas. 205 If a private escort wrongfully attacks an innocent vessel, the crew could be tried, even in absentia, by the victim country’s criminal courts. The same rights apply to the state of the shipowner, if this is different from the flag state. So if a Liberian-flagged escort operated by a PMSC from the United Kingdom fires without warning on a Marshall Islands-flagged fishing

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trawler owned by a company from Turkey, four states might be able to claim jurisdiction. Unlike the case of jurisdiction over captured pirates, in which states would probably try to pass off jurisdiction onto other clai mants, all four states would likely try to exercise jurisdiction in the case of a crime by a private warship. This suggests a need for agreed international standards governing such prosecutions. None presently exist. According to Douglas Guilfoyle: “The general international law of jurisdiction provid es no rule of priority between competing potential jurisdictions. ”206 In addition to the aforementioned sources of jurisdiction, under intern ational law, all states share responsibility for the policing of the high seas. So if a warship from any nation believes that it has caught a private armed vessel in the act of committing an atrocity, it may try to arrest the crew. Although it is unlikely that this would lead to an armed engagement, it not inconceivable—especially if the arresting warship is not more powerful than the private vessel, or if miscommunications occur during a fast unfolding incident. Even if no shots were fired, a diplomatic incident would ensue. While the respective governments try to sort things out, private sec urity personnel might languish in captivity. If the arresting country considers them pirates, they could be subject to especially harsh treatment. Fortunately, as of 2013, no private escort personnel are known to have killed civilians. There is a case, though, that has facts similar enough to be informative. In February 2012, active duty Italian marines embarked as a Vessel Protection Detachment aboard the Italian-flagged tanker MV Enrica Lexie fired on an Indian fishing boat in international waters within India’s contiguous zone. 207 According to the boat’s master, the marines opened fire without provocation in a sustained fusillade that killed two members of his crew. 208 The tanker continued on its way for almost three hours before the Indian Coast Guard intercepted it and forced it to anchor at the port of Kochi. There, officials began an investigation into the shooting. While the Ita lians insisted that they had fired in an attempt to repel a pirate attack, the evidence suggested that they did not have reasonable justification to use lethal force. And so, four days after the incident, Kerala state police arres ted two of the Italian marines and charged them with murder. 209 As a result, Italy and India entered a heated dispute over who had criminal jurisdiction over the suspects. Both nations cited various provisions of international law, with the Italians claiming that the marines had sovereign immunity under UNCLOS, and the Indians claiming jurisdiction under the SUA Convention. According to Oceans Beyond Piracy legal analyst Jon Bellish, even within SUA, some sections of Article 6 support Italy’s case, and others support India’s. 210 Over ten months later, India released the marines back to Italy on the condition that they must still answer charges in Indian courts. 211 On March 11, 2013, Italy notified India that it refused to return the marines. 212 The announcement sparked grassroots protest, and “#ItalianMarines” was soon trending on Twitter. 213 At last, in the midst of

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widening controversy, Italy relented on March 21, and sent the mar ines back to India for trial—where they remain as this book goes to press. 214 The Enrica Lexie incident portends that occasional standoffs like this are an inherent risk of private anti-piracy activity. Because the Vessel Protection Detachment was composed of serving members of Italy’s armed forces, the legal situation was most closely analogous to a private naval vessel operating under Article 107 authorization. Vessels operating without official state sanction, and only non-governmental certifications like SAMI, will have even less standing to evade local prosecution. This is not partic ularly troubling in the case of India—as the facts of the Erica Lexie case suggest that a crime occurred, and India has a fairly good criminal justice system. But other states in the region, most troublingly Iran, might be tempted to arrest British or American PMSC personnel on politically motivated charges. Iran has hundreds of vessels in pirate-threatened waters. If an escort operated by UK nationals mistook the approach of an Iranian fishing vessel for a pirate attack and raked it with machine guns, Tehran would not politely seek restitution from the British government. The regime could declare that the personnel in question were pirates, and dispatch its own navy to seize or destroy the escort and its crew. The Royal Navy and its American allies would then find themselves in a very bad position. Moving to defend the escort would risk sparking wider hostilities, while inaction could lead to torture and execution for friendly nationals. Some scholars argue that Iran’s argument in such a scenario would not be wholly beyond the bounds of reason. UNCLOS Article 101 defines pir acy as: “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft...” 215 Presupposing that an escort indeed commits an illegal killing, whether through negligence or malice, its for -profit operation could conceivably qualify as private ends, even if the killing were not carried out with material gain in mind. That would technically make that vessel a pirate ship, liable to be hunted by the military of any state and su bjected to justice at the sole discretion of that state’s courts. That line of re asoning is certainly “a stretch,” as international law scholar Martin Davies puts it, 216 but Iran is hardly known for its measured and thoughtful actions in world affairs. Indeed, if Iran’s 2007 capture of 15 Royal Navy personnel is any guide, it is more than willing to stage bold provocations that raise tensions across the whole region. This is a risk of private naval activity that probably cannot be alleviated by developments in international law.

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Civil Liability Finally, there is the issue of civil liability. The introduction of private naval vessels to the conflict causes liability in three principal areas. First, there is risk that an escort vessel might kill non-pirates in error. Second, there is risk that escorts’ actions would result in losses to merchant ship owners or their crews. Third, there is risk that incorrect actions by an escort could lead to the loss of a ship carrying cargo that would cause an environmental catastrophe. International law is still evolving to determine the most appr opriate way to apportion this liability among stakeholders: private escorts’ flag states, the PMSCs that operate the escorts, the flag states of the client merchant ships, the shipowners, and their insurers. Because damages in the event of a catastrophe could run into the billions of dollars, this uncertainty has hobbled the growth of the maritime security industry. The main legal challenge is finding a liability regime that minimizes shippers’ and insurers’ responsibility for PMSC misconduct—but also makes them fairly share the inherent risks of armed operations. The risk to civilians the most obvious issue. Although there are legal precedents addressing killings by private military forces, these have been almost exclusively land-based incidents. Civil liability for killings committed in international waters is a much hazier issue. Ships acting under Article 107 authorization could claim sovereign immunity, in which case, says i nternational law scholar Wolff Heintschel von Heinegg, the “single state a uthorizer would be liable for any accidental killings.” 217 Similarly, the Montreux Document advises: “In certain circumstances, the conduct of a PMSC [private military security company] is attributable to the Contracting State as a matter of international law. The State in question then must assume responsibility for any wrongdoing on the part of the PMSC.” 218 Still, the Document is equivocal, hedging that “[s]uch circumstances are the e xception, rather than the rule, since States are generally speaking not respo nsible for the acts and omissions of private companies or individuals.” 219 So far, Article 107 authorization has not been put to the test. This is perhaps somewhat counterintuitive, because it is a much more robust par adigm than normal civilian self-defense. But since, as von Heinegg says, it leaves flag states responsible for mishaps, it has not been in states’ interest to write PMSCs a blank check. Instead, private escorts have relied exclusively on the self-defense legitimacy regime. Using force in self-defense does not afford security contractors sovereign immunity, so there is pote ntial for victims to bring suits in their home countries’ courts, trying to assert jurisdiction over the PMSC. 220 Of course, local laws may differ significantly on when force may be legally used in self-defense. As will be discussed further in Chapter 7, these differences prompted the creation of the 100 S eries Rules for the Use of Force, which provide an objective standard inten ded to satisfy most countries’ self-defense laws.

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In the present conflict, it is likely that Somali civilians will bear the brunt of any wrongful shootings. Although Somalia’s judicial system has made progress over the last few years, it still does not have the wherewithal to prosecute foreign nationals who unlawfully kill Somalis at sea. 221 For this reason, the international community should pay special attention to the risk to Somalia’s civilians. If there is a string of killings by PMSCs, it may be appropriate for the United Nations or African Union to step in to facilitate redress for victims. Of course, Somalis are not the only civilians at risk. The waters off the High Risk Area are also plied by Yemenis, Kenyans, Tanzanians, Eritreans, and others. 222 Those countries would not take kindly to trigger-happy security personnel shooting up a boat full of tuna fishermen, and would facilitate both criminal and civil remedies on behalf of the victims. Similarly, in other emerging piracy areas, such as those off West Africa or the east coast of India, regional courts are more capable of protecting their citizens. In some cases, slain civilians—or even real pirates 223—may have relatives living in the United States, the United Kingdom, or elsewhere in the European Union. 224 These individuals may seek to bring actions for wrongful death in the jurisdiction of an escort’s flag state, in the nation where the PMSC is registered, or in the home country of the responsible personnel. 225 Even if a PMSC justifiably used lethal force in self-defense, this is only an affirmative defense, and does not excuse defendants from the legal process altogether—so the facts of each case will have to be established at trial. 226 By suing in countries with well-developed judicial systems, plaintiffs will have a better chance of collecting damages if any are awarded. Yet such cases will be a nightmare for courts in Manhattan, London, or Brussels, which are used to having access to vast amounts of evidence. When the shootings in question occurred on the other side of the world, possibly in the absence of witnesses, sorting out the truth can come down to one side’s word against the other. Thus, it will be essential for private escorts to re cord constant and redundant video and audio during any use of forc e. While judges in this post-Nisoor Square era will be skeptical of PMSC personnel’s testimony, they will likely be more receptive if a company can provide u nedited, high-quality footage showing an incident from multiple angles as it unfolds. Knowing this, as of 2013, most reputable embarked guards and escort vessels have video recording equipment for future evidentiary purposes. 227 Yet even with meticulous recording, the legal risks and hassles are formidable. Pottengal Mukundan, director of the Internatio nal Maritime Bureau, says that this has resulted in “vessels with PMSCs not reporting all the attempted attacks … driven by a fear of liability.” 228 Mukundan says that some PMSC contracts may actually have provisions that forbid repor ting of unsuccessful attacks. 229 These liability fears can be significantly allayed by using escort vessels instead of embarked guards wherever appropriate. Escorts provide shipowners with valuable legal distance from wrongdoing. BIMCO states: “It is

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our assessment that in the majority of jurisdictions the Shipowner, Master and crew could become liable if they are directly involved in any decisions or actions where force is used in an illegitimate way, or if other mistakes happen.” 230 The shipping association worries that “[f]or some jurisdictions,” they “may even become liable although not directly involved.” 231 On the other hand, BIMCO considers that “with the private armed escort vessel operating as an independent unit, liabilities for any wrong doings on the side of the private armed escort vessel will fall on the owners of the private armed escort vessels, and not the shipowner the ships of which they are protecting.” 232 While embarked guards are clearly under the legal authority of the client ship’s master, an escort’s obligations to the master are only contractual. Thus, international law does not appear to recognize the legal force of orders a master gives to an accompanying escort. 233 The implication is quite startling—private naval vessels operate independently of any outside operational command at all. The next area of liability concerns actions by an escort that cause, d irectly or indirectly, an actual loss to the client merchant ship or its crew. Accidental weapon discharge or errant shooting in the heat of combat could damage a client’s vessel or injure crew. An escort could also directly cause losses by causing a collision, whether in the course of normal maneuvering or during an engagement. Indirect losses might stem from personnel on a private escort acting contrary to the standard operating procedures or rules for the use of force agreed upon contractually with the client. For example, an escort hired to act in a purely defensive role might break company with the client vessel to chase down pirates after thwarting their initial attack. While the escort is away, another group of pirates might hijack the nowunguarded merchant ship. Or a merchant ship might sustain damage if its escort illegally fires on armed civilians, who return fire in self -defense. A shipowner might even attempt to recover losses from a PMSC if its escort vessel acted negligently in combat, and failed to stop pirates from seizing or damaging the ship. In general, this sort of liability is addressed by contracts between PMSCs and their clients. Over the past two years, BIMCO’s standardized GUARDCON contract has become the prevailing standard in the industry, and observers regard it has having substantially clarified the liability pi cture for those who use it. 234 John Stawpert of the International Chamber of Shipping says that shipowners’ confidence has increased, and they now consider that they have “a degree of certainty” about how liability will fall. 235 Although GUARDCON was written specifically for embarked guards services, contracts for private escorts share many of its principles. 236 According to GUARDCON, liability is handled according to the “knockfor-knock” principle, which essentially means that both parties pay for their own losses. 237 Thus, the PMSC holds the client harmless for any losses the PMSC incurs, and the client holds the PMSC harmless for any losses the

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client incurs. Instead of getting into messy disputes over who caused a loss, “each party takes responsibility for loss of or damage caused to or sustained by their property or personnel.” 238 This regime relies on both parties having adequate insurance cover, so GUARDCON mandates that PMSCs carry a minimum of $5 million in general liability insurance. 239 According to Stephen Askins, a member of drafting team, the knock for-knock scheme “includes third party claims, unless those third party claims are caused by negligence.” 240 In the case of negligence, PMSCs indemnify clients from any liability arising from negligent or unlawful acts or omissions by the PMSCs, “except to the extent of the [clients’] own negl igence.” 241 The same applies in reverse to the clients in indemnifying PMSCs. Additionally, GUARDCON specifies that clients will be indemnified by PMSCs for any accidental or negligent discharge of firearms. 242 Another key principle of the GUARDCON liability regime is that PMSCs “do not guarantee the safety of the Vessel or Crew during the provision of Security Services.” 243 Thus, a private escort failing to thwart an attack would not entitle the client shipowner to damages. In case security services are provided negligently, however, GUARDCON requires $5 mi llion of professional indemnity insurance. This policy “insures the PMSC for the financial losses that they cause their principal through their negligent advice, planning, execution and design.” 244 For example, if an unscrupulous firm hired out an armed escort boat that lacked ammunition, or sped away during an attack, leading to a hijacking, the clients could be covered by the professional indemnity policy. Conversely, if a PMSC succeeds in preventing an attack, Clause 23 dictates that it is not entitled to any salvage award. 245 In addition, GUARDCON provides important protections for security personnel. Clause 16 states emphatically: “None of the Security Personnel shall in any circumstances whatsoever be under any personal liability wha tsoever to the [client shipowners] for any loss, damage or delay … resulting directly or indirectly from any act, neglect or default on his part while ac ting in the course of or in connection with his employment.” 246 PMSCs must also carry a minimum $5 million of employer’s liability insurance. 247 This covers deaths or injuries suffered by employees that occur as a result of the PMSC’s negligence. Further, it provides for a PMSC indemnifying a client shipowner for knock-for-knock damages payable to PMSC personnel. Finally, it pays “[e]xcess costs of evacuation, treatment and repatriation” in the event that personnel are wounded. 248 To supplement this, GUARDCON requires personal accident insurance of at least $250,000 for each of the security personnel. 249 Yet although GUARDCON represents a great leap forward, and is highly useful in averting potential disputes between PMSCs and their clients, it is not a panacea. Statutory law invariably trumps contract law, so courts in some countries might void provisions they consider unlawful. 250 Further, as international law scholar Douglas Guilfoyle warns: “GUARDCON cannot

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affect criminal liability.” 251 Thus, if local laws consider shipowners parties to any crimes committed by PMSCs they hire, contractual provisions hol ding the shipowners harmless are not an effective defense. The gravest but least understood liability risks are of losses that cause mass casualties or ecological damage. Such incidents are most likely with a few types of vessels: passenger ships, crude carriers, and chemical tankers. The sinking of a passenger ship, or even serious damage to one, could result in hundreds of fatalities. Crude carriers are vulnerable because they are slow, ride low in the water, and can spill up to 2,000,000 barrels of oil into the surrounding environment. 252 Chemical tankers carry potential for additional devastation from toxic cargo. Such events could entail billions of dollars of liability, thousands of affected parties, and long -lasting ecological damage. 253 Fortunately, no catastrophic losses have yet occurred in the High Risk Area. As will be discussed further in Chapter 8, though, this means that underwriters cannot price the risk as confidently as they can for smaller and more common mishaps. It also means that neither international law nor PMSC contracts have had to seriously consider liability from catastrophic losses. If one occurs, the fallout will be significant and unpredict able.

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Notes 1. Quoted in: H.H. Gerth and C. Wright Mills, From Max Weber: Essays in Sociology (New York: Oxford University Press, 1946, 77-78. 2. Walter A Shumaker and George Foster Longsdorf (2 nd edition by James C. Cahill), The Cyclopedic Law Dictionary: With an Exhaustive Collection of Legal Maxims 2nd edition (Chicago: Callahan, 1922), 769. 3. UNCLOS has not yet been ratified by the United States. 4. United Nations General Assembly, United Nations Convention on the Law of the Sea (UNCLOS), adopted December 10, 1982, 1833 UNTS 3 (entered into force November 16, 1994), Article 105, https://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm (accessed June 3, 2013). 5. United Nations Convention on the Law of the Sea, Article 107. 6. If the domestic law of an escort’s flag state provides for a right of civilians to carry out arrests in exceptional circumstances, this would provide further justification for private naval forces to detain suspected pirates, as long as they promptly turned them over to the flag state’s regular navy, or to another competent authority by special arrangement. Douglas Guilfoyle (international law scholar), author interview, telephone, April 16, 2013. 7. United Nations Convention on the Law of the Sea, Article 107. 8. Stephen Askins (maritime law expert), author interview, telephone, April 10, 2013; Douglas Guilfoyle, April 16, 2013. 9. Steven Kay, “Understanding the International and Criminal Law Implications of the 100 Series Rules for the Use of Force,” Presentation at the Offshore Patrol & Security Conference, Portsmouth, UK, April 25, 2013, slides available at http://www.100seriesrules.com/uploads/20130209-Steven_Kay_QC_International_Legal_Conference_Presentation.pdf, 5-8. 10. United Nations, Charter of the United Nations, October 24, 1945, 1 UNTS XVI, Article 51, http://www.un.org/en/documents/charter/chapter7.shtml (accessed June 1, 2013). 11. “Understanding the International and Criminal Law Implications of the 100 Series Rules for the Use of Force,” 8-9. 12. Daniel Webster (U.S. Secretary of State), letter to Lord Ashburton (British diplomat), August 6, 1842, quoted in: “British-American Diplomacy: The Caroline Case,” Yale Law School / Lillian Goldman Law Library, 2008, http://avalon.law.yale.edu/19th_century/br-1842d.asp (accessed June 1, 2013). 13. John Yoo, “International Law and the War in Iraq,” 97 American Journal of International Law 563 (2003), available at http://scholarship.law.berkeley.edu/facpubs/1746 (accessed June 1, 2013), 572. 14. Yoo, 572. 15. Steven Kay (international law expert), author interview, telephone, June 5, 2013. 16. United Nations General Assembly, Rome Statute of the International Criminal Court (last amended 2010), adopted July 17, 1998, 2187 UNTS 90 (entered into force July 1, 2002), Article 31, http://untreaty.un.org/cod/icc/statute/99_corr/3.htm (accessed June 2, 2013). 17. M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, ITLOS Reports 1999, 10, available for download in full at www.worldcourts.com/itlos/eng/decisions/1999.07.01_Saint_Vincent_v_Guinea.pdf (accessed June 1, 2013), paragraph 155.

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18. Douglas Guilfoyle, April 16, 2013. 19. Beckford v R (1988) AC 130 (PC), quoted in: Mike T. Molan, Cases and Materials on Criminal Law, third edition (Portland, OR: Cavendish Publishing, 2005), 673. 20. Beckford v R, quoted in Molan, 673. 21. Beckford v R, quoted in Molan, 673-74. 22. R v Owino (1996) 2 Cr. App. R. 128, quoted in: Nicola Monaghan, Criminal Law Directions, second edition (Oxford: Oxford University Press, 2012), 325. 23. Palmer v R (1971) AC 814 (PC), quoted in: Molan, Cases and Materials on Criminal Law, 659. 24. Perhaps the most infamous case is that of Tony Martin, who was sentenced to life imprisonment for murder after shooting a burglar to death with an illegally-obtained shotgun. The conviction was later reduced to manslaughter. The Telegraph reported that in 2012, Justice Secretary Chris Grayling said that “householders who react with force will get more legal protection.” See: Claire Carter, “Tony Martin, Jailed for Shooting Burglar, Confronts Second Intruder,” Telegraph, May 10, 2013, http://www.telegraph.co.uk/news/uknews/crime/10048976/Tony-Martin-jailed-for-shooting-burglar-confrontssecond-intruder.html (accessed June 1, 2013). 25. By 2012, forty-six U.S. states had incorporated the Castle Doctrine or its equivalent into law. See: Mark Randall and Hendrik DeBoer, “The Castle Doctrine and StandYour-Ground Law,” Connecticut General Assembly Office of Legislative Research report, April 24, 2012, http://cga.ct.gov/2012/rpt/2012-R-0172.htm (accessed June 2, 2013). 26. The Penal Code of California, adopted February 1872, Section 198.5, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199 (accessed June 1, 2013). 27. Stand-your-ground laws in the United States are hardly uncontroversial. They became a point of enormous racially-charged controversy in 2012 after the shooting of Trayvon Martin, an African-American teenager in Florida. See: Jeffrey Bellin, “How ‘Duty to Retreat’ became ‘Stand Your Ground,’” CNN, March 21, 2012, http://www.cnn.com/2012/03/21/opinion/bellin-stand-your-ground-law (accessed June 1, 2013). 28. “Understanding the International and Criminal Law Implications of the 100 Series Rules for the Use of Force,” 27-9. 29. Somali Democratic Republic, The Penal Code (Somali Penal Code), Legislative Decree No. 5, adopted December 16, 1962, Article 34 (Italian language), translated to English by somalilandlaw.com, available for download at http://www.somalilandlaw.com/Penal_Code_English.pdf (accessed June 1, 2013). 30. Somali Penal Code, Article 34. 31. Federation of Nigeria, Criminal Code Act (Nigerian Criminal Code), Chapter 77, adopted 1990, Article 286, http://www.nigeria-law.org/Criminal%20Code%20Act-PartV.htm#Chapter%2025 (accessed June 1, 2013). 32. Nigerian Criminal Code, Article 288. 33. The Indian Penal Code (last amended 2008), adopted 1860, Section 106 (Delhi: Universal Law Publishing, 2011), 31, available online at http://www.advocatekhoj.com/library/lawareas/right/right.php?Title=Right%20of%20Private%20Defense (accessed June 1, 2013). 34. The Indian Penal Code, Section 106. 35. Douglas Guilfoyle, April 16, 2013. 36. Douglas Guilfoyle, April 16, 2013.

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37. Martin Davies (maritime law expert), author interview, telephone, January 24, 2012. 38. Martin Davies, January 24, 2012. 39. Martin Davies, January 24, 2012. 40. That said, a PMSC gunboat conducting unauthorized seizures on account of piracy might well violate the laws of those vessels in the course of such operations. 41. For a recent example from American politics, see: Erika Lovely, “Ron Paul’s Plan to Fend off Pirates,” Politico.com, April 15, 2009, http://www.politico.com/news/stories/0409/21245.html (accessed June 1, 2013). 42. International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 UNTS 3 (entered into force December 7, 1978), Article 47, http://www.icrc.org/applic/ihl/ihl.nsf/4e473c7bc8854f2ec12563f60039c738/9edc5096d2c036e9c12563cd0051dc30 (accessed June 2, 2013). 43. United Nations General Assembly, International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (United Nations Mercenary Convention), adopted December 4, 1989, A/RES/44/34 (entered into force October 20, 2001), Article 1, http://www.un.org/documents/ga/res/44/a44r034.htm (accessed June 2, 2013). 44. Private anti-piracy vessels would also differ from land-based security contractors in the respect that piracy is a crime with universal jurisdiction. Thus, to whatever extent a piracy epidemic in international waters is an armed conflict, all nations could be considered parties to that conflict. Thus, PMSC escort personnel would be, as a practical matter, exempt from the prevailing definition of mercenaries under international law. 45. In 1998, after the adoption of the United Nations Mercenary Convention, but before it entered into force, Juan Carlos Zarate argued in the Stanford Journal of International Law that “[g]iven the incomplete nature of U.N. resolutions, the lack of an enforceable international convention, and inconsistent, contradictory state behavior, the ban on the use of mercenaries cannot be said to have reached the status of a peremptory norm.” According to this test, the ban might have subsequently become a peremptory norm if international anti-mercenary efforts became coherent and coordinated. Yet now having been in force for over a decade, the United Nations Mercenary Convention has still not gained wide acceptance, with only 32 states having ratified as of June, 2013. Notable absences include the United States, United Kingdom, France, Russia, China, India, and Brazil. See: Juan Carlos Zarate, “The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder,” Stanford Journal of International Law 34, Winter 1998, 75, available for download at www.artisresearch.com/articles/Zarate_Emergence_of_a_New_Dog.pdf (accessed June 1, 2013), 133, at note 356; International Committee of the Red Cross (ICRC), “International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, 4 December 1989: States Parties,” ICRC.org, http://www.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewStates=XPages_NORMStatesParties&xp_treatySelected=530 (June 1, 2013). 46. As José L. Gómez del Prado, the former chairperson of the U.N. Working Group on the use of mercenaries, puts it: “The fact that the definition of ‘mercenaries’ under … two international conventions does not generally apply to the personnel of PMSCs is also a strong argument for the adoption of a new instrument.” José L. Gómez del Prado, “A U.N. Convention to Regulate PMSCs?,” Criminal Justice Ethics 31:3 (2012), 262-86,

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available for download at http://dx.doi.org/10.1080/0731129X.2012.743337 (accessed July 18, 2013), 271. 47. The World Justice Project ranks countries on the factor of regulatory enforcement, and ranks United Kingdom 12th in the world and the United States 20th in the world. See: World Justice Project, “Rule of Law Index Scores and Rankings,” worldjusticeproject.org, data from 2012-2013 report, http://worldjusticeproject.org/ruleof-law-index-data (accessed June 15, 2013). 48. International Transport Workers’ Federation, “FOC Countries,” itfglobal.org, last modified 2012, http://www.itfglobal.org/flags-convenience/flags-convenien-183.cfm (accessed June 15, 2013). 49. Crimes enabled by flags of convenience are well documented. According to David Cockroft, General Secretary of the International Transport Workers’ Federation: “Arms smuggling, the ability to conceal large sums of money, trafficking in goods and people, and other illegal activities can also thrive in the unregulated havens which the flag of convenience system provides.” Quoted in: Michael Richardson, “Crimes Under Flags of Convenience,” YaleGlobal / Yale Center for the Study of Globalization, May 19, 2003, http://yaleglobal.yale.edu/content/crimes-under-flags-convenience (accessed June 15, 2013). 50. See: Deborah D. Avant, The Market for Force: The Consequences of Privatizing Security (New York: Cambridge University Press, 2005). 51. Alan Cowell, “Pirates Attack Maersk Alabama Again,” New York Times, November 18, 2009, http://www.nytimes.com/2009/11/19/world/africa/19pirates.html (accessed June 15, 2013). 52. Andrew J. Shapiro, “Turning the Tide on Somali Piracy,” Remarks to the Atlantic Council, Washington DC, October 26, 2012, http://www.state.gov/t/pm/rls/rm/199927.htm (accessed June 15, 2013). 53. Officials at the U.S. Department of State, correspondence with authors, email, April 18, 2013. 54. Officials at the U.S. Department of State, April 18, 2013. 55. Officials at the U.S. Department of State, April 18, 2013. 56. Security Association for the Maritime Industry, “Use of Armed Guards on Board Norwegian Ships,” SAMI Briefing Document, August 2011, 1. 57. “Use of Armed Guards on Board Norwegian Ships,” 4. 58. “Use of Armed Guards on Board Norwegian Ships,” 3. 59. “Use of Armed Guards on Board Norwegian Ships,” 9. 60. Tom Leander, “Norway’s Forceful Anti-Piracy Stance Attracting Industry Attention,” Lloyd’s List, July 15, 2011, http://www.lloydslist.com/ll/sector/regulation/article375273.ece (accessed June 15, 2013). 61. Panama Maritime Authority, Requirements Regarding the Use of Privately Contracted Armed Security Personnel On Board Panamanian Flagged Vessels, MMC228, July 6, 2011, available for download at https://extranet.skuld.com/upload/INSIGHT/Piracy/Panama-MMC-228.pdf (accessed July 31, 2013). 62. “Somali Piracy: Armed Guards to Protect UK Ships,” BBC News, October 30, 2011, http://www.bbc.co.uk/news/uk-15510467 (accessed June 15, 2013). 63. Thomas Penny, “U.K. Ships Allowed Armed Guards Against Piracy, Cameron Says,” Bloomberg, October 30, 2011, http://www.bloomberg.com/news/2011-10-30/u-kships-to-carry-armed-guards-against-pirates-cameron-says.html (accessed June 15, 2013). 64. Security Industry Authority, “Approved Contractor Scheme,” UK Home Office, http://www.sia.homeoffice.gov.uk/Pages/acs-intro.aspx (accessed June 15, 2013).

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65. Security in Complex Environments Group, “The SCEG – Security in Complex Environments Group,” ADS Group, last modified June 18, 2013, https://www.adsgroup.org.uk/pages/24204653.asp (accessed July 16, 2013). 66. Agence France-Presse, “Greece to Allow Armed Guards on Cargo Ships Against Piracy,” AFP / news.com.au, November 26, 2011, http://www.news.com.au/breaking-news/greece-to-allow-armed-guards-on-cargo-ships-against-piracy/story-e6frfku01226206654122 (accessed June 15, 2013). 67. Stephen Askins, “UK Government Introduces Open General Trade Control Licence (Maritime Anti-Piracy),” Ince & Co, February 28, 2012, http://incelaw.com/newsand-events/news/uk-government-introduces-open-general-trade-control-licence-maritime-anti-piracy (accessed July 31, 2013). 68. Malta has been widely praised for its national licensing program for PMSCs, launched in March 2013. Because Malta is both a home country and operating base for many private maritime security companies, if it can maintain robust standards, it will likely have outsized influence on the PMSC industry as a whole. Another country warming to private security at around the same time is, surprisingly, Japan. Even Japan, which had long been staunchly against the use of embarked guards on its ships, decided in 2013 to allow them. Japan’s stringent firearms laws would not have applied to private escorts, but it is unknown to what extent Japanese ships have used escort vessels. See: Ann French, “Private Maritime Security License Rules are Another Notch for Malta,” Times of Malta, March 21, 2013, http://www.timesofmalta.com/articles/view/20130321/business-comment/Private-maritime-security-licence-rules-are-another-notch-for-Malta.462375 (accessed July 15, 2013); Nicholas-Andrew Iliopoulos, “The Shipping Shogun Joins Global Armed Counter-Piracy Efforts,” Piracy Daily, April 22, 2013, http://www.piracydaily.com/the-shipping-shogun-joins-global-armed-counter-piracy-efforts/ (accessed June 15, 2013). 69. Will McManus (REDfour Security Group Chief Executive Officer), correspondence with authors, email, April 8, 2013. 70. Will McManus, April 8, 2013. 71. See the initiative’s website at www.icoc-psp.org. 72. International Code of Conduct for Private Security Service Providers Association, “ICoC Timeline,” ICOC-PSP, last modified February 2013, http://www.icocpsp.org/ICoC_Timeline.html (accessed July 16, 2013). 73. Swiss Federal Department of Foreign Affairs, “Participating States of the Montreux Document,” Swiss Confederation, last modified May 23, 2013, http://www.eda.admin.ch/eda/en/home/topics/intla/humlaw/pse/parsta.html (accessed July 16, 2013). 74. Swiss Federal Department of Foreign Affairs and International Committee of the Red Cross, The Montreux Document on Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict, Montreux, September 17, 2008, available for download at (accessed June 15, 2013), 42. 75. International Code of Conduct for Private Security Service Providers Association, “About ICoC,” ICOC-PSP, http://www.icoc-psp.org/About_ICoC.html (accessed July 16, 2013). 76. Swiss Confederation, International Code of Conduct for Private Security Service Providers, ICOC-PSP / Swiss Confederation, November 9, 2010, available for download at http://www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF_CONDUCT_Final_without_Company_Names.pdf (accessed June 15, 2013), 8. 77. International Code of Conduct for Private Security Service Providers, 9. 78. International Code of Conduct for Private Security Service Providers, 8-9.

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79. International Code of Conduct for Private Security Service Providers, 6. 80. International Code of Conduct for Private Security Service Providers Association, “The International Code of Conduct for Private Security Service Providers Signatory Companies: Complete List as of 1 June 2013 – Version with Company Details,” ICOC-PSP, June 1, 2013, available for download at http://www.icoc-psp.org/uploads/Signatory_Companies_-_June_2013_-_Composite_List.pdf (accessed July 16, 2013). 81. Swiss Federal Department of Foreign Affairs, “International Code of Conduct for Private Security Service Providers – Consensus on Oversight Mechanism,” Swiss Confederation, February 22, 2013, http://www.eda.admin.ch/eda/en/home/recent/media/single.html?id=47889 (accessed June 15, 2013); text of the Oversight Mechanism’s adopted charter is available for download at http://www.icoc-psp.org/uploads/ICoC_Articles_of_Association.pdf (accessed June 15, 2013). 82. International Code of Conduct for Private Security Service Providers Association, International Code of Conduct for Private Security Service Providers Association Articles of Association, ICOC-PSP, February 22, 2013, available for download at http://www.icoc-psp.org/uploads/ICoC_Articles_of_Association.pdf (accessed June 15, 2013), 1. 83. International Code of Conduct for Private Security Service Providers Association Articles of Association, 6. 84. International Code of Conduct for Private Security Service Providers Association Articles of Association, 7-8. 85. International Code of Conduct for Private Security Service Providers Association Articles of Association, 9. 86. According to ICoC’s organizers in mid-2013: “The launch conference of the International Code of Conduct Association, which will give shape to the oversight mechanism, will take place on the 19th and 20th of September 2013 in Geneva.” See: International Code of Conduct for Private Security Service Providers Association, “Development of an Oversight Mechanism,” ICOC-PSP, http://www.icoc-psp.org/ (accessed July 17, 2013). 87. Michael G. Frodl (maritime risk consultant), author interview, telephone, January 22, 2013. 88. Nis Leerskov Mathiesen, “Private Security Companies in Anti-Piracy Operations,” Risk Intelligence, presented at the 7th Pan-European International Relations Conference, September 9-11, 2010, Stockholm, available for download at http://stockholm.sgir.eu/uploads/Paper_SGIR_Nis_Leerskov_Mathiesen_Final_Draft.pdf (accessed July 16, 2013), 3. 89. Mathiesen, 3. 90. Mathiesen, 4. 91. Mathiesen, 4. 92. Mathiesen, 4. 93. Mathiesen, 4. 94. Mathiesen, 4. 95. Baltic and International Maritime Council (BIMCO), “GUARDCON Standard Contract for the Employment of Security Guards on Vessels – Explanatory Notes,” BIMCO, 2012, available for download at https://www.bimco.org/Chartering/Documents/Security/~/media/Chartering/Document_S amples/Sundry_Other_Forms/Explanatory_Notes_GUARDCON.ashx (accessed June 15, 2013), 1.

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96. “GUARDCON Standard Contract for the Employment of Security Guards on Vessels – Explanatory Notes,” 2. 97. “GUARDCON Standard Contract for the Employment of Security Guards on Vessels – Explanatory Notes,” 3-13. 98. “GUARDCON Standard Contract for the Employment of Security Guards on Vessels – Explanatory Notes,” 2; Andrew Nicholson (Drum Cussac executive), author interview, telephone, April 9, 2013. 99. These were subsequently revised in May 2012, which are the versions of the circulars current as this book goes to press. For all revised versions available for download, see: International Maritime Organization, “IMODOCS > Circulars > MSC > MSC.1,” IMO.org, last modified May 29, 2013, http://www.imo.org/OurWork/Circulars/Pages/IMODOCS.aspx (accessed July 16, 2013). 100. International Maritime Organization, “IMODOCS > Circulars > MSC > MSC.1.” 101. International Maritime Organization, Interim Guidance to Shipowners, Ship Operators, and Shipmasters on the Use of Privately Contracted Armed Security Personnel On Board Ships in the High Risk Area, MSC.1/Circ.1405, May 23, 2011, available for download at http://docs.imo.org/Shared/Download.aspx?did=66875 (accessed June 15, 2013), Annex, 1. 102. MSC.1/Circ.1405, Annex, 2-5. 103. MSC.1/Circ.1405, Annex, 3. 104. MSC.1/Circ.1405, Annex, 4. 105. MSC.1/Circ.1405, Annex, 3, 6. 106. MSC.1/Circ.1405, Annex, 7. 107. MSC.1/Circ.1405, Annex, 7. 108. MSC.1/Circ.1405, Annex, 8. 109. International Maritime Organization, Interim Recommendations for Flag States Regarding the Use of Privately Contracted Armed Security Personnel On Board Ships in the High Risk Area, MSC.1/Circ.1406, May 23, 2011, available for download at http://docs.imo.org/Shared/Download.aspx?did=66876 (accessed June 15, 2013), Annex, 1. 110. MSC.1/Circ.1406, Annex, 2. 111. International Maritime Organization, Interim Recommendations for Port and Coastal States Regarding the Use of Privately Contracted Armed Security Personnel On Board Ships in the High Risk Area, MSC.1/Circ.1408, September 16, 2011, available for download at http://docs.imo.org/Shared/Download.aspx?did=68972 (accessed June 15, 2013), Annex, 1-2. 112. International Maritime Organization, Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel On Board Ships in the High Risk Area, MSC.1/Circ.1443, May 25, 2012, available for download at http://docs.imo.org/Shared/Download.aspx?did=73097 (accessed June 15, 2013), 1. 113. MSC.1/Circ.1443, Annex, 2. 114. MSC.1/Circ.1443, Annex, 2. 115. MSC.1/Circ.1443, Annex, 2. 116. MSC.1/Circ.1443, Annex, 1-3. 117. MSC.1/Circ.1443, Annex, 4. 118. MSC.1/Circ.1443, Annex, 9. 119. MSC.1/Circ.1443, Annex, 9. 120. For more detailed information on the International Association of Maritime Security Service Professionals, see the IAMSP website at www.iamsponline.org.

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121. Jonathan Saul, “Facing Piracy, Ship Security Firms Set Ethics Code,” Reuters, May 9, 2011, http://www.reuters.com/article/2011/05/09/uk-shipping-security-piracyidUSLNE74804X20110509 (accessed June 15, 2013). 122. Saul, “Ship Security Firms Set Ethics Code.” 123. MarSecPro is used by IAMSP both to refer to the organization itself, and to refer to Maritime Security Professionals. 124. International Association of Maritime Security Professionals, Maritime Security Professionals Voluntary Professional Code of Practice, IAMSP, May 2011, available for download at http://iamsponline.org/wp-content/uploads/2011/08/Code_of_Practice.pdf (accessed June 15, 2013), 4. 125. Maritime Security Professionals Voluntary Professional Code of Practice, 3. 126. The training vetting standard is available for download at http://iamsponline.org/wp-content/uploads/2011/05/Training-Vetting _final.pdf; the technology vetting standard is available for download at http://iamsponline.org/wp-content/uploads/2011/05/Technology-Review.pdf. 127. The IAMSP guidance document on rules for the use of force is available for download at: http://iamsponline.org/wp-content/uploads/2011/11/UOF_released.pdf. 128. According to SAMI founder Peter Cook, the association was first conceived in summer 2008, just as piracy off Somalia was spiraling out of control. The association was formally launched in April 2011 after a long period of development and soliciting feedback from stakeholders. Peter Cook (SAMI founder and director), author interview, telephone, January 4, 2013. 129. Michael G. Frodl, author interview, telephone, June 6, 2013. 130. Security Association for the Maritime Industry, “Private Maritime Security Accreditations Launch,” SAMI, February 1, 2012, http://www.seasecurity.org/mediacentre/private-maritime-security-accreditations-launch/ (accessed July 17, 2013). 131. Security Association for the Maritime Industry, “Standards for Private Maritime Security Company (PMSC) Accreditation,” SAMI, 2012, available for download at psm.du.edu/media/documents/industry_initiatives/sami_standard_executive_summary.pd f (accessed June 15, 2013), 2. 132. Liz McMahon, “SAMI Appoints National Security Inspectorate to Vet Armed Guards,” Lloyd’s List, October 7, 2011, http://www.lloydslist.com/ll/sector/Insurance/article381589.ece (accessed June 15, 2013). 133. United Kingdom Accreditation Service, “About UKAS,” United Kingdom Accreditation Service, http://www.ukas.com/about-accreditation/about-ukas/ (accessed June 15, 2013). 134. “Standards for Private Maritime Security Company (PMSC) Accreditation,” 2. 135. “Standards for Private Maritime Security Company (PMSC) Accreditation,” 2. 136. In total, these evaluation areas were: company structure; quality management; records and data protection; skills, experience and knowledge; legal advice; record of service delivery; culture and ethics; client complaints; internal audit; finances; insurance; infrastructure; operations; team size, composition and equipment; intelligence; command and control; briefing, communication and liaison; subcontractors; logistics; health; operational reporting; control room role; records; human resources; safe working environment; contracts of employment; external communications; identification and uniform; personnel records; training; weapons and equipment. See: “Standards for Private Maritime Security Company (PMSC) Accreditation,” 3-7. 137. “Standards for Private Maritime Security Company (PMSC) Accreditation,” 2.

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138. Meanwhile, SAMI told prospective applicants that Stage 3 of the Accreditation Programme “will be ready when companies have passed Stage 2.” See: Security Association for the Maritime Industry, “SAMI Certification for PMSCs,” SAMI, http://www.seasecurity.org/sami-certification-for-pmscs/ (accessed July 17, 2013). 139. At the 90th session of the IMO’s Maritime Safety Committee, held May 16-25, 2012 in London, the MSC requested that the International Organization for Standardization take the lead in providing guidance on standards for PMSCs. See: Koji Sekimizu, “Address of the Secretary-General at the Opening of the Ninety-First Session of the Maritime Safety Committee,” Remarks to the IMO MSC, London, November 26, 2012, http://www.imo.org/MediaCentre/SecretaryGeneral/SecretaryGeneralsSpeechesToMeetings/Pages/msc-91-opening.aspx (accessed June 15, 2013). 140. Steven Jones, “Security Association for Maritime Industry (SAMI) on PCASP Security Standards: ISO 28007 Sets the Gold Standard for PMSCs,” SAMI White Paper (No. 2), July 2, 2013, available for download at http://www.piracydaily.com/wp-content/uploads/2013/07/AdvanFortWhitePaperNo2-FINAL.pdf (accessed July 17, 2013), 2. 141. William H. Watson, panel discussion, Maritime TV, Washington, DC, June 20, 2013, excerpted at “Donna Hopkins, U.S. State Department Coordinator on Counter Piracy and Maritime Security,” Piracy Daily, June 26, 2013, http://www.piracydaily.com/donna-hopkins-u-s-state-department-coordinator-on-counter-piracy-and-maritime-security/ (accessed July 17, 2013). 142. Jones, 3. 143. International Organization for Standardization (ISO), Guidelines for Private Maritime Security Companies (PMSC) Providing Privately Contracted Armed Security Personnel (PCASP) On Board Ships, first edition, Publicly Available Specification, ISO/PAS 28007, December 15, 2012, v. 144. For the draft agenda of the meeting, see: International Organization for Standardization (ISO) “Draft Agenda for ISO 28007 Meeting at INTERPOL Headquarters, Lyon,” IMO.org, available for download at http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Documents/Draft%20Agenda%20for%20ISO%2028007%20meeting%20at%20Interpol.pdf (accessed July 17, 2013). 145. Peter Cook, author interview, telephone, March 19, 2013. 146. Peter Cook, March 19, 2013; Peter Cook, correspondence with authors, email, July 12, 2013. 147. Jeremy Weiss, January 15, 2013; Robert Haywood (Oceans Beyond Piracy founder), author interview, telephone, February 13, 2013; Pottengal Mukundan (International Maritime Bureau director), author interview, telephone, April 9, 2013. 148. ISO/PAS 28007, 19. 149. ISO/PAS 28007, 19. 150. ISO/PAS 28007, 20-1. 151. ISO/PAS 28007, 11, at note 1. 152. ISO/PAS 28007, 21. 153. “Standards for Private Maritime Security Company (PMSC) Accreditation,” 6. 154. “Setting Standards: A Pilot Audit of Security Firms for ISO 28007 is Kicking off, Closely Managed by MSS Global,” Maritime Security International, Spring 2013, 26; MSS Global, “MSS Global Announces the Start of It’s [sic] ISO PAS 28007 Pilot with Port 2 Port and Castor Vali,” MSS Global, March 12, 2013, http://mssglobalservices.com/blog/2013/03/12/mss-global-announces-the-start-of-its-iso-pas-28007-pilot-withport-2-port-and-castor-vali/ (accessed June 15, 2013).

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155. MarineLink, “PVI, Lloyd’s to Undertake ISO/PAS 28007 Certification,” MarineLink.com, May 1, 2013, http://www.marinelink.com/news/undertake-lloyds-isopas354080.aspx (June 15, 2013). 156. Security Association for the Maritime Industry, “Pushing Ahead with Security Standards,” SAMI, June 24, 2013, http://www.seasecurity.org/mediacentre/pushing-ahead-with-security-standards/ (accessed July 18, 2013). 157. Security Association for the Maritime Industry, “Port 2 Port Maritime Reports Good Progress with ISO Pilot,” SAMI, June 26, 2013, http://www.seasecurity.org/mediacentre/port-2-port-maritime-reports-good-progress-with-pilot/ (accessed July 18, 2013). 158. Giles Noakes, BIMCO’s Chief Maritime Security Officer, said: “It is excellent to see this pilot scheme kick off so soon after the introduction of ISO PAS 28007 – there have been a number of ‘doubting Thomas’s’. It confirms entirely our view that a PMSC’s professional credibility and safety standards need endorsing through a recognized, independent, third party audit system in an area where seafarers lives are at risk and there is no room for mistakes. We are confident this pilot will validate our involvement and support for the ISO PAS and the development and implementation of the GUARDCON contract now extensively in use with the industry.” Quoted in: Security Association for the Maritime Industry, “Pilot Audit for ISO PAS 28007 (Maritime) Begins,” SAMI, March 14, 2013, http://www.seasecurity.org/2013/03/10890/ (accessed July 17, 2013). 159. Security Association for the Maritime Industry, “Grades & Fees,” SAMI, http://www.seasecurity.org/membership/grades-fees/ (accessed July 17, 2013). 160. Peter Cook, July 12, 2013. 161. Liz McMahon, “Accreditation of Armed Guards Certification Bodies Begins,” Lloyd’s List, May 16, 2013, http://www.lloydslist.com/ll/sector/regulation/article422871.ece (accessed July 22, 2013); Security Association for the Maritime Industry, “Pushing Ahead with Security Standards,” SAMI, June 24, 2013, http://www.seasecurity.org/mediacentre/pushing-ahead-with-security-standards/ (accessed July 17, 2013). 162. Mathiesen, 5. Further concern was prompted in June 2013 by the discovery of large numbers of counterfeit security officer and firearms competency certifications. This raises the possibility that even well-meaning PMSCs and shipping companies could unknowingly hire the services of unqualified personnel. Lloyd’s List reported that “[a]necdotal evidence from PMSCs suggests that initial checks undertaken by some firms have found that more than 50% of their workforce’s certifications that they have checked contained forgeries.” As this book goes to press, though, the origin of the counterfeits and the scope of the fraud remain unconfirmed. Liz McMahon, “Owners at Risk of Employing Unqualified Armed Guards,” Lloyd’s List, June 5, 2013, http://www.lloydslist.com/ll/sector/regulation/article423880.ece (accessed July 22, 2013). 163. Mathiesen, 5. 164. The Concise Oxford English Dictionary, 10th ed., s.v. “warship.” 165. The Concise Oxford English Dictionary, 10th ed., s.v. “warfare.” 166. One might object that the primary purpose of private escorts is deterrence, not combat. This is true. Yet in that sense, the purpose of regular navies is not combat either, but rather strategic deterrence and force projection. What PMSC escorts and regular warships have in common is a lack of a normal commercial purpose, instead being entirely dedicated to maritime security functions. 167. Douglas Guilfoyle, April 16, 2013. 168. United Nations General Assembly, United Nations Convention on the Law of the Sea (UNCLOS), adopted December 10, 1982, 1833 UNTS 3 (entered into force No-

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vember 16, 1994), Article 110, http://www.un.org/depts/los/convention_agreements/texts/unclos/part7.htm (accessed June 1, 2013). 169. United Nations General Assembly, United Nations Convention on the Law of the Sea (UNCLOS), adopted December 10, 1982, 1833 UNTS 3 (entered into force November 16, 1994), Article 111, http://www.un.org/depts/los/convention_agreements/texts/unclos/part7.htm (accessed June 1, 2013). 170. United Nations General Assembly, United Nations Convention on the Law of the Sea (UNCLOS), adopted December 10, 1982, 1833 UNTS 3 (entered into force November 16, 1994), Article 95, http://www.un.org/depts/los/convention_agreements/texts/unclos/part7.htm (accessed June 1, 2013). 171. United Nations General Assembly, United Nations Convention on the Law of the Sea (UNCLOS), adopted December 10, 1982, 1833 UNTS 3 (entered into force November 16, 1994), Article 96, http://www.un.org/depts/los/convention_agreements/texts/unclos/part7.htm (accessed June 1, 2013). 172. United Nations General Assembly, United Nations Convention on the Law of the Sea (UNCLOS), adopted December 10, 1982, 1833 UNTS 3 (entered into force November 16, 1994), Article 29, http://www.un.org/depts/los/convention_agreements/texts/unclos/part2.htm (accessed June 1, 2013). 173. Douglas Guilfoyle, April 16, 2013. 174. U.S. Department of the Navy, The Commander’s Handbook on the Law of Naval Operations, Department of the Navy / Department of Homeland Security, July 2007, available at www.usnwc.edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/ (accessed June 2, 2013), 36. 175. United Nations Security Council, Security Council Resolution 1838 (2008) [On Acts of Piracy and Armed Robbery Against Vessels in Territorial Waters and the High Seas off the Coast of Somalia], October 7, 2008, S/RES/1838 (2008), http://www.un.org/News/Press/docs/2008/sc9467.doc.htm (accessed June 1, 2013). 176. For links to full text of these resolutions, see: United Nations Security Council, “Security Council Resolutions,” UN.org, http://www.un.org/en/sc/documents/resolutions/index.shtml (accessed June 2, 2013). 177. Douglas Guilfoyle, April 16, 2013. 178. Douglas Guilfoyle, April 16, 2013. 179. Katharine Houreld, “Piracy Fighters Use Floating Armories,” Associated Press / Bloomberg Businessweek, March 22, 2012, http://www.businessweek.com/ap/2012-03/D9TLKOVO0.htm (accessed April 18, 2013). 180. Skuld, “Insight: Piracy – Gulf of Aden and Indian Ocean,” skuld.com, last modified May 31, 2013, http://www.skuld.com/topics/voyage--port-risks/piracy/overall/piracy1/armed-guards/ (accessed July 31, 2013). 181. Houreld, “Piracy Fighers Use Floating Armories”; For an extensive list of port and coastal state responses to the IMO regarding their laws and regulations on PMSCs, see: International Maritime Organization, “Responses received from port and coastal State requirements related to privately contracted armed security personnel (PCASP)” IMO.org, November 17, 2011, http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Pages/Responses-received-on-Private%20Armed%20Security.aspx (accessed July 31, 2013). 182. Thomas Jakobsson (Sea Marshals Chief Executive Officer), author interview, telephone, May 28, 2013. 183. Stephen Askins, April 10, 2013; Jason M. Wong, “Piracy,” Firearms Law Group, May 28, 2009, http://www.firearmslawgroup.com/publications/small-arms-defense-journal/64-piracy (accessed June 3, 2013).

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184. Eugene Kontorovich (international law expert), author interview, telephone, October 10, 2011. 185. International Maritime Organization, “‘Places of Refuge’ – Addressing the Problem of Providing Places of Refuge to Vessels in Distress,” IMO.org, http://www.imo.org/blast/mainframe.asp?topic_id=746 (accessed June 3, 2013). 186. International Maritime Organization, Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted December 5, 2003, IMO Doc. A 23/RES.949 (entered into force March 5, 2004), available for download at www.imo.org/blast/blastData.asp?doc_id=3554&filename=949.pdf (accessed June 2, 2013), 10, at footnote 3. 187. Aldo Chircop, Olof Linden, and Detlef Nielsen, “Characterising the Problem of Places of Refuge for Ships,” in Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom, eds. Aldo Chircop and Olof Linden (Leiden: Martinus Nijhoff, 2006), 9-10. 188. International Maritime Organization, “‘Places of Refuge’ – Addressing the Problem of Providing Places of Refuge to Vessels in Distress.” 189. Maritime security analyst, author interview, telephone, October 2011. 190. Press Information Bureau, “Shipping Ministry Issues Guidelines for Deployment of Armed Guards in Merchant Ships,” Government of India Ministry of Shipping, August 29, 2011, http://pib.nic.in/newsite/PrintRelease.aspx?relid=75281 (accessed June 2, 2013). 191. Bret Stephens, “Why Don’t We Hang Pirates?” Wall Street Journal, November 25, 2008, http://online.wsj.com/articlSB122757123487054681.html (accessed June 2, 2013). 192. Although due process has generally been afforded to suspected pirates, this may not have been universally the case. As noted in Chapter 3, in May 2010, Russian commandos stormed the MV Moscow University, a Liberian-flagged Russian oil tanker that had been hijacked by Somali pirates. The pirates who survived the in itial firefight may have been set adrift, causing their death. Russia never provided a satisfactory answer, and the truth has never been publicly ascertained. See: Mansur Mirovalev, “Russia Says Freed Pirates Didn’t Reach Land,” Bloomberg Businessweek, May 11, 2010, http://www.businessweek.com/ap/financialnews/D9FKN8L84.htm (accessed June 2, 2013). 193. If pirates attempt to surrender to a private escort, PMSC personnel will effectively have control of the opening minutes or hours of the criminal investigation. Escort crew would need some training in law enforcement techniques to ensure that evidence is not mishandled, and that no mistakes are made that might jeopardize future prosecution efforts. 194. Assistance from law enforcement agencies has also proven helpful. In 2011, INTERPOL sent its first Incident Response Team to the HRA to “assist in crime scene investigation and evidence collection.” The same year, INTERPOL started Project EVEXI (Evidence Exploitation Initiative), which “provides investigators with INTERPOL-supported procedure for intelligence gathering, evidence collection, and information sharing … in a manner that can be effectively used in the prosecutions of pirates.” Oceans Beyond Piracy, “Interpol,” oceansbeyondpiracy.org / One Earth Future Foundation, http://oceansbeyondpiracy.org/matrix/activity/interpol (accessed June 2, 2013); Active duty CTF 151 officer, author interview, telephone, November 2, 2011. 195. Douglas Guilfoyle, “International Cooperation in the Prosecution of Somali Pirates,” UK House of Commons Foreign Affairs Committee, written evidence, December

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20, 2011, available online (prepared January 5, 2012) at http://www.publications.parliament.uk/pa/cm201012/cmselect/cmfaff/1318/1318we10.htm (accessed June 2, 2013). 196. United Nations General Assembly, United Nations Convention on the Law of the Sea, adopted December 10, 1982, 1833 UNTS 3 (entered into force November 16, 1994), Article 111, https://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm (accessed June 3, 2013). 197. Edwin Smith (international law scholar), author interview, telephone, December 15, 2011. 198. Eugene Kontorovich, October 10, 2011. 199. Eugene Kontorovich, October 10, 2011. 200. Thomas Jakobsson, author interview, telephone, January 8, 2013. 201. International Maritime Organization, “SUA Convention,” IMO.org, http://www.imo.org/ourwork/facilitation/suaconvention/Pages/Default.aspx (accessed June 2, 2013). 202. International law scholar Douglas Guilfoyle considers it unlikely that PMSC vessels would by default share the same obligations as warships in the se rvice of regular navies. The exception, he says, would be if national legislation sp ecifically mandated that private security adhere to military policy in this area. “I suppose it might be arguable,” Guilfoyle says, “that states should somehow be obliged to legislate such that private security companies must respect all a pirate’s human rights as if they were state agents.” As of 2013, it appears that no such laws exist. Overall, Guilfoyle considers “arguments that private security should be equated to state agents, for human rights purposes, simply because they are licensed by a state” to be “something of a stretch.” Douglas Guilfoyle, correspondence with authors, email, June 28, 2013. 203. United Nations Convention on the Law of the Sea, Article 94. 204. United States Department of Justice, “Child Exploitation & Obscenity Section,” justice.gov, http://www.justice.gov/criminal/ceos/subjectareas/child-sex-tourism.html (accessed June 3, 2013). 205. Wolff Heintschel von Heinegg (international law scholar), author interview, telephone, December 12, 2011. 206. Douglas Guilfoyle, “Treaty Jurisdiction over Pirates: A Compilation of Legal Texts with Introductory Notes,” Paper prepared for the 3 rd meeting of Working Group 2 on Legal Issues, Contact Group on Piracy off the Coast of Somalia, Copenhagen, August 26-27, 2009, available at http://www.academia.edu/195470/Treaty_Jurisdiction_over_Pirates_A_Compilation_of_Legal_Texts_with_Introductory_Notes (accessed July 31, 2013), 6. 207. Tom Wright and Margherita Stancati, “Italy, India Clash Over Ocean Shooting, Wall Street Journal, February 23, 2012, http://online.wsj.com/article/SB10001424052970204778604577239163888809948.html (accessed June 2, 2013). 208. Jeemon Jacob, “Standoff Between Kerala Police and Italian Oil Tanker Ends,” Tehelka (India), February 18, 2012, http://archive.tehelka.com/story_main51.asp?filename=Ws180212murders.asp (accessed June 1, 2013). 209. Annie Banerji and D. Jose, “Murder Trial of Italian Marines in India Navigates Murky Waters,” Reuters, June 10, 2013, http://in.reuters.com/article/2013/06/10/indiaitaly-marines-idINDEE95900B20130610 (accessed June 2, 2013). 210. Jon Bellish, “Revisiting Jurisdiction Over the Enrica Lexie Incident,” Denver Journal of International Law and Policy – The View From Above (online), March 2, 2012, http://djilp.org/1816/revisiting-jurisdiction-over-the-enrica-lexie-incident/ (accessed June 1, 2013).

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211. “Court Releases Passports of Italian Marines,” Hindu, December 21, 2012, http://www.thehindu.com/news/national/kerala/court-releases-passports-of-italianmarines/article4225929.ece (accessed June 2, 2013). 212. Andrew Davis and Chiara Vasarri, “Italian Marines Return to India in Bid to End Diplomatic Rift,” Bloomberg, March 21, 2013, http://www.bloomberg.com/news/2013-03-21/italian-marines-return-to-india-in-bid-to-end-diplomatic-rift.html (accessed June 1, 2013). 213. Top Twitter Trends, “Previous Tweets for Trend: ItalianMarines,” toptwittertrends.com, http://toptwittertrends.com/trends/ItalianMarines (accessed June 2, 2013). 214. Catherine Hornby and Steve Scherer, “UPDATE 1 – Italian Marines Accused of Killing Fishermen to Return to India,” Reuters, March 21, 2013, http://www.reuters.com/article/2013/03/21/india-italy-marines-idUSL6N0CDG3G20130321 (accessed June 2, 2013). 215. United Nations Convention on the Law of the Sea, Article 101. 216. Martin Davies, January 24, 2012. 217. Wolff Heintschel von Heinegg, December 12, 2011. 218. International Committee of the Red Cross (ICRC) and Swiss Federal Department of Foreign Affairs (FDFA), The Montreux Document: On Pertinent International Legal Obligations and Good Practices for States Related to Operations of Private Military and Security Companies During Armed Conflict, ICRC and FDFA, Montreux, Switzerland, September 17, 2008, annex to letter dated October 2, 2008 from the Permanent Representative of Switzerland to the U.N. addressed to the Secretary-General, U.N. Document A/63/467-S/2008/636 (2008), available for download at http://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf (accessed June 17, 2013), 35. 219. Montreux Document, 35. 220. Michael G. Frodl, author interview, telephone, October 18, 2011. 221. Eugene Kontorovich, October 10, 2011; Michael G. Frodl, correspondence with authors, email, January 20, 2013. 222. Maritime Security Center Horn of Africa, “Protecting Coastal Fishing Industry – Indian Ocean,” EU Navfor, http://www.mschoa.org/on-shore/dhow-project/coastalfishery-protection (accessed June 17, 2013). 223. Families of real pirates might falsely claim that the deceased was an innocent fisherman, hoping that a sympathetic judge or jury would find against the PMSC. Knowing that this is a risk, especially in jurisdictions where popular sentiment is strongly against private security, PMSCs will be more apt to offer out-of-court settlements. As of 2013, some settlements have been already been given, including one by the Trident Group (estimated at $50,000 to $100,000) after its embarked guards shot incoming skiffs with likely pirates aboard. A video of the shooting went viral on YouTube, drawing criticism for perceived excessive use of force. Maritime security analyst, author interview, telephone, June 2013; Michelle Wiese Bockmann and Alan Katz, “Shooting to Kill Pirates Risks Blackwater Moment,” Bloomberg, May 8, 2012, http://www.bloomberg.com/news/2012-05-08/shooting-to-kill-pirates-risks-blackwater-moment.html (accessed April 18, 2013). 224. Another concern is that families of admitted pirates might sue PMSCs for using excessive force in repulsing an attack, or for failing to assist injured pirates. As will be discussed further in Chapter 7, it is unclear what obligations PMSC forces have to aid wounded pirates, but it is plausible that courts will consider it obligatory. As Wolff Heintschel von Heinegg stresses, there is “both a [Safety of Life at Sea Convention] obli-

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gation and customary obligation to render assistance,” to distressed persons at sea. Even though common sense would suggest giving PMSCs the benefit of the doubt in assessing whether they can safely turn back to rescue potentially injured pirates, international law has not yet provided explicit clarification of their obligations. Thus, von Heinegg says, “you never know what [courts hearing cases of] wrongful death will decide.” Wolff Heintschel von Heinegg, author interview, telephone, May 23, 2013. 225. Wolff Heintschel von Heinegg, May 23, 2013. 226. Michael G. Frodl, January 20, 2013. 227. Jeremy Weiss (PMSC executive), author interview, telephone, January 15, 2013; PMSC executive, author interview, telephone, February 1, 2013. 228. Pottengal Mukundan, April 9, 2013. 229. Pottengal Mukundan, April 9, 2013. 230. Jakob P. Larsen (BIMCO Maritime Security Officer), correspondence with authors, email, April 16, 2013. 231. Jakob P. Larsen, April 16, 2013. 232. Jakob P. Larsen, April 16, 2013. 233. The shipping industry has seen this as an advantage, because in the event that a criminal act is committed, the master would not have command responsibility for the personnel who committed the act. This allows shipowners to “displace those problems onto a third party” for the added cost of using escorts versus embarked guards. Gavin Simmonds (UK Chamber of Shipping Head of Security and Commercial), author interview, telephone, April 22, 2013. 234. Adam R. Morgan, “GUARDCON,” Reed Smith LLP, April 5, 2012, last modified April 6, 2012, http://www.jdsupra.com/legalnews/guardcon-98203/ (accessed June 14, 2013); Stephen Askins, April 10, 2013; Peter Cook, January 4, 2013; Thomas Jakobsson, author interview, telephone, January 8, 2013. 235. John Stawpert (International Chamber of Shipping senior advisor), author interview, telephone, April 25, 2013. 236. This is largely because those companies with the capacity to provide escort services tend to be at the very top of the PMSC food chain. They tend to be among the bestfinanced, best-trained, best-run, and most reputable firms. As such, they have had major influence in the formulation of GUARDCON. Probably the most significant contributions came from Protection Vessels International. Thus, although PVI uses “an entirely separate contract,” GUARDCON reflects the experiences and principles of PVI and its peer companies. Barry Roche (PVI Chief Executive Officer), author interview, telephone, March 25, 2013; Thomas Jakobsson, January 8, 2013. 237. Some losses at sea are covered by a longstanding principle of maritime law called “general average,” which holds that losses incurred in the cour se of trying to avoid greater peril will be borne equally by all parties in the venture. Yet it is unlikely that losses caused by PMSCs to shipowners would meet the definition. Rule A of the 2004 York-Antwerp Rules states that acts of general average are limited to when “any extraordinary sacrifice or expenditure is intentionally and reaso nably made or incurred for the common safety for the purpose of preserving from peril the property involved in a common maritime adventure.” This includes deli berate actions like jettisoning cargo in a storm, or towing another ship that is dis abled. Virtually any foreseeable loss caused by PMSCs would be accidental, and thus excluded from general average. See: Comité Maritime International, YorkAntwerp Rules 2004, adopted June 4, 2004, Vancouver, available for download at http://www.jssusa.com/assets/Uploads/GA-papers/YAR04.pdf (accessed June 18, 2013), 1.

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238. Holman Fenwick Willan LLP, “GUARDCON: A Guide for Private Maritime Security Companies,” Holman Fenwick Willan, SAMI briefing document, 2012, available for download at http://ebookbrowse.com/sami-briefing-document-hfw-guardconguide-for-security-companies-may-2012-webversion-pdf-d347107741 (accessed June 18, 2013), 8-9. 239. Baltic and International Maritime Council, “GUARDCON: Contract for the Employment of Security Guards on Vessels,” BIMCO’s Idea: Copenhagen, 2012, Clause 12 (a) (ii)-(b), available online at https://www.bimco.org/Chartering/Documents/Security/~/media/Chartering/Document_Samples/Sundry_Other_Forms/Sample_Copy_GUARD CON__04_01_2013.ashx (accessed June 18, 2013), 8. 240. Stephen Askins, April 10, 2013. 241. “GUARDCON: Contract for the Employment of Security Guards on Vessels,” Clause 15 (c) (i)-(ii). 242. “GUARDCON: Contract for the Employment of Security Guards on Vessels,” Clause 15 (c) (iii). 243. “GUARDCON: Contract for the Employment of Security Guards on Vessels,” Clause 9. 244. Marsh, “The SAMI Facility: Insurance Facility for Members of the Security Association for the Maritime Industry (SAMI),” Marsh & McLennan Companies, November 2011, http://uk.marsh.com/LinkClick.aspx?fileticket=5yebvJFNYiw%3d&tabid=1993&mid=10484 (accessed June 18, 2013), 4. 245. “GUARDCON: Contract for the Employment of Security Guards on Vessels,” Clause 23. 246. “GUARDCON: Contract for the Employment of Security Guards on Vessels,” Clause 16. 247. “GUARDCON: Contract for the Employment of Security Guards on Vessels,” Clause 12 (a) (i)-(b). 248. “The SAMI Facility: Insurance Facility for Members of the Security Association for the Maritime Industry (SAMI),” 5. 249. “GUARDCON: Contract for the Employment of Security Guards on Vessels,” Clause 12 (a) (4). 250. Douglas Guilfoyle (international law expert), author interview, telephone, April 16, 2013. 251. Douglas Guilfoyle, April 16, 2013. 252. “CTX Glossary,” Center for Tankship Excellence, http://www.c4tx.org/ctx/gen/glossary.html (accessed June 18, 2013). 253. Michael G. Frodl, October 17, 2011.

Chapter 7

Operational and Tactical Challenges

Maritime piracy is a form of asymmetric warfare—pirates seek out vulnerable merchant ships, but avoid combat with armed forces. As discussed in Chapter 5, the strategic challenge is deterring pirates by increasing the risks of piracy, thereby lowering pirates’ return on investment and ruining their business model. But the challenges are different on an operational and tactical level. That is, when pirates are already at sea trying hijacking ships, what can we do to prevent them from succeeding? There are two main cat egories of response. The first is making potential targets harder to hijack, which can encompass several approaches. Best Management Practices, as set forth in BMP4, suggest measures for detecting and evading approaching pirates. Many ships also retrofit with security equipment and citadels, and many now hire embarked armed guards. The second form of response is more direct: ne utralizing pirates by killing or detaining them. International militaries use a combination of aircraft, naval warships, and reconnaissance drones to ide ntify pirates at sea and engage them before they can attempt a hijacking. Meanwhile, private escort vessels strike a balance between the two approaches. They provide close protection to merchant ships in a defensive posture, but also have the flexibility to engage pirates at a safe distance from clients. In this chapter, we survey these operational and tactical challenges, with particular emphasis on how private naval forces fit into the larger security picture. We then discuss the logistical issues of operating private navies, and how they compare to the logistics using of embarked guards. Finally, we address rules for the use of force—a vital issue that lies at the intersection of legal and operational concerns.

The Pirate Threat During the first years of the Somali piracy epidemic, pirates t ypically attacked in skiffs sailed directly from the coast. This limited their range to a few hundred nautical miles. By 2010, though, pirates were operating up to 1,200 miles out to sea with the help of motherships—mostly captured dhows, fishing vessels, and freighters that couldn’t be ransomed. Once in vulnerable shipping lanes, the skiffs would go off in groups of two or three, 137

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searching for prey with the help of GPS and satellite phones. 1 Although pirate action groups (PAGs) have usually attacked during the day, they have occasionally struck at night. 2 The main environmental factor affecting them is sea state—at Sea State 3 and above, rough water makes it difficult to o perate small craft precisely enough to board a merchant ship. 3 Accounts from hijacking victims show three common approach types. In the first, a PAG will identify a merchant ship from a distance of up to a few miles, and decide whether it is an attractive target. 4 This will depend primarily on the ship’s speed and freeboard. The “low and slow” bulk carriers and tankers are much easier to board than faster ships riding higher in the water. Pirates may sometimes consider other factors, such as the presence of barbed wire fencing, and whether any watchstanders are visible on deck. It is possible that some pirates try to avoid ships flagged to countries with navies active in the area, but this remains conjectural. 5 In examining a potential target, pirates sometimes communicate by radio with bosses ashore. Once a decision is made to attack, the skiff or skiffs approach at high speed, with the objective of boarding before the bridge crew can u nderstand the situation and take evasive action. Pirates usually clamber aboard with ladders or climbing ropes. The second approach type involves the same distant observation as the first, but the pirates do not attempt to board the ship while it is underway. Instead, pirates close to within shooting range, and open fire with automatic weapons and sometimes RPGs. 6 At times, the shots seem to be aimed over the ship as a warning, but other times pirates shoot at the bridge windows or at the crew accommodation area. In either case, the intent is to intimidate the ship’s master into stopping, and allowing the pirates to board. If the ship attempts to flee, pirates may hit it with RPGs, trying to start a fire. Pirates know that one a ship is on fire, continuing to travel at high speed fans the flames with nearly gale-force winds. 7 When the burning ship slows down to control the fire, the pirates come aboard. The third common approach type is the “soft” approach wherein skiffs approach at low speed, pretending to be fishermen. 8 This allows them to case potential targets from a much closer position, and gain additional i nformation about the crew’s level of watchfulness, whether there are unfortified access points, and whether private security seems to be aboard. If the target seems vulnerable, the pirates can initiate their attack from close range—either as a surreptitious boarding attempt, or by firing on the ship and signaling it to stop. Once pirates come aboard successfully, they usually try to take hosta ges in order to secure the compliance of the rest of the crew. They then take control of the bridge, and slow the ship down to allow the rest of the PAG to board. They then start heading for a pirate-friendly port somewhere on the Somali coast. If a hijacking gets this far, international militaries are e x-

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tremely reluctant to attempt a rescue, due to the risk either that pirates will execute hostages or that captive crewmembers will be killed in a crossfire. 9

BMPs and Hardening Because it is so difficult to recapture a ship by force once it has been su ccessfully hijacked, it is essential to prevent an attack from getting that far. Ideally, a countermeasure will prevent pirates from initiating attacks in the first place. Adherence to BMP4 often does that. One of the most important aspects of Best Management Practices is good intelligence—merchant ships both reporting pirate activity to the authorities, and closely monitoring reports and advisories. Before transiting waters threatened by Somali pirates, ships are urged to register at www.MSCHOA.org, the website of the Maritime Security Centre – Horn of Africa. 10 MSCHOA is the planning and coordination center for EU Navfor, and allows naval commanders to have a reasonably acc urate picture of the merchant shipping operating in the waters they are a ssigned to protect. By registering, merchant ships gain access to timely risk updates not available to the general public. Upon entering the High Risk Area, ships submit a “Vessel Movement Registration Form” to MSCHOA, and subsequently submit daily “Vessel Position Reporting Forms” to the UK Maritime Trade Operations Office (UKMTO) in Dubai. 11 The UKMTO liaises between merchant ship masters and the various militaries in operation in the area. BMP4 urges ships to monitor several channels of info rmation for warnings about pirate activity. The websites of MSCHOA and the NATO Shipping Centre (www.shipping.NATO.int) post online upda tes, and some national governments and shipping associations have their own advisory systems. Additional warnings come from automatic radio alerts via the NAV Warnings – Sat C and NAVTEXT systems, and from the Maritime Liaison Office (MARLO)—charged with facilitating “exchange of information between the United States Navy, Combined Maritime Forces, and the commercial maritime community.” 12 These warnings may specify the last known location of suspected pirate action groups, or report on environmental conditions especially favorable for piracy. In the event that a merchant ship suspects that it is coming under attack by pirates, it must immediately make a telephone report to the UKMTO, which is the “primary point of contact” during an attack. 13 BMP4 also instructs a ship under attack to activate its Ship Security Alert System, notif ying the shipping company and flag state—and also to make Mayday calls via VHF radio. 14 Distress messages can also be sent through the Digital Selective Calling system and Inmarsat-C. Another useful intelligence tool is the Automatic Identification System (AIS), which enables anti -piracy forces to track and identify the ship throughout its transit. 15 Although BMP4

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leaves a master with final discretion to turn off his AIS “if he believes that its use increases the ship’s vulnerability,” it urges masters to leave it on while transiting the High Risk Area, but restrict the encoded information to just the “ship’s identity position, course, speed, navigational status and safetyrelated information.”16 Although intelligence is an effective way to keep merchant ships away from known pirate threats, the two-way flow of information between merchant ships and reporting authorities must be prompt. Since pirate skiffs and their motherships are constantly in motion, the usefulness of data on their locations diminishes rapidly with time. If a NATO reconnaissance helicopter spots a suspicious vessel and makes a report, intelligence mechanisms must evaluate that report and get it into the hands of nearby merchant ship masters before the pirates can strike. Similarly, when civilian ships sight pirates, their reports must reach naval authorities quickly if they are to be useful. For skiffs with speeds up to 25 knots, 17 just one hour of delay can mean a Delaware-sized stretch of ocean into which a skiff can disappear. 18 Even if a pirate action group encounters an unsuspecting merchant ship, it will not necessarily attack. Best Management Practices specify how ships can make themselves unappealing targets, and either deter pirates from attacking in the first place, or cause them to abort an attack before coming aboard. Central to BMP4 is crew awareness and training, and it emphasizes that a “proper lookout is the single most effective method of ship protection.”19 Many hijackings could have been averted had watchstanders identified a pproaching pirates with enough warning, and the ship increased speed and taken evasive action. 20 For this reason, ships should maintain careful radar watch, post additional lookouts throughout a transit of the HRA, and rotate those lookouts more frequently than normal to keep them fresh and alert. Provision of enough binoculars and use of night vision further enhance a ship’s situational awareness. If suspicious boats are sighted, crews are urged to demonstrate that the boats have been seen—perhaps by turning on lighting, sounding the ship’s whistle, or firing flares. This obvious vigilance may often be enough to deter pirates hoping to catch a victim unawares. It is also essential to regularly drill crews in emergency procedures for responding to pirate attacks. This increases the chances that they will r espond with calm and discipline when under a real threat. BMP4 encourages ships to practice evasive maneuvering according to the method found to be most effective—full speed, and many small alternations of helm to impede attempts to bring skiffs alongside for boarding. 21 To a great extent the efficacy of these procedures relies on a crew’s own faith in them. If master and crew are familiar with appropriate countermeasures and confident in their use, they can usually thwart attacks. Pirates have often hijacked ships when their gunfire and RPGs intimidated ships into abandoning their defensive plan and allowing the attackers to board.

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Partly for this reason, it is important to have physical barriers to boar ding in addition to crew awareness and evasive action. These measures fall under the rubric of “hardening” a ship, and since it became clear in 2009 and 2010 that Somali piracy would not be quickly suppressed, most shipowners have invested in some form of hardening. 22 The hardening process begins with an assessment of each ship’s vulnerabilities. Some are slow, some carry explosive chemicals, and others have low freeboard. Effective planning can minimize such vulnerabilities. For example, fully loaded tan kers often ride low enough in the water for pirates to easily climb aboard, but by installing rolls of razor wire along the sides of the ship, they can make boarding much more difficult. Other key countermeasures suggested in BMP4 include securing potential access points while underway, fortifying the bridge with ballistic pr otection, and installing alarms, closed-circuit TV, and upper deck lighting. Another common tactic is using fire hoses to spray boarders. 23 Although it is risky for crewmembers to use standard fire hoses against armed pirates, between 0.25-0.83 percent of ships in the HRA have installed high-pressure remote-controlled water cannons. 24 These can be operated from the bridge so crew do not have to expose themselves, and pack enough force—up to 175 psi25—to knock pirates off their boarding ladders. Also, some at-risk vessels have installed electric fences. Secure-Marine BV has developed the Secure-Ship system, which surrounds ships with a 5,500-volt non-lethal deterrent, 26 and has been endorsed by the International Maritime Bureau as a countermeasure against piracy. 27 Secure-Ship is on about 30 ships as of 2013,28 and overall usage of electrified barriers has reached 0.75-2.50 percent. 29 Perhaps the most significant trend in ship defense, though, is retrofitting ships to create crew citadels. 30 Citadels are reinforced and sometimes armored chambers into which crews can withdraw during a hostile boarding and lock themselves in from the inside. These rooms can include secondary control stations from which the bridge controls may be disabled and the ship steered from a place of safety. If a crew can enter its citadel before pirates take control, the pirates soon find themselves aboard a ship they do not control, with no hostages, and with the crew sending distress calls. The pirates thus have an incentive to flee while they still have the chance, idea lly leaving the crew unharmed in the citadel until rescuers arrive. Further, if the entire crew is known to be within the citadel, commandos can assault the ship aggressively, without worry about protecting hostages from the crossfire. 31 Ships with citadels have rarely been successfully hijacked and taken for ransom, and when citadels have been breached, it is typically due to flawed use or construction. 32 Active self-defense systems are also appealing. Due to the legal issues surrounding the use of firearms, many shipowners have opted instead for non-lethal weapon systems to supplement their other countermeasures. Use

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of such systems has significantly declined since 2011 in favor of firearms as gun laws have loosened, but non-lethal weapons remain popular as of 2013. Effectiveness varies widely among different types of systems, though, and analysts are divided as to the wisdom of using non-lethal weapons in the first place. As of 2013, 5-15 percent 33 of ships in the HRA have been fitted with acoustic deterrents such as the Long Range Acoustic Device (LRAD), a sonic weapon that projects painful 150-decibel sound waves up to 300 meters. 34 Developed for urban crowd control, the LRAD can be operated after brief training, and can incapacitate targets without permanent injury. Unfo rtunately, it has a spotty record of stopping determined attackers. Although an LRAD was used to successfully defend the American cruise ship Seabourn Spirit from pirates in 2005, 35 other high-profile victories have been lacking. Following the hijacking of the LRAD-armed MV Biscaglia in November 2008, the industry’s early enthusiasm for the technology plu mmeted. 36 Lloyd’s List, the world’s leading shipping journal, published a piece the following week that opined dryly that the devices “may not be a sound investment.” 37 The early success of sonic weapons can probably be attributed to surprise—now that pirates are wary, they have modified their tactics to take advantage of the LRAD’s weaknesses. Their chief weakness is range. AK-47s can be effective out to 400 meters, 38 and RPGs up to 500 meters, 39 although with poor accuracy. Pirates can linger outside the LRAD’s 300-meter range and fire on merchant ships with impunity. Further, since pirates typically attack with two or more skiffs at once, they can overwhelm the defensive capabilities of a single sonic weapon. More promising is the Active Denial System (ADS). The ADS is a d irected-energy weapon that works by focusing a beam of millimeter-wave energy over long distances. When the ray touches humans, it creates intense pain and the sensation of heat, but with minimal side effects. 40 The ADS is currently only available from a vehicle-mounted platform, but Raytheon has developed a smaller version called the Silent Guardian, with a range of 550 meters. 41 This would likely be enough to prevent most pirates from enga ging. In 2012, Gulf states stated plans to deploy Silent Guardian to defend oil and gas infrastructure. 42 If this use proves successful, and governments approve Silent Guardian for use by merchant ships, it could see in pirate threatened waters within the next few years.

Embarked Guards Although non-lethal weapons are legally convenient, experts worry they are insufficient to deter pirates armed with machine guns and rocket-propelled grenades. The argument goes that since an LRAD might provoke pirates into using lethal force anyway, it is best to either instruct crews not to re sist

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at all, or arm a ship heavily enough to defend itself properly. 43 Halfmeasures might give rise to serious risk with little protection. Still, the shipping industry recognizes that it is unwise to arm ordinary seafarers and expect them to do double duty as security guards. Any supplementary training would be insufficient, and crews would be reluctant to undertake the extra risk without greatly increased pay. So it quickly became apparent that private security firms are the only viable way to bring lethal force onto merchant ships. Thus, there was increasing desire to hire professional armed guards to serve as embarked security detachments—culminating in the 2011 legalization of private firearms carriage by several major maritime nations. As will be discussed fully later in this chapter, all reputable PMSCs adhere to strict Rules for the Use of Force (RUF), which dictate the tactics they can use during a hostile approach by suspected pirates. Because the RUF dictates a rigid gradient of escalating force, embarked guards have limited tactical flexibility. Once an attack begins, they proceed from flares and similar displays, to warning shots, and finally to deliberate use of lethal force—typically with assault rifles or light machine guns. The upshot of these restrictions is that embarked teams are forced to react rather than act, and pirates are able to dictate the tempo of an attack. Although embarked guards have proven quite useful, this limitation is a significant one. Lack of tactical flexibility is highly problematic if the merchant ship being protected is especially vulnerable to an exchange of gu nfire, such as a passenger ship, or tanker carrying volatile substances. On any ship, even a single RPG round has a slim chance of disabling a critical system or starting a deadly fire—but on ships like liquefied natural gas carriers, the risk is severe. Because embarked guards are on the ship they are defending, they are unable to conduct an engagement at a safe distance from the merchant vessel. Further, by clever exploitation of the RUF— versions of which are publicly available online—pirates can get uncomfortably close to a target before its guards are allowed to use lethal force. 44 Despite these concerns, embarked guards have an excellent record so far. No vessel with such protection has been hijacked by Somali pirates to date, and although some civilians have probably been shot by mistake, a killing due to egregious wrongdoing by a PMSC is yet to be reported. 45

Regular Navies The operational posture of regular navies in response to Somali piracy has evolved significantly during the course of the epidemic. In 2008, there was little coordination between the various anti-piracy groups operating in the region. 46 Patrolling warships were often limited to responding to distress calls from merchants under attack, and hoping to arrive on scene before the

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hijacking could be completed. In February 2009, MSCHOA established the Internationally Recommended Transit Corridor (IRTC), with an eastbound and a westbound lane running through the Gulf of Aden. 47 This was not a convoy scheme, but rather “group transits”—a system that grouped merchant ships according to speed, timed so that warships would be nearby during the most dangerous parts of the transit. 48 Although the IRTC was a marked improvement to the chaos that preceded it, pirates soon began to adapt. According to John Stawpert of the International Chamber of shipping, when authorities would promulgate new coordinates for the exten t of the danger zone, the pirates would often wait just outside it, and ambush merchant ships just as they were letting their guard down. 49 And so, some countries began offering free national convoys, including the Russians, I ndians, Chinese, South Koreans, Japanese, and Malaysians. 50 These convoys would be led by warships all the way through the Gulf of Aden, and although preference was given to ships flying the flag of the country running the convoy, other vessels would turn up and tag along. 51 As the overall concentration of warships in the Gulf of Aden increased, though, the pirates struck farther out into the Indian Ocean, threatening an area too large for group transits or convoys to protect. Since PMSCs became much more prevalent in 2011, though, militaries have regained some of the initiative. With less need to react to distress calls, they have become freer to unde rtake offensive operations aimed at disrupting PAGs before they can find targets. 52 Throughout the epidemic, regular navies have faced a threefold tactical challenge in their anti-piracy mission. First, pirates must be identified and distinguished from noncombatants. Second, armed forces must reach p irates’ known location in a timely way. Third, if pirates do not surrender, and lethal force is used against them, it must be used with precision so as to minimize risk to hostages, bystanders, ships, and cargo. Identification of pirates is a surprisingly difficult task. Most boatmen in the waters off Somalia are dark-skinned young men wearing baggy clothes, often chewing khat and armed with AK-47s.53 Innocent fishermen must be armed to protect themselves, and pirates often carry fishing gear for use between raiding cruises. 54 Until an attack starts, anyone can plausibly claim to be a fisherman—and since many pirates are in fact sometime fishermen, a person can genuinely be part of both groups. These distinctions are hard enough to make in a court of law, aided by the best of evidence and surest judicial process. 55 Making them under tactical pressure in a matter of seconds or minutes is another matter entirely. The easiest method of distinguishing pirates from non-pirates is to simply wait until they attack, and then try to bring forces to the scene b efore the ship can be hijacked. Yet that places excessive burden on navies that are already stretched too thin, and forces them to remain reactive. Ide ntifying pirate motherships is a more promising approach. Attacks more than

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a day’s sailing from the Somali coast require the aid of a mothership, which serves as an extended base of operations for the attack skiffs. When motherships first came into common use in 2010, they were mostly captured merchant ships that couldn’t be ransomed. 56 This facilitated identification of suspicious vessels. Once identified, a mothership could be watched from the air—by fixed-wing airplanes, helicopters, or unmanned drones. Skiffs leaving the mothership could be tracked and nearby ships warned via the alert systems described previously. When responding warships reach the mothership, they must still act cautiously. Pirates have repeatedly brought hostages aboard as human shields, a tactic which complicates navies’ anti-piracy operations. 57 Tragically, many hostages have been killed in crossfires during such operations, despite navies’ best efforts. 58 Overall, though, the focus during 2011 and 2012 on identifying and neutralizing motherships greatly increased navies’ effectiveness. In response, there has been a shift toward using less reco gnizable vessels like dhows and whalers as motherships. 59 Even these are now few in number, with as few as six dhow PAGs active in early 2013. 60 In those cases where a PAG manages to find a merchant ship and init iate an attack, military forces must react. The increasing naval presence in the Gulf of Aden from 2008-2010 ironically made incident response even more difficult, as pirates shifted their raiding operations eastward and southward, and much farther out to sea. The simple arithmetic speaks for itself. With 20-30 warships patrolling an area of around 4 million square kilometers, the world’s navies could only directly control 1.0-1.5 percent of the threatened waters at any given time. 61 Increasing their effectiveness has required keen understanding of how seasonal monsoons and local weather conditions affected attack patterns, 62 and much improved tactical reconnaissance and intelligence. Over the past two years, this has allowed the major task forces to respond dynamically to shifts in pirate activity. Another key improvement has been the growing use of aircraft to shorten reaction times. A frigate with a helicopter on standby can potentially bring naval commandos to the scene of an attempted hijacking 250 kilometers away in less than an hour. 63 When military forces succeed in reaching the scene of a hijack attempt in time, they face the third tactical challenge: precision. If pirates have a lready taken control, and are sailing the vessel back toward Somalia, time is of the essence. Responding naval units must try to block or slow the hijacked ship long enough to put together a rescue mission. Unfortunately, military bureaucracy often prevents decisive moves, saps tactical initiative, and hamstrings on-scene commanders’ freedom of action. Rear Admiral Terry McKnight, commander of Combined Task Force 151 in 2009, laments the situation in his memoir Pirate Alley: Commanding Task Force 151 off Somalia: “As a U.S. Navy admiral, the commander of a joint international task force, I could authorize a helicopter crew to fire warning shots … But

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even I didn’t have the authority to authorize a shooter on board that hel icopter or a ship to put a round through the outboard engine … I had to seek permission from higher headquarters.” 64 While use of force authorization orders are making their way through proper channels, warships typically try to establish communications with the pirates, and attempt to cajole them into surrender. This has rarely been effective. Instead, the focus of communication becomes keeping the pirates calm while intelligence officers try to determine the number, state, and locations of both hijackers and hostages. 65 Commando teams will review the ship’s layout and plan their assault. If it appears that hostages are in imminent danger, the commandos must be ready to intervene at once. The guiding principle of such operations is to strike so hard and fast that pirates do not have time to murder hostages. The prime example is the Maersk Alabama incident, in which U.S. Navy SEAL snipers waited until they could get clean shots at all three pirates at once before opening fire. 66 When the moment came, the snipers succeeded in killing them virtually simultaneously. 67 Such missions are inherently risky. In January 2011, South Korean special forces stormed the hijacked freighter MV Samho Jewelry, successfully freeing all 21 hostages, but suffering three wounded commandos. 68 The next month, two Filipino warships tried to retake a hijacked ship, but the rescue was botched, and the pirates shot one of the ho stage crewmen. 69 There is an additional factor that complicates these tactical challenges. Since NATO, EU, and CTF forces do not kill suspected pirates who surrender, they must either release them or attempt to prosecute them. Through 2010, the Royal Navy routinely released captured pirates, for fear that trials might fail, or that suspects might claim asylum based on Somalia’s poor human rights record. So instead, in at least four cases, the Royal Navy actually “provided water, fuel and food to the pirates” before sending them home. 70 This catch-and-release policy was widely derided around the world—and in recent years, most governments have made more aggressive attempts to prosecute pirates that their navies capture. As discussed in the previous chapter, this requires that prosecutors meet the evidentiary requirements of land-based courts, which are ordinarily quite high. The federal court in Norfolk, Virginia that tries Somali pirates captured by American warships also tries child pornographers, arso nists, and white-collar fraudsters. 71 That court expects—and U.S. law demands that it expects—prosecutors to prove guilt beyond a reasonable doubt. After crime scenes on land are secured by law enforcement, professional investigators can methodically collect evidence, test theories, and interview witnesses. Prosecutors do not have those luxuries when trying Somali pirates. Rather, naval personnel with only secondary training in law enforcement and evidence gathering are the only people with the opportun ity to do that crucial work. In addition to their primary responsibilities of

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securing hostages and neutralizing pirates, warship captains must now also oversee crime scene investigations. This is a difficult role for them, but for the most part they have performed admirably. 72

The Role of Private Navies Not directly answerable to either client ship masters or military chains of command, private naval forces are a most unusual phenomenon—they are extraordinarily independent in their freedom of action, and bear total responsibility for their own operational decisions. Private naval forces play an unusual role in the tactical situation, too, serving a purpose between those of embarked guards and regular navies. On one hand, private armed escorts typically sail in close company with the ships they protect, in a fu ndamentally defensive capacity much like an embarked security team. On the other, they have the firepower, speed, and maneuverability to aggressively engage pirates and keep combat at a distance from merchant ships. This is advantageous to seafarers, says BIMCO’s Jakob P. Larsen, because it “r educes the risk of the merchant crew being caught in a firefig ht.”73 And although private escorts are not as overwhelmingly powerful as regular wa rships, they are much cheaper. Though they are generally more expensive than embarked guards, they also provide a much more obvious deterrent— by their warlike silhouettes signaling to pirates even from a great distance that a ship is heavily defended. This is key for vulnerable vessels like passenger ships, platform tows, crude carriers, LNG carriers, and other ships carrying volatile substances, where the discharge of explosives in a violent attack must be strenuously avoided.74 Yet even obvious deterrents do not always work. Some pirates are unintelligent or inexperienced, as evidenced by several comically inept attacks on naval warships.75 Others may disregard reasonable deterrents, driven by desperation, frustration, or khat-fueled aggression. Such individuals will press an attack until stopped by force. This requires a capability not merely to deter, but to defeat attacks. To offer clients this capability, private naval companies must offer forces tailored to the mission at hand. The number, size, speed, armor, and armament of private escorts should depend on the number and type of client ships, how close they are sailing to pirate bases, and the environmental conditions during the planned transit. This issue can be best understood as a series of tradeoffs. For a given security budget, there is a tradeoff between escort ships’ combat power and the number that can be deployed. Put simply, is a VLCC better off escorted by one 50meter ex-navy patrol boat, or three 9-meter RIBs? Is one 20 mm autocannon better than three .50 caliber machine guns? Each has its own advantages. Larger escorts are a more imposing deterrent.76 They also tend to have greater sea endurance, provide more comfort for security teams, and serve as more stable

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weapons platforms. Far out into the open ocean, the superior endurance and seakeeping of larger escorts becomes more important. 77 Heavier armaments are important whenever it is necessary to quickly disable attacking vessels before they can get close to a merchant ship. This is a priority when escorting ships with the aforementioned vulnerabilities, but even more important if there is a concern of suicide attacks—a fear that has become more prevalent in the shipping industry due to putative links between pirates and terrorist groups.78 By contrast, smaller escorts allow greater tactical flexibility. If two escorts are working together, one can freely engage an incoming threat at long range, knowing that the other can hang back to provide close protection. If three escorts are working together, they can adopt an even more aggressive defensive posture that anticipates feints and decoy skiffs, while still allowing one to serve in close protection. Similarly, a larger number of lighter weapons allows an escort to engage multiple targets simultaneously. This may be more appropriate closer to the Somali coast, where it is possible for somewhat larger numbers of skiffs to attack simultaneously.79 Minimizing risk in those areas requires more defensive guns, and more escort vessels. A company looking to deploy a fleet of armed escort vessels should study the foregoing tradeoffs through the eyes of the shipping industry. Namely, how much risk can shippers afford to mitigate with private security? Also, are there more clients who would benefit from larger escorts or from smaller escorts? So far, there have been few attempts to use large vessels in an anti-piracy capacity. The most notable was the 55-meter MV McArthur, deployed in 2008 by Blackwater.80 The McArthur was equipped to carry two MD530 helicopters and three rigid-hulled inflatable boats (RIBs). It could carry a security team of up to 35. Blackwater quickly found itself unable to find enough business for the McArthur, and withdrew it from service. The Typhon convoy scheme aimed to use a similar fleet of large escorts equipped with RIBs. 81 This combination allows excellent long-distance endurance, combined with superior tactical speed. RIBs can engage multiple targets independently, including attacks from different sides of a convoy. A large escort’s ability to carry many RIBs can also facilitate a layered defense system, with some boats aggressively engaging threats and others hanging back for close protection. Mid-sized escorts tend to be 22-35 meters in length, with a crew of 4-6, and speeds between 18-22 knots.82 They are often fitted with one to three .50 caliber machine guns, but others appear to rely on assault rifles, light machine guns, and sniper rifles.83 The most promising source of these vessels is ex-navy patrol boats—often of Scandinavian origin—which have proven their worth in private escort operations over several years and hundreds of transits. These vessels have the sturdiness and good handling of military-grade warships, and are renowned for having been impeccably maintained while in government service.84 Ranges of about 2,500-3,000 miles allow ample endurance for convoy escorts. 85 Small escorts in the 12-14 meter range are also available, but are used more rarely than mid-size vessels.86 This is largely because of their shorter endurance and less-

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ened comfort and protection for security teams. Very small craft such as RIBs are also commonly used, but must be deployed from larger vessels, and are not suitable for long, unassisted escorts. There are three main reasons why mid-sized escorts are probably preferable to large ships with RIBs. First, RIBs have limited endurance, so must be stored aboard the main escorts for the majority of a transit. The effectiveness of the arrangement relies on the convoy’s security team detecting an incoming threat, deploying the RIBs, and moving the RIBs into position to engage at a safe distance from the convoy—all before the attackers have a chance to threaten the merchant ships. Although with good training this may be possible under many circumstances, reduced visibility, adverse sea conditions, or the presence of civilian fishermen may prevent RIB deployment and tactical response from happening quickly enough.87 Second, because attacks may unfold over a matter of minutes or seconds, security personnel will be forced to make snap decisions, and to identify other craft in the water even when visibility is poor. If a key tactical component of convoy defense is armed RIBs, there is increased potential for misidentification. Pirates could even deploy RIBs themselves, hoping to cause confusion. Security teams (or regular military forces responding to an attack) could mistake a RIB for a hostile vessel and fire upon it in error. There is much less potential for such error when all escort vessels are significantly larger than pirate boats. Third, RIBs may prove too vulnerable—especially if pirates deploy heavier weaponry at some future point during the life of the escort scheme. Anti-piracy escorts must not merely be able to survive damage from RPGs, but must be able to continue actively engaging attackers. If pirates can disable one or two RIBs in the course of an assault on a convoy, there may no longer be sufficient assets to defend all merchant ships. Escorts of at least intermediate size are preferable because of their increased survivability. This is especially important close to shore, where private escorts might find themselves primary targets of an attack. Whether the motive is vengeance over a previous engagement, or desire to intimidate security teams, pirates could plausibly launch an attack with the primary goal not of hijacking merchants but destroying escorts. 88 Thus, private escorts must be purchased, outfitted, and crewed with the understanding that they may be directly targeted by heavy machine guns, and RPGs or shoulder-fired missiles.89 Intermediate-sized escorts allow PMSCs more flexibility in providing ballistic protection for their teams. The effectiveness of mid-sized vessels has been borne out by market demand over the first five years of the piracy epidemic. Of the estimated 20-25 armed escort vessels are in operation as of 2013, most are of intermediate size— presenting the most favorable mix of strength and flexibility. PVI and Naval Guards Ltd have been continuously operating such ships for several years, despite variations in route and threat profile during that time. Off Somalia, pirate attack skiffs have been fairly homogeneous. They are fast and highly maneuverable, with aluminum or fiberglass hulls up to 10 meters

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long.90 These craft offer little ballistic protection, so light machine guns can usually suffice to neutralize them. Off West Africa, where pirates’ vessels are larger and their tactics more aggressive, there is more need for .50 caliber machine guns. If suicide boats become a widespread threat, there would be a priority on disabling fast-closing vessels on first approach. This could create a need for 20 mm autocannons such as the Oerlikons in service with regular navies—yet the cost, legalities, training, and logistics needed to operate such weapons would likely prevent their use. For now, though, such firepower is wholly unnecessary.91 As a practical matter, .50 caliber machine guns and lighter weapons are quite sufficient. By virtue of having a vessel of their own, personnel aboard escorts have considerable control over the development of an engagement. With an alert and well-trained watch, suspicious skiffs might be identified at a distance of 3 nautical miles or more. 92 This gives an escort several minutes to react to the threat, and put itself in a position between the attackers and the merchant ship. Once there, it can challenge the approaching craft by a no nlethal-to-lethal force escalation similar to that used by embarked guards. The key difference, though, is that because this escalation occurs at a di stance from merchant ships, PMSC personnel may have more time to make certain of a skiff’s hostile intent before shooting at it. If a suspicious craft is indeed hostile, an escort can act more freely than vulnerable client ships. PMSC vessels can stand off from approaching skiffs, engaging them with machine guns and small arms at long range. Somali pirates are known for poor marksmanship, so engagement ranges of 300 meters and greater favor escort vessels. 93 Embarked guards, by contrast, cannot control engagement ranges, which allows pirates to quickly close the distance. Although pirates have not yet succeeded in hijacking a vessel with armed embarked security, it is plausible that in a concerted attack in the future, the lack of range fle xibility could hamper guards’ ability to resist. Controlling engagement ran ges may be one of the best ways for escorts to minimize risk to the ships t hey protect. Just as escorts are freer in engaging pirates, though, if pirates choose to attack an escorted merchant, they will likely attack PMSC vessels merc ilessly. Pirates cannot safely board a merchant ship and complete a hijacking until all escorts have been neutralized, and this would likely be the focus of their attention in attacking an escorted vessel. Any pirate group willing to attack an escorted ship would consist of several skiffs, each full of heavily armed men. 94 Even if multiple escorts are working together, in a serious attack they will likely be outnumbered, outmanned, and (at least in terms of overall firepower) outgunned. For escorts to prevail in such a situation, they must maintain excellent situational awareness and coordination with client ships. Merchant crews will be briefed on how to react in a fast -developing combat situation. Close radio communication among all friendly vessels during an attack facilitates effective evasive maneuvers.

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For better defense in multiple-skiff attacks, some ships now use a hybrid protection model, with both an embarked team and an escort vessel working in tandem. 95 Naval Guards was one of the earliest private naval firms to transition toward this style of service, observing that both e mbarked guards and escort vessels had exploitable vulnerabilities when used on their own. Armed teams provide good close-in protection, but can only effectively protect client ships out to about 400 meters—shorter than maximum RPG range. 96 Conversely, escorts can readily enforce 1,000-meter security perimeters, but struggle to enforce those perimeters against simu ltaneous attacks from different sides. 97 And so, Naval Guards’ approach combines the strength of both, while minimizing weaknesses. In most cases, the whole defense will be coordinated by a team leader embarked on the client ship, who is in the best position to assess incoming threats and order the escort vessel into an ideal position. 98 Until now, though, private escorts have mostly been used to protect one client at a time. Yet a private navy scheme wishing to run convoys through the danger zone faces tactical challenges quite different from protection of a single vessel. A convoy of merchant ships presents a very large target, and keeping pirates at a distance requires a large exclusion zone with a long perimeter.99 There is the additional challenge of keeping multiple ships in formation in varying weather conditions, because improper course or speed by even one member of a convoy can lead to a breakdown in the security perimeter. Fortunately, the revenue from escorting several ships in a convoy allows for defensive sophistication not plausible for most single-merchant escorts. Put simply, more revenue means more escorts, and more escorts means more aggressiveness. This frees escorts to engage incoming threats at distance, knowing that others are remaining with the convoy for close protection. In the event that there are too many attackers for the outer ring of security to stop, merchant crews can go into lockdown mode and retreat to their citadels while the close protection vessels work to deter boarding. There is a final tactical consideration of potential relevance in the near future. Although terrorist attacks on shipping off the Horn of Africa have not carried out successfully during the present piracy epidemic, some private maritime security executives fear a resurgence of attacks like the bombings of the USS Cole and the French tanker Limburg in 2000 and 2002, respectively.100 If terrorists again become an active part of the threat profile, security forces will have to employ even stronger defensive tactics. While hijackers have a period of vulnerability pulling alongside a ship and climbing aboard, terrorists would likely drive explosive-packed boats straight for the hull at high speed. Thwarting such attacks requires that an escort identify the threat, move into a position to engage, and then disable or sink the vessel within a window that could be less than a minute in certain conditions. Renewed terrorism would likely result in revisions to PMSCs’ Rules for the Use of Force (RUF) that would diminish the obligation to use non-lethal warnings during a high-speed approach. International law

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scholar Douglas Guilfoyle, believes that a successful attack is quite unlikely, but if one were to occur, “industry and stakeholders would call for greater relaxation on rules for preemptive force.”101 As will be discussed later in this chapter, the issue of preemptive force is one of the main challenges in crafting RUFs. In sum, shippers desiring private escorts must choose the type and number of vessels based on their business needs and known risks along their chosen route. Some of these tradeoffs are reasonably well understood. Single vessels or slow-moving tows might benefit from smaller numbers of more powerful escorts. Convoy or group-protection schemes, spread out over greater area, need more numerous escorts, which for a given cost will be less powerful. Other risks are still unknown. For example, one idea private naval forces may have considered is to allow merchant convoys to save fuel and time by running closer to the Somali coast.102 It remains to be seen whether such savings would justify the additional escort firepower needed to counterbalance the added danger of a close transit.

Logistical Issues Although private navies do not have the logistical complexity of regular navies, maintaining their operations is no simple task. Because embarked guards and escort gunboats share the market for PMSC services, we should assess issues of logistics in light of the tradeoffs between the two. Embarked guards have the advantage of not requiring separate fuel and maintenance. Armed teams work from the client ship, and there is no need to worry about communicating with—and maneuvering safely near—an escort. Yet this also means that security personnel must go everywhere the merchant ship goes while they are aboard. As discussed in the previous chapter, many local governments are unwilling to allow civilian guards to bring firearms into their territorial waters, or to allow guards to bring fir earms aboard ships in port at the start of a voyage. Adverse incidents include the case of the American MV Ocean Atlas, which was detained by Venezuelan authorities for two weeks in 2012, when it was found to be carrying undocumented firearms intended for use in the HRA. 103 This caused a minor diplomatic crisis that frayed already-poor relations between the two governments. To prevent such fiascos, PMSCs have developed ways to avoid falling afoul of the law. In some cases, client ships travel to ports with friendlier laws, such as Djibouti or Muscat, to pick up armed guards before continuing to their destination.104 This is rarely convenient for clients, though. Early on, several companies preferred to embark guards unarmed at the client’s port of origin, and once the merchant reached international waters, drop bags of guns onto the deck by helicopter. At the end of a transit, the guards would simply throw the (sometimes illegally purchased) guns overboard, rather than try to pass them through cus-

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toms at the destination port.105 This is was wasteful and inefficient, though, and by 2011 led to the development of “floating armories”—usually tugs or other small vessels that sit in international waters at the entrances to the High Risk Area.106 These vessels allow guards to embark unarmed at a client’s port of origin, but require the merchant ship to rendezvous with the floating armory to take on weapons. Depending on the ship’s route and the company the guards work for, they can drop those weapons off either with another floating armory at the opposite side of the HRA, or with the same one on the return trip. Although the legal status of floating armories remains murky, respectable firms take precautions to handle firearms responsibly. In 2012, Nick Davis of the Maritime Guard Group told the Associated Press: “Everything has got to be secured correctly, recorded, bonded, the correct locks, and so on. It’s not just a case of find a room, put some weapons in it and everybody chill out.” 107 Davis explained to the AP that his company operated two floating armories, but did not rent space on either of them for other PMSCs to store weapons. The Maritime Guard Group keeps meticulous records on each of its several hundred weapons—even accounting for every shot fired.108 Yet industry analysts also confirm Davis’ assertion that some companies maintain much lower standards, failing to properly secure weapons or adequately guard their boats against attack.109 Because of the expense in fuel, maintenance, and provisions required to operate floating armories, by 2013, it has become more common for PMSCs to rent space from larger firms. There are approximately 20 floating armories in operation as of early 2013—mainly operating in the Red Sea, in the Persian Gulf, off Madagascar, or near the coast of India. 110 Although private escort vessels have sometimes operated as floating armories in support of their companies’ embarked guards operations, most floating armories are not used as escorts, and in general are quite separate from the concerns of this book. By contrast to embarked guards, private escorts do not have to concoct elaborate systems for circumventing firearms laws. Yet operating what are in effect small warships for extended periods in a combat zone is a highly complex undertaking. In addition to the challenges of vetting, training, licensing, and equipping personnel—which firms offering embarked guards also face—private naval companies must also arrange for the fueling, provisioning, and arming of their vessels. This would be a heavy burden purely for logistical reasons, given the remoteness of the Horn of Africa from major supply lines, but it is compl icated by the legal situation. With many ports still closed to private escorts, PMSCs have had to forge partnerships with countries like Djibouti, Oman, and Sri Lanka to secure bases.111 There, they can operate in relative comfort, with convenient air transportation links to Europe or North America for transfer of personnel, equipment, weapons, or replacement parts. Still, this arrangement carries troubling uncertainties for PMSCs. Even the states in the region that allow escorts to operate from their ports can withdraw permission with minimal notice and minimal cause. An incident like PVI’s 2010 standoff in Eritrea could

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easily sour a government on private naval activities, leaving firms to scramble to find new basing options. Another logistical issue escorts face is how to safely orchestrate rendezvouses with merchant ships. Due to firearms laws, this must often occur in international waters. When ports are close to the danger zone, such as Salalah, Oman, the rendezvous will typically occur as close to the 12 mile limit as possible.112 This is important because Somali pirates have shown willingness to strike close to shore, especially in Yemeni and Omani waters. Local security forces have sometimes been unable to stop them. On August 20, 2011, the chemical tanker MV Fairchem Bogey was even hijacked while at anchor in the port of Salalah, and sailed out under the noses of port security. 113 To minimize the risk of attack, PMSCs and their clients must carefully plan the time and location of a rendezvous so that the merchant ship does not have to stop in a vulnerable position and wait for its escort to arrive. 114 The proposed private convoy escort schemes add additional organizational complexity. Convoy formation is similar to rendezvouses between escorts and single merchant ships, but as the size of a convoy increases, it becomes much more difficult to coordinate simultaneous arrival. Ships may be delayed by weather, mechanical problems, or updated threat advisories, and escorts must then decide whether to wait for them. Waiting in a given area gives pirates time to mobilize for an attack, especially if a convoy is forming within several hours of the Somali coast. Shippers whose vessels arrive on time would be unhappy with the added risk. Yet if escorts leave behind ships that are late, they expose them to grave danger. With these concerns in mind, the shipping industry has remained deeply skeptical of private convoys. According to Gavin Simmonds, head of defense and security at the UK Chamber of Shipping, the presence of competing options like regular navies’ group transit programs and embarked guards has left shipowners with “very little enthusiasm” for employing private navies that they regard as “non-governmental militia.”115 Combined with the long delays and many disappointments that plagued the CEP and Typhon schemes, he says, most of the industry is still “unconvinced that that’s the right mechanism.”116 Another challenge is effective communication among all the ships in a convoy. Intrinsically safe radios are the most suitable method, but this requires planning in advance to ensure that shipping companies properly disseminate communications information to masters, and that masters properly brief their crews. Both merchants and escorts must be prepared to act in concert if faced with one of the many contingencies that may arise during a convoy transit. One such contingency is freeloading. Upon learning of a convoy about to form, or about to pass, merchant ships could closely shadow it, hoping to gain protection from the presence of the escorts, even without paying the PMSC operating the convoy. As noted in the previous chapter, it is unclear what, if any, obligations escorts would have to defend freeloaders. Even if escorts attempted to defend them during an attack, such vessels would not be aware of the con-

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voy’s defensive plan, and escorts could have a hard time communicating with them. It is also possible that a merchant ship will suffer a mechanical problem during a transit and be unable to keep up. Convoys are only as fast as their slowest member, so this would necessitate either reducing the speed of all the ships, or detaching an escort from the convoy to guard the affected merchant vessel while it either conducted a repair at sea or limped to a safe port. Likewise, an escort could suffer a breakdown making it no longer an effective combatant. Sound logistical planning can minimize the risk from such events—for example, mandating that clients meet certain basic maintenance standards, and equipping escorts with spare parts. For cases where one or more escorts must be detached from the convoy, PMSCs must build in enough defensive redundancy deal with the emergency without compromising the safety of the convoy as a whole. Much the same concern applies in the event of an engagement with suspected pirates. If an escort fires on and kills people in a suspicious vessel approaching the convoy, it could be detained at the scene for some hours while evidence is collected and the case referred to law enforcement.117 Planned redundancy allows the other escorts to continue a secure transit while the after-incident process unfolds. Finally, the most mundane logistical challenge for private navies is the paperwork needed to satisfy the growing web of stakeholders and oversight bodies. Personnel, ships, weapons, and equipment may all have their own licensing and certification procedures—to comply with the requirements of insurers, client shipowners, P&I clubs, and flag states.118 These requirements are rapidly evolving, and in order to be successful, private naval firms must stay informed and adaptable.119

Rules for the Use of Force The success or failure of the private naval sector will largely depend on whether stakeholders can hammer out effective and widely acceptable rules for the use of force. Specifically, an RUF must clearly delineate when PMSC personnel can use lethal force against suspected pirates. Drafting RUFs acceptable to all stakeholders has proven challenging. In general, security companies want rules permissive enough to allow robust defense, while the shipping industry wants rules restrictive enough to minimize its own liability. 120 As discussed in Chapter 6, the prevailing legitimacy model for both embarked guards and escort vessels is the principle of self-defense. Thus, the goal of RUFs has been to ensure that if a PMSC must use lethal force, it does so in legally justifiable self-defense. Although definitions of selfdefense vary somewhat from country to country, and across various instruments of international law, two salient criteria emerge. To be lawful, self-

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defensive use of lethal force must meet the standards of “necessity” and “reasonableness.” 121 RUFs serve to translate these abstract legal concepts into terms that are useful in real-world operations. During the first three years of the Somali piracy epidemic, PMSCs were left to their own judgment in drawing up RUFs. Often, these rules were submitted to a PMSC’s home country during the licensing process, but it appears that states rarely provided detailed feedback on them. 122 Some firms relied on in-house legal counsel in the RUF drafting process, while others consulted independent experts in international maritime law. 123 These company-level policies were inspired by military rules of engagement, but mo dified to minimize liability in the context of civilian use of force. In general, these RUFs emphasized the need for a graduated escalation of force, pr ogressing in a prescribed sequence from non-lethal warnings up through lethal force. Yet there was gnawing uncertainty among shipowners as to whether this would be enough. They feared that if embarked guards were found to have used excessive force, merchant ships’ masters could be pro secuted as part of a joint criminal enterprise. 124 This was one of the greatest early selling points of escort vessels—distancing masters and shipping companies from legal responsibility. In November 2011, the International Association of Maritime Security Professionals released a guidance document concerning use of force by armed PMSCs. 125 The IAMSP’s guidance was intended to offer the maritime security industry a visible set of sample policies that reflected best practices. The sample policies affirmed the universal right of each individ ual to self defense, but cautioned that “[t]he right to the use of force is not to be construed as authorization to use excessive or unnecessary force.” 126 The IAMSP also emphasized the need to use force only in self-defense, and “after all other alternatives have been determined to be exhausted. ”127 The other key provisions of the sample policies are that individuals have the right to refuse instructions they reasonably believe to be unlawful, that account ability for force escalation procedures “resides with the most senior ma nagement” of a PMSC, and that “[a]ll uses of force must be clearly documented for the purpose of future review and oversight.” 128 In addition, the IAMSP also provided operational guidance—divided between cases where pirates merely make a hostile approach as if to board, and those in which they actually aim or fire weapons. In the former case, once a vessel is identified as suspicious, security personnel work to dete rmine whether it is indeed a threat. This is often difficult, given operational limitations on visibility, and the ambiguity of skiff behavior, but there are some known tipoffs. For example, if weapons and boarding equipment are both seen in a skiff, it can be regarded as a threat. The ship then “commun icates its ability to defend itself through warnings (flare, horn, etc).” 129 If this does not deter the hostile approach, security readies their firearms for use and chambers rounds in preparation to fire. They then fire a warning

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shot as a final attempt to deter the attack without resort to lethal force. If this fails, they can fire directly at the attackers, but only with the objective of stopping the attack. 130 In cases where pirates direct weapons at a ship or open fire, the process is streamlined. If it is determined that the ship cannot evade the attack, s ecurity personnel can return fire, “using minimal force necessary to stop the attack,” then gradually escalating the level of force until the attack cea ses.131 Yet this guidance is problematic. The IAMSP does not clarify what returning fire with “minimal force” actually means. Although there is a clear gradation is force between flares, warning shots, and direct fire —once direct fire begins, it cannot reasonably be minimized. That is, in the chaos of a rapidly unfolding attack, it is not plausible to aim for a skiff ’s engine, aim for the weapons themselves, or shoot to wound but not kill. Under such conditions, security personnel can only reliably shoot for a target’s center of mass. As risk consultant Michael G. Frodl puts it, such expectations are a “Hollywood artifact” not taken seriously within the PMSC industry. 132 Even more unclear is an appendix to the guidelines called “Escalation of Injury.” 133 The IAMSP describes “an increasingly severe set of injuries that can be caused during conflict.” 134 They are: “Constrain – Hurt – Injure – Wound – Maim – Kill.” 135 According to the guidelines, “the goal is to remain as far to the left as possible” along that continuum. 136 They warn that “[t]he burden placed on the defender to show that his or her decisions were justified will likely increase as one progresses towards the right.” 137 This concept is unworkable. First, the middle four levels have considerable semantic overlap—enough to be considered synonyms by a thesaurus. Second, these levels do not necessarily have clear equivalents when translated into languages other than English. There is simply no way to expect secur ity personnel to use force with intent to injure but not wound, or to wound but not maim. Because the IAMSP guidelines were not drafted with wide input from the shipping industry, as the PMSC market rapidly expanded in early 2012, there was demand for a more authoritative RUF set. When the BIMCO GUARDCON contract was released in March 2012, it came with its own guidance. The “Guidance on Rules for the Use of Force (RUF) by Privately Contracted Armed Security Personnel (PCASP) in Defence of a Merchant Vessel (MV)” provided further clarifications, most notably with respect to the relationship between the master of a merchant ship and the PMSC team leader. The BIMCO guidelines stated a company’s RUF should be “[c]lear in setting out the roles of the Master and the Team Leader of the PCASP.” 138 It said that these roles should reflect Clause 8 of GUARDCON: “the Master has overall control of the vessel and that any decisions made by the Master shall be binding.” 139 This would reduce the chance of confusion during the heat of an engagement. Further, PMSCs are to ensure that their RUF is: “Documented, agreed and signed by the Owners and the Contra c-

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tors as an Annex to any contract/agreement for the provision of security services on board a ship.” 140 That would serve to limit misunderstandings with clients over how force will be used. According to the BIMCO guidance, once the PMSC team leader has identified a potential attack, he should “advise the Master or the Officer of the Watch that he intends to invoke the RUF.” 141 This is intended to protect the client ship’s master from potential criminal liability as part of a joint criminal enterprise. Then: “once the RUF has been invoked the TL is responsible for all decisions on the use of force, save that the Master maintains the right to order a ceasefire.” 142 The BIMCO guidelines recommended that as PMSC personnel attempted to repel an attack, “non-violent means should be applied first.” 143 These are suggested to include security personnel making themselves visible to attackers, employing visual deterrents like flares or lasers, using acoustic devices like LRADs or loud hailers, or showing intent to resist by activat ing hoses or other countermeasures. If attackers persist, a team leader should assess the risk, decide on defensive actions, and issue fire control orders to security personnel. The type of fire used “should be defined in the RUF taking into account the distance and behaviour of the suspect craft.” 144 The recommended progression escalated from warning shots into the air, to warning shots ahead of an attacking skiff, to ranging shots in preparation for direct fire. Yet like the IAMSP guidelines, this was to be followed by disabling fire “against the skiff engine or hull in order to stop the attack, but without intentionally using lethal force.” 145 As discussed above, this was an essentially unenforceable step. Finally, “deliberate direct fire” could be employed.146 Afterward, BIMCO was firm that any attack “be reported immediately to UKMTO (the UK Maritime Trade Operations office in D ubai) and other authorities, as appropriate.” 147 Because BIMCO is the world’s largest international shipping association, it had the stature to bring GUARDCON into wide use—and with it, the RUF guidelines. Demand for PMSC services was still burgeoning, and the Security Association for the Maritime Industry saw a need for more formal RUF standardization. This led to the first international conference on the subject, held in London in October 2012. 148 The SAMI-led project drafted the 100 Series Rules on the Use of Force, a document meant to be a definitive industrywide standard. These rules drew significantly from the principles of the BIMCO guidelines, and benefitted from BIMCO’s support. The International Chamber of Shipping and the Marshall Islands flag regi stry also made key contributions. 149 On October 22, 2012, a draft of the 100 Series Rules was submitted to the International Organization for Standardization, and subsequently accepted by the ISO as a work item. 150 In January 2013, though, BIMCO abruptly withdrew from the project, telling Lloyd’s List that it had not been consulted on several important points. According to Giles Noakes, its chief maritime security officer, BIMCO was “concerned over the suggestion that the 100 Series RUF will pro-

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tect parties in the event of a trial.”151 He said the body could not “sign up to a standard international framework unless it is offered in a less presumptive manner.”152 Noakes also expressed worry that the RUF had had not yet received enough international recognition, and suggested that endorsement by the International Maritime Organization would be a key step. On March 12, the principal contributors to the 100 Series Rules had their final drafting meeting in London, and on March 29 sent the revised RUF to the ISO for consideration as a supplement to ISO 28007. 153 These changes allayed BIMCO’s concerns, and the shipping association backed the project again in early April. The key change, according to Lloyd’s List, was the emphasis that the 100 Series RUF “provides no indemnity or immunity against civil or criminal liability in cases where force has been used unlawfully.” 154 Giles Noakes said that the RUF “will not bind flag states as to their use, but instead provide a choice for their potential incorporation into national guidance as determined by their respective governments and competent authorities.” 155 On April 24, the IMO accepted the 100 Series RUF at the 92nd session of its Maritime Safety Committee (MSC 92), granting it legitimacy—and indirectly, the imprimatur of the United Nations.156 Finally, on May 3, the document was released publicly. The 100 Series Rules for the Use of Force will likely be the gold standard RUF for PMSC operations going forward.157 The Rules have two stated purposes. The first is informative: “to provide the [PMSC personnel], Master and crew with guidance on lawful graduated response measures and lawful use of force in accordance with the right of self-defense.”158 The second is legal: “to reduce risk to the Master, crew, PMSC, [PMSC personnel] ship owner, charterer, insurer and underwriters of civil liability claims and/or potential criminal or other charges.”159 In other words, the RUF serves to both influence safer operating procedures, and to reassure courts about the legitimacy of use of force when those rules are followed. The 100 Series document makes several very important disclaimers. First: “The Rules do not imply that there is an automatic right to revert to the use of force when faced with a suspicious contact or craft. A court of law will determine whether or not the use of force was lawful.” 160 This addresses a point noted in Chapter 6, that self-defense is an affirmative legal defense. It may excuse an otherwise unlawful use of force, but does not exempt it from the judicial process. On the other hand, the RUF also takes pains to affirm the self-defense rights of security personnel. It says: “Nothing in these Rules shall be interpreted in any way whatsoever as limiting an individual’s right of self-defence as universally recognised and provided for under applicable and relevant national and international laws.”161 Further: “Nothing in these rules shall be construed as a derogation of the Master’s authority under [the Safety of Life at Sea Convention (SOLAS)].”162 This is to ease concerns that the Rules might allow PMSC personnel to use force contrary to masters’ lawful instructions. Finally, the RUF acknowledges its own limited scope: “The Rules do not cover detailed PMSC Standard Operating Procedures.”163 This highlights the inability of the 100 Se-

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ries Rules to anticipate every contingency—leaving the burden on individual PMSCs to devise detailed Standard Operating Procedures. As to the Rules themselves, there are only four—admirably concise, and generally free from legalese. The Rules reflect, in ascending order, the graduated escalation of force that occurs during an attack. Rule 100: “In the event of any actual perceived or threatened attack by third parties the Team Leader (TL) or, in the TL’s absence, other [PMSC personnel], shall advise the Master or (in the Master’s absence) the Officer of the Watch that he intends to invoke these Rules for the Use of Force.”164 Requiring the RUF to be invoked in response to a specific threat means that under normal conditions, weapons and ammunition will not be immediately ready for use. Only when RUF are invoked do PMSC personnel load firearms and prepare to fire. This reduces the chance of erroneous shootings. There are three notes to Rule 100 that address the tension between a master’s legal authority and PMSC personnel’s right to self-defense. Note 2 states: “Any decisions made by the Master shall be binding and the PMSC must instruct [its personnel] accordingly.”165 Note 1 specifies this to fire control instructions, stating that “the Master always retains the authority to order the [PMSC personnel] to cease firing.”166 Yet Note 1 continues: “However, for the avoidance of doubt, nothing in these rules shall compromise each of the [PMSC personnel’s] right of self-defence.”167 According to Note 3: “Each of the [PMSC personnel] shall always have the sole responsibility for any decision taken by him for the use of force.”168 It remains unclear how all these provisions can be reconciled in the case of embarked guards. If a ship’s master orders PMSC personnel to cease firing in circumstances in which they reasonably feel their lives are in mortal danger, they are either bound to obey or not. If they are bound to obey, it is hard to see how that would not compromise their right to self-defense. If they can continue defending themselves contrary to the master’s lawful instructions, then the master’s decisions are not actually binding. When pressed, 100 Series contributor Steven Kay conceded that “if absolutely necessary” PMSC personnel could indeed disregard ceasefire orders, if those orders were contrary to their individual rights to self-defense.169 How such situations would be adjudicated remains unclear. Fortunately, this problem is averted in the case of escort vessels, because the master of the client ship does not have any legal authority over PMSC personnel on a separate vessel. The remaining three rules are more straightforward. Rule 101: “Non-kinetic warnings may be used where there is a reasonable belief that a craft is displaying behaviour(s) assessed to be similar to those of a potential attacker.” 170 This gives PMSCs broad latitude to deter suspicious vessels with flares, acoustic warnings, and similar countermeasures. These should deter the great majority of innocent skiffs that may wander too close to a protected merchant ship. Still, it is important to educate security personnel about what actually constitutes suspicious behavior. For example, fishermen whose nets are in the path of a merchant ship may fail to disperse or even “steer their skiffs at high speed toward” the ship,

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trying to prevent it from running the nets over. 171 This behavior could easily be interpreted as hostile, and risks erroneous escalation of force. Similarly, weapons like AK-47s might seem hostile to the untrained eye, but in the waters around Somalia, even innocent fishermen are often armed for reasons of cultural status, and “in order to defend themselves from pirates.”172 Fortunately, escort vessels offer the advantage of being able to assess suspicious craft up close while the client ship remains at a safe distance. If non-kinetic warnings fail to induce a suspicious craft to break off, Rule 102 applies. It states: “Firearms may be used to fire aimed Warning Shots when it is assessed … that Warning Shots may deter an actual, perceived or threatened attack.”173 If warning shots fail, the fourth and final rule comes into effect. Rule 103: “When under attack or when an attack is imminent, reasonable and necessary use of force may be used in self-defence, including, as a last resort, lethal force.”174 Note 1 defines attack thus: “A ship and the persons on board are under attack when it is perceived that they are subjected to force which is likely to result in death, serious bodily harm or abduction.” 175 Note 3 states that direct fire is legitimate “when all other graduated RUF measures have failed to deter the attack.”176 In general, these rules provide valuable clarity on the most dangerous stages of an engagement. The main area for concern is that the 100 Series RUF does not explicitly acknowledge the possibility that some engagements will unfold so quickly that a PMSC will not have time to safely employ all its graduated force options. Unlike the IAMSP guidelines, which allowed return fire as soon as pirates began shooting, the 100 Series is ambiguous. One of the RUF’s fundamental principles states: “The Identification of and immediate actions to be taken in relation to a suspicious contact or craft may occur within a very short timeframe. Speed of decision-making on identification will be essential.”177 Yet curiously, it does not give PMSCs clear guidance on how to use force in those situations. This will become especially relevant if maritime terrorism becomes an active threat again. As discussed earlier in this chapter, suicide attacks are a much graver danger than for-profit piracy. On October 12, 2000, an al-Qaeda boat piloted by a suicide bomber and filled with 200-300 kg of explosives sped up to the American destroyer USS Cole in the harbor at Aden, Yemen. 178 Detonating alongside the hull, it tore a 12x18-meter hole in the hull and killed 17 sailors. 179 Less than two years later, on October 6, 2002, another al-Qaeda suicide boat rammed the French tanker Limburg in the Gulf of Aden, spilling about 90,000 barrels of crude oil into the sea. 180 Lloyd’s of London “declared Yemeni waters a war zone,” tripling insurance premiums almost overnight. 181 As a result, according to Terrorism Monitor, “container traffic [around Yemen] fell by 90 percent and 3,000 jobs were lost as a r esult, costing Yemen $15 million per month.” 182 These cases underscore the need for proactive defense against mariti me terrorism. After the attack on the Cole, investigators learned that sailors on

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watch had sighted the approaching suicide boat, but standing rules of e ngagement did not permit them to fire on it unless fired upon. As a result, rules for U.S. Navy vessels have been reviewed and amended to allow more proactive defense against threatening vessels. 183 In the decade since, alQaeda has made repeated threats to tankers and other commercial shipping, 184 and although it has not scored any resounding successes, it has likely attempted at least one major attack. On July 28, 2010, a Japanese VLCC named MV M. Star suffered an explosion that injured one crewmember, but failed to sink it or cause a spill. 185 A subsequent inquiry concluded that the explosion had been from a terrorist attack, likely by a suicide boat. 186 With enticing targets like supertankers and cruise ships regularly plying vulner able waters, the threat of further attacks will remain for the foreseeable f uture. RUFs designed to deter piracy will likely prove insufficient. There are two more unresolved concerns about the 100 Series regime. First, while the Rules take into account international treaty law, and the laws of major flag states, they seem to overlook the laws of Somalia, Ye men, Oman, and other countries whose civilians face most risk from PMSCs’ use of force. Although Somalia has long been without the ability to pros ecute foreigners for wrongful killings at sea, that is changing. With intern ational assistance, the Federal Government of Somalia is making progress in resurrecting its court system. 187 Somali law is influenced by both the principles of Islamic Sharia law, and traditional Xeer clan law—and neither of those treat self-defense identically to European-based law. Once the Somali judicial system regains the capacity to bring PMSC personnel to trial, it will judge them according to standards different from the ones that guided the formation of the RUF. Uses of force that would be clearly necessary and reasonable under UK or German law might not be so in Somalia. Michael G. Frodl imagines a scenario in which a PMSC uses force to kill pirates after they start shooting in the direction of a merchant ship. The dead p irates could bring an action against the PMSC, Frodl says, and their atto rneys “may argue that [the shooting] was ‘all for show,’ only to scare the crew into submission as quickly as possible—and ‘certainly’ not to hurt or kill them, because that would be like shooting the goose that lays the gol den egg.” 188 Even though such reasoning is obviously specious from the point of view of Western law, Frodl worries that there could be “enough truth in that to make sense and make a [Somali] judge pause.” 189 Since one of the major goals of the 100 Series is to reassure courts about the legitim acy of RUF-compliant uses of force, there is need for international efforts to ensure that Somalia eventually recognizes and approves the Rules. The other concern is that the 100 Series RUF does not explicitly address PMSCs’ obligations once the use of force is over. The Rules would have been an excellent opportunity to affirm the mandatory incident repor ting previously set forth in the BIMCO guidelines. Although firms operating the escort vessels generally follow much higher standards than industry

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minimums, leaving any wiggle-room on reporting will encourage some companies to underreport. Similarly, the 100 Series does not address the fate of suspected pirates on whom force is used. SOLAS is uncompromising in its demand that all mariners render assistance to distressed persons at sea.190 Although this is obviously impossible in cases where pirates retreat once fired upon, it is probably illegal for embarked guards or an escort ve ssel to simply riddle a skiff with machine gun fire and leave the scene. As Michael G. Frodl puts it, “you can’t just leave the shot people in their little boats bobbing in the water.” 191 Rather, security personnel would likely be required under SOLAS to turn back and rescue injured pirates. Yet in the absence of RUFs that affirm this obligation, PMSCs are unlikely to always do so. This is not only a legal and ethical concern, but also has operational implications. If private escorts must render aid to pirates wounded during an attack, PMSCs’ defensive tactics must take into account the vulnerabilities caused by doing so. Overall, though, the 100 Series Rules for the Use of Force represent a great advance in standardization for PMSCs’ RUFs. Although the 100 Series Rules were drafted primarily with embarked guards in mind, they are generally applicable to escort vessels as well. The most important difference is that masters of client ships do not have any legal authority over PMSC personnel aboard escorts. Therefore, the captain of an escort vessel decides when to invoke the RUF, and is solely responsible for when to order his personnel to cease firing. Also, as discussed in Chapter 6, escorts must rely on a less clearly established principle of “transmission” of selfdefense rights, in order to defend client ships under attack. Fortunately, regular navies have taken the lead in asserting the transmissibility of self defense rights. On May 16, 2011, pirates in the Gulf of Oman attacked the Panamanian-flagged MV Artemis Glory, a German-owned crude carrier. 192 An American SH-60B Seahawk helicopter raced to the scene to provide assistance. During previous hijackings, helicopters had tried to scare off pirates, but had been forbidden to directly engage them unless fired upon. When the U.S. Navy’s Seahawk reached the beleaguered Artemis Glory, though, it was working under new rules of engagement. Arriving on scene, it found a skiff with four Somalis inside, shooting at the tanker with small arms. 193 Under a principle later described as “Extended Unit Self-Defense,” the helicopter’s crew opened fire, killing all four pirates and ending the attack. 194 Extended Unit Self-Defense allows military units to treat a hostile act against a merchant ship as though it is made against the military unit itself. Although uses of force by militaries and PMSCs are quite different legally, this at least provides a clear precedent for transmission of selfdefense rights, should it be tested in the case of a private escort vessel. In practice, of course, escort vessels do not have to wait for pirates to initiate an attack before acting. Private naval companies’ standard operating procedures typically entail enforcing an exclusion zone around client ve s-

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sels. When a suspicious approach is detected, the escort will move out to challenge the incoming vessel at the edge of the exclusion zone, with the aim of preventing it from drawing within about 1,000 meters of the cl ient. 195 This buys escort personnel the time to be more circumspect in stud ying the suspicious craft, and then to gradually escalate force until it stops approaching the merchant ship. To summarize, the current RUF situation is that the 100 Series Rules are rapidly gaining acceptance and legitimacy. Before the end of 2013, they may be formally annexed to ISO 28007, and therefore mandatory for all SAMI members.196 Still, the Rules are not a binding standard, and do not themselves carry the force of law. Violations of the Rules are not crimes per se. It remains up to flag states to decide whether to endorse the 100 Series Rules. Likewise, it remains up to PMSCs to formulate their own standard operating procedures, and to contractually establish these with clients. As SAMI’s Peter Cook acknowledges: “It is impossible to tell how effective any of these rules are, however, as none of them have been tested in a court of law.”197 To minimize the chance of adverse incidents, at least one company, Tundra International, has entered into an agreement to provide training to help PMSC personnel become proficient at following the 100 Series RUF. Tundra reportedly intends to use computerized simulators to create a “300-degree immersive training platform” that will provide experience at making “judgment based decisions” under tactical pressure.198 When incidents do occur, it will be up to courts whether they will accept the Rules’ guidance on when force can legitimately be used in self-defense. Since most criminal courts deal almost entirely with land-based offenses, they will likely welcome the visible and objective standard promulgated via the 100 Series. The two-pronged “reasonable and necessary” standard should be enough to satisfy most legal systems. Fortunately, the 100 Series forcefully denies any immunity to those who violate the RUF. If PMSCs operate under rules at odds with the 100 Series, they increase their risk of prosecution in the event of a wrongful killing. If individuals use force contrary to their company’s 100 Seriescompliant RUF, they bear personal responsibility for the consequences. On the whole, this is a sound regime.

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Notes 1. James Warden, “Combined Task Force 151 Hunts Down Pirates in the Gulf of Aden,” Stars and Stripes, March 29, 2009, http://www.stripes.com/news/combined-taskforce-151-hunts-down-pirates-in-the-gulf-of-aden-1.89695 (accessed May 11, 2013). Skiffs have often been towed behind motherships, but because this makes the vessel obviously suspicious to warships or military aircraft, pirates prefer to hide skiffs aboard their motherships wherever vessel size and equipment allow. See: Quy-Toan Do, “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” World Bank, working paper, April 11, 2013, available for download, http://siteresources.worldbank.org/INTAFRICA/Resources/pirates-of-somalia-main-report-web.pdf (accessed July 23, 2013), 90. 2. MARAD, “Horn of Africa: Threat Factors for Commercial Shipping and Forecast of Pirate Activity Through 2009,” US Department of Transportation Maritime Administration, available for download at www.marad.dot.gov/documents/Factors_Affecting_Pi-rate_Succ ess_HOA.pdf (accessed May 11, 2013), 1. 3. UK Maritime Trade Operations (UKMTO) Office, et al., BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, Witherby Publishing Group, advice and information booklet, August 2011, available for download at http://www.mschoa.org/docs/public-documents/bmp4-low-res_sept_5_2011.pdf (accessed April 17, 2013), 7. 4. Pirates’ ability to discern vulnerable targets at a distance is generally quite poor beyond 3 nautical miles. Pirates in dhows or larger motherships are higher above the water, and can therefore discern targets out to 5-6 miles. Gerry Northwood (GoAGT Chief Operating Officer), correspondence with authors, email, July 26, 2013. 5. According to the IMB Piracy Reporting Centre, there is no correlation between the flag state of a merchant ship and its likelihood of being attacked, and according to the IMB’s director Pottengal Mukundan, when pirates are deciding on targets, there is “no evidence of selection based on” a ship’s flag state: Pottengal Mukundan (International Maritime Bureau director), author interview, telephone, April 9, 2013. Yet some analysts speculate that the data has just been too noisy for the correlation to become apparent. While many pirates are indeed desperate and opportunistic, and will attack any enticing target, some are sophisticated enough to have their decisions plausibly influenced by flag state. Risk consultant Michael G. Frodl points out the willingness of the United States to respond to hijackings of its ships with overwhelming military force makes U.S.-flagged ships much riskier targets. Similarly, he says, the willingness of France to send commandos into Somalia may give pirates pause when considering whether to attack French ships. Conversely, if some flag states develop a reputation for having vulnerable ships and paying ransoms quickly, more sophisticated pirates will likely seek out more ships of that nationality. Risk consultant Dirk Steffen generally agrees, arguing that while pirates are “probably not intimidated” to the point of trying to avoid certain flag states altogether, the U.S. and France have certainly “left an impression.” Steffen says that radio intercepts have shown that pirates ashore were worried about the consequences of hijacking American ships. Michael G. Frodl (maritime risk consultant), author interview, telephone, July 25, 2013; Dirk Steffen (risk consultancy executive), author interview, telephone, January 11, 2013. 6. “Pirate Shot Dead by Ship’s Guards off Coast of Somalia,” Telegraph, March 24, 2010, http://www.telegraph.co.uk/news/worldnews/piracy/7511052/Pirate-shot-dead-byships-guards-off-coast-of-Somalia.html (accessed May 11, 2013).

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7. Anthony M. Davis, Terrorism and the Maritime Transportation System: Are We on a Collision Course? (Livermore, CA: Wingspan, 2008), 121. 8. Michael G. Frodl, correspondence with authors, email, January 20, 2013. 9. Benerson Little, Pirate Hunting: The Fight Against Pirates, Privateers, and Sea Raiders from Antiquity to the Present (Washington, DC: Potomac Books, 2010), 229; Terry McKnight and Michael Hirsh, Pirate Alley: Commanding Task Force 151 off Somalia (Annapolis, MD: Naval Institute Press, 2012), 65. 10. BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, 12. 11. BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, 18. 12. Maritime Liaison Office (MARLO) Bahrain, “MARLO Mission,” United States Navy, http://www.cusnc.navy.mil/marlo/mission.html (accessed July 27, 2013); BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, 19. 13. BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, 41. 14. BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, 41. 15. By the same token, AIS data can be accessed online by pirates, and used to plan attacks. See, for example: “Live Ships Map,” MarineTraffic.com, http://www.marinetraffic.com/ais/ (accessed May 11, 2013). This has prompted some merchant ship masters to turn off their AIS transmitters while transiting the High Risk Area. 16. BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, 18. 17. BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, 9. 18. As a simplification, a skiff traveling at 25 knots for one hour traces a radius of 25 nautical miles. On the open sea, with freedom to travel in any direction, this describes an area of 2600.25 square miles (statute), compared to Delaware’s total area of 2,489.27 square miles. See: United States Census Bureau, “USA Counties: Delaware,” U.S. Department of Commerce, http://censtats.census.gov/cgi-bin/usac/usatable.pl?State=&County=10000 (accessed May 11, 2013). 19. BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, 24. 20. See: Edward Lundquist, “Combating the Pirate Threat: A Rising Risk on the High Seas,” Risk Management, February 1, 2011, http://www.rmmagazine.com/2011/02/01/combating-the-pirate-threat-a-rising-risk-on-the-high-seas/ (accessed July 26, 2013). 21. BMP4 – Best Management Practices for Protection Against Somalia Based Piracy, 43. 22. The Oceans Beyond Piracy project estimates that 80 percent of ships in the High Risk Area have been fitted with some sort of BMP4-recommended hardening. See: Jonathan Bellish, “The Economic Cost of Somali Piracy 2012,” Oceans Beyond Piracy / One Earth Future Foundation, working paper, 2013, available for download at http://oceansbeyondpiracy.org/sites/default/files/ecop2012final_2.pdf (accessed April 17, 2013), 18. 23. For video of a remote-controlled water cannon in action, see UnifireAB, “Unifire Anti Pirate Water Cannon System,” YouTube.com, August 23, 2011, http://www.you-tube.com/watch?v=KzwYt8xh-6c&feature=player_embedded (accessed May 11, 2013). 24. “The Economic Cost of Somali Piracy 2012,” 18.

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25. Unifire, “Anti Pirate Water Cannon System,” piratesafe.com, available for download at www.piratesafe.com/Brochures_files/Pirate%20story%20150dpi.pdf (accessed May 11, 2013), 7. 26. Secure-Marine BV, “Secure-Ship,” Secure-Marine.com, 2010, http://www.secure-marine.com/secure_ship.shtml (accessed May 11, 2013). 27. Raphael Kahn (Secure-Marine BV chief executive officer), correspondence with authors, email, April 15, 2013. 28. Raphael Kahn, April 15, 2013. 29. “The Economic Cost of Somali Piracy 2012,” 18. 30. See: “The Use of Citadels in Waters Affected by Somali Piracy,” NATO Shipping Centre, http://www.shipping.nato.int/operations/OS/Pages/The%20use%20of%20Citadels%20in%20waters%20affected%20by%20Somali%20Piracy.aspx (accessed May 11, 2013). 31. “Guidance Relating to the Construction and Use of Citadels in Waters Affected by Somali Piracy – July 2011,” Baltic and International Maritime Council / Maritime Security Center Horn of Africa, July 2011, available for download at http://www.swedishclub.com/upload/Loss_Prev_Docs/Industry_Citadels_Paper_Final_merged_changes.pdf (accessed May 11, 2013), 6; “The Use of Citadels in Waters Affected by Somali Piracy.” 32. “Guidance Relating to the Construction and Use of Citadels in Waters Affected by Somali Piracy – July 2011,” 1. 33. “The Economic Cost of Somali Piracy 2012,” 18. 34. Jeanna Bryner, “Crowd Control: How the ‘Sonic Cannon Works,” LiveScience.com, September 25, 2009, http://www.livescience.com/7900-crowd-controlsonic-cannon-works.html (accessed May 11, 2013). 35. “‘I Beat Pirates With a Hose and Sonic Cannon,’” BBC News, May 17, 2007, http://news.bbc.co.uk/2/hi/uk_news/6664677.stm (accessed May 11, 2013). 36. Mike Pflanz, “British Crew Jump Overboard as Pirates Hijack Another Tanker off Somalia,” Telegraph, November 28, 2008, http://www.telegraph.co.uk/news/worldnews/piracy/3533644/British-crew-jump-overboard-as-pirates-hijack-another-tanker-off-Somalia.html (accessed May 11, 2013). 37. David Osler, “Sonic Solution May Not Be a Sound Investment,” Lloyd’s List, December 2, 2008, http://www.lloydslist.com/ll/sector/piracy-and-security/article48918.ece (accessed May 11, 2013). 38. David T. Zabecki, “Rifles,” in The Encyclopedia of Middle East Wars: The United States in the Persian Gulf, Afghanistan, and Iraq Conflicts, ed. Spencer C. Tucker (Santa Barbara, CA: ABC-CLIO, 2010), 1039. 39. Dick Camp, Boots on the Ground: The Fight to Liberate Afghanistan from AlQaeda and the Taliban, 2001-2002 (St. Paul, MN: Zenith Imprint, 2012), 59. 40. David Hambling, “Say Hello to the Goodbye Weapon,” Wired.com, December 5, 2006, http://www.wired.com/science/discoveries/news/2006/12/72134 (accessed May 11, 2013). 41. Jason Mick, “Army’s ‘Pain Ray’ Afghanistan Deployment Scrapped.” Daily Tech, July 27, 2010, http://www.dailytech.com/Armys+Pain+Ray+Afghanistan+Deployment+Scrapped/article19177.htm (accessed May 11, 2013). 42. James Burgess, “Gulf States Use New Ray Gun in Battle Against Pirates,” Oilprice.com, August 15, 2012, http://oilprice.com/Latest-Energy-News/WorldNews/Gulf-States-Use-New-Ray-Gun-in-Battle-Against-Pirates.html (accessed May 11, 2013). 43. Michael G. Frodl, author interview, telephone, July 25, 2013.

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44. Several RUF standards are publicly available online for download, including the most current one, the 100 Series Rules, at http://www.100seriesrules.com. As is described later in this chapter, knowledge of these rules can help pirates delay the moment at which PMSC personnel can use lethal force. 45. The most notorious killing of civilians so far, as discussed in Chapter 6, was the 2012 shooting of Indian fishermen by the vessel protection detachment of the tanker Enrica Lexie. Yet that detachment was made up of active duty Italian marines, rather than PMSC personnel. A Russian military detachment killed an innocent Yemeni fisherman the year before. While similar erroneous shootings by PMSCs may have occurred, they have not yet been substantiated. See: Roger L. Phillips, “Private Security Liability Under the Alien Tort Statute,” Piracy-Law.com, Novemebr 25, 2012, http://piracy-law.com/2012/11/25/private-security-liability-under-the-alien-tort-statute/ (accessed May 11, 2013). 46. Associated Press, “U.S. Requests U.N. Authorization to Hunt Somali Pirates on Land,” Fox News, December 11, 2008, http://www.foxnews.com/story/2008/12/11/us-requests-un-authorization-to-hunt-somali-pirates-on-land/ (accessed July 28, 2013). 47. Maritime Security Centre – Horn of Africa, “Gulf of Aden Internationally Recommended Transit Corridor & Group Transit Explanation,” MSCHOA / EU Navfor, August 2010, available for download at www.shipping.nato.int/SiteCollectionDocuments/Group Transit Explanation.pdf (accessed July 28, 2013), 2-3. 48. NATO Shipping Centre, “Group Transits through the IRTC,” NATO Shipping Centre, http://www.shipping.nato.int/operations/OS/Pages/GroupTransit.aspx (accessed July 28, 2013). 49. John Stawpert (International Chamber of Shipping senior advisor), author interview, telephone, April 25, 2013. 50. Pottengal Mukundan, April 9, 2013. 51. John Stawpert, April 25, 2013. 52. For example: EU Navfor, “EU Navfor Warship FGS Koeln Disrupts and Sinks Pirate Action Group, EU Navfor, November 5, 2011, http://eunavfor.eu/eu-navfor-warship-fgs-koeln-disrupts-and-sinks-pirate-action-group/ (accessed July 28, 2013). 53. Michael G. Frodl, author interview, telephone, October 18, 2011. 54. “Somalia: Fishermen Driven from the Sea by Illegal Trawlers,” Irinnews.org / UN Office for the Coordination of Humanitarian Affairs, June 27, 2011, http://www.irinnews.org/Report/93079/SOMALIA-Fishermen-driven-from-the-sea-by-illegal-trawlers (accessed May 11, 2013); Michael G. Frodl, October 18, 2011. 55. The United States conducted its first modern piracy trials in federal court in Norfolk, Virginia in 2010. In that case, the defendants argued that they were innocent fishermen who had been forced by pirates to attack an American warship. See: Larry O’Dell, “U.S. Piracy Trial of 5 Somalis Begins in Virginia,” Associated Press, November 11, 2010, available at http://www.arabnews.com/node/360207 (accessed May 11, 2013). 56. Jay Bahadur, The Pirates of Somalia: Inside their Hidden World, (New York: Pantheon Books, 2011), 44. 57. Kaija Hurlburt and Cyrus Mody, “The Human Cost of Somali Piracy 2011,” ICC-IMB and One Earth Future Foundation, working paper, June 22, 2012, available for download at http://www.icc-ccs.org/images/stories/pdfs/hcop_2011_version1.4.pdf (accessed May 11, 2013), 4, 22. 58. According to Oceans Beyond Piracy: “The majority of fatalities [from piracy] in 2011 and 2012 occurred during rescue attempts when hostages were used as human shields.” See: Kaija Hurlburt and D. Conor Seyle, “The Human Cost of Somali Piracy 2012,” ICC-IMB and One Earth Future Foundation, working paper, June 18, 2013, avail-

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able for download at http://oceansbeyondpiracy.org/sites/default/files/hcop2012forweb_6.pdf (accessed July 19, 2013), 8. 59. Senior EU Navfor officer, author interview, telephone, February 9, 2012. 60. John Steed (United Nations Political Office for Somalia (UNPOS) head of maritime security and counterpiracy), author interview, telephone, May 22, 2013. 61. A warship that can be seen from roughly 25 kilometers distance will be visible over an area less than 2,000 square kilometers. With the number of warships usually about 20-30, at most 40,000-60,000 square kilometers will be directly protected at a time. Maritime terrorism expert Peter Chalk claims that one U.S. Navy analysis estimated that full coverage would require 1,000 ships, each with a helicopter, “something that is clearly unfeasible.” BIMCO security chief Giles Noakes made a similar estimate to an audience in Hong Kong, arguing that 1,000 warships would be needed to protect the whole HRA. These are, of course, very rough generalizations, but they suggest the fundamental difficulty faced by naval forces trying to protect merchant shipping across the entire High Risk Area. The estimate of 4 million square kilometers threatened is that preferred by the World Bank. See: “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 88; Peter Chalk, “Maritime Terrorism: Scope, Dimensions and Potential Threat Contingencies,” in Maritime Private Security: Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century, eds. Claude Berube and Patrick Cullen (London/New York: Routledge, 2012), 167; “Low and Slow Ships Vulnerable, but Pirates Spot False Moves,” shippingonline.cn, http://www.shippingonline.cn/news/newsContent.asp?id=11055 (accessed July 31, 2013). 62. Each year during the epidemic, piracy has surged in the autumn after the end of the monsoons. Policymakers have had to be careful not to overestimate the impact of anti-piracy efforts during the summer lull. See: Saul, Jonathan Saul, “Somali Piracy Set to Surge as Monsoon Ends: EU Navy,” Reuters, September 14, 2011, http://af.reuters.com/article/topNews/idAFJOE78D0K720110914 (accessed May 11, 2013). 63. For example, the Seahawk helicopter, commonly used in anti-piracy operations, usually operates at 150 knots (278 kilometers per hour), but has a maximum speed of 180 knots (333 kilometers per hour). “SH-60 Seahawk Helicopter,” United States Navy, last modified August 24, 2012, http://www.navy.mil/navydata/fact_display.asp?cid=1200&tid=500&ct=1 (accessed May 11, 2013). 64. McKnight and Hirsh, 75. 65. Active duty CTF 151 officer, author interview, telephone, November 2, 2011. 66. Robert D. McFadden and Scott Shane, “In Rescue of Captain, Navy Kills 3 Pirates,” New York Times, April 13, 2009, A1, available online at http://www.nytimes.com/2009/04/13/world/africa/13pirates.html?pagewanted=all (accessed May 11, 2013). 67. Michael Murray, “Osama Bin Laden Dead: The Navy SEALs Who Hunted and Killed Al Qaeda Leader,” ABC News, May 2, 2011, http://abcnews.go.com/US/osamabin-laden-dead-navy-seal-team-responsible/story?id=13509739 (accessed May 11, 2013). 68. Su-Hyun Lee and Kevin Drew, “South Korea Rescues Crew and Ship From Pirates,” New York Times, January 22, 2011, A5, available online at http://www.nytimes.com/2011/01/22/world/asia/22pirates.html (accessed May 11, 2013). 69. “Pirates Kill Pinoy Seaman During Botched Rescue Mission,” Philippine News, February 8, 2011, http://www.philippinenews.com/latest-news/504-pirates-kill-pinoy-seaman-during-botched-rescue-mission.html (accessed May 11, 2013). 70. Jason Groves, “Navy Gives Somali Pirates Food and Water... Then Lets Them Sail Off Scot Free,” Daily Mail, January 28, 2010, http://www.dailymail.co.uk/news/arti-

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cle-1246300/Navy-gives-pirates-food-water--lets-sail-scot-free.html (accessed May 11, 2013). 71. As an example of white-collar cases tried in the same court, see: “Business Owner Sentenced to Prison for Foreclosure Rescue Scheme,” United States Attorney’s Office, Eastern District of Virginia, January 26, 2012, available online at http://www.justice.gov/usao/vae/news/2012/01/20120126harpsnr.html (accessed May 11, 2013). 72. See McKnight and Hirsh for a vivid and readable account U.S. and CTF 151 anti-piracy operations during the early part of the Somali piracy epidemic. McKnight’s account impresses readers with the professionalism and operational competency of the international task force under his command, despite significant legal and political obstacles to the successful performance of its mission. 73. Jakob P. Larsen (BIMCO Maritime Security Officer), correspondence with authors, email, April 16, 2013. 74. John Stawpert, April 25, 2013. 75. Luis Martinez, “Somali Pirates Attack Spanish Warship and Lose,” ABC News, January 12, 2012, http://abcnews.go.com/blogs/politics/2012/01/somali-pirates-attack-spanish-warship-and-lose/ (accessed May 11, 2013). 76. For the purpose of deterrence, private naval companies have an interest in maximizing the visibility of their vessels. This could take the form of paint schemes, lighting, or low-light aids. Curiously, the private naval firms already in operation against Somali pirates have preferred military-style camouflage, perhaps judging this would convey the warlike purpose of their vessels more effectively than a more visible yet more ambiguous appearance. 77. Jim Jorrie (Espada Chief Executive Officer), author interview, telephone, April 16, 2013. 78. Jonathan Saul and Camila Reed, “Shabaab-Somali Pirate Links Growing: Adviser,” Reuters, October 20, 2011, http://www.reuters.com/article/2011/10/20/ozatp-somalia-shabaab-pirates-idAFJOE79J0G620111020 (accessed May 11, 2013). 79. Since 2008, there have been recurring reports of massive “swarm” attacks by 10 or 20 pirate skiffs at once, but this has likely been due to misidentification and the fog of war. Highly credible analysis by the Danish consultancy Risk Intelligence concluded in 2012 that these reports are the result of “wrong observation in the heat of battle,” and that there is no proof that any attacks have been carried out by such large numbers of skiffs. See: Risk Intelligence, “Pirate Swarm Attacks is a Myth,” Risk Intelligence, press release, June 21, 2012, http://www.riskintelligence.eu/news/news/news_2012/ (accessed May 11, 2013). 80. Claude G. Berube, “Anti-Piracy Escorts in the Gulf of Aden,” in Maritime Private Security: Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century eds. Claude Berube and Patrick Cullen (London/New York: Routledge, 2012), 79. 81. Jonathan Sibun, “Typhon Fights Back Against Pirates,” Telegraph, January 15, 2012, http://www.telegraph.co.uk/news/worldnews/piracy/9016188/Typhon-fights-backagainst-pirates.html (accessed May 11, 2013). 82. Perhaps the best examples of mid-sized escort are ex-navy patrol boats such as those of Naval Guards Ltd. See: Naval Guards, “Marshal-1,” navalguards.com, last modified March 10, 2011, http://www.navalguards.com/index.php?option=com_content&view=article&id=7&Itemid=6 (accessed May 11, 2013). 83. Typhon, for example, released plans to equip personnel with M4 carbines and sniper rifles with ranges up to 2,000 meters. See: Nicholas Hellen, “Private Navy Goes to

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War on Somali Pirates,” Sunday Times, January 6, 2013, http://www.thesundaytimes.co.uk/sto/news/uk_news/Defence/article1189106.ece (accessed April 14, 2013). 84. Thomas Jakobsson (Sea Marshals Chief Executive Officer), author interview, telephone, May 28, 2013. 85. For example: Naval Guards, “Marshal-1.” 86. For an example of such a vessel for sale, with detailed specifications, see “46’ 14m High Speed Patrol Boat – Security Escort Anti-Piracy,” yachtworld.com, 2013, http://www.yachtworld.com/core/listing/pl_boat_detail.jsp?&units=Feet&id=2524730&l ang=en&slim=broker&&hosturl=midcoastyacht&&ywo=midcoastyacht& (accessed May 24, 2013). 87. Michael G. Frodl, author interview, telephone, January 19, 2013. 88. Michael G. Frodl, January 19, 2013. 89. Since the 2011 collapse of the Gaddafi regime in Libya, sophisticated weapons have reportedly made their way from Libyan arsenals to Somali pirates via the black market. See: Wendell Roelf, “Analyst Says Somali Pirates Have New Weapons from Libya,” Reuters, April 12, 2012, http://mobile.reuters.com/article/idUSBRE83B0HO20120412?irpc=932 (accessed May 11, 2013). 90. For a more detailed description of pirate vessels, including both attack craft and secondary motherships, see Knight Associates, “A Guide to Dhows, Skiffs & Whalers in the ‘High Risk Area,’” Knight Associates, March 5, 2013, http://knightassociates.ie/aguide-to-dhows-skiffs-whalers-in-the-high-risk-area/ (accessed May 11, 2013). 91. Thomas Jakobsson, May 28, 2013. 92. For a representative example, see: “Live Incident Report - Incident Track Number: 016-12,” Maritime Pirate Humanitarian Response, January 16, 2012, http://www.mphrp.org/incident_detail.php?id=108 (accessed May 11, 2013). 93. Thomas Jakobsson, May 28, 2013. 94. Michael G. Frodl, January 19, 2013. 95. Thomas Jakobsson, May 28, 2013. 96. David Black, “Fighting Multibillion-Dollar Piracy,” National (Abu Dhabi), March 31, 2013, http://www.thenational.ae/news/uae-news/transport/fighting-multibillion-dollar-piracy (accessed July 27, 2013). 97. Thomas Jakobsson, May 28, 2013. 98. Thomas Jakobsson, May 28, 2013. 99. As a historical note, the Allies learned during the course of World War II that larger convoys were more defensible, because the ratio of ships to length of defensive perimeter fell. This allowed maximum defense along the outside of a convoy, while merchant ships sheltered among each other. 100. Robert F. Worth, “Tanker Damage Caused by Attack, Inquiry Finds,” New York Times, August 7, 2010, A4, available online at http://www.nytimes.com/2010/08/07/world/middleeast/07tanker.html?_r=0 (accessed May 11, 2013). 101. Douglas Guilfoyle (international law scholar), author interview, telephone, April 16, 2013. 102. Maritime security analyst, author interview, telephone, July 2013. 103. Christopher Helman, “Venezuela Frees U.S. Ship and Crew After Smuggling Investigation,” Forbes, September 10, 2012, http://www.forbes.com/sites/christopherhelman/2012/09/10/venezuela-frees-u-s-ship-and-crew-after-smuggling-investigation/ (accessed May 11, 2013). 104. Sea Marshals, one of the most reputable providers of embarked guards (and sister company to Naval Guards, which operates escort vessels), operates from the ports of

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Djibouti, Muscat, Durban, Galle, Mombasa, and Mauritius. See: Sea Marshals, “Sea Marshals Ltd, Maritime Security Forces – Areas of Operation,” Sea Marshals Ltd, http://www.seamarshals.com/ (accessed May 11, 2013). 105. Helman, “Venezuela Frees U.S. Ship and Crew After Smuggling Investigation.” 106. Oscar Rickett, “Piracy Fears Over Ships Laden with Weapons in International Waters,” Guardian, January 10, 2013, http://www.guardian.co.uk/world/2013/jan/10/pirate-weapons-floating-armouries (accessed May 11, 2013). 107. Katharine Houreld, “Piracy Fighters Use Floating Armories,” Associated Press, March 22, 2012, available at http://www.boston.com/news/world/africa/articles/2012/03/22/apnewsbreak_piracy_fighters_use_floating_armories/ (accessed May 11, 2013). 108. Houreld, “Piracy Fighters Use Floating Armories.” 109. Michael G. Frodl, October 18, 2011; Dirk Steffen, January 11, 2013; PMSC executive, author interview, telephone, February 1, 2013. 110. Rickett, “Fears Over Ships Laden with Weapons.”; Houreld, “Piracy Fighters Use Floating Armories.” 111. Dom Mee, interview with Peter Cook, Maritime Security Review, last modified September 22, 2010, http://www.marsecreview.com/2010/09/interview-with-dom-meeof-protection-vessels-international/ (accessed May 11 2013). 112. By contrast, other ports are safe enough that an escort need not begin as soon as the client enters international waters. For example, by 2013 the coast of India has been made safe enough by naval patrols that rendezvouses can be arranged independently on the basis of what is most convenient. Thomas Jakobsson, May 28, 2013. 113. Lloyd’s List, “Tanker and Crew Hijacked off Salalah, Oman,” Lloyd’s List Daily Commercial News, August 24, 2011, http://www.lloydslistdcn.com.au/archive/2011/august/24/tanker-and-crew-hijacked-off-salalah-oman (accessed May 11 2013). 114. Jim Jorrie, April 16, 2013. 115. Gavin Simmonds (UK Chamber of Shipping executive), author interview, telephone, April 22, 2013. 116. Gavin Simmonds, April 22, 2013. 117. Michael G. Frodl, January 19, 2013. 118. Thomas Jakobsson, author interview, telephone, January 8, 2013; Watchkeeper, “Watchkeeper: Problems in Identifying Pirates,” BIMCO, June 6, 2012, https://www.bimco.org/en/News/2012/06/06_Watchkeeper_Week_23.aspx (accessed July 27, 2013). 119. Most PMSCs retain the services of lawyers who specialize in maritime law and international law, for the purpose of both guiding the PMSC’s standard operating procedures so as to comply with all relevant laws and regulations, and also to provide 24/7 legal counsel in the event of an incident. Some larger PMSCs have dedicated in-house lawyers for these tasks. Jeremy Weiss (PMSC executive), author interview, telephone, January 15, 2013; PMSC executive, author interview, telephone, February 1, 2013; Barry Roche (PVI Chief Executive Officer), author interview, telephone, March 25, 2013; Andrew Nicholson (Drum Cussac executive), author interview, telephone, April 9, 2013. 120. Michael G. Frodl, author interview, telephone, March 30, 2013. 121. Steven Kay, “Understanding the International and Criminal Law Implications of the 100 Series Rules for the Use of Force,” Presentation at the Offshore Patrol & Security Conference, Portsmouth, UK, April 25, 2013, slides available at http://www.100seriesrules.com/uploads/20130209-Steven_Kay_QC_International_Legal_Conference_Presentation.pdf, 18.

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122. Worse, says Stephen Askins of the Ince & Co law firm, flag states have shown little appetite for investigating violations of the rules for the use of force to see whether criminal violations have taken place. “The hand-wringing over legality is academic,” Askins says, “if nobody investigates any shootings.” Stephen Askins (maritime law expert), author interview, telephone, April 10, 2013. 123. Jeremy Weiss, January 15, 2013; Barry Roche, March 25, 2013; Stephen Askins, April 10, 2013. 124. Kay, “Understanding the International and Criminal Law Implications of the 100 Series Rules for the Use of Force,” 32-4. 125. Allan McDougall (coordinator), “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” International Association of Maritime Security Professionals, guidelines document, November 22, 2011, available for download at http://iamsponline.org/wp-content/uploads/2011/11/UOF_released.pdf (accessed May 11, 2013). 126. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 15. 127. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 15. 128. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 16. 129. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 17. 130. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 17. 131. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 18. 132. Michael G. Frodl, July 25, 2013. These Hollywood-driven expectations have inspired several lawmakers in the United States to attempt to enshrine “shoot-to-wound” requirements in law for police officers. As future New York governor David Paterson unsuccessfully argued in 2006, officers should aim for suspects’ extremities, and anyone who used more than the minimum force necessary would be guilty of felony manslaughter. Bill Everett, a use-of-force instructor and former risk-management executive, puts it this way: “When the risk of failure is death, an officer needs the highest percentage chance of success he can get.” The same applies to PMSC personnel. See: Police Firearms Officers Association (PFOA), “Shooting to Wound,” PFOA, http://www.pfoa.co.uk/110/shooting-to-wound (accessed July 30, 2013). 133. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 19. 134. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 19. 135. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 19. 136. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 19. 137. “Use of Force: IAMSP-2011-01-UOF-001 v2.0,” 19. 138. “Guidance on Rules for the Use of Force (RUF) by Privately Contracted Armed Security Personnel (PCASP) in Defence of a Merchant Vessel (MV),” Baltic and International Maritime Council, March 2012, available for download at http://psm.du.edu/media/documents/industry_initiatives/bimco/bimco_guidance_on_rules_for_use_of_force.pdf (accessed May 11, 2013), 2. 139. “Guidance on Rules for the Use of Force (RUF),” 3. 140. “Guidance on Rules for the Use of Force (RUF),” 2. 141. “Guidance on Rules for the Use of Force (RUF),” 3. 142. “Guidance on Rules for the Use of Force (RUF),” 3. 143. “Guidance on Rules for the Use of Force (RUF),” 3. 144. “Guidance on Rules for the Use of Force (RUF),” 4. 145. “Guidance on Rules for the Use of Force (RUF),” 4. 146. “Guidance on Rules for the Use of Force (RUF),” 4. 147. “Guidance on Rules for the Use of Force (RUF),” 5.

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148. David Hammond, “Rules for the Use of Force (RUF): Establishing an International Model Set,” Presentation at the Offshore Patrol & Security Conference, Portsmouth, UK, April 25, 2013, slides available at http://www.100seriesrules.com/uploads/20130425-David_Hammond_OPS_Conference_Presentation_25_Apr_13.pdf (accessed May 11, 2013), 12. 149. Security Association for the Maritime Industry, “SAMI Praises Launch of 100 Series Rules,” SAMI, May 10, 2013, http://www.seasecurity.org/mediacentre/sami-praises-launch-of-100-series-rules/ (accessed May 11, 2013). 150. “SAMI Praises Launch of 100 Series Rules,” 12. 151. Liz McMahon, “BIMCO Pulls Out of 100 Series Rules for the Use of Force,” Lloyd’s List, January 16, 2013, http://www.lloydslist.com/ll/sector/regulation/article415074.ece (accessed May 11, 2013). 152. McMahon, “BIMCO Pulls Out of 100 Series Rules.” 153. “SAMI Praises Launch of 100 Series Rules,” 12. 154. Liz McMahon, “BIMCO Backs International Guidance on Rules for the Use of Force,” Lloyd’s List, April 3, 2013, http://www.lloydslist.com/ll/sector/regulation/article420272.ece (acccessed May 11, 2013). 155. McMahon, “BIMCO Backs International Guidance.” 156. “SAMI Praises Launch of 100 Series Rules,” 12. 157. One of the reasons that the 100 Series RUF will likely achieve “gold standard” status is that insurers see the value of having PMSC personnel all trained to the same set of rules. According to Nick Roscoe, a managing director at Marsh’s Global Marine Practice, a key aspect of insurers’ vetting processes is reviewing copies of PMSCs’ standard operating procedures and RUFs. Because the 100 Series standardizes these RUFs, and will likely be appended to ISO 28007, which influences standard operating procedures more generally, insurers see it as introducing valuable clarity. Nick Roscoe (Marsh managing director), author interview, telephone, June 3, 2013. 158. David Hammond, et al. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 100SeriesRules.com, May 3 2013, available for download at http://www.100seriesrules.com/uploads/20130503-100_Series_Rules_for_the_Use_of_Force.pdf (accessed May 11, 2013), 2. 159. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 2. 160. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 2. 161. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 5. 162. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 3. 163. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 2. 164. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 5. 165. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 5. 166. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 5. 167. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 5.

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168. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 5. 169. Steven Kay (100 Series RUF contributor, international law expert), author interview, telephone, June 5, 2013. 170. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 5. 171. Ike V. Montgomery, “Keeping Somali Pirates Away from a Floating Bomb,” Soldier of Fortune, last modified April 3, 2013, http://www.sofmag.com/keeping-somalipirates-away-floating-bomb (accessed May 11, 2013). 172. Pete Koebler, quoted in: Terry McKnight and Michael Hirsh, Pirate Alley: Commanding Task Force 151 Off Somalia (Annapolis, MD: Naval Institute Press, 2012), 93. 173. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 6. 174. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 6. 175. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 6. 176. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 6. 177. “The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force (RUF),” 3. 178. William Branigin, “2 Sentenced to Die for USS Cole Attack,” Washington Post, September 30, 2004, A18, available online at http://www.washingtonpost.com/wpdyn/articles/A58874-2004Sep29.html (accessed May 11, 2013). 179. Branigin, “2 Sentenced to Die for USS Cole Attack.” 180. “Yemen Says Tanker Blast Was Terrorism,” BBC News, October 16, 2002, http://news.bbc.co.uk/2/hi/middle_east/2334865.stm (accessed May 11, 2013). 181. John C. K. Daly, “Terrorism and Piracy: The Dual Threat to Maritime Shipping,” Terrorism Monitor 2, Issue 6, August 15, 2008, available at http://www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=5112 (accessed May 11, 2013). 182. Daly, “Terrorism and Piracy: The Dual Threat to Maritime Shipping,” 183. William H. McMichael, “10 Years After Cole Bombing, a Different Navy,” Navy Times, last modified March 20, 2013, http://www.navytimes.com/article/20101011/NEWS/10110316/10-years-after-Cole-bombing-different-Navy (accessed May 11, 2013); These changes have been gradual and threat-specific, though. Indeed, the 2001 official investigation of the USS Cole attack did not recommend sweeping changes to standing rules of engagement. See: USS Cole Commission, “USS Cole Commission Report,” US Department of Defense, investigation report, January 9, 2001, available for download at (accessed May 11, 2013), 6. 184. Alisha Ryu, “US Navy Concerned About Alleged Al-Qaida Threat to US Ships,” Voice of America, January 7, 2010, http://www.voanews.com/english/news/USNavy-Concerned-Over-Alleged-Al-Qaida-Threat-to-US-Ships-80921497.html (accessed May 11, 2013). 185. Mitsui O.S.K. Lines, “Incident Involving the VLCC M. Star, West of the Strait of Hormuz,” molpower.com, press release, July 28, 2010, http://www.molpower.com/VLCWeb/UINewsAdmin/ViewNews.aspx?NewsID=20100728112114 (accessed May 11, 2013).

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186. Anthony DiPaola, “U.A.E. Confirms Terror Attack on Japan Tanker in Persian Gulf Last Month,” Bloomberg, August 6, 2010, http://www.bloomberg.com/news/201008-06/u-a-e-confirms-terror-attack-on-japan-tanker-in-persian-gulf-last-month.html (accessed May 11, 2013). 187. John Steed, May 22, 2013. 188. Michael G. Frodl, January 20, 2013. 189. Michael G. Frodl, January 20, 2013. 190. SOLAS Chapter V (“Safety of Navigation”) sets forth in Regulation 33 (“Distress Messages: Obligations and Procedures”), paragraph 1 that upon receiving a distress signal, “[t]he master of a ship at sea which is in a position to be able to provide assistance … [to] persons in distress at sea, is bound to proceed with all speed to their assistance.” Although this does not explicitly cover cases where there is no distress signal, such as PMSC forces wounding suspected pirates with gunfire, the obligation to render assistance in such cases likely still applies. SOLAS does allow an exception if the assisting ship “is unable or, in the special circumstances of the case, considers it unreasonable or unnecessary to proceed to their assistance.” This would probably release an escort vessel from its obligation to assist if a pirate skiff withdrew under its own power, or if it still appeared capable of resisting. On the other hand, wounded persons unable to resist, even if wounded in the course of an unlawful act, would still likely be considered entitled to assistance. See: International Maritime Organization (IMO), International Convention for the Safety of Life At Sea, November 1, 1974, 1184 UNTS 3 (entered into force May 25, 1980), 4th edition (in effect from July 1, 2004), Chapter V, Regulation 33, paragraph 1, available for download at http://www.maritimesafetyinternational.com/MSI/ISM_Code_Internal_Auditing_files/solas.pdf (accessed May 11, 2013); Wolff Heintschel von Heinegg (international law scholar), author interview, telephone, May 23, 2013. 191. Michael G. Frodl, January 20, 2013. Nonetheless, one private naval executive told the authors off the record that he was unaware of any escorts having turned back to render assistance to wounded pirates. PMSC executive, author interview, telephone, May 2013. 192. William H. McMichael, “Navy: Helo Fires on Pirate Skiff, Killing 4,” Navy Times, May 18, 2011, http://www.navytimes.com/article/20110518/NEWS/105180316/Navy-Helo-fires-pirate-skiff-killing-4 (accessed May 11, 2013). 193. McMichael, “Navy: Helo Fires on Pirate Skiff.” 194. McMichael, “Navy: Helo Fires on Pirate Skiff.” 195. Thomas Jakobsson, May 28, 2013. 196. Steven Kay, June 5, 2013. 197. “Rules for the Use of Force Set for Release,” shiptalk.com, January 15, 2013, http://www.shiptalk.com/?p=13621 (accessed May 11, 2013). 198. Tundra International, “Virtra – 100 Series Rules for the Use of Force,” tundrainternational.com, April 10, 2013, http://www.tundra-international.com/news/virtra-100series-rules-for-the-use-of-force/ (accessed May 11, 2013).

Chapter 8

Costs, Benefits, and Results

As we have seen, the use of private naval forces carries a mixture of advantages and disadvantages, costs and benefits. Yet there are serious pro blems with the available quantitative data, which limit the usefulness and relevance of a traditional cost-benefit analysis. First, as discussed in Chapter 5, it is exceedingly difficult to calculate the first-order costs of maritime piracy. The Oceans Beyond Piracy project has published the most thorough research so far, 1 but its work has proved controversial. Its “Economic Cost of Piracy (ECoP) 2010” report was severely criticized by the shipping and insurance industries, and although the 2011 report made great improvements, critics argued that it still resorted to unreasonable speculative feats to make up for gaps in the data. “Can We Trust the Numbers?” asked a blistering analysis on SomaliaReport by Venetia Archer and Robert Young Pelton. 2 Their answer: “Simply put, no.” 3 A key weakness is data on insurance. “Much of the required information is simply unavailable,” as Archer and Pelton put it, because “insurance br okers are not in the business of passing on” 4 their accounting figures. Taking these concerns into account, OBP released a greatly improved report for 2012. ECoP 2012 was less speculative than its predecessors, and took advantage of previously unavailable satellite data from vessels’ Automatic Information System (AIS) reports, allowing more rigorous analysis of merchant ships’ numbers, speeds, and routes. These results were audited and endorsed by the BIMCO shipping association, giving ECoP 2012 much greater credibility within the shipping industry than its predecessors. Yet other serious limitations persist, due to deficiencies in the underlying data. Financial information from insurers and PMSCs remains unavail able, and markets aggregate and transfer the costs of piracy so fluidly that it is almost impossible to disentangle where they truly lie. An even thornier problem is assessing the expense of anti-piracy operations by international militaries, which made up the largest cost category in ECoP 2012. As stated in Chapter 5, there is much disagreement over how to distinguish between costs specifically added due to piracy, and those that would have been paid with or without piracy. Even those that would have been paid anyway carry an opportunity cost, because those forces could have otherwise been put to some other use. 5 Calculating those opportunity costs is deeply problematic. 177

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For these reasons, it is not clear that a definitive, uncontroversial analysis of first-order costs is even possible. The World Bank published a highly informative and splendidly researched report in 2013, entitled “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” but its estimates focus on the second-order costs of Somali piracy in the form of disrupted trade. 6 The report’s authors acknowledged that this methodology might underestimate the total burden. To one way of looking at it, disrupted trade is actually a truer representation of global economic harm than first-order costs—which are simply transfers between parties. For example, at the height of the Somali piracy epidemic, kidnap and ransom insurance premiums were actually giving insurers windfall profits, even though they were counted as economic harm. 7 By contrast, when trade is disrupted, nobody profits. The trouble, though, is that second-order costs are spread across entire nations so that they are barely felt. This makes them less politically relevant than first-order costs concentrated among hundreds or thousands of parties in a few affected industries. And so, even if we could ascertain how much private escorts have co ntributed to the 2011-2013 drop in Somali piracy, we could not confidently calculate the resulting economic benefit. In practice, though, apportioning credit for the decline is not even possible. Industry experts warn that the use of private armed security is almost certainly underreported. Further, there is no trustworthy recordkeeping of the type of security contracted, so we cannot distinguish use of embarked guards from escort vessels. When incidents do occur—whether successful defenses of vessels or erroneous shooting of non-pirates—there is another strong incentive to underreport. Industry insiders acknowledge that underreporting of piracy incidents is widespread, but it is—almost by definition—difficult to measure the degree to which attacks are underreported. Even as the number of attacks dropped throughout 2012, pirates’ apparent success rate increased. To an extent, this was likely due to pirates adapting their tactics, and more carefully targeting vulnerable vessels. Yet Oceans Beyond Piracy also acknowledges that some of the apparent increase may be due to “the possibility that the percentage of attacks reported to the IMB, EU NAVFOR, and Oceanus may have decreased.” 8 Military and shipping officials have spoken publicly in the press about the problem, with one NATO officer telling Lloyd’s List point-blank: “I know that some incidents are not being reported.” 9 BIMCO’s Giles Noakes went on to say that underreporting may be partly caused by the presence of unauthorized private security.10 The underreporting phenomenon has not been limited to Somalia, either. A 2013 U.N. Office on Drugs and Crime report on West Africa found that while the International Maritime Organization has recorded about 50 annual pirate attacks there, the true number is approximately double that.11 Further, Oceans Beyond Piracy warns that in addition to quantitative underreporting, there is also qualitative underreporting—that

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is, understating the severity of piracy incidents.12 A particularly vivid example is an attack on the MV Avocet that was documented on a YouTube video viewed 792,430 times at time of press.13 In the video, embarked guards appear to riddle an incoming skiff with automatic weapons fire, but the incident was reported to the IMB as only the firing of warning shots, causing the pirates to abort the attack.14 Although all major regulatory standards require thorough incident reporting, none of those standards are binding internationally. 15 Reporting attacks entails not only paperwork, but—especially if the incident involves the use of force—attracts the attention of insurers and legal authorities. Although the firms that operate escort vessels tend to be among the highest quality, most-compliant PMSCs, underreporting by lower-rung embarked guards muddies the real effect of anti-piracy measures. Of the three other main factors in the 2011-2013 decline—better adherence to Best Management Practices, international military action, and i mproved security on land—the data is similarly inadequate. Although nearly everyone agrees that more ships are following BMPs, with compliance around 80 percent during 2012, not all vessels are capable of adhering fully, and there is a financial incentive to over-report compliance. 16 International militaries keep better records, so we have a reasonably good idea how many attacks have been foiled, how many hostages have been rescued, and how many pirates have been detained and sent to trial. But the deterrent effect has been far more important than thwarting particular pirate action groups—and we don’t have a good way of measuring how many pirates stayed home because of military activity. Finally, although the situation on land is considerably more stable than it was at the height of the piracy ep idemic, Somalia is still too dangerous for outsiders to get precise estimates of remaining pirates’ numbers and organization. The reports that do emerge are sometimes conflicting. 17 Given all these deficiencies, it is most prudent to acknowledge the need for better data gathering and further research—and refrain from unsound quantitative analysis. Yet it is still possible to sketch the areas in which the costs and benefits occur, and offer some discussion of how future analysis can improve our understanding of how various stakeholders will be affected.

Costs The costs of private naval activity fall into several principal areas. Most straightforward are the costs of hiring escort vessels. PMSCs’ startup costs and insurance costs are passed on to the shipping industry through i ncreased costs of service. Although these insurances cover reasonably anticipatable risks like wrongful death, there are also risks of catastrophic losses, which are very rare, and difficult for insurers to price. Other losses are us u-

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ally uninsured—such as those borne by Somali fishermen who could be shot in error, and be unable to recover damages. Next, there are the instit utional costs of regulating private armed vessels, which are shared widely among public and private stakeholders. To date, almost all regulatory efforts have focused on embarked guards, but if use of escorts grows, those costs will likely rise. Also, protection of some merchant ships in the HRA has the side effect of shifting more attacks onto shippers that do not hire such protection. Finally, shippers and PMSCs face a hypothetical risk that the presence of private warships will cause pirates to escalate their own violence in an effort to overcome them. Turning first to the costs hiring escorts, these have been borne primar ily by the shipping industry. Companies like PVI and Naval Guards have grown gradually as market demand increased, likely funding expansion from previous profits. Although PMSCs’ books are not publicly available, we can make some rough estimates about startup costs. Purchasing a nd outfitting an escort vessel generally costs several million dollars. Among those figures that have been reported, Blackwater spent about $5 million on the MV McArthur, while the Convoy Escort Programme claimed to be able to deploy gunboats at a little over $4 million each. 18 Private naval companies also face costs in recruiting and screening qualified personnel. Those firms that draw from a particular unit or service branch appear to do so through personal connections, while others can hire placement firms such as Global Maritime Recruitment Solutions. 19 In addition to wages, employees also require ongoing training, which is required under ISO 28007. 20 Fueling, provisioning, and maintaining an escort adds many hundreds of thousands of dollars per year. 21 Obtaining SAMI accreditation will take several months when the process is fully operational, and will include selfassessments, external audits, and other fees, which will add around $4,000 to a PMSC’s expenses. 22 Although this is not in itself an expensive process, it requires extensive insurances, and entails the ongoing costs of compliance with ICoC and ISO 28007. 23 PMSCs must carry SAMI-mandated insurance that is “commensurate with operations in which [they are] engaged.” 24 This includes insurance “for its personnel to carry and use firearms on the high seas and territorial waters, for accident, injury and damage; employer’s liability Insurance with a minimum cover of [$5,000,000].” 25 Firms must also carry “public liability insurance for [their] own and third party liabilities with a minimum cover of [$5,000,000]; personal accident, medical expenses, hospitalization and repatriation insurance; and professional indemnity insurance.” 26 Marsh, a top risk and insurance services firm, has created an insurance facility exclusively for SAMI members designed to “provide comprehensive bespoke coverage.” 27 Executives at firms offering escort vessel services say that their coverage greatly exceeds those industry minimums. 28

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In addition to the aforementioned risks that insurers can easily price i nto premiums, and which PMSCs then pass on to shippers, there is the more poorly understood category of catastrophic risks. In general, the private naval sector can expect long periods of smooth operation, punctuated by rare but devastating events that cause losses in the tens or even hundreds of millions of dollars. These could include the total destruction of merchant ships, loss of an offshore drilling platform, or the sinking of a VLCC and attendant ecological disaster. Two such events could occur in the same week, or an entire decade could pass without a single one. As of summer 2013, no such incident has occurred. Therefore, insurers do not have enough information to predict their likelihood with the same confidence as they can for higher-frequency events. Catastrophic losses are like rogue waves—they rise suddenly and discontinuously out of a background of smaller risks. Such a loss may be o rders of magnitude higher than the second-greatest loss. For comparison, the loss of the VLCC Exxon Valdez in 1989 cost Exxon $4.3 billion. 29 The company had never previously had a major spill. British Petroleum’s greatest loss was the 2005 Texas City refinery explosion, for which it paid $1.6 billion in compensation 30 —when the offshore oil rig Deepwater Horizon exploded in 2010. The rig sunk, triggering a massive oil spill. The cost of the spill has been estimated at nearly $40 billion. 31 Until September 11, 2001, no terrorist attack had ever caused more than $652 million dollars 32 of damage or taken more than about 470 lives. 33 In the space of three hours that morning, al-Qaeda destroyed the multibillion-dollar World Trade Center and took 2,713 lives. 34 This demonstrates the difficulty in assessing risks of catastrophic events. So far, private naval companies have operated for five years without any serious incidents. During that time, there has been no basis to judge their frequency—indeed, a sample size of zero might imply that they will never occur. This may lead to insurers underpricing the risk. By contrast, if a catastrophic loss had occurred in 2010, it would have appeared that those incidents are more likely than they really are, which may have led insurers to overprice the risk. PMSCs and shippers would have been unable to bear the burden, and the private naval industry would have been smothered in the cradle. That such different outcomes hinge only on the timing of a cat astrophic loss—and not on its cause or magnitude—reflects how sensitive the industry is to these poorly understood risks. Many stakeholders are uninsured, though. Civilians from Somalia would have a hard time recovering damages from foreign PMSCs. Although judicial institutions are stronger in nearby countries like Kenya and Oman, their citizens would also struggle to litigate for the wrongful deaths that may occur. 35 The degree of the risk going forward will depend chiefly upon escorts’ proximity to civilians, and the professionalism of the PMSCs and their personnel.

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If private escorts are used to allow merchant ships to make slow, cheap transits near the Somali coast, PMSC personnel will encounter civilian fis hermen more frequently. Closer to shore, the waters are much more crowded, especially with small craft resembling those used by pirates. In general, this also applies to other piracy hotspots, such as the epidemic off West Africa that is worsening as this book goes to press. By contrast, escorts more than a few hundred kilometers out to sea are likely to see few civilians in small craft. 36 The professionalism of an escort’s crew has the greatest influence on risks to local civilians. Some critics of security contractors argue that their for-profit mentality makes them more likely to commit atrocities, 37 and that piracy in the Indian Ocean has attracted amateurish “cowboys” to PMSC work. 38 Yet for the firms that have actually operated armed escort vessels so far, that appears to be an unfounded worry. Because shippers looking for cheap services can typically hire low-end embarked guards, those willing to pay for escorts have demanded high standards of service. The selectivity of firms like PVI in recruiting elite ex-military personnel ensures both that candidates have already undergone mental and emotional screening, and that they have received advanced training in operating under restrictive rules of engagement. For these escort crews, the image of the hotheaded mercenary is simply not accurate. The small-scale escort operations running since 2008 are not known to have had any serious negative incidents. As of early 2013, it appears that there are no public records of judgments against escort companies for wrongful death, or for losses caused to merchant ships. 39 Given the thousand or more transits protected during that period, this suggests a very high standard of professionalism. 40 On the other hand, if emerging conflicts such as that off West Africa prove less conducive to embarked guards, there will be more demand for cheaper, low-end escort services, which would crew their vessels with less qualified personnel. This would increase the risk of the Nisoor Square-style shooting the shipping industry has long feared. Because private escorts have occupied the top of the PMSC market, it is unclear how much the professionalism of their service has been affected by the regulatory regimes that have emerged over the past several years. Several of these firms have played significant roles in creating these stan dards, such as PVI and Drum Cussac, which along with other PMSCs, played a key role in drafting the BIMCO GUARDCON contract. 41 By thorough compliance with these standards, private naval firms can minimize the risk of harm to civilians. A key factor cited in the killings by land -based security contractors was lax oversight, 42 which is less of a problem in a maritime environment. The confined setting of an escort boat facilitates the use of video recording, which ensures that each vessel is accountable both up its own chain of command, and to legal authorities in the event of a controversial incident. 43 Satellite communications allow PMSCs—and, as appropri-

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ate, military and governmental authorities—to monitor maritime escorts’ position and activities much more closely than they can monitor individual operators on land. The next area of cost is regulation. This encompasses efforts by nume rous stakeholders, including the signatory governments to the Montreux Document, the International Maritime Organization, SAMI, and escort ve ssels’ flag states. These bodies must devote legal resources to formulating regulations, creating enforcement mechanisms, and conducting compliance audits. So far, private escorts have added little additional regulatory burden beyond that necessitated by embarked armed guards. Again, though, if use of escorts grows, there will be greater need for escort -specific regulation. 44 These regulatory costs are shared among a wide range of stakeholders, i ncluding PMSCs, governments, NGOs, P&I clubs, and shipping associations. An unintended cost of both private escorts and embarked guards is that they shift pirate attacks onto shippers that do not hire such protection. This is especially true of escorts, though, because they pose such a strong visual deterrent. Pirates can identify them at a distance, and have time to break off in search of “softer” targets before an attack even begins. In these cases, even though an escort has deterred an attack on its own client, the pirates attack a different target, and thus no benefit is reflected in overall attack statistics. Especially from 2011 onward, as use of PMSCs increased, unpr otected merchant ships faced disproportionate risk—further increasing those shipowners’ incentive to hire private security. 45 Future research should attempt to generalize the optimal proportion of PMSC-guarded shipping in a pirate-threatened area. It seems that armed security bears increasing returns at some point, as pirate attacks become concentrated on a smaller number of unguarded ships—but that eventually the deterrent effect reduces piracy overall, and begins to lower attacks even on ships without armed security. Finally, private escorts could potentially prompt pirates to attack more violently, and with heavier weapons. During the early years of the Somali piracy epidemic, many security analysts and naval officers worried publicly that the introduction of armed private security would lead to an escalation of pirates’ use of force, placing ships and seafarers at even greater risk than before. There was a sense in maritime circles that Somali pirates would avoid violence if they thought that by “playing nicely” they could secure a fat ransom and a clean getaway. 46 Meanwhile, shippers typically ordered their crews not to resist, understanding that seven-figure ransoms were not worth the lives of the crew and hull and cargo worth tens or hundreds of millions of dollars. 47 This status quo, while far from ideal, was tolerable to both sides. Yet industry leaders like Jardine Lloyd Thompson felt that increasing violence against seafarers was changing the equation. 48 The escalation captured international attention in February of 2011, when pirates slew four civilians on the American yacht Quest.49 U.S. officials described the Quest

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killings as a game-changing event. 50 Where previously shippers had been hesitant to fight back for fear of provoking pirates’ aggression, they came to realize that passivity no longer ensures safety—and that there is no assurance that military rescues will succeed. As willingness to hire PMSCs increased, observers braced for ferocious and sophisticated attacks against both embarked guards and escort vessels. Yet the feared escalation did not occur. Rather, the opposite. Somali pirates showed great reluctance to e ngage ships defended by armed private security. 51 Even if future pirates are willing to attack escorts directly, shippers will not take that as reason to transit unprotected. The enduring lesson of the Quest is that pirates may use violence regardless of shippers’ actions, so it is best to strenuously avoid hijackings in the first place, even at the risk of combat. Overall, then, it appears that the expected costs from escalation are quite low.

Benefits The principal benefits of private naval forces are preventing losses due to piracy, reducing the need for even costlier countermeasures, widening access to armed security for clients for whom embarked guards are not suit able, and freeing regular military units to take a more aggressive posture against pirates. Preventing losses is the most obvious benefit. This takes two forms: thwarting pirate attacks directly—and raising pirates’ expected risk, thereby deterring attacks. From 2008 through early 2013, private escort vessels thwarted at least one, and probably several attacks that resulted in exchanges of gunfire. 52 A much greater impact comes from deterrence. The number of attacks by Somali pirates fell by 68 percent (from 237 to 75) from 2011 to 2012. 53 Into 2013, attacks have continued to drop, and are on pace for an even steeper decline than the previous year.54 Although we cannot determine precisely what proportion, experts agree that much of that decline is due to the presence of armed private security driving up the risks of piracy. As pirates judge that the risks outweigh the expected rewards, attacks fall. During the period of decline, escort vessels have accounted for a small segment of all PMSC-protected transits. 55 Yet it is plausible that they accounted for an outsized proportion of PMSC-caused deterrence. 56 While the presence of embarked guards is not obvious until pirates initiate an attack, the military-style appearance of most escorts encourages pirates to avoid attacking in the first place. As discussed previously, this may have the side effect of making those attacks that do occur fall more heavily on shippers that do not hire escorts. For each attack deterred, there is a certain chance that it would have been a successful hijacking. Unfortunately, we cannot use the raw success rate of attacks, because ships that use PMSCs usually also follow Best

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Management Practices, which have played a significant role in thwarting many attacks. Likewise, from 2012 onward, ships that comply with BMPs usually have additional armed protection. There is not any data on attacks thwarted by PMSCs in the absence of BMPs—and shippers have strong incentive not to reveal noncompliance. Thus, the data is inadequate to r eveal how many hijackings would have occurred if not for the deterrent e ffect of PMSCs in general, or more specifically, private escorts. Yet whatever that number is, each successful hijacking can be expected to result in a certain ransom cost, hostages taken, and potential loss of life. In 2012, the average ransom was $3.97 million (Oceans Beyond Piracy e stimates $7.94 million with associated costs), there were 383 hostages taken for an average captivity of 319 days, and six seafarers were killed (or 0.43 per hijacking). 57 Although loss of life cannot be fully measured in financial terms, the most common way of estimating whether life-saving efforts are cost-effective is assessing the cost per quality-adjusted life year (QALY) saved. 58 In the United States, a QALY is often treated as being worth about $100,000, but in less affluent parts of the world, from which most merchant seafarers are drawn, it may be $8,600 59 or lower. 60 Future research should seek to determine the identities of all seafarers killed by Somali pirates. Based on their ages and nationalities, it would be possible to determine r emaining life expectancies, and thus the number of QALYs lost to piracy. Weighting according to national QALY values, researchers could infer the value of the benefit from preventing those murders. 61 This would allow a computation of operational value—that is, given a cost of over $50,000 per day, how often escorts would have to deter or thwart hijackings in order to be cost-effective at loss prevention. 62 Another benefit is that preventing hijacking spares the whole industry losses, whereas insurance just shifts losses around. This is particularly important for shippers who fear that insurers might try to avoid paying very large claims. “Given that the pirate attacks are a consequence of civil war and often carried out by heavily armed paramilitary groups,” Risk Management magazine reported in 2009, “policyholders are beginning to fear that, even where policies promise to cover piracy, insurers may invoke the var ious ‘war,’ ‘civil war’ and ‘riot’ clauses in their policies to deny cove rage.”63 Fortunately, through summer 2013, insurers have been good about paying out claims—but they have not yet been faced with any catastrophic losses. Since Somali piracy does indeed stem from a decades-old civil war, insurers would conceivably have a case for declining to pay in the event of an exceptionally large claim. The benefits of deterrence may be greatest when the shipowners have “skin in the game.” The millionaires who yacht around the world make tempting targets for kidnappers. 64 The billionaires in their superyachts and (and hyperbolically-termed “megayachts” and “gigayachts”) are even richer prizes. The consequences of capture and ransom for a superyacht’s owners

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are much more serious than an entry on the bottom line for an international shipping conglomerate. Their priority, as a result, is to prevent hijackings from happening in the first place. Yet although many top yachts now co ming out of the yards have advanced security equipment and non -lethal weapons, those are likely insufficient to fend off armed pirates. 65 A wellplanned attempt to capture a major yacht would likely include at least several fast skiffs full of men with automatic weapons and RPGs or other shoulder-fired missiles. 66 Such an attack would be a grave risk even with the heaviest security protection, so it is in owners’ interest to convince pr ospective hijackers—with as visible a deterrent as possible—to seek a softer target. Although superyachts have rarely come under attack so far, a single successful attack would immediately drive up demand for high -end private security. 67 Private naval firms presently avoid the yacht market, 68 but a dramatic incident like the taking of a superyacht could change their thin king. An underreported function of private escorts is reducing the need for rerouting around the danger zone, and transiting at high speed, which are much more expensive countermeasures. As discussed in Chapter 5, the BMP4-recommended 18-knot minimum can tack hundreds of thousands of dollars in fuel costs onto a large vessel’s transit. Routing around the Cape of Good Hope to avoid the High Risk Area entirely adds thousands of miles, and reduces the number of transits a ship can make in a year. 69 For the foreseeable future, the economics of fuel consumption will favor PMSC-protected vessels at slower speeds, taking more direct routes. An even more underreported benefit of private escorts is that they are an effective alternative to embarked guards for clients who cannot have armed security onboard. This may be because a ship is carrying passengers or highly volatile cargo. 70 Without escort vessels, these ships would be unable to obtain armed security all. As discussed previously, while the presence of embarked guards is not apparent from a distance, escorts usually have a menacing appearance that may deter pirates before they even initiate an attack. This is important for ships that would be in danger from even a brief exchange of gunfire. Other vessels need escorts for legal reasons, such as ships flagged to France or the Netherlands, which still do not allow private embarked guards. Fortunately, none of the flag states that forbid the use of private embarked guards explicitly prohibit private security on ind ependent vessels. For example, in the Netherlands the prohibition rests solely on firearm carriage aboard Dutch-registered ships—the law makes no comment about the firearms of escorts. 71 In other countries, shippers may fear that domestic laws would hold them accountable for any mishaps. Escort vessels provide valuable legal distance. While embarked guards are legally under masters’ authority—a position explicitly affirmed by GUARDCON 72 —merchant captains do not have any formal authority over

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PMSC personnel on separate vessels. This distinction is a key advantage for liability-conscious shippers. Although embarked guards are a more cost-effective anti-piracy measure for a majority of the commercial shipping market, they are not appr opriate for some types of vessels and transits. Cruise lines do not want to station armed detachments on their ships, and passengers could be harmed in a crossfire if guards were forced to use lethal force against attackers. 73 Ships carrying explosive chemicals similarly face grave risk if embarked defenders get into a firefight. Other clients lack the ability to take evasive action in the event of an attack, such as platform tows, survey ships, and cable layers. In all these cases, private escorts widen access to armed sec urity to parties that would otherwise be left without robust security. Escorts may also be useful for transits between ports hostile to embarked security, and for which diversion to pick up firearms is inconvenient. Finally, both private escorts and embarked guards serve to free regular military units to take a more aggressive posture against pirates. As more ships hire PMSC protection, navies have to spend less time responding to merchant vessels in distress, and can devote their reconnaissance and tact ical resources toward identifying pirate action groups before they can launch attacks. This involves operations against suspected motherships at sea, interdiction of PAGs close to the coast, and even limited strikes on pirate b ases ashore. As the international task forces in the High Risk Area employed those tactics more consistently from 2011 onwards, their effectiveness i ncreased dramatically. This would not have been possible if they still had to respond to the same volume of attacks on unguarded ships as they did du ring the first three years of the outbreak.

Results In assessing the past four and a half years of active private escort operations, several results stand out. First, their thousand-plus transits have successfully protected all clients. No hijackings or loss of innocent life have occurred. 74 In 2008, The Independent reported that Blackwater “believes that the presence of escorting gunboats will have a deterrent effect, with criminal gangs being forced to switch to more vulnerable targets.” 75 This is precisely what happened. Earlier predictions that armed escorts would provoke an escalation of violence by pirates were incorrect. Likewise, the fear of Nisoor-square style shootings has so far gone unfounded. These transits have also contributed to the overall deterrent effect that greatly decreased piracy from late 2011 through early 2013. We might get an even clearer picture of deterrence from data on suspicious approaches that did not result in attacks, but the available data on suspicious approaches does not record the protection status of the ships in

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question. Also, confounding factors could be in play. For example, if shipowners are willing to pay for private security—especially an escort vessel—they will likely also encourage best practices by their own crews when transiting dangerous waters. Thus, reported statistics probably underestimate the true deterrent effect of armed guards and escorts, because ships at greater risk of attack would be more likely to seek private security prote ction in the first place. Ships sailing through the riskiest parts of the HRA would be both more likely to come under attack by pirates, and more likely to have armed protection, skewing the data to suggest lesser deterrence. The same would apply to ships with slow speeds, low freeboard, or any other factors making them unusually vulnerable. Second, the private naval sector has grown in size, capability, and experience. This hard-earned expertise—from escort boat crews all the way up to senior executives—has positioned the industry to respond quickly to future maritime security threats. Unlike the conflict with the Malacca pirates nearly a decade ago, for which escort vessels were an ad hoc solution that did not outlive the conflict—the Somali piracy epidemic seems to have established the use of armed escorts on a more permanent basis. Already, the industry is adapting to the worsening piracy off West Africa, and the very different conditions there. For example, because more West African piracy takes place in territorial waters, PMSCs must engage closely with local governments to establish the acceptable parameters of their operations.76 Typically, shippers must either embark Western guards at ports far from the Gulf of Guinea, and then find a place to disembark them before entering territorial waters—or rely on local security forces of dubious quality.77 According to PMSC executives, escorts’ ability to join and leave clients freely in international waters may cause them to play a much greater role off West Africa.78 Also, if budget austerity leads to premature withdrawals of the international task forces in the High Risk Area, and if Somali piracy flares up again, PMSCs will be in a better position to fill the void. As we explore at greater length in Chapter 9, the development of privately operated security vessels also portends privatization of other functions previously reserved to navies. Although the industry is not yet fully ready to fill the sort of general coastguard functions envisioned by Hart Security for Puntland in 2000, it could do so within the next several years. Finally, firms providing escort services have taken the lead in formulating best practices and shaping regulatory standards for the PMSC industry as a whole. Although the process has been slow, these developments have substantially clarified the questions that hung over the private security work at the start of the outbreak. This regulatory framework is expected to come into mature operation by the end of 2013. It will allow shippers and governments to turn more confidently to private naval companies in the future.

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Notes 1. Other notable, but not comprehensive, analyses include those of Besley, Fetzer, and Mueller, who studied the welfare loss due to higher shipping costs due to piracy; and Martínez-Zarzaso and Bensassi, who studied piracy’s effects on shipping volume and shipping costs. See: Tim Besley, Thiemo Fetzer, and Hannes Felix Mueller, "One Kind of Lawlessness: Estimating the Welfare Cost of Somali Piracy", Working Papers 626, 2012, Barcelona Graduate School of Economics; Inmaculada Martínez-Zarzoso and Sami Bensassi, “The Price of Modern Maritime Piracy,” Ibero-America Institute for Economic Research, IAI Working Paper 213, September 27, 2011, available for download at http://wwwuser.gwdg.de/~fjohann/paper/DB213.pdf (accessed July 24, 2013); Inmaculada Martínez-Zarzoso and Sami Bensassi, “How Costly is Modern Maritime Piracy to the International Community?” Review of International Economics 20(5), November 2012, 869-83, available for download at http://wwwuser.gwdg.de/~fjohann/paper/DB20-8.pdf (accessed July 24, 2013). 2. Venetia Archer and Robert Young Pelton, “Can We Ever Assess the True Cost of Piracy?” SomaliaReport.com, February 21, 2012, http://somaliareport.com/index.php/post/2867/Can_We_Ever_Assess_the_True_Cost_of_Piracy_ (accessed April 21, 2013). 3. Archer and Pelton, “Can We Ever Assess the True Cost of Piracy?” 4. Archer and Pelton, “Can We Ever Assess the True Cost of Piracy?” 5. The OBP Economic Cost of Piracy 2012 report explicitly acknowledges the issue of opportunity costs, and gives these simply as “the cost of military operations and counter-piracy operations.” This is a reasonably good generalization, because most military expenditures are budgeted without specific reference to piracy. Yet while some navies have strategically important missions to perform elsewhere, others have less demanded of them. Thus, the opportunity cost of using an American aircraft carrier in support of antipiracy operations is actually much greater than that of using a Portuguese frigate. There is no clear way of quantifying these differences, though. See: Jonathan Bellish, “The Economic Cost of Somali Piracy 2012,” Oceans Beyond Piracy / One Earth Future Foundation, working paper, 2013, available for download at http://oceansbeyondpiracy.org/sites/default/files/ecop2012final_2.pdf (accessed April 17, 2013), 8. 6. Quy-Toan Do, “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” World Bank, working paper, April 11, 2013, available for download at http://siteresources.worldbank.org/INTAFRICA/Resources/pirates-of-somalia-main-report-web.pdf (accessed July 23, 2013), 15-16. 7. See: Myles Neligan and Jonathan Saul, “Insurers Face Tougher Times as Somali Piracy Drops,” Reuters, September 21, 2012, http://www.reuters.com/article/2012/09/21/us-insurance-pirates-idUSBRE88K0IG20120921 (accessed July 31, 2013). 8. Kaija Hurlburt and D. Conor Seyle, “The Human Cost of Somali Piracy 2012,” ICC-IMB and One Earth Future Foundation, working paper, June 18, 2013, available for download at http://oceansbeyondpiracy.org/sites/default/files/hcop2012forweb_6.pdf (accessed July 19, 2013), 3. 9. Liz McMahon, “PMSCs Criticise Navies for Not Sharing Information on Piracy,” Lloyd’s List, October 25, 2012, http://www.lloydslist.com/ll/sector/regulation/article410283.ece (accessed July 24, 2013). 10. McMahon, “PMSCs Criticise Navies for Not Sharing Information.” 11. United Nations Office on Drugs and Crime, Transnational Organized Crime in West Africa: A Threat Assessment, UNODC, February 2013, available for download at

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http://www.unodc.org/documents/data-and-analysis/tocta/West_Africa_TOCTA_2013_EN.pdf (accessed July 23, 2013), 50. 12. “The Human Cost of Somali Piracy 2012,” 32. 13. Vellientertain, “Private Security Guards Shoot Somali Pirates,” YouTube.com, April 6, 2012, http://www.youtube.com/watch?v=ESFFFW0B64I (accessed July 23, 2013). 14. “The Human Cost of Somali Piracy 2012,” 32. 15. Oceans Beyond Piracy, “Introduction to Private Maritime Security Companies (PMSC),” One Earth Future Foundation, working paper, December 2011, available for download at http://oceansbeyondpiracy.org/sites/default/files/pmsc_map_final_3.pdf (accessed April 29, 2013), 1. 16. “The Economic Cost of Somali Piracy 2012,” 18, 24. 17. This is complicated by a recent report that some international journalists have been hoodwinked by conmen pretending to arrange interviews with pirates, who are really just local actors. Prestigious media outlets including Time magazine appear to have featured these actors, casting further doubt on foreign insight into the pirates’ situation. See: Jamal Osman, “Fake Somali Pirates Scam Western Journalists,” Daily Beast / Channel 4 News (UK), April 3, 2013, http://www.thedailybeast.com/articles/2013/04/03/fakesomali-pirates-scam-western-journalists.html (accessed April 30, 2013). 18. See: Claude G. Berube, “Anti-Piracy Escorts in the Gulf of Aden,” in Maritime Private Security: Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century, eds. Claude Berube and Patrick Cullen (London/New York: Routledge, 2012), 79; Michelle Wiese Bockmann, “Somalia Piracy Spurs Private Gulf of Aden Navy to Start Within Five Months,” Bloomberg, November 7, 2011, http://www.bloomberg.com/news/2011-11-07/somalia-piracy-spurs-private-gulf-of-aden-navy-to-startwithin-five-months.html (accessed April 9, 2013). 19. See Global Maritime Recruitment Solutions website at http://www.gmrs.eu/ (accessed April 29, 2013). 20. International Organization for Standardization, “ISO/PAS 28007: Ships and Marine Technology – Guidelines for Private Maritime Security Companies (PMSC) Providing Privately Contracted Armed Security Personnel (PCASP) on Board Ships (and Pro Forma Contract),” ISO publicly available specification, 1st edition, December 15, 2012, 14. 21. PMSC executives do not speak publicly about operating costs, but the Convoy Escort Programme’s estimate is probably a reasonably good approximation, at $825,000 per vessel per year. Larger escorts are probably even more expensive than this. See: Darren Mara, “German Shippers Reject British Plan for Private Anti-Piracy Battleships,” dw.de, last modified October 27, 2010, http://www.dw.de/german-shippers-reject-britishplan-for-private-anti-piracy-battleships/a-6153192 (accessed April 30, 2013). 22. An estimated $3,947.40 per SAMI member, according to Oceans Beyond Piracy, in “The Economic Cost of Somali Piracy 2012.” 23. Peter Cook (SAMI founder and director), author interview, telephone, January 4, 2013. 24. Security Association for the Maritime Industry, “Standards for Private Maritime Security Company (PMSC) Accreditation,” SAMI, 2012, available for download at psm.du.edu/media/documents/industry_initiatives/sami_standard_executive_summary.pdf (accessed April 25, 2013), 4. 25. “Standards for Private Maritime Security Company (PMSC) Accreditation,” 4. 26. “Standards for Private Maritime Security Company (PMSC) Accreditation,” 4.

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27. Marsh, “The SAMI Facility: Insurance Facility for Members of the Security Association for the Maritime Industry (SAMI),” Marsh & McLennan Companies, November 2011, http://uk.marsh.com/LinkClick.aspx?fileticket=5yebvJFNYiw%3d&tabid=1993&mid=10484 (accessed April 25, 2013), 1. 28. According to interviews with several PMSC executives, including Andrew Nicholson (Drum Cussac executive), author interview, telephone, April 9, 2013. 29. Anne C. Mulkern, “BP Oil Spill Could Dwarf Exxon’s Valdez Tab,” New York Times, May 3, 2010, http://www.nytimes.com/gwire/2010/05/03/03greenwire-bps-oil-spill-bill-could-dwarf-exxons-ivaldezi-91298.html?pagewanted=all (accessed April 27, 2013). 30. “BP America Announces Resolution of Texas City, Alaska, Propane Trading, Law Enforcement Investigations,” British Petroleum, last modified October 25, 2007, http://www.bp.com/genericarticle.do?categoryId=2012968&contentId=7037819 (accessed April 27, 2013). 31. Graeme Wearden, “BP Oil Spill Costs to Hit $40bn,” Guardian, November 2, 2010, http://www.guardian.co.uk/business/2010/nov/02/bp-oil-spill-costs-40-billion-dollars (accessed April 27, 2013). 32. Until the 9/11 attacks, the costliest terror attack in the United States was the 1995 Oklahoma City Bombing, with an estimated $652 million in damage. See: Christopher Hewitt, Understanding Terrorism in America: From the Klan to Al Qaeda (New York: Routledge, 2003), 106. 33. The deadliest terrorist attack in the world until the 9/11 attacks was the 1978 Cinema Rex fire in Iran, with about 470 killed. See: “In with the Madding Crowd: Why did Iran Favour a Reactionary Shia Divine Over a Wealth-Creating King?” Economist, November 3, 2012, http://www.economist.com/news/books-and-arts/21565582-why-didiran-favour-reactionary-shia-divine-over-wealth-creating-king (accessed April 27, 2013). 34. Centers for Disease Control, “Deaths in World Trade Center Terrorist Attacks – New York City, 2001,” Morbidity and Mortality Weekly Report, September 11, 2002 / 51 (Special Issue); 16-18, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm51spa6.htm (accessed April 27, 2013). 35. Eugene Kontorovich (international law scholar), author interview, telephone, October 10, 2011. 36. Far out into the Indian Ocean, skiffs and similar small craft are much more likely to be pirate vessels discharged from a mothership. This knowledge allows PMSC personnel to be more wary than they can be closer to the coast, where pirate skiffs can blend in among a multitude of harmless fishing craft. 37. For example: Moshe Schwartz, “The Department of Defense’s Use of Private Security Contractors in Iraq and Afghanistan: Background, Analysis, and Options for Congress,” Congressional Research Service, September 29, 2009, available for download at fpc.state.gov/documents/organization/130803.pdf (accessed April 27, 2013). 38. For example: Jonathan Saul, “Facing Piracy, Ship Security Firms Set Ethics Code,” Reuters, May 9, 2011, http://af.reuters.com/article/somaliaNews/idAFLDE7480ZH20110509 (accessed April 27, 2013). 39. Dirk Steffen (risk consultancy executive), author interview, telephone, January 11, 2013. 40. The reasoning behind this estimate of protected transits is discussed more fully in Chapter 4, at note 74. 41. According to BIMCO, the companies providing escort services providing significant contributions included Protection Vessels International and Drum Cussac, with key

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contributions also coming from MAST and Salama Fakira. See: Baltic and International Maritime Council (BIMCO), “BIMCO GUARDCON Explanatory Note,” BIMCO, 2012, available for download at psm.du.edu/media/documents/.../bimco_guardcon_explanatory_note.pdf (accessed April 29, 2013), 2. 42. “Blackwater Took Hundreds of US Weapons from Military, Afghan Police Using ‘South Park’ Alias,” Associated Press / Huffington Post, April 25, 2010, http://www.huffingtonpost.com/2010/02/23/blackwater-took-hundreds-_n_474220.html (accessed April 28, 2013). 43. Although no personnel from firms with escort vessels spoke to the authors on the record about operational recording, several interviewees indicated on background that their firms document any engagement by both video and audio. This recording appears to be common even among firms providing embarked guard services, according to Jeremy Weiss (PMSC executive), author interview, telephone, January 15, 2013. 44. At present, the escort market is only a small, high-end fraction of the PMSC market in the Indian Ocean. If conditions in a future conflict lend themselves to a greater proportion of escorts, some lower-end firms may begin operating armed vessels. Without accreditation processes specific to the demands of those operations, the shipping industry might have difficulty discerning credible firms from marginal ones. 45. Oceans Beyond Piracy estimates suggest that the proportion of unguarded ships fell from 75 percent in 2011 to 40-62 percent in 2012. Although the total number of hijackings halved during that period, they were all concentrated among this shrinking group of unguarded vessels. See “The Economic Cost of Somali Piracy 2012,” 19. 46. Michael G. Frodl (maritime risk consultant), author interview, telephone, October 17, 2011. 47. For example, in 2009 Maersk Line CEO John Reinhart told the Financial Times that Maersk crews were told not to resist once pirates took control. Although evasive maneuvering was permitted, even this was often ceased as merchant crews came under fire from automatic weapons and RPGs. See: Robert Wright and Barney Jopson, “US Ship in Stand-off with Somali Pirates,” Financial Times, April 9, 2009, http://www.ft.com/intl/cms/s/0/f8646672-244d-11de-9a01-00144feabdc0.html#axzz2Rq2SIXZY (accessed April 29, 2013). 48. As early as Fall 2010, Sean Woollerson, the head of the Convoy Escort Programme project for Jardine Lloyd Thompson, explained to The Independent (UK) that pirates had shot and killed one of the crewmembers on a ship that JLT insured. The CEP was intended, he said, as a more proactive defense. See: Cahal Milmo, “Insurance Firms Plan Private Navy to Take on Somali Pirates,” Independent (UK), September 28, 2010, http://www.independent.co.uk/news/world/africa/insurance-firms-plan-private-navy-totake-on-somali-pirates-2091298.html (accessed April 28, 2013). 49. David Gardner and Sophie Freeman, “Killers, Cowards, Damned Liars: Navy Deny Pirates' Claim that U.S. Warship Started Firefight that Killed Four Innocent American Sailors,” Daily Mail, February 23 2011, http://www.dailymail.co.uk/news/article1359000/Somali-pirates-killed-4-American-hostages-hijacked-yacht-claim-US-Navyfired-first.html#ixzz1NCpNUFdT (accessed April 28, 2013). 50. Jeffrey Gettleman, “Suddenly, a Rise in Piracy’s Price,” New York Times, February 27, 2011, WK1. 51. Pottengal Mukundan (International Maritime Bureau director), correspondence with authors, email, April 29, 2013. 52. As discussed in Chapter 4, information on these incidents is very limited, with only one publicly reported as of early 2013.

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53. ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” International Chamber of Commerce (January 2013), 5-6. 54. ICC International Maritime Bureau, “IMB Piracy & Armed Robbery Map 2013,” icc-ccs.org, http://www.icc-ccs.org/piracy-reporting-centre/live-piracy-map (accessed April 29, 2013). 55. As discussed at greater length in Chapter 4, the proportion of escort vessels among all armed transits is certainly under 10 percent, and including the many unreported embarked guards is likely 2.5 percent or lower. This should not be regarded as a fraction of the potential market for escort vessels, though, as many low-value merchant ships hire cheap embarked guards, but could never afford escorts. 56. Michael G. Frodl, author interview, telephone, January 22, 2013. 57. “The Economic Cost of Somali Piracy 2012,” 10, 25. 58. “Measuring Effectiveness and Cost Effectiveness: The QALY,” NHS National Institute for Health and Clinical Excellence, last modified week of April 20, 2010, http://www.nice.org.uk/newsroom/features/measuringeffectivenessandcosteffectivenessth eqaly.jsp (accessed April 28, 2013). 59. Based on a 2012 GDP per capita of $4,300 in the Philippines, which is one of the most common home countries of merchant seafarers. See: Central Intelligence Agency, “Country Comparison: GDP - Per Capita (PPP),” CIA World Factbook, last modified week of April 21, 2013, https://www.cia.gov/library/publications/the-world-factbook/rankorder/2004rank.html (accessed April 28, 2013). 60. A commonly cited calculation for the value of a QALY is twice GDP per capita. See: Victor Zarate, “DALYs and QALYs In Developing Countries,” Health Affairs 26, no. 4, July 2007, 1197-1198, available at http://content.healthaffairs.org/content/26/4/1197.2.full (accessed April 28, 2013). 61. Since preventing murder does not negatively impact the quality of the life years saved (unlike many healthcare interventions traditionally used in QALY calculations), the QALYs saved would simply be the difference between age at death and life expectancy. 62. Such a computation would only describe cost-effectiveness in actual lossprevention, though. Just as important to the shipping industry is cost-effectiveness relative to other anti-piracy countermeasures. For example, even if private escort vessels do not prevent around $50,000 of losses per day, they may save some ships that much in fuel costs by allowing them to transit the HRA more slowly. 63. Rene L. Siemens, Joshua J. Pollack, and Jessica L. Freiheit, “Piracy’s Impact on Insurance,” Risk Management 56, no. 7, available at http://cf.rims.org/Magazine/PrintTemplate.cfm?AID=3959 (accessed April 28, 2013). 64. Luke Baker, “Somali Pirates Put Superyacht Rich in Range,” Reuters, April 16, 2009, http://www.reuters.com/article/2009/04/16/us-somalia-piracy-superyachts-sb-idUSTRE53F3FZ20090416 (accessed April 28, 2013). 65. According to Moran Yachts & Ship, superyacht security equipment includes a wide range of non-lethal defense systems: “from a radar/camera/non-lethal laser installation to deter paparazzi, to a complete system that includes LRAD [and] water cannon to repel boarding pirates.” As discussed in Chapter 7, these systems’ efficacy against armed pirates is questionable. Ben Marshall, a serving superyacht skipper, told Moran unequivocally: “I would not go through the Gulf [of Aden] area without armed security.” See: Kate Hubert, “Superyacht Security,” moranyachts.com, last modified April 5, 2011, http://www.moranyachts.com/Article/?ID=81 (accessed April 29, 2013).

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66. Analysts have observed pirates to be growing in operational sophistication and intelligence gathering. What were largely opportunistic attacks at the start of the epidemic are now believed to be sometimes coordinated with confederates monitoring ship movements as far away as the Suez Canal. With the relatively small number of superyachts afloat (around 1,000 in the world), identification and tracking of recognizable targets would be relatively easy. Michael G. Frodl, author interview, telephone, November 21, 2012. 67. Most notably, in 2010 the superyacht Linda Lou was underway in the Gulf of Aden when it came under aggressive pursuit by three suspected pirate skiffs. A Royal Navy helicopter responded within six minutes, and drove the skiffs off before they could board. See account of Michael Schueler (superyacht captain), quoted in: B. Roberts, “Superyacht Pirate Attack – Captain’s Account,” superyachts.com, March 2, 2010, http://www.superyachts.com/news/superyacht-pirate-attack--captains-account-415.htm (accessed April 30, 2013). 68. Barry Roche (PVI Chief Executive Officer), author interview, telephone, March 25, 2013. 69. Among common routes, the Cape of Good Hope adds between 3,315 nautical miles (Tokyo to Rotterdam) and 9,887 nautical miles (Jeddah to Piraeus). See: Helen B. Bendall, “Cost of Piracy: A Comparative Voyage Approach – Section 1: Shipping Market Analysis,” conference paper, IAME 2009, Copenhagen, available for download at www.maritrade.com.au/publications/IAME-09.pdf (accessed July 27, 2013), 7. 70. See “Introduction to Private Maritime Security Companies (PMSC),” 8. Since that document’s publication, several nations including Japan and France have begun to loosen restrictions on private security and carriage of firearms. In the meanwhile, some shippers have carried guards illegally. Dutch shipping firms have done so even at the risk of criminal prosecution. See: “Shipping Firms are Using Armed Guards Against Pirates,” DutchNews.nl, August 2, 2012, http://www.dutchnews.nl/news/archives/2012/08/shipping_firms_are_using_armed.php (accessed July 24, 2013). 71. International Chamber of Shipping and European Community Shipowners Association, “Table on Flag State Rules and Requirements on Arms and Private Armed Guards On Board Vessels,” ICS/ECSA, July 2011, available for download at http://www.marisec.org/privatearmedguardsflagtateregs.pdf (accessed April 29, 2013), 4. 72. Holman Fenwick Willan LLP, “GUARDCON: A Guide for Private Maritime Security Companies,” Holman Fenwick Willan, SAMI briefing document, 2012, available for download at http://ebookbrowse.com/sami-briefing-document-hfw-guardcon-guide-for-security-companies-may-2012-webversion-pdf-d347107741 (accessed April 29, 2013), 5. 73. Serving cruise ship security chief, author interview, at sea, January 17, 2012. 74. Peter Cook, author interview, telephone, March 19, 2013. 75. Kim Sengupta, “Blackwater Gunboats Will Protect Ships” Independent (UK), November 19, 2008, http://www.independent.co.uk/news/world/africa/blackwater-gunboats-will-protect-ships-1024582.html (accessed April 29, 2013). 76. Gerry Northwood (GoAGT Chief Operating Officer), author interview, telephone, April 5, 2013. 77. “The Human Cost of Somali Piracy 2012,” 19. 78. Based on the assessments of executives at several firms, including Jim Jorrie (Espada Chief Executive Officer), author interview, telephone, April 16, 2013.

Chapter 9

Prospects and Implications

The private naval sector remains in a state of flux in 2013. During the S omali piracy epidemic, it has developed the capabilities and experience to succeed in its current role, and also to respond to future threats. Regulatory frameworks are now rapidly progressing toward maturity, with the Intern ational Code of Conduct, SAMI and the ISO 28007 standard serving as co rnerstones of a sustainable, professional, and legitimate industry. At the same time, though, these frameworks have facilitated the widespread use of embarked armed guards in the Indian Ocean. This has diverted most market demand away from escort vessels, and relegated them to a primarily sp ecialist role, defending clients for which embarked guards are inadequate or inappropriate. The threat profile is also rapidly evolving. Off the Horn of Africa, a ttacks have dropped dramatically. While the situation on land in Somalia remains bad, the fragile gains of the past three years have made it more di fficult for pirates to operate. By early 2013, some observers essentially declared victory against the Somali pirates. Yet most risk analysts counsel that the pirates are reeling, but not defeated. NATO and EU governments are under severe budget pressure, and will be tempted to draw down their naval presence prematurely. This may lead to a resurgence of piracy in those waters in the coming years. Meanwhile, piracy off West Africa is surging. In March 2012, Lloyd’s Joint War Committee placed much of the Gulf of Guinea in the same risk category as the waters off Somalia. 1 PMSC executives call the attacks off Nigeria and Benin more violent and coordinated than those in the Indian Ocean, and perpetrators have shown brazen disregard for seafarers’ lives. 2 Yet the legal situation there makes it much more difficult to use embarked guards. 3 This makes West Africa more conducive to the use of private naval forces. The region is also more prone to a resurgence of maritime terrorism. Intelligence officials are concerned that there may be links between West African pirates and Nigeria’s Boko Haram jihadist group, an organization with close ties to al-Qaeda in the Islamic Maghreb (AQIM). 4 Oil tankers are common in the Gulf of Guinea, and provide tempting victims relatively close to the coast. If maritime terrorism indeed flares up again, demand will rise for private escorts, because they can intercept and neutralize suicide boats at a safe distance from client ships. 195

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In the coming years, private armed vessels may be demanded in roles other than protecting merchant shipping. Corporations may hire them to defend disputed resource extraction operations in waters where the rule of law is weak, or where resource rights are disputed. PMSC vessels could be used like Hart Security in Puntland a decade ago, providing coastguard services in the developing world. Increasing demand may also come from go vernments of developed nations that wish to outsource some of their navies’ routine maritime security functions. Farther into the future, pri vate naval forces could even be used to defend stateless “seasteading” ventures in i nternational waters. And so, the outlook is mixed, but the epidemic of Somali piracy has positioned private naval companies for ongoing relevance. In the short term, demand will depend on whether the situation off Somalia flares up again, and whether piracy off West Africa continues to worsen. In the long term, it will largely depend upon PMSCs’ ongoing track record, and whet her governments feel comfortable ceding formerly military tasks to the private sector.

Maritime Security off the Horn of Africa After spiraling out of control in 2008, and steadily worsening for three years, Somali piracy at last began to ebb in 2011. A dramatic decline co ntinued throughout 2012, such that by 2013, attacks reached six-year lows. 5 At least 1,140 suspected Somali pirates are in detention in 21 different countries. 6 As of July 2013, there are only four ships and 68 hostages being held for ransom, 7 down from highs of 32 ships 8 and over 700 hostages in 2011.9 It is inescapably clear that the epidemic has returned to a manage able state. The question is how stable these gains are. This question can be assessed in light of two possibilities, both of which may occur over the next year or two. The first possibility is that shipping companies, facing razor-thin profit margins, will decide that the risk of hijackings no longer warrants the use of expensive countermeasures. Shippers may stop hiring armed private security, stop transiting at reco mmended speeds, and stop hardening their vessels. 10 Although this is likely cost-effective for a single ship taken in isolation, if the shipping industry as a whole lets its guard down, the expected risks of piracy will plummet, and hijackings will become easier. If Somali gangs judge that piracy’s return on investment is again favorable, they will get back into the business, as long as they have ports from which to operate. And so, there is a collective a ction problem. It is in shippers’ individual interests to cut back on antipiracy measures, but if many companies do so, a tipping point will eventually be reached, and piracy will increase again.

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The second possibility is that budget pressure will force NATO, the European Union, and the United States to draw down or even end their dedicated anti-piracy operations in the High Risk Area. 11 European governments have been facing biting austerity measures since the Great Recession, and military funding is on the chopping block. In the United States, following the budget sequestration that took effect on March 1, 2013, the Department of the Navy set in motion several major cost-cutting measures that impact force readiness. It slashed flying hours of some carrier air wings by 55 percent, 12 significantly reduced fleet steaming days, and postponed redeployment of the USS Harry S. Truman. This left America with only one carrier in the Middle East instead of the preferred two 13—during a period of serious unrest in Egypt that threatened the security of the Suez Canal.14 This strategic vulnerability was profoundly uncomfortable, and with the budget outlook still shaky, American planners will be keen to preserve their ability to respond to a major crisis. Antipiracy missions are seen, in this context, as a secondary priority. 15 This could lead, reminds risk consultant Michael G. Frodl, “to a sooner-than-expected drawdown of warships off the Horn of Africa.” 16 If these naval operations cease or are significantly diminished, pirates would once again be able to deploy freely far out into the Indian Ocean. There, they would have the luxury of waiting for vulnerable targets at minimal risk to themselves. The likelihood of both possibilities occurring is high. The shipping i ndustry is being battered by serious financial losses. In 2012, reports the Wall Street Journal, “all but seven of the biggest 30 shippers lost money.” 17 Freight rates are still sagging as of mid-2013, with the price to ship a standard container from China to Northern Europe at $818, down from $1,200 at the start of the year. 18 Meanwhile, Chinese shipping giant COSCO has seen its first-half net loss triple, and its share price tumble by nearly a quarter year-to-date. 19 Maersk, the world’s largest shipping line, may also post losses for 2013—with an even darker forecast for 2014. 20 With piracy seemingly quiescent off the Horn of Africa, it is almost inevitable that shippers will let their guard down. At the same time, the clock is ticking on full scale naval commitment. With American naval planners anxious to focus on other missions, there is understandable weariness with an anti -piracy campaign to protect foreign ships that choose not to hire private security. As Government Accountability Office official Stephen L. Caldwell puts i t: “From the U.S. perspective, these aren’t U.S. ships, they’re not U.S. registered or crewed or flagged, and so, to some extent, why does our navy have to protect all that?” 21 By contrast, European Union navies have a keen interest in their anti-piracy role, because they have a more pressing need to justify their own existence to taxpayers at home. Still, the realities of au sterity make it unlikely that their mission will last beyond their present commitment through December 2014. And so, Nick Roscoe of Marsh insurance warned Lloyd’s List that it would be unsurprising to see piracy resurge in the Gulf of Aden at the end of 2014. 22 Nis Leerskov Mathiesen, chief

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analyst Risk Intelligence, added: “Since the pirate infrastructure is largely intact, the Somali pirates will be able to mobilise for new attacks very quickly.” 23 Whether pirates have the wherewithal to do so will depend on the security situation ashore.

Security on Land in Somalia The consensus among analysts and naval officers is that as long as Somalia lacks a government capable of enforcing the rule of law throughout its terr itory, and as long as Islamist insurgency suppresses economic development, there will always be incentive for pirates to risk their lives in pursuit of ra nsom money. 24 Fortunately, government and stability are returning in parts of Somalia. After years of civil war, insurgency, and unsuccessful foreign interve ntions, Somalia at last seems to be turning the corner. With the help of the African Union Mission in Somalia (AMISOM), which has had peacekeeping troops in the country since 2007, the Transitional Federal Government achieved significant gains against both al-Shabaab Islamists and unaligned warlords that harbored pirates. 25 In October 2011, the Kenyan military launched Operation Linda Nchi, a limited invasion of southern Somalia aimed at rooting al-Shabaab fighters out of their strongholds in and around the port of Kismayo. 26 Despite some early struggles, the operation was a success. 27 By the summer of 2012, the legitimate government controlled sizeable areas of the country, and on August 20, the TFG was replaced by a permanent Federal Government of Somalia. 28 AMISOM is maintaining a large presence while the still-fragile government gets on its feet, numbering 15,179 by April 2013. 29 It aims to assist the Federal Government in taking control of the rest of Somalia and stamping out the insurgency that remains active around Mogadishu and in large rural swaths of the country. 30 Meanwhile, some pirate-friendly ports remain outside the direct control of the government in Mogadishu. Hobyo and Harardhere in the Galmudug region are still largely ungoverned, along with parts of the east coast of Puntland, and near Cape Guardafui—the tip of the Horn of Africa. 31 If navies and merchant shippers let their guard down before the rule of law can be firmly established all along this coastline, pirates will be able to resume their o perations. If the Federal Government proves unable to prevent a resurgence of p iracy, international militaries may resort to surgical strikes aimed at crippling pirates’ remaining operational capacity. These would likely be carried out by some combination of drones, attack helicopters, and commandos — either from EU Navfor, the Combined Task Force, or a nation operating independently. NATO, by contrast, has been primarily focused on protec ting World Food Programme shipments to Somalia, and supporting ongoing

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operations in Afghanistan.32 American willingness to intervene, though, is probably higher than at any time since 1993. Through recent missions in Pakistan, Yemen, and Libya, the Obama administration has demonstrated willingness to commit U.S. forces to limited operations. 33 Already, America has conducted clandestine operations in Somalia, both targeting al -Qaeda leaders and rescuing hostages held by pirates. On January 25, 2012, for e xample, a small team from SEAL Team Six parachuted near Galkayo in Galmudug province to rescue an American and a Dane who had been held for ransom for over three months. 34 The SEALs, part of the same unit that killed Osama bin Laden, killed nine pirates in a fierce firefight, and extrac ted the hostages safely. The success of this operation will likely give U.S. officials confidence to conduct similar missions in the future if the s ituation warrants. Particularly in the event of a flashbulb incident like the sinking of a tanker or a massacre of hostages, the administration would have wide public support for more extensive strikes against pirates on land. On March 23, 2012, the Council of the European Union expanded the mandate of EU Navfor to include “disruptive action” against pirates’ coastal bases. 35 On May 15, an attack helicopter attached to Navfor fired on pirate skiffs and supplies on a Somali beach. The mission was an apparent success. The TFG had given its blessing, and no civilian casualties were reported. 36 Puzzlingly, though, the May 15 strike has been the only one of its kind as of summer 2013. 37 One U.N. official, speaking off the record, says that some EU member states have been too timid, frustrating the group decision-making process needed to authorize follow-up attacks.38 It is also plausible that the drop in attacks throughout 2012 caused EU military planners to lose their sense of urgency on the issue of piracy. Another explanation is offered by Michael G. Frodl, who suggests that the May 15 mission was largely symbolic, and that EU Navfor never seriously envisioned aggressive coastal strikes in the first place.39 As a generalization, piracy is highly responsive to economic and security conditions. 40 If Somalia’s smoldering al-Shabaab insurgency, rampant poverty, and threatening famine worsen again, piracy will return. But fortunately, the reverse is also true. Decisive action to help the new Federal Government retake control of the remaining pirate-friendly areas would deny hijackers their safe havens, and snuff the epidemic for good. Although there is much work yet to be done in that direction, the situation in Mog adishu is presently encouraging, and the commitment of AMISOM to stay past the worst of the civil war has been a crucial help.

Maritime Security off West Africa As attacks by Somali pirates have receded, piracy off West Africa has been surging, particularly in and around the Gulf of Guinea. 41 After dropping from 2008 to 2010, total attacks increased sharply. In 2010, there were 38

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attacks reported; 42 in 2011 there were 54; 43 in 2012 there were 61. 44 The numbers of successful hijackings paint an even clearer picture. In 2008, there were three hijackings around the Gulf of Guinea. 45 In 2009, there were two; in 2010, there were none. 46 Then, in both 2011 and 2012, there were 10 hijackings each year. 47 As of the first quarter of 2013, there have been 18 piracy incidents in those waters, including three hijackings. 48 Quantitatively, it is now the most serious piracy epidemic in the world. 49 Yet beyond the quantitative increase in attacks, West African piracy a lso shows marked qualitative differences from Somali piracy. PVI’s Ba rry Roche puts it succinctly: “It is a very different animal.” 50 Where recent Somali piracy has focused overwhelmingly on hijacking for ransom, piracy around the Gulf of Guinea takes more diverse forms. According to the World Bank, there are four main types of attacks. 51 One is subsistence piracy—low-level theft from ships by minimally-armed pirates close to shore. 52 Another is kidnap and ransom. Some West African gangs prefer to kidnap crew from their vessels and take them ashore, with 26 captives taken in 2012.53 Also, armed robbery of ships’ valuables—which was rare during the height of the Somali epidemic—is now widely practiced in the Gulf of Guinea. 54 Finally, the “signature attack” off West Africa is tanker hijackings. 55 Nigerian pirates have developed sophisticated operations for stealing large quantities of valuable petroleum cargo for resale. In the course of such attacks, pirates see crew as being mere obstacles in the way, and can be much more violent than their Somali counterparts. 56 In 2012, attacks off Somalia injured one seafarer and killed two.57 During the same period, West African pirates injured 11 and killed four—including one seaman on a PMSC-protected ship. 58 Observers say that West African pirates also have access to unusually heavy armaments. According to the U.N. Office on Drugs and Crime, criminal groups in West Africa “seem to be able to get what they need from the local security forces, buying or renting weapons from corrupt elements in the police and military.” 59 As a result, the quality of their weapons sometimes surpasses that used by most PMSCs. 60 Anecdotal reports suggest that they may even have the capability to breach merchant ships’ fortified citadels. 61 West African piracy also shows much greater coordination and pla nning than the often-desperate opportunism seen off Somalia. According to Jeremy Weiss of Seagull Maritime Security, it appears that “a majority of attacks are well-studied,” which allows pirates to select their targets in advance, with knowledge of schedules, nationalities, and cargos. 62 This superior intelligence is facilitated by two key factors. First, a great deal of West African piracy occurs in territorial waters, making it easier for pirates to observe and track merchant ships. Second, unlike in the HRA off Somalia, most maritime traffic in the Gulf of Guinea either originates from or is bound for the countries where the pirates are based. 63 Informants in ports

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like Lagos can monitor shipping activity, and relay this valuable info rmation to pirate gangs. A great deal of West African piracy is driven by the petroleum industry that is booming in Nigeria and the Gulf of Guinea. Instead of having to snag whatever ships happen to pass by, these pirates have a feast of oil and gas targets sitting in their proverbial front yard. Offshore rigs, terminals, and pipelines are all vulnerable to oil theft—as are the tankers that must sit helplessly at anchor while discharging or taking on cargo, or during ship -toship transfers. 64 At an opportune moment, pirates can storm the vessel, and then—with impressive technical savvy and specialized equipment—offload the liquid cargo to smaller ships that take it for “recycling” back onto the legitimate market. 65 These crimes can be as lucrative as major ransoms off Somalia. In 2012, West African pirates committed seven major acts of oil theft, averaging $2-6 million, with values as high as $10 million. 66 Factoring in other cargos stolen, the total value for the year was between $34 mi llion and $101 million. 67 The goal of petroleum theft results in a different pattern of attacks from Somalia. In 2012, West African pirates attacked 33 vessels while anchored, and 27 while underway. 68 In the same period, Somali pirates attacked just a single anchored ship, and 74 while underway. 69 This is significant because anchored ships cannot employ many of the evasive tactics recommended by BMP4. Since tankers and oil exploration vessels are often unable to mane uver, embarked guards are an inadequate defense. Another problem for e mbarked guards off West Africa is that although local governments have poor maritime law enforcement capability, they tend to be strongly opposed to foreign private security contractors. According to Stephen Askins of the Ince & Co law firm: “Countries in the Gulf of Guinea are firm in conde mnation of PMSCs,” and “stark rules bar Western PMSC personnel from those countries.” 70 With so many transits bound to or for those countries— as opposed to simply passing through their waters—there is no convenient place to legally embark and disembark PMSC guards. Askins says this has necessitated petroleum and shipping corporations contracting security to local militias, or “calling on military personnel from countries like Togo and Benin, contracted through shadowy intermediaries who have arrangements with local military commanders.”71 These forces are often of dubious quality. Understanding this conundrum, insurers of West African operations have quietly relaxed the PMSC vetting requirements that were developed for the Somali piracy epidemic. 72 Contract language is often changed to limit PMSCs’ liability. 73 Nick Roscoe, a managing director at Marsh insurance, says companies may still be liable for the actions of indigenous personnel over whom they have very little control. He says firms “are, in effect, responsible for local personnel, who you never vetted, and never trained, and who never reviewed [Rules for the Use of Force].” 74

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As a result, SAMI’s Peter Cook and many PMSC executives feel that West Africa may be more suitable for private escort vessels than the So mali theater. Unlike the strategically vital Gulf of Aden, the Gulf of Guinea does not have significant international naval presence. Although officials in the United States and allied countries have considered expanding anti -piracy operations there, budget pressures make it highly unlikely that there will be a commitment on the scale of that off Somalia. 75 Without the publicly subsidized protection offered by regular navies, private escorts will be relativ ely more economically viable. 76 Although, like embarked guards, PMSC escorts would still not be able to conduct armed operations in territorial waters, 77 they have the flexibility to immediately join clients in international waters, and to guard stationary oil and gas operations there. Another option, already in use off West Africa, is using private naval vessels in partnership with local military forces. 78 PMSCs supply the boats and unarmed personnel, while Nigerian troops come aboard with weapons and carry out any use of force that might be necessary. 79 This allows for operations in territorial waters without violating local law, but still benefitting from the operational expertise of PMSC personnel. Such arrangements offer robust defensive capability to platforms, survey vessels, and anchored tankers that would otherwise be badly vulnerable. Given the greater sophistication and aggression of West African p irates, mere deterrence is unlikely to be sufficient. As Risk Intelligence’s Dirk Steffen told Lloyd’s List: “Nigerian pirates can and will engage in protracted firefights. Even if an embarked armed team prevails, the overall risk to the ship and the crew from a pirate attack in the Gulf of Guinea is much higher.”80 In short, putting embarked guards on highly flammable tankers subject to extreme violence is a risky combination. This makes it more attractive to use independent escorts with the firepower to defeat determined attackers. The most determined attackers, though, are not pirates, but suicide te rrorists. As discussed previously, al-Qaeda has repeatedly stated intentions to attack shipping. It would surely be keen to repeat the success of the USS Cole bombing in 2000, and the MV M. Star attack in 2010 suggests that those intentions are not merely aspirational. The past three years have seen a shift of al-Qaeda’s center of gravity away from Iraq and Afghanistan and towards Africa—Mali, Algeria, Nigeria, Somalia, and elsewhere. 81 As of 2013, Islamist terror groups are much more active in West Africa than in Somalia on the Horn. Nigeria’s Boko Haram jihadist group has close ties to al-Qaeda in the Islamic Maghreb (AQIM), and is waging an aggressive te rrorist campaign that has killed hundreds of civilians. 82 Maritime terrorism offers West African jihadists several attractive a dvantages. First, it has a strong symbolic impact. Oil tankers and other petrochemical carriers are highly visible symbols of Western economic might. Given the extractive nature of the oil and gas industry, it is seen by some

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jihadists as the centerpiece of foreign imperialism in the region. 83 Second, maritime attacks can have disproportionate economic impact. After the 2002 Limburg attack off Yemen, container shipping in the area temporarily dropped by 90 percent. 84 The 2008 hijacking of the Sirius Star—which did not damage the ship or cargo—jarred world oil prices upward by more than $1 per barrel. 85 If a terrorist attack badly damaged or sank a tanker in the Gulf of Guinea, similar disruption would result. The third advantage is proximity. Both tankers and stationary petrochemical infrastructure are vulnerable and abundant close to shore. Attacks on these targets can be as damaging as complex international attacks, but with much less logistical complexity, and higher chances of success. 86 Yet there are also two key disadvantages to maritime terrorism, which mitigate—to an unknown extent—the risk that West African jihadists will attempt such attacks. The first is that sea-based attacks require expertise and operational capabilities different from what land -based attacks require. According to Peter Chalk, a leading terrorism expert at RAND, “only alQaeda and a few others like Hezbollah have any maritime experience.” 87 By contrast, he says, Boko Haram and its associated groups are probably uncomfortable in marine environments. Peter Lehr, a terrorism expert at the University of St. Andrews, concurs, arguing that most jihadist terror groups have a “cultural hesitancy to operate at sea.” 88 The other main disadvantage is that maritime attacks take place far away from population centers, with their 24-hour news cycle and massed cellphone cameras. As a result, the media impact is lessened—with fewer vivid images to instill fear in the target population. Further, the maritime setting is unfamiliar to most civilians. Unlike attacks on commuter trains, shopping malls, or sporting events, bombings of oil tankers lack what Lehr calls the “‘that could have been me’ factor.” 89 When terrorist groups around the Gulf of Guinea weigh potential targets, these disadvantages may reduce their enthusiasm for maritime attacks. Overall, though, the West African theater remains the most promising area for private naval forces in the near future. The combination of pirates’ sophistication and aggression, the impracticality of embarked guards, and the looming specter of maritime terrorism leaves observers anticipating growth for the private escort market there.

Maritime Security in Other Piracy-Affected Waters Although Somalia and West Africa are not the only piracy hotspots worl dwide, they are presently the only ones likely to use private naval forces for piracy suppression. The smoldering epidemic in the Strait of Malacca and around Indonesia showed a sharp uptick in the number of attacks in 2012, but those incidents remain mostly armed robbery—petty crimes in compari-

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son to the high-value petroleum theft and ransom hijackings common around Africa. 90 Because governments in Southeast Asia are relatively strong and stable, pirates there have no safe haven from which to conduct protracted negotiations over captive vessels and crew. The same is true of other hotspots—the South China Sea, the east coast of India and Bay of Bengal, the Caribbean, and the waters around Latin America. 91 Thus, in all these areas, piracy remains largely constrained to boarding ships and stealing valuables. The result is that none of those piracy problems are costly enough to justify the use of private naval forces. Of course, maritime terrorism could change that. If jihadist movements in Southeast Asia launched a campaign of suicide boat attacks against major ships, armed escort vessels could become a plausible solution. But as of 2013, those threats are not nearly as likely or as imminent as the ones around Africa. In order for anti-piracy escorts to become viable in other hotspots, several shifts would need to take place. First, law and order would have to break down along a coastal area, to the extent that local military and police forces could not suppress major criminal activity. Second, lowlevel pirate groups would have to develop a more sophisticated business model—either hijacking ships for ransom, kidnapping crew, or stealing p etroleum cargo. For hijackings to become plausible, an area would need a catastrophic state breakdown. 92 This would afford pirates the leisure to bring captured ships to a port, and then conduct ransom negotiations there without fear of a state-sponsored rescue attempt. For large-scale kidnappings, much the same breakdown would be required—pirates would need a place where they could hold hostages safely out of the reach of government forces trying to liberate them. Finally, for West Africa -style petroleum theft to become plausible in another area, pirates would need to acquire the equipment to siphon cargo and bunker it in smaller ships, and develop the technical expertise to do so. They would also need a well-developed black oil market where they could resell what they managed to steal. A troubling example of such abilities developing was a brazen attack off Vietnam in November 2012. A small group of pirates seized a tanker, set its crew adrift, and quickly set about converting the ship to a false identity. 93 When Vietnamese police caught the pirates, the tanker was apparently steaming toward a black market buyer for its cargo of marine gas oil. 94

Legal Developments The legal questions raised by armed PMSC operations were largely unexplored at the start of the Somali piracy epidemic in 2008. Yet since 2011, the picture has clarified rapidly. Most major maritime nations have now loosened their firearms laws to allow civilian vessels to carry firearms in the High Risk Area. 95 Likewise, several states around the Indian Ocean ba-

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sin have enacted legislation to allow private security to use their ports. 96 SAMI has provided the industry with a trade association to encourage best practices, and ISO 28007 provides a regulatory standard to enable intern ationally credible accreditation. The 100 Series Rules have helped to clarify the circumstances under which PMSC personnel can legally use lethal force. As discussed in Chapter 6, though, these developments have been chiefly intended to address the embarked guards sector. Private armed escorts—technically, if not yet legally, warships in their own right—pose additional legal challenges. Yet because embarked guards make up such great majority of the PMSC market, and because private naval companies have operated mostly without incident, it is doubtful that there will be sufficient impetus for governments, regulators, and courts to specifically address pr ivate escorts in the near future. Two conditions would likely force these bodies to clarify escorts’ position under the law. If piracy in the Gulf of Guinea leads to escorts achieving a much larger market share off West A frica, insurers will push for legal and regulatory clarifications so as to mitigate their own risk. Also, if there is a dramatic incident, such as an Enrica Lexie-style shooting by a private escort, there will be increased pressure for regulation. Such an incident would also lead to litigation, which would ultimately set precedents that would influence jurists in other countries, and help insurers anticipate how courts would treat similar cases. Legal developments in countries around pirate-threatened areas will be another key factor in the development of the PMSC industry. In general, where local laws are friendlier to embarked guards, private escorts will be less viable. As of 2013, West Africa is the area most hostile to embarked guards, and therefore most conducive to private naval activity. For the most part, this is unlikely to change anytime soon. In 2012, Cape Verde licensed a firm called Cape Verde Maritime Security Services (CVMSS) to vet PMSCs hoping to use the island nation as a base for embarked guards. 97 Sea Marshals, the embarked guards-focused sister company of Naval Guards, was the first to be licensed. 98 Yet Cape Verde is over 2,000 kilometers from the Gulf of Guinea, and not a truly convenient place for embarking and di sembarking security teams. Most countries closer to the threat—such as Togo, Nigeria, and Cameroon—are not free societies, and their governments have little inclination to allow foreign PMSC operations. 99 One point of leverage that could potentially spur loosened laws is pre ssure from the United States to improve overall maritime security. In June 2013, Bloomberg reported that the U.S. “[had given] Nigeria a 90 -day ultimatum to improve security” set to expire in late July. 100 If it did not, said a letter from the U.S. government, American ships may be banned from e ntering Nigerian waters. Leke Oyewole, special advisor to the Nigerian president, was quoted promising improved efforts against terrorism, piracy, smuggling, and oil theft. Nigeria, Oyewole said, “is bound to act on the

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U.S. concerns to protect its source of revenue.”101 As this book goes to press, it remains unclear whether these efforts will include any change in Nigeria’s policy on PMSCs. Finally, there remains uncertainty about distribution of liability, b ecause PMSC escorts have not yet caused any serious incidents. It is unclear how much cases involving embarked guards will influence courts about private escorts—and even less clear in the case of the Enrica Lexie, where the perpetrators were active-duty Italian marines. For now, PMSCs and their clients may draw up contracts as they see fit, but until they are tested in courts, it is unclear how much force they carry. Once courts gain exper ience dealing with damages by private escort vessels, stakeholders can begin to adjust their expectations. 102

Proposed Private Naval Forces As discussed in Chapter 4, there is a wide difference between the comp anies that are presently operating anti-piracy vessels and the larger proposed schemes that have yet to be implemented. While firms like PVI and Naval Guards keep a low profile, the CEP and Typhon have repeatedly raised e xpectations in international media. While the former cater primarily to sp ecialized clients, the latter have marketed themselves as competitors with embarked guards for protection of general merchant shipping. And while existing firms have adapted to changing threats and regulatory frameworks, the proposed anti-piracy navies have been in the works so long that they are better suited to the conditions of 2010 than 2013. The outlook going forward suggests that the market for private naval services will remain in the hands of the firms that entered during the height of the Somali piracy epidemic. The CEP has largely lost credibility within the shipping and insurance industries, and is highly unlikel y to ever see the light of day. Typhon benefits from Simon Murray’s personal clout, and seems to have stronger financial backing than the CEP. Yet with Typhon’s May 2013 management shakeup, it has put plans for a convoy escort system on hold. The security situation off Somalia has improved greatly, and the perceived improvement is even more dramatic—so Typhon simply couldn’t marshal the support necessary to launch. Even if piracy worsens again in the HRA after a military drawdown, the firms already in operation know the market much better and have the advantage of long experience. If Typhon or a similar large-scale scheme is deployed within the next few years, it is more likely to be with a fresh start in the waters off West Africa.

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Anti-Terrorism Operations If maritime terrorism becomes a significant problem in the coming years, escort vessels will likely gain greater market share. Although embarked guards have proven a highly effective deterrent against profit -driven pirates, suicide missions by terrorists are entirely different—because the imperative is not deterrence, but rapidly stopping determined attackers. E scorts offer the flexibility and firepower to engage explosive-packed boats at a distance, and have a better chance of neutralizing them before they can reach their target. This advantage has already induced some cruise lines to employ private escorts—including the PVI vessel featured on this book’s cover. Analysts generally see passenger vessels as the most attractive target for maritime terrorism, chiefly because, as RAND’s Peter Chalk says, they are “a mass casualty prospect.” 103 In 2004, a bomb planted on the SuperFerry 14 exploded off the Philippines, killing 116 civilians. 104 It was the deadliest terrorist attack at sea in history. 105 An investigation revealed that Abu Sayyaf, an al-Qaeda linked jihadist group, had planted a 3.5kilogram TNT bomb disguised as a television set. 106 That is, as bombs go, quite small. By contrast, suicide boats like that which attacked the USS Cole may be packed with over 225 kilograms of explosives. 107 This would be enough to severely damage even the largest cruise ships, which can carry over 7,000 passengers and crew. 108 Terrorists have surely watched with interest the intense media coverage of rescuers struggling to save victims of the 2012 Costa Concordia disaster, or to assist passengers stranded on the crippled Carnival Triumph in 2013. 109 A suicide boat attack against a cruise ship would attract massive publicity. Unlike the tankers off West Africa, cruise ships are familiar settings to many civilians, and the “that could have been me” factor would amplify an attack’s effectiveness. “Even if the ship didn’t sink,” Peter Lehr says, “it would have a big impact. It would cripple the cruise liner industry in that location.” 110 Thus, a rise in maritime terrorism will likely cause a rapid increase in the number of cruise ships that use armed private escorts. 111 Another anti-terror application of private naval forces is defending harbors against suicide attacks. Routine port security has already been largely handed over to the private sector in many parts of the world. Such work includes cargo screening, in-harbor patrols, and perimeter security. 112 Firms like G4S provide full-service security to some of the world’s busiest ports, including New York, Long Beach, and Southampton—as well as high risk ports in India, Jordan, and West Africa. 113 Although these companies operate primarily in a law enforcement role, acute terrorist threats to some ports could warrant use of more militarized craft, such as those now in use off Somalia.

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Coastguard Functions in the Developing World During the 1990s, civil war in Sierra Leone interrupted the government’s ability to carry out coastguard functions and police its own waters. Meanwhile, the private security company Executive Outcomes was already providing land-based combat services against insurgents there. 114 According to Patrick Cullen, this was the genesis of the concept of PMSCs in a coas tguard role. 115 Executive Outcomes decided to branch out into limited maritime security operations, and purchased a 37-meter vessel called the Broad Arrow for fisheries enforcement. 116 Although the plan ultimately fell through, in November 1999 another firm called Southern Cross Security was given governmental authority to board, detain, and fine trawlers fishing illegally in territorial waters. 117 Southern Cross procured RIBs and a 13meter patrol boat, and set about its work—splitting fines 50/50 with Sierra Leone’s government. 118 The arrangement lasted 15 months, and got the infant PMSC industry thinking about new services to provide. Similarly, although the relationship between Puntland and Hart Secur ity in the early 2000s (discussed in Chapter 4) ultimately turned sour, 119 it raised the prospect of similar uses for PMSCs in the future. Developing nations like Togo, Benin, and Ghana have struggled to ensure maritime s ecurity within their territorial waters, and lack armed forces with the trai ning, organization, and professionalism to do so.120 “Home growing” such forces is a lengthy and difficult process, so some countries may find it preferable to contract coastguard functions to private naval companies. These forces could be contracted “off the shelf” and deployed in a matter of months, and also work with a host country to gradually train and equip a national coastguard over the course of years. In the meanwhile, PMSCs can tailor the size of their forces to client needs relatively easily. If the first group of vessels proves unable to meet local security challenges, additional forces can be added with little trouble. If the problem proves transitory, the force can be scaled back without long-term commitment. Using private companies also would also allow regimes to meet their security needs wit hout the same loss of control—and potential humiliation—that would accompany accepting international military assistance. A further advantage is that PMSCs can be subject to stricter international regulation than native coastguards. Thanks to the frameworks created over the past several years, developing countries can be assured that SAMI members have signed the International Code of Conduct and are compliant with ISO 28007. Personnel are subject to rigorous background checks, ps ychological screening, advanced weapons training, and instruction in how to operate under varied rules of engagement. 121 Regular audits will ensure that companies’ standard operating procedures are appropriate to the threat e nvironment, and suited to respecting the human rights of all stakeholders. As

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Puntland’s use of Hart Security demonstrated, private naval companies allow developing nations to avoid the two greatest pitfalls of homegrown forces. PMSCs are resistant to the petty bribery that tends to compromise local coastguards—and even more importantly, are impartial in the clan and sectarian strife that so often compromises their native counterparts. 122 If such PMSC-led coastguards are used in an anti-piracy capacity, it would likely be interdicting pirate vessels near their coastal hideouts, and deterring pirates from attacking roadsteads and harbor entrances. In general, when governments hire private naval companies, their operations and rules of engagement will tend be more aggressive than the strictly defensive role of escorts hired by the shipping industry. As both Hart and Blackwater judged in the last decade, though, even greater market exists for enforcement of resource rights in territorial waters. Countries unable to effectively police fishing rights may lose hundreds of millions of dollars of fish every year to illegal foreign exploitation. 123 Losses on that scale are enough to justify nations hiring private naval firms to conduct fisheries enforcement along the lines of what Southern Cross did for Sierra Leone. PMSCs are well aware of the opportunity. When Marque Star was founded in 2008, its founder Greg Stenstrom says, “Fisheries protection seemed the most logical and viable [business opportunity] as o pposed to straight anti-piracy.” 124 With attacks off Somalia down again, illegal fishing is becoming safer, and may again prompt authorities in Somalia, Somaliland, or Puntland to seek outside fisheries enforcement.

Resource Extraction The other side of the coastguard coin is resource extraction. Just as PMSCs may be hired by states to police resource rights within their waters, extra ctive business interests could hire PMSCs to protect disputed fishing or drilling operations. Illegal fishing groups from Iran or Yemen might seek to hire unethical PMSCs willing to interfere with enforcement vessels, or fend off armed locals so they can harvest Somali tuna and mackerel without disturbance. Ironically, by summer 2013, some demobilized pirates are already working as private security for illegal fishing vessels in Somali waters. 125 If legitimate fishermen try to interfere, the pirate “security” teams open fire. 126 Although none of the foreign PMSCs presently operating armed ve ssels would take on such work, if demand were high enough, low-end embarked guards might be induced to buy a vessel and seek clients. Similarly, companies drilling for petroleum illegally, or exploiting disputed offshore fields, might seek private gunboats willing to defend their claims. Speaking broadly, those with intent to extract resources illegally will not be concerned with private security companies’ professionalism and human rights compliance, so would willingly hire non-SAMI firms. Thus, the

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high standards of the industry as of 2013 are no assurance of ethical co nduct. Future entrants to the market, perhaps based in a country with i mpaired rule of law, might eschew the voluntary regulatory protocols, and deliberately work for illegal ventures. This could also lead to conflict between private naval companies working for opposing factions. If one co mpany is hired by a developing country to defend contested fishing waters, and another company is hired by a fishing company to defend its fleet in those waters, these circumstances could lead to a standoff between armed vessels of the two PMSCs. International law is poorly equipped to handle such a conflict.

Potential Functions in the Developed World Over a longer timeframe—the next few decades—even governments in the developed world will be tempted to privatize some of their maritime secur ity functions. Since the end of the Cold War, the great majority of regular navies have engaged in nothing more intense than routine coastguard duties or occasional smuggling interdiction. Yet a significant portion of warship development and construction costs still go toward defenses designed to protect against attack by cruise missiles, modern jet aircraft, and other weapons of first-rate world powers. Billions of dollars and thousands of personnel are devoted to fleet sizes and advanced firepower that will prob ably never be used. Even in the event of war, most anti-ship operations would be carried out by aircraft and anti-ship missiles. Most Western countries are already facing severe budget pressure, and austerity and retrenchment will likely continue for the foreseeable future. Governments will weigh the limited advantages of regular warships in fleet actions against the cost savings and flexibility of smaller private warships during routine operations. States like Poland or Denmark will find it hard to consider a major war likely enough—even in the next twenty years—to outweigh the financial savings. Even powers with major maritime traditions have had to make deep cuts as the threat of surface warfare recedes. In the two decades since the Cold War, the United States, Germany, France, and the United Kingdom have all been reducing their naval strength. 127 With world economic forecasts still tenuous, cash-strapped planners will likely continue to pare down the forces not suited to the threats they consider plausible. And so, governments may increasingly call upon the privat e naval sector to pick up the slack, first in logistics and support operations, and eventually for some routine coastguard and maritime policing work. Already, the United States Navy is expanding its own civilian support component, and the Department of Defense has been charged with cutting total spending over the next decade by $487 billion. 128 America will wish to maintain its strategic force of aircraft carriers, guided missile frigates, and

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nuclear submarines. Yet the current force of destroyers and frigates may need to be reduced when the current ship classes are replaced. Even before that, the Navy may seek to privatize more of the functions of its auxiliary vessels, such as cargo ships and oilers. Some privatization is presently u nderway. On January 9, 2012, the Military Sealift Command was reorganized, with one of the realignment goals being better management of co ntract-operated ships. 129 MSC operates 24 contract-operated ships, which it charters from the private sector. 130 The maritime security situation is changing, too. Surface warships have clashed just a handful of times in the last two decades. Yet large regular navies remain the norm. Combined, the European Union has over 600 commissioned warships, not including auxiliary, survey, or support s hips. 131 Greek forces include, for example, 13 frigates and 13 guided-missile vessels. 132 Sweden operates five modern submarines. 133 Portugal maintains five guided-missile frigates. 134 Some of those ships are already quite old, and the others will become obsolete in the next few decades. When it comes time to replace them, governments will have to think long and hard about whether they can justify replacing them with more of the same. Such vessels take several years to construct, and may stay in service for thirty years or more. Over that service life, each vessel requires fuel, maintenance, and a large complement of highly trained sailors. For example, the HMS Edinburgh was one of the UK’s sixteen Type 42 destroyers, which are in the process of decommissioning as this book goes to press. The Edinburgh cost over £130 million to construct between 1980 and 1985. 135 In the 28 years it has been in service, annual running costs for each ship of that class have varied b etween £7 million 136 and £31.35 million 137—in all, well over half a billion pounds. The Edinburgh was fitted with sophisticated anti-missile systems, 40 surface-to-air missiles of its own, and advanced anti-submarine equipment. 138 It only spent four months of its service life in a war zone, suppor ting the 2003 invasion of Iraq, and even then, never came under direct a ttack. Private armed vessels, by contrast, can be deployed and in service just weeks after hiring, and can take on missions ranging from days to years in duration. They have nowhere near the capabilities of a regular warship, but are tailored to the sorts of routine security work to which many powerful warships are now relegated. Privatizing some of this work would require no disruptive changes. Navies would simply plan not to replace some of their ships after they are decommissioned. As their forces gradually diminish, they could contract PMSCs to take over some of the more mundane missions. This would leave smaller numbers of powerful warships to conce ntrate on force projection and strategic deterrence. This is emphatically not to say that regular navies are going extinct in the foreseeable future. Navies are also treasured instruments of patriotic pride and military heritage. Some warships will be retained even if for rea-

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sons of prestige. And while European navies do not face a major war in the foreseeable future, there are several nations that can legitimately foresee combat against rival navies. The Taiwanese (Republic of China) navy still maintains its conventional strength in order to deter the People’s Republic of China from launching an invasion across the narrow Formosa Strait. The South Korean navy does much the same to deter the North Koreans. Israel has a large and sophisticated navy in order to keep open presumably frien dly supply lines to Europe, and to impose a strategic advantage on its neig hbors, especially Egypt. Egypt, in turn, maintains a sizeable fleet intended to balance the threat from Israel. As long as high tensions remain, these countries are unlikely to consider any significant privatization.

Causes for Concern If the private naval industry continues to develop in the directions we have explored, there is potential for conflict among security contractors or b etween contractors and legitimate authorities. For example, one faction in a civil war might hire private warships to defend its claim to that country’s territorial waters, while its rival does the same. Each side insists that the other is a criminal, piratical insurgency. PMSCs are poorly equipped to a scertain the truth of the matter—and for those that decline to sign ICoC, they are under no obligation to try. A related worry is that private warships could find themselves in the employ of petty dictators and corrupt regimes. In such situations, there is always risk that the hired armed vessels will be used to further unethical ends. Factions within developing countries may claim that the contractors are working for a brutal warlord, while contractors will protest that the wa rlord is the innocent one, fighting a legitimate campaign against illegal militants. Fact-finding in the developing world is difficult, and sorting out claims and counterclaims would not be accomplished quickly. Even if the ICoC Oversight Mechanism blacklisted a regime from hiring ICoC si gnatories, because it is only a voluntary standard, there is nothing to stop unscr upulous companies from working for such a regime anyway. If this becomes a problem, there will be need for a binding international blacklist that would prohibit PMSCs from working for parties in a civil war, for repressive regimes, or for criminal organizations. 139 In order to be effective, the blacklist would have to be sanctioned by the United Nations, and enforced through an amendment to UNCLOS, or a new international treat y. That process would likely take several years, which leaves time for serious abu ses to take place before the international community could respond.

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The Far Future A final consideration is the potential for private naval forces to defend f uture quasi-state entities at sea. Rising concern about data privacy and go vernment regulation has led to several proposals for floating independent countries in international waters. Envisioned as small cities built on “oil rig-like platforms,” these entities could service as data repositories, tax havens, and testing grounds for innovative laws and social theories. Backers intend them to operate as sovereign nations, and hope to obtain recognition from existing states and from the United Nations within a few decades. Called “seasteads,” these floating pseudo-countries would present new opportunities and challenges to providers of private naval services. 140 Observers vary between outright dismissiveness at the thought that seasteads could ever be created, to fearful speculation that they could become dangerous renegades. To the fearful, the archetypal renegade is Peter Thiel, the billionaire founder of PayPal. In 2009, Thiel told the Seasteading Institute Conference: “There are quite a lot of people who think it’s not possible. That’s a good thing. We don’t need to really worry about those people very much, because since they don’t think it’s possible they won’t take us very seriously. And they will not actually try to stop us until it’s too late.” 141 The Seasteading Institute runs a website that hopefully proclaims “A Fresh Start on a Floating City Could be Just a Few Years Away,” but Patri Friedman, the Institute’s chairman, said that the first seasteads “won’t be [built] for at least another decade.” 142 The seasteaders’ libertarian bent puts them on a collision course with would-be regulators. A seastead with pretensions of sovereignty might e stablish bizarre, lax, or nonexistent standards for licensing PMSCs to act in a private naval capacity. Indeed, it might authorize a PMSC to deploy armed ships by invoking UNCLOS Article 107 against piracy, even if the seastead were located in the North Sea, and the actual threat of piracy were virtually nonexistent. The international community would be left with an uncomfortable choice—either to accept the legitimacy of dubiously qualified contractors, operating under a thin pretext of legitimacy—or to treat them as pirates. However seasteads choose to protect themselves, security will be a particular concern because many seasteaders plan to use them to skirt the laws of their home countries. Seasteads could set up anonymous banking services and tax shelters that would bring them into conflict with other states, and with international authorities. They may also be used as data havens. A seastead could legalize the hosting of controversial data on its servers, o ffering internet users access to material that can be better controlled when servers fall under the jurisdiction of responsible governments. For example, child pornography laws in the United States authorize police to shut down the servers it is hosted on and arrest the owners. 143 But if a seastead hosted

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child pornography, it would be difficult to cordon off. A country could block access to all IP addresses associated with that seastead, but unless all other nations did the same, users could still access the pornography by co nnecting to a proxy server in a nation that did not block them. Although child pornography is moral problem, the reaction it can pr ovoke pales in comparison to pirated software. Servers based on a seastead could provide free access to everything from copyrighted music, films, and video games to technical software worth hundreds of thousands of do llars. 144 Those industries have already suffered billions of dollars of losses due to data piracy based in countries that at least nominally criminalize it. A seastead would be free to host those files, saying, in effect, “If you don’t like it, sink us!” Although it is unlikely that a nation state would use force in such circumstances, other entities might be tempted to. Even more expl osive would be the hosting of leaked documents or other secret and sensitive data. Such exposures can cause immense harm to the affected parties— whether individuals, corporations, or even sovereign nations—and a seastead would put itself in physical danger by doing so. One can picture the crisis that would take place if stolen American nuclear secrets were published online by a seastead. Together, these activities will give seasteads ample reason to seek armed protection. Hiring private navies would both secure them against retaliation by all but national-level enemies, and allow them to police their own environs. For those seeking recognition as sovereign states, this latter function is crucial, as international law demands that states enforce their legal jurisdiction within whatever land or sea area they claim. Because major seasteads will not likely be active for at least another decade, it is difficult to forecast what legal frame works will be in place to support them. Still, by anticipating these questions well in advance, jurists and policymakers can be well prepared when facing those new challenges.

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Notes 1. Liz McMahon, “West Africa High-Risk Area Could Expand as Attacks Spread,” Lloyd’s List, February 20, 2013, http://www.lloydslist.com/ll/incoming/article417057.ece (accessed May 15, 2013). 2. Thomas Jakobsson (Sea Marshals Chief Executive Officer), author interview, telephone, January 8, 2013; Gerry Northwood (GoAGT Chief Operating Officer), author interview, telephone, April 5, 2013; Jim Jorrie (Espada Chief Executive Officer), author interview, telephone, April 16, 2013. 3. Peter Cook (SAMI founder and director), author interview, telephone, March 19, 2013; Barry Roche (PVI Chief Executive Officer), author interview, telephone, March 25, 2013; Pottengal Mukundan (International Maritime Bureau director), author interview, telephone, April 9, 2013; Stephen Askins (maritime law expert), author interview, telephone, April 10, 2013. 4. Associated Press, “US, Allies Consider Anti-Piracy Operations Along Africa’s West Coast to Target Insurgents,” Associated Press, March 26, 2013, available at http://www.foxnews.com/us/2013/03/26/us-allies-consider-anti-piracy-operations-alongafrica-west-coast-to-target/ (accessed May 15, 2013). 5. In February 2013, Hans Tino Hansen, managing director of Risk Intelligence, warned that by the third quarter of 2013, levels of piracy off Somalia would be “highly dependent on what happens with the navies as well as on land in Somalia.” See: US Naval Institute, “Defense Cuts Could Increase Piracy, Experts Say,” USNI.org, February 26, 2013, http://news.usni.org/2013/02/26/defense-cuts-could-increase-piracy-experts-say (accessed May 15, 2013). 6. Associated Press, “No Somali Pirate Hijacking in Nearly a Year, Says UN,” Associated Press / Guardian, May 3, 2013, available at http://www.guardian.co.uk/world/2013/may/03/somali-pirate-hijacking (accessed May 15, 2013). 7. ICC Commercial Crime Services, “Piracy & Armed Robbery News & Figures,” ICC-CCS.org, last modified July 15, 2013, http://www.icc-ccs.org/piracy-reportingcentre/piracynewsafigures (accessed July 22, 2013). 8. C.J. Chivers, “Seized Pirates in High-Seas Legal Limbo, With No Formula for Trials,” New York Times, January 28, 2012, A9, http://www.nytimes.com/2012/01/28/world/africa/seized-pirates-in-legal-limbo-with-no-formula-fortrials.html?pagewanted=all&_r=0 (accessed May 15, 2013). 9. Kaija Hurlburt and Cyrus Mody, “The Human Cost of Somali Piracy 2011,” ICCIMB and One Earth Future Foundation, working paper, June 22, 2012, available for download at http://www.icc-ccs.org/images/stories/pdfs/hcop_2011_version1.4.pdf (accessed May 11, 2013), 3. 10. Michael G. Frodl (maritime risk consultant), author interview, telephone, January 19, 2013. 11. On March 23, 2012, the Council of the European Union voted to extend EU Navfor’s counter-piracy mission in the High Risk Area through December 2014. At the same time, it also extended the area of operations to also include Somalia’s coast and internal waters. If attacks remain down through late 2013, though, it is unlikely that the mission will be extended. See: EU Navfor, “European Union Naval Force (EU NAVFOR) Somalia Operation ATALANTA,” European Union Naval Force, December 20, 2012, informational brochure, available for download at http://eunavfor.eu/wpcontent/uploads/2011/08/20121220_Informationbroschure-english_EU-U.pdf (accessed May 15, 2013), 2.

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12. As soon as the sequester seemed inevitable, the navy announced plans to temporarily “shut down all flying for four of nine Carrier Air Wings,” with plans to maintain two more “going to sustaining levels.” Fortunately, Congress provided additional funding in March, and the aforementioned doomsday scenarios did not come to pass. Still, cuts have reduced many carrier pilots’ flight time to “tactical hard deck,” which is only enough training hours to maintain “minimum proficiency.” Naval planners anticipate equally serious budget cuts in 2014. See: Brett Cote, “Rough Seas Ahead: How the Continuing Resolution and Sequestration Impact the Navy,” U.S. Navy, February 11, 2013, http://www.navy.mil/ah_online/story_1.html (accessed July 20, 2013); Ashton B. Carter, “Above and Beyond Sequestration,” Remarks at the Newseum, Washington DC, March 12, 2013, http://www.defense.gov/Speeches/Speech.aspx?SpeechID=1757 (accessed July 20, 2013); Mike Hixenbaugh, “Budget Squeeze Forces Navy to Cut Flying Hours,” Virginian-Pilot, May 7, 2013, http://hamptonroads.com/2013/05/budget-squeeze-forcesnavy-cut-flying-hours (accessed July 20, 2013); Dianna Cahn, “Carrier Air Wing 7 Returns Home to Virginia Beach,” Virginian-Pilot, July 3, 2013, http://hamptonroads.com/2013/07/carrier-air-wing-7-returns-home-virginia-beach (accessed July 20, 2013); Bill Bartel, “Admiral: Brace for Similar Sequester Impact in 2014,” Virginian-Pilot, July 4, 2013, http://hamptonroads.com/2013/07/admiral-brace-similar-sequester-impact-2014 (accessed July 20, 2013); Jeanette Steele, “New Leader as Navy Fleet Cuts Back,” U-T San Diego, June 3, 2013, http://www.utsandiego.com-/news/2013/jun/03/third-fleetchange-command-floyd/ (accessed July 20, 2013). 13. Dion Nissenbaum, “Unraveling Navy’s Decision on USS Truman,” Wall Street Journal, March 2, 2013, A4, available online at http://online.wsj.com/article/SB10001424127887323293704578334632041015200.html (accessed May 15, 2013). 14. Yousri Mohamed and Marwa Awad, “Egypt Protesters Torch Buildings, Target Suez Canal,” Reuters, March 9, 2013, http://www.reuters.com/article/2013/03/09/usegypt-riot-idUSBRE92805G20130309 (accessed May 15, 2013). 15. Navies tend to breed a certain cultural distaste for operations that might be regarded as police work. Warships have traditionally been instruments of national prestige and strategic force projection. Using them to effectively babysit merchant ships against the threat of ragtag pirate gangs understandably strikes some officers as beneath the dignity of naval services. The relatively low priority given to anti-piracy missions likely also reflects the national origins of the victims, who are largely poor merchant seamen from Asian countries without anti-piracy fleets of their own. See: Justin Stares, “Somali Pirates May Start Using Machine Guns,” publicserviceeurope.com, June 22, 2011, http://www.publicserviceeurope.com/article/504/somali-pirates-may-start-using-machineguns (accessed May 15, 2013). 16. Michael G. Frodl, January 19, 2013. 17. Costas Paris, “Shippers Struggle with Overcapacity, Sinking Rates,” Wall Street Journal, May 4, 2013, B4, available online at http://online.wsj.com/article/SB10001424127887323798104578454812392168852.html (accessed July 22, 2013). 18. Paris, “Shippers Struggle with Overcapacity.” 19. “Cosco Shipping Loss Triples in Latest Sign of Weak China Profits,” Bloomberg, July 11, 2013, http://www.bloomberg.com/news/2013-07-11/cosco-shipping-losstriples-in-latest-sign-of-weak-china-profits.html (accessed July 22, 2013). 20. Christian Wienberg, “Maersk Falls as Jefferies Sees Rate Rise Flop: Copenhagen Mover,” Bloomberg, June 6, 2013, http://www.businessweek.com/news/2013-0606/maersk-falls-as-jefferies-sees-rate-rise-flop-copenhagen-mover (accessed July 22, 2013).

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21. Quoted in: Terry McKnight and Michael Hirsh, Pirate Alley: Commanding Task Force 151 off Somalia (Annapolis, MD: Naval Institute Press, 2012), 75. 22. Liz McMahon, “Is the End of Piracy Nigh in the Gulf of Aden?” Lloyd’s List, April 2, 2013, 1, available online at http://www.lloydslist.com/ll/sector/regulation/article420058.ece (accessed July 22, 2013). 23. McMahon, “Is the End of Piracy Nigh?”; In May 2013, Pottengal Mukundan warned Voice of America that despite the dramatic reduction in attacks, it appeared that no piracy networks had actually been dismantled. In substantial leadership structures still in place, pirates retain much of the sophistication and operational expertise that they have developed over the last five years. Thus, if deterrents were lifted, Somali piracy would probably not need a long recovery time. See: Mary Alice Salinas, “Somali Piracy Diminishes, but Networks Remain a Threat,” Voice of America, May 1, 2013, http://m.voanews.com/a/1652474.html (accessed July 31, 2013). 24. Michael Ashkenazi and Edward Ceska, “Piracy in Somalia and its Root Causes on Land,” BICC Bulletin 50, July-September, 2009, Bonn International Center for Conversion, available for download at www.bicc.de/uploads/pdf/publications/bulletin/bulletin50.pdf (accessed May 15, 2013). 25. John Steed (United Nations Political Office for Somalia (UNPOS) head of maritime security and counterpiracy), author interview, telephone, May 22, 2013. 26. Jay Bahadur, “Linda Nchi: A First Quarter Review,” SomaliaReport.com, January 18, 2012, http://www.somaliareport.com/index.php/post/2562 (accessed May 15, 2013). 27. Mike Pflanz and Abdiaziz Abdinur, “Somalia’s al-Shabaab Islamists Abandon Last Major Stronghold of Kismayo After Government Assault,” Telegraph, September 29, 2012, http://www.telegraph.co.uk/news/worldnews/africaandindianocean/somalia/9575671/Somalias-al-Shabaab-Islamists-abandon-last-major-stronghold-of-Kismayo-aftergovernment-assault.html (accessed May 15, 2013). 28. Mohammed Ibrahim, “New Parliament is Convened in Somalia,” New York Times, August 20, 2012, http://www.nytimes.com/2012/08/21/world/africa/newparliament-is-convened-in-somalia.html?_r=0 (accessed May 15, 2013). 29. Réseau Francophone de Recherche sur les Opérations de Paix, “AMISOM: États Participants,” operationspaix.net, January 25, 2013, http://www.operationspaix.net/1operation-amisom.html (French language) (accessed May 15, 2013). 30. John Steed, May 22, 2013; Abdihakim Ainte, author interview, telephone, May 7, 2013; “Somalia: Heavy Clashes Between Al Shabaab and Allied Forces in Shabelle Region,” Garowe Online, June 1, 2013, http://www.garoweonline.com/artman2/publish/Somalia_27/Somalia_Heavy_clashes_between_Al_Shabaab_and_allied_forces_in_Sh abelle_region.shtml (accessed May 15, 2013). 31. John Steed, May 22, 2013. 32. Charlie Dragonette (U.S. Office of Naval Intelligence analyst), Panel Discussion on “Piracy and Maritime Security,” Heritage Foundation, Washington, DC, November 24, 2008, available at http://www.c-spanvideo.org/program/Piracya (accessed July 22, 2013); Michael G. Frodl, author interview, telephone, July 25, 2013. 33. This willingness has been discussed forthrightly by then-Secretary of Defense Leon Panetta. See: “The Defense Secretary: An Interview with Leon Panetta,” CBS News, January 29, 2012, http://www.cbsnews.com/8301-18560_162-57367997/thedefense-secretary-an-interview-with-leon-panetta/ (accessed May 15, 2013).

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34. David S. Cloud and Lufti Sheriff Mohammed, “Somalia Raid Shows Extent of U.S. Reach,” Los Angeles Times, January 25, 2012, http://articles.latimes.com/2012/jan/25/world/la-fg-somalia-hostages-rescue-20120126 (accessed May 15, 2013). 35. “European Union Naval Force (EU NAVFOR) Somalia Operation ATALANTA,” 2. 36. Edward H. Lundquist, “EU NAVFOR Helicopters Attack Somali Pirates Ashore,” defensemedianetwork.com, May 15, 2012, http://www.defensemedianetwork.com/stories/eu-navfor-helicopters-attack-somali-pirates-ashore/ (accessed May 15, 2013). 37. Michael G. Frodl, author interview, telephone, June 6, 2013; Frank Gardner, “Somali Piracy: A Broken Business Model,” BBC News, November 29, 2012, http://www.bbc.co.uk/news/world-africa-20549056 (accessed May 15, 2013). 38. United Nations official, author interview, telephone, May 2013. 39. Michael G. Frodl, July 25, 2013. 40. See: S. Brock Blomberg, Ricardo Fernholz, and John-Clark Levin, “Terrorism and the Invisible Hook,” Southern Economic Journal 79(4) (2013), 849-63. 41. This includes the Gulf of Guinea proper, as well as the Bight of Benin, and the Bight of Bonny; the territorial waters of Benin, Nigeria, and Togo; the exclusive economic zones of Nigeria and Benin north of 3º N latitude. Nigerian pirates have also recently been operating in the waters near the Ivory Coast. We have also included attacks as far north as Guinea and as far south as Congo. See: Skuld, “Insight: Piracy – Gulf of Guinea,” skuld.com, last modified April 23, 2013, http://www.skuld.com/topics/voyage--portrisks/piracy/overall/piracy---gulf-of-guinea/general-information/ (accessed May 12, 2013). 42. ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” International Chamber of Commerce (January 2013), 5. 43. “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 5. 44. “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 5. 45. ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships: Annual Report: 1 January – 31 December 2008,” International Chamber of Commerce (January 2009), 9. 46. ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships: Annual Report: 1 January – 31 December 2010,” International Chamber of Commerce (January 2011), 8. 47. ICC International Maritime Bureau, “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2011,” International Chamber of Commerce (January 2012), 8; “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 9-10. 48. Skuld, “Insight: Piracy – Gulf of Guinea.” 49. Measured in terms of attack activity and human cost. While the costs of increased speeds, military forces, and PMSCs keep the annual direct cost of Somali piracy at several billion dollars, those countermeasures are much less applicable to the West African epidemic. As such, a 2013 report by the Oceans Beyond Piracy project concluded that the direct costs of West African piracy were $740-950 million in 2012. On the other hand, the report found: “As of 2012, West African piracy directly affects more seafarers than Somalia-based piracy.” That year, 851 seafarers were attacked by Somali pirates with firearms, compared to 966 by West African pirates. Off Somalia, 381 seafarers were

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on ships boarded by pirates, with 349 taken hostage, for an average of 11 months. Off West Africa, 800 sailors were on ships boarded, but only 206 were taken hostage, and for an average of only four days. The report concluded: “While periods of captivity are much shorter in the Gulf of Guinea region, there are more seafarers subject to close, and often violent, contact with pirates than off Somalia.” See: Kaija Hurlburt and D. Conor Seyle, “The Human Cost of Somali Piracy 2012,” ICC-IMB and One Earth Future Foundation, working paper, June 18, 2013, available for download at http://oceansbeyondpiracy.org/sites/default/files/hcop2012forweb_6.pdf (accessed July 19, 2013), vii-viii, 18, 21. 50. Barry Roche, March 25, 2013. 51. “The Human Cost of Somali Piracy 2012,”14-15. 52. “The Human Cost of Somali Piracy 2012,” 15. 53. “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 11. 54. Pottengal Mukundan, April 9, 2013. 55. “The Human Cost of Somali Piracy 2012,” 15. 56. Thomas Jakobsson, January 8, 2013; Pottengal Mukundan, April 9, 2013. 57. “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 11. 58. “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 11; “Seafarer Killed as Security Team Shooting Foils Pirate Attack,” Lloyd’s List, February 8, 2013, http://www.lloydslist.com/ll/sector/ship-operations/article416403.ece (accessed May 12, 2013). 59. United Nations Office on Drugs and Crime, Transnational Organized Crime in West Africa: A Threat Assessment, UNODC, February 2013, available for download at http://www.unodc.org/documents/data-andanalysis/tocta/West_Africa_TOCTA_2013_EN.pdf (accessed July 23, 2013), 33. 60. “The Human Cost of Somali Piracy 2012,” 14. 61. “The Human Cost of Somali Piracy 2012,” 14. 62. Jeremy Weiss (PMSC executive), author interview, telephone, January 15, 2013. 63. Michael G. Frodl, June 6, 2013. 64. Stephen Askins, April 10, 2013. 65. Oil and petroleum-based products are not the only targeted cargos. Maritime Executive reports that goods including “fish, cocoa, and minerals are also targets.” See: Tom Thompson, “Piracy May be Getting Worse, Not Better,” Maritime-Executive.com, May 31, 2013, http://www.maritime-executive.com/article/Piracy-May-Be-Getting-Worse-Not-Better-2013-05-31/ (accessed June 12, 2013). 66. “The Human Cost of Somali Piracy 2012,” 18. 67. “The Human Cost of Somali Piracy 2012,” 18. These attacks are part of a largescale oil-theft operation both on land and at sea, through which powerful criminal groups steal or ruin about 150,000 barrels of oil per day. See: “Upbeat Assessment of Nigerian Oil,” UPI, June 12, 2013, http://www.upi.com/Business_News/Energy-Resources/2013/06/12/Upbeat-assessment-of-Nigerian-oil/UPI-42121371038759/ (accessed June 12, 2013); Chinelo Obogo, “Nigeria Loses 150,000 Barrels of Oil Per Day—Okonjo-Iweala,” Sun (Nigeria), April 17, 2013, http://sunnewsonline.com/new/cover/n-igeria-loses150000-barrels-of-oil-per-day-okonjo-iweala/ (accessed May 12, 2013). 68. “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 9-10. 69. “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 11.

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70. Stephen Askins, April 10, 2013. 71. Stephen Askins, April 10, 2013. 72. Stephen Askins, “ISO 28007 and the East/West Africa Paradox,” Ince & Co, January 15, 2013, http://incelaw.com/ourpeople/stephen-askins/blog/iso-28007-and-theeast-west-africa-paradox (accessed May 12, 2013). 73. Askins, “ISO 28007 and the East/West Africa Paradox.” 74. Nick Roscoe (Marsh managing director), author interview, telephone, June 3, 2013. 75. The U.S. Navy’s proposed budget for 2014 decreases funding for operations and maintenance by approximately 3 percent. This is expected to be enough to maintain major defense commitments, but would make deployment of a major anti-piracy task force to the Gulf of Guinea quite difficult. See: United States Navy, “Department of the Navy Releases Fiscal 2014 Budget Proposal,” U.S. Navy, April 10, 2013, http://www.navy.mil/submit/display.asp?story_id=73278 (accessed July 20, 2013). 76. Peter Cook, March 19, 2013. 77. Although Lloyd’s List reported in March 2013 that a deal was likely forthcoming to allow armed foreign PMSCs to operate in territorial waters within the Gulf of Guinea, as this book goes to press, no such deal has materialized. See: Liz McMahon, “Gulf of Guinea Waters Open to Western Armed Guards,” Lloyd’s List, April 2, 2013, 1, available online at http://www.lloydslist.com/ll/sector/regulation/article420056.ece (accessed July 22, 2013); James Bridger, “Countering Piracy in the Gulf of Guinea,” USNI.org, July 12, 2013, http://news.usni.org/2013/07/12/countering-piracy-in-thegulf-of-guinea (accessed July 22, 2013). 78. Roger Hawkes, “Securing the Offshore Oil Industry in the Gulf of Guinea,” in Maritime Private Security: Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century, eds. Claude Berube and Patrick Cullen (London/New York: Routledge, 2012), 147-48. 79. Hawkes, 147-48. 80. Liz McMahon, “Armed Guards Are Not the Answer to African Piracy,” Lloyd’s List, April 2, 2013, 2, available online at http://www.lloydslist.com/ll/sector/shipoperations/article420054.ece (accessed July 22, 2013). 81. The shift of al-Qaeda attention toward Africa has been mirrored by a shift in U.S. anti-terror efforts toward African threats. See: Julian E. Barnes and Evan Perez, “Terror Fight Shifts to Africa,” Wall Street Journal, December 6, 2012, http://online.wsj.com/article/SB10001424127887323316804578163724113421726.html (accessed May 12, 2013). 82. Haruna Umar and Bashir Adigun, “Sect Member Dies, Prison Break Frees 40 in Nigeria,” Associated Press, June 24, 2012, http://bigstory.ap.org/article/sect-keymember-killed-nigerias-northeast (accessed May 12, 2013). 83. As The Economist notes, “Nigeria earns roughly $50 billion a year from its southern oil yet its northern citizens hardly benefit at all.” Boko Haram (literally: “Western education is sacrilegious”) has gained support from resentment over seemingly unfair distribution of oil revenues under a regime that it considers corrupt and pro-Western. See: “Nigeria’s Crisis: A Threat to the Entire Country,” Economist, September 29, 2012, http://www.economist.com/node/21563751 (accessed May 12, 2013). 84. John C. K. Daly, “Terrorism and Piracy: The Dual Threat to Maritime Shipping,” Terrorism Monitor 2, Issue 6, August 15, 2008, available at http://www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=5112 (accessed May 11, 2013).

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85. Xan Rice and Lee Glendinning, “Pirates Anchor Hijacked Supertanker off Somalia Coast,” Guardian, November 18, 2008, http://www.guardian.co.uk/world/2008/nov/18/somalia-oil (accessed May 12, 2013). 86. The World Bank suggests two other potential links between terrorists and pirates. The first is the potential for terrorist groups to create a secondary market for hostages. Captives from some countries might have greater political value to terrorists than “market” ransom value. Conversely, sanctions preventing payments to terrorist organizations might induce them to sell hostages with minimal political value to pirate groups in a better position to negotiate ransoms. In Somalia, this may already be happening. “Allegedly,” the World Bank says, “hostage transactions between al-Shabaab and pirates have gone in both directions at least once.” Similar arrangements could form in West Africa. The second potential link is the hawala informal remittance system active in many parts of the Islamic world. Terrorists and pirates may have “complementarities in money laundering balances.” In Somalia, this generally means that pirates try to send money out of the country to pay foreign investors, relatives, or merchants; meanwhile al-Shabaab is trying to bring money into the country from its ideological sponsors overseas. By cooperating on these transactions, both sides could “lower both transaction costs and risk of detection.” See: Quy-Toan Do, “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” World Bank, working paper, April 11, 2013, available for download, http://siteresources.worldbank.org/INTAFRICA/Resources/pirates-of-somalia-mainreport-web.pdf (accessed July 23, 2013), 73, 76-78. 87. Peter Chalk (terrorism expert), author interview, telephone, May 23, 2013. 88. Peter Lehr (terrorism expert), author interview, telephone, May 10, 2013. 89. Peter Lehr, May 10, 2013. 90. “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 37-50, 68-69. 91. “Piracy and Armed Robbery Against Ships: Report for the Period 1 January – 31 December 2012,” 50-56, 69-70; As this book goes to press, the hotspots defined as war, piracy, terrorism and related perils areas by the Joint War Committee (a joint committee of the Lloyd’s Market Association and the International Underwriting Association) are as follows: Africa (Benin; Eritrea, but only South of 15º N; Gulf of Guinea, but only the waters of the Togolese, Beninese and Nigerian Exclusive Economic Zones north of Latitude 3º N; Libya; Nigeria; Somalia; Togo), Indian Ocean/Arabian Sea/Gulf of Aden/Gulf of Oman/Southern Red Sea, Asia (Pakistan), Indonesia/Malaysia/Philippines (Borneo, but only the north east coast between the ports of Kudat and Tarakan inclusive; The port of Jakarta; Sulu Archipelago including Jolo), Middle East (Bahrain excluding transit; Iran; Iraq, including all Iraqi offshore terminals; Israel; Lebanon; Saudi Arabia excluding transit; Syria; Yemen), and South America (Venezuela, including all offshore installations in the Venezuelan EEZ). See: Joint War Committee, “Hull War, Piracy, Terrorism and Related Perils Listed Areas,” Lloyd’s Market Association / International Underwriting Association, June 12, 2013, available at http://www.iua.co.uk/IUA_Test/Communities_folder/marine/JWC_Risk_List_folder/JLWA021_Hull_War_Piracy_Terrorism_Relate d_Perils_12th_June_2013.aspx (accessed July 28, 2013). 92. Still, although a catastrophic breakdown in stability is required for a Somalistyle epidemic, the breakdown cannot be absolutely total. With total chaos, pirates could not safely guard hijacked ships during ransom negotiations. Stig Jarle Hansen, “Piracy in the Greater Gulf of Aden: Myths, Misconceptions and Remedies,” Norwegian Institute for Urban and Regional Research (2009), 19-23; “The Pirates of Somalia: Ending the Threat, Rebuilding a Nation,” 142-43.

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93. Peter Shadbolt, “Asia’s Sea Pirates Target Treasure of Marine Fuel,” CNN, last modified February 8, 2013, http://www.cnn.com/2013/02/08/world/asia/asia-piracy (accessed July 28, 2013). 94. Shadbolt, “Asia’s Sea Pirates Target Treasure of Marine Fuel.” 95. By December 2011, only a handful of flag states prohibited armed embarked guards. France and Japan were two notable holdouts, but as of 2013, both nations are in the process of allowing them. This might also open the door to private escorts flying the flags of those countries, but the advantages of flying flags of convenience make this unlikely. See: Oceans Beyond Piracy, “Introduction to Private Maritime Security Companies (PMSC),” One Earth Future Foundation, working paper, December 2011, available for download at http://oceansbeyondpiracy.org/sites/default/files/pmsc_map_final_3.pdf (accessed July 20, 2013), 8; “French Ships Could Have Guards ‘By Summer,’” IHS Safety At Sea, April 3, 2013, http://www.safetyatsea.net/login.aspx?reason=denied_empty&script_name=/secure/display.aspx&path_info=/secure/display.aspx&articlename= dn0020130403000014 (accessed July 20, 2013); Nicholas-Andrew Iliopoulos, “The Shipping Shogun Joins Global Armed Counter-Piracy Efforts,” Piracy Daily, April 22, 2013, http://www.piracydaily.com/the-shipping-shogun-joins-global-armed-counterpiracy-efforts/ (accessed June 15, 2013). 96. Most notable among these is the United Arab Emirates, which, since lifting its PMSC ban in 2012, actually serves as a base for some private naval operations. Thomas Jakobsson, correspondence with authors, email, April 8, 2013; “Laws and Guns: Armed Guards on Ships Deter Pirates. But Who Says They are Legal?” Economist, April 14, 2012, http://www.economist.com/node/21552553 (accessed July 20, 2013). 97. Nigel Lowry, “Sea Marshals Claims First Cape Verde License,” Lloyd’s List, March 19, 2013, 2, available online at: http://www.lloydslist.com/ll/sector/regulation/article418965.ece (accessed May 12, 2013). 98. Lowry, “Sea Marshals Claims First Cape Verde License”; Sea Marshals, “Sea Marshals Gains First License in Cape Verde,” seamarshals.com, last modified December 2012, http://www.seamarshals.com/a/sea-marshals-gains-first-license-in-cape-verde/ (accessed May 13, 2013). 99. As of 2013, Freedom House, one of the preeminent U.S.-based nongovernmental organizations that measures political freedom, considers most countries affected by West African piracy to be either “partly free” or “not free.” See: Freedom House, “Sub-Saharan Africa,” Freedom House, http://www.freedomhouse.org/regions/sub-saharan-africa (accessed May 12, 2013); Freedom House, “Map of Freedom, 2013,” Freedom House, 2013, available for download at http://www.freedomhouse.org/sites/default/files/Map%20of%20Freedom%202013%2C%20final.pdf (accessed May 12, 2013). 100. Emele Onu, “U.S. Tells Nigeria to Improve Port Security or Face Ships Ban,” Bloomberg, June 10, 2013, http://www.bloomberg.com/news/2013-06-10/u-s-tells-nigeria-to-improve-port-security-or-face-ships-ban.html (accessed June 12, 2013). 101. Onu, “U.S. Tells Nigeria to Improve Port Security.” 102. Part of the problem is uncertainty about the degree of uncertainty. Legal experts, members of the shipping and insurance industries, and PMSC executives who spoke with the authors differed widely in their perceptions of how clear the liability picture is. For example, Stephen Askins of the Ince & Co law firm considers the stakeholders’ liability to be “laid out with good certainty,” while Andrew Nicholson of the PMSC Drum Cussac considers the situation “untested and fairly loose.” With such disagreement about the present legal regime, it is small wonder that consensus about future steps has

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been slow to form. Andrew Nicholson (Drum Cussac executive), author interview, telephone, April 9, 2013; Stephen Askins, April 10, 2013. 103. Peter Chalk, May 23, 2013. 104. Rommel C. Banlaoi, “The Abu Sayyaf Group: Threat of Maritime Piracy and Terrorism,” in Violence at Sea: Piracy in the Age of Global Terrorism ed. Peter Lehr (New York: Routledge, 2007), 121. 105. Andrew Marshall, “Surge in Piracy Raises Concerns Over Maritime Terrorism,” New York Times, November 25, 2008, http://www.nytimes.com/2008/11/25/world/asia/25iht-pirates.1.18133159.html?_r=0 (accessed May 12, 2013). 106. Banlaoi, 121. 107. William Branigin, “2 Sentenced to Die for USS Cole Attack,” Washington Post, September 30, 2004, A18, available online at http://www.washingtonpost.com/wpdyn/articles/A58874-2004Sep29.html (accessed May 11, 2013). 108. The Allure of the Seas, the largest cruise ship now in service, carries a total of 7,784 souls with double passenger room occupancy, and 8,680 with maximum occupancy. See: Royal Caribbean, “Allure of the Seas Fast Facts,” Royal Caribbean International, November 3, 2010, available for download at www.beyondships.com/files/allure_of_the_seas_fast_facts.pdf (accessed May 13, 2013). 109. Peter Lehr, May 10, 2013. 110. Peter Lehr, May 10, 2013. 111. According to Peter Chalk, though, the SuperFerry 14 bombing may prefigure a more likely pattern of maritime attacks. Unlike cruise ships, which can afford extensive private security, ferries typically have very low security, and are more structurally vulnerable to catastrophic attacks. Peter Chalk, May 23, 2013. 112. G4S, “Ports,” G4S.com, http://www.g4s.com/en-GB/United%20Kingdom/What%20we%20do/Services/Transport%20and%20borders/Ports/ (accessed May 13, 2013). 113. G4S, “Setting New Security Standards for Ports and Ships,” G4S International 2, 2010, available online at http://www.g4s.com/~/media/Files/International%20magazine/2010%20Issue%202/ 14-17_ports.ashx (accessed May 12, 2013), 14-17. 114. Patrick Cullen, “Privatized Maritime Security Governance in War-Torn Sierra Leone,” in Maritime Private Security: Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century, eds. Claude Berube and Patrick Cullen (London/New York: Routledge, 2012), 102-3. 115. Cullen, 103. 116. Cullen, 103. 117. Cullen, 103. 118. Cullen, 105. 119. Previous attempts to bring private security companies into coastguard, training, or maritime security roles with Somalia have largely failed. Chatham House notes several examples. In November 2005, the TFG signed a contract worth $50-55 million with Topcat, an American company that promised to end Somalia’s nascent piracy problem with a private coastguard force. The U.S. State Department nixed the deal because it would be a violation of the U.N. arms embargo. In December 2005, a Saudi firm called Al-Habiibi Marine Service was hired by Puntland for maritime security, but was not able to provide service. Then in May 2008, the TFG hired the French firm Secopex to provide maritime security, but funding fell through. See: Roger Middleton, “Piracy in Somalia: Threatening Global Trade, Feeding Local Wars,” Chatham House, briefing paper, Octo-

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ber 2008, available for download at www.chathamhouse.org/files/12203_1008piracysomalia.pdf (accessed July 31, 2013). 120. Although military efforts have thus far failed to curb West African piracy, in 2013 there has been encouraging cooperation between countries in the region, with the aim of better coordinating their anti-piracy efforts. See: Gwladys Fouche, “West Africa States to Adopt Anti-Piracy Code, Maybe this Month: IMO,” Reuters, June 4, 2013, http://www.reuters.com/article/2013/06/04/us-piracy-westafrica-unidUSBRE9530NA20130604 (accessed June 5, 2013). 121. See: International Organization for Standardization (ISO), Guidelines for Private Maritime Security Companies (PMSC) Providing Privately Contracted Armed Security Personnel (PCASP) On Board Ships, 1st edition, Publicly Available Specification, ISO/PAS 28007, December 15, 2012, 11-17. 122. This was a central reason for Puntland’s hiring of Hart Security. Unfortunately, as discussed in Chapter 4, this also worked to Hart’s disadvantage, as well-connected Somalis outmaneuvered it politically and took over the contract. 123. According to Peter Lehr, as of the start of the Somali piracy epidemic in 2008, “Europeans and Asians poach around $300 million a year in fish from Somali waters.” Quoted in: Paul Salopek, “Off the Lawless Coast of Somalia, Questions of Who is Pirating Who,” Chicago Tribune, October 10, 2008, http://articles.chicagotribune.com/200810-10/news/0810090770_1_somalia-ground-for-industrial-waste-pirates (accessed May 12, 2013). 124. Quoted in: Claude G. Berube, “Anti-Piracy Escorts in the Gulf of Aden,” in Maritime Private Security: Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century eds. Claude Berube and Patrick Cullen (London/New York: Routledge, 2012), 81. 125. Associated Press, “Somali Pirates Now Protecting Illegal Fishing Ships, Says UN Report,” Washington Post, July 25, 2013, http://www.washingtonpost.com/world/middle_east/somali-pirates-now-protecting-illegal-fishing-ships-says-unreport/2013/07/25/2bc5c2ba-f53f-11e2-81fa-8e83b3864c36_story.html (accessed July 28, 2013). 126. Associated Press, “Somali Pirates Now Protecting Illegal Fishing Ships.” 127. Matthew Engel, “Is the Royal Navy Really Necessary?” Financial Times, October 15, 2010, http://www.ft.com/intl/cms/s/2/7e575386-d670-11df-81f0-00144feabdc0.html#slide0 (accessed July 24, 2013); Naval History & Heritage Command, “U.S. Navy Active Ship Force Levels, 1886-Present,” United States Navy, last modified June 10, 2011, http://www.history.navy.mil/branches/org9-4.htm#2000 (accessed July 24, 2013); Stephen Roberts, “Western European and NATO Navies, 1982,” Center For Naval Analyses, Professional Paper 399, November 1982, available for download at www.cna.org/sites/default/files/research/5500039900.pdf (accessed July 24, 2013); “Old and New World Powers,” German-Foreign-Policy.com, December 17, 2010, http://www.german-foreign-policy.com/en/fulltext/57899 (accessed July 24, 2013). 128. United States Department of Defense, “Defense Budget Priorities and Choices,” defense.gov, January 2012, available for download at www.defense.gov/news/Defense_Budget_Priorities.pdf (accessed May 12, 2013), 1. 129. Military Sealift Command Public Affairs, “Military Sealift Command Reorganizes to Increase Efficiency/Cut Costs,” United States Navy, January 9, 2012, http://www.navy.mil/search/display.asp?story_id=64680 (accessed May 12, 2013). 130. Military Sealift Command Public Affairs, “Military Sealift Command Reorganizes.”

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131.For links to EU fleet pages, see: “CHENS Navies,” CHENS, http://dev.chens.eu/SitePages/Navies.aspx (accessed May 12, 2013); Wikipedia also has a clear convenient table, although some of the information is slightly out of date. See: “Military of the European Union,” Wikipedia.org, last modified June 9, 2013, http://en.wikipedia.org/wiki/Military_of_the_European_Union#European_Naval_Forces (accessed June 12, 2013). 132. Hellenic Navy General Staff, “Frigates Class Meko-200HN,” Hellenic Navy, http://www.hellenicnavy.gr/index.php?option=com_content&view=article&id=447&Item id=245&lang=en (accessed May 12, 2013); Hellenic Navy General Staff, “Frigates Type Standard,” Hellenic Navy, http://www.hellenicnavy.gr/index.php?option=com_content&view=article&id=448 &Itemid=246&lang=en (accessed May 12, 2013); Hellenic Navy General Staff, “Fast Patrol Boats,” Hellenic Navy, http://www.hellenicnavy.gr/index.php?option=com_content&view=article&id=11&I temid=134&lang=en (accessed May 12, 2013). 133. Nuclear Threat Initiative, “Sweden Submarine Capabilities,” NTI.org, June 24, 2011, http://www.nti.org/analysis/articles/sweden-submarine-capabilities/ (accessed May 12, 2013). 134. “Portuguese Navy – Current Fleet and Future Vessels: Frigates, Corvettes & OPV’s,” seaforces.org, http://www.seaforces.org/marint/Portuguese-Navy/currentfleet.htm (accessed May 12, 2013). 135. UK House of Commons Hansard, HC Deb 23 October 1989 vol 158 cc35861W, “Navy Vessels,” October 23, 1989, available at http://hansard.millbanksystems.com/written_answers/1989/oct/23/navy-vessels (accessed May 12, 2013). 136. UK House of Commons Hansard, HC Deb 10 March 1989 vol 148 c44W, “Warships,” March 10, 1989, available at http://hansard.millbanksystems.com/written_answers/1989/mar/10/warships#S6CV0148P0-04574 (accessed May 12, 2013). 137. UK House of Commons Hansard, 9 Sep 2009: Column 2001W, “Navy,” September 9, 2009, http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090909/text/90909w0024.htm (accessed May 12, 2013). 138. “Royal Naval Vessels: Type 42 Destroyer (No Longer in Service)” armedforces.co.uk, http://www.armedforces.co.uk/navy/listings/l0014.html (accessed May 12, 2013). 139. The reverse is already in effect: blacklists of companies who governments may not hire. See: Jake Johnston, “Blacklisted Contractor Continues Receiving Government Money Through Haiti Contracts,” The Hill’s Congress Blog, December 2, 2011, http://thehill.com/blogs/congress-blog/foreign-policy/196851-blacklisted-contractorcontinues-receiving-government-money-through-haiti-contracts (accessed May 12, 2013). 140. For more extensive information on seasteading, see The Seasteading Institute’s website at www.seasteading.org. 141. “Floating Cities: PayPal Billionaire Plans to Build a Whole New Libertarian Colony off the Coast of San Francisco,” Daily Mail, August 25, 2011, http://www.dailymail.co.uk/news/article-2024761/Atlas-Shrugged-Silicon-Valleybillionaire-reveals-plan-launch-floating-start-country-coast-San-Francisco.html (accessed May 12, 2013). 142. “A Fresh Start on a Floating City Could be Just a Few Years Away,” floatingcity.org, main page (accessed May 12, 2013); Quoted in: Stephen Robert Morse, “Response to Climate Change: Seasteading,” Mother Jones, August 4, 2009, http://www.mo-

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therjones.com/blue-marble/2009/08/response-climate-change-seasteading (accessed May 12, 2013). 145. Wortley, Richard Wortley and Stephen Smallbone, “Child Pornography on the Internet, Guide No.41 (2006),” Center for Problem-Oriented Policing, http://www.popcenter.org/problems/child_pornography/ (accessed May 12, 2013). 144. U.S. search giant Google has even patented such a system. See: Kramer, Jeffrey D. Kramer, “Note: Seafaring Data Havens: Google’s Patented Pirate Ship,” University of Illinois Journal of Law, Technology & Policy, Fall 2010, 359-82, available online at https://litigationessentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&do cid=2010+U.+Ill.+J.L.+Tech.+%26+Pol%27y+359&srctype=smi&srcid=3B15&key=94 0fe16c4ba9e59693ef4d3a643d6f76 (accessed May 12, 2013) .

Chapter 10

Conclusion

As we have seen, the development of private naval forces in response to Somali piracy is just the latest in a long tradition of private anti -piracy efforts in the Indian Ocean. Just as in centuries past, they exist to fulfill an economic need. Piracy is an asymmetrical form of conflict, in which small numbers of pirates can impose a vastly disproportionate threat against me rchant shipping. Further, because piracy is driven by a profit motive, it will continue as long as there are vulnerable ships that can be hijacked and ransomed. And as long as piracy is profitable in a country as poor and chaotic as Somalia, new pirates will spring up to replace those killed or captured. Regular navies, with all their expensive technological might, are not a costeffective solution on their own. Instead, the threat demands that anti -piracy efforts focus on defending large numbers of merchant ships, in order to ruin pirate gangs’ return on investment. Starting in late 2011, that is exactly what happened—as a combination of Best Management Practices, embarked guards and escort vessels greatly reduced the pool of vulnerable merchant ships. Attacks plummeted off the Horn of Africa, and as of 2013, those waters are more secure than they have been in half a decade. In the context of the Somali piracy epidemic, the development of the private naval sector has been a story of fits and starts. Although Blackwater showed early enthusiasm for escort services, the shipping industry was still leery of the legal consequences. Then, firms like Protection Vessels International and Naval Guards managed to carve out a market for private escorts among clients with special security needs. The Convoy Escort Pr ogramme raised the prospect of private naval protection for general merchant shipping, but the CEP took too long to secure funding and the backing of a flag state. With piracy still worsening in early 2011, shippers pressured their governments to allow armed guards on merchant ships themselves. As firearms laws loosened, embarked guards captured the great majority of the PMSC market. They were cheaper than escort vessels, and as the legal pi cture began to clarify, escorts became less valuable as a tool for shippers to circumvent the laws of their own flag states. Thus, Typhon or any other private navy scheme aimed at the general shipping market will face a steep uphill climb in attempting to draw clients away from embarked guards. Although the private naval forces now in operation have so far enjoyed a remarkable record of success—both in protecting clients and avoiding erroneous killings—that success provides few assurances for the future. 227

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Demand will remain sensitive to changes to the operational and legal outlook. If pirates successfully hijack a ship with embarked guards, or traveling at more than 18 knots, many shocked shipowners will demand more robust protection by escorts. Conversely, if a private escort fails to prevent a hijacking, stakeholders would be forced to immediately reevaluate their options. Depending on the nature of such an incident, it might prompt changes in escort vessels’ capabilities and tactics, or might actually cause more shipowners to pay for high-speed transits instead of PMSCs. If a firefight between pirates and embarked guards leads to a disaster on a vessel carrying volatile cargo, many more such ships will seek private escorts. Similarly, if maritime terrorism with suicide boats resumes, escorts’ tactical flexibility will put them in greater demand. Other incidents could quash demand just as easily. If escort personnel committed a Nisoor Square -style killing, the fallout would shake the trust of shippers and insurers in a way that would be hard to restore. Such a vivid flashbulb moment would also draw intense media scrutiny, and invite sterner international regulation. In this way, even the most reputable private naval firms are vulnerable to the actions of a few “bad apples.” This gives them an incentive to push for e ffective regulation. The continued operation of private naval forces will also depend upon the willingness of state sponsors. Although private escorts can help me rchant ships circumvent laws against embarkation of armed guards in port, escorts themselves still require friendly nations to use as logistical bases. They also need countries willing to act as flag states to private warships, which is no easy thing, and the cooperation of PMSCs’ home countries. On the other hand, misguided government action could also cause a r esurgence of the pirate threat, and an increase in demand for all forms of PMSCs. When it became clear in 2012 that Somali piracy was declining dramatically, the international sense of urgency of the issue began to wane. Budgetary pressure on governments on both sides of the Atlantic may lead to premature drawdown of naval task forces. At the same time, the shipping industry, itself under serious financial strain, has become overconfident about the pirate threat. Especially among less valuable merchant ships, adherence to Best Management Practices and use of PMSCs is poised to decline. If vigilance by shippers and navies relaxes before security gains on land in Somalia can be consolidated, Somali piracy will likely flare up again. If it does, private security will be left to pick up the slack. Escort vessels are already becoming more common off West Africa, in part b ecause navies have signaled that merchant shipping there is on its own. As the private naval sector adapts to these future threats, the operational capabilities and regulatory frameworks that have developed during the Somali epidemic will remain. Yet although the past five years have brought greater clarity to many of the legal issues discussed in this book, there remain significant areas of uncertainty. For private navies to be sustainable over the long term, international law will have to adapt to deal with PMSCs

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that flout regulations or commit crimes—and discourage flag states from attempting to shelter them from prosecution. Stakeholders must also engage in frank discussion about the interests that must be balanced in formulating rules for the use of force. Even though everyone agrees that graduated escalation of force is ideal, it is essential to realistically address the cases when this may not be possible. If there is too wide a gap between the rules promulgated by regulators and the tactical situation faced by private escort personnel, there will be a greater chance of violations. The responsibility for resolving these issues must be shared across the public and private sectors. The United Nations, through the International Maritime Organization, has finally taken an active role in shaping PMSC accreditation standards through ISO 28007. National governments have increasingly created legislation to address the issue of security contractors by ships on their registries. SAMI, BIMCO, and other maritime industry associations have taken the lead in self-regulation, and improved stakeholders’ understanding of the liability picture. Initiatives such as the Montreux Document and ICoC have stimulated much-needed dialogue about states’ and PMSCs’ obligation to uphold human rights in conflict areas. Although private naval companies did not play a decisive role on their own in the recent decline in Somali piracy, by disproportionately contributing to regulatory efforts, they have ensured the relevance of their services to emerging maritime security threats. Looking toward the future, the global trend toward military privatization suggests an increased role for privatelyoperated warships. In the developing world, there will be ongoing need for coastguard services like that provided by Hart Security in Puntland more than a decade ago. In the developed world, austerity-stricken governments will soon have to make decisions about what naval forces they can afford over the coming decades. Some nations truly need large navies for strategic deterrence and force projection. Countries like United States, United Kin gdom, Russia, China, and India are unlikely to outsource their navies to the private sector in any significant way. But the reality is that most everyone else is paying for more navy than they can plausibly use. If PMSCs can offer a cheaper and more flexible alternative, policymakers will eventually turn to them for some routine maritime security tasks. It is our hope that as these trends unfold, this book will serve as a star ting point for discussion about the challenges, opportunities, and implications of naval privatization. If stakeholders among governments, NGOs, insurers, shippers, and PMSCs can have a shared foundation on these issues, they will be more effective in finding solutions—and more effective at facing the maritime security threats of the years to come.

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Index Abu Sayyaf, 207 acoustic weapons, 35, 35n89, 142, 158. See also LRAD (longrange acoustic device) Active Denial System (ADS), 142 Aden, Gulf of, 1, 33, 36, 48n125, 66n4, 53-54, 59, 62, 78, 81, 144-45, 161, 194n67, 197, 202 Advanfort, 56 AL 345, private armed vessel, 55, 207 Almezaan, piracy incident involving, 36 al-Qaeda, 161-62, 181, 195 al-Shabaab, 29, 198-99, 221n86 AM 230, private armed vessel, 55 AMISOM (African Union Mission in Somalia), 198-99 Angre, Kanhoji, 10-11 Angre, Tulaji, 12 Apolake Security Training Services, 57 AQIM (al-Qaeda in the Islamic Maghreb), 195 Arleigh Burke, American warship, 31 armaments: private escorts and, 51, 55-56, 59, 61, 64, 107, 143,14748, 150; regular navies and, 31, 147; Somali pirates and, 37, 92, 107, 138, 140, 142-44, 149-51, 161, 163, 186; West African pirates and, 200 ARPCT (Alliance for the Restoration of Peace and CounterTerrorism), 29 Artemis Glory, piracy incident involving, 163 Atlantis, German auxiliary cruiser, 17 Automatic Information System (AIS), 77, 87n18, 139-40, 166n15, 177 Avant, Deborah D., 97 Avocet, shooting incident involving, 117n223, 179

Background Asia Risk Solutions, 51 Bainbridge, American warship, 34 Barre, Siad, 27 Beckford v R, 93 best management practices: implementation of, 37, 39-40, 76, 179, 184-85, 201, 227-28; recommendations of, 46n93, 77, 80, 137, 139-42, 166n22, 186, 201 BIMCO (Baltic and International Maritime Council), 4, 38-39, 48n116, 58, 88n48, 101, 106, 117-18, 157-59, 163, 177, 182, 229 Biscaglia, piracy incident involving, 142 Blackwater, 53-54, 57, 113, 148, 180, 187, 209, 227 BMP4. See best management practices Boko Haram, 195, 202-03, 203n83 Bombay Marine, 9-14 Bosasso, port of, 32 Britannia Maritime Security, 56 budget pressures affecting regular navies, xii, 62, 188, 195, 19798, 216n12, 202, 210, 228-29 bunkering of petroleum cargo by West African pirates, 200-1, 204 Capricorn, piracy incident involving, 63-64 Carnival Triumph, accident involving, 207 Caroline case, 92-93 Carter Hall, American warship, 31 catastrophic losses, 116, 120, 179, 181 catch-and-release policy, 35, 146 Celtic Horizon, private armed vessel, 52 citadels, merchant ship protective feature, 38, 137, 141, 151, 200 civil liability in PMSC operations, 4, 33, 53, 78, 87n29, 80, 91, 101, 267

268

Index

116-20, 134n223-24, 135n237, 155-56, 159, 180, 187, 201, 206, 222n102, 229 coastguard privatization, 5, 52, 54, 108, 188, 196, 208-10, 223n119, 229 Cole, terrorist attack on, 151, 161, 202, 207 Combined Task Force 151 (CTF 151), 36, 46n93, 145, 146, 170n72 continuum of force. See graduated escalation of force Convoy Escort Programme (CEP), 3, 5, 58-60, 71n97, 62-63, 77, 79, 83-84, 89n73, 154, 180, 190n21, 192n48, 206, 227 Cormo Express, incident involving, 52. COSCO, 59, 197 Costa Concordia, accident involving, 207 criminal liability in PMSC operations, 4, 38, 93-94, 96-97, 108, 111, 113-15, 156, 173n122, 158-59, 162, 164, 194n70, 229

70n72-73, 63, 65, 76, 80, 83, 137, 154-56, 178, 182, 184, 193n55, 186-87, 195, 205-6, 227-28; shooting incident by, 179 Emden, German light cruiser, 15-17, 35 Enrica Lexie, shooting incident involving, 114-15, 168n45, 205-6 Enterprise, American warship, 37 Eritrean detention of PVI personnel, 64-65, 110, 154 escalation of injury, 157 escalation of violence due to PMSCs, potential, 5, 51, 183-84, 187 Espada, 56 Ethiopian intervention in Somalia, 29 EU Navfor: counterpiracy mission of, 36 58, 62, 84, 139, 215n11, 198; May 15, 2012 helicopter gunship strike by, 39, 199 evidence-gathering procedures, 105, 111, 132n193-94, 177, 146, 155 Evita, piracy incident involving, 36 extended unit self-defense, 163

Danica White, piracy incident involving, 31-32 data deficiencies, 5, 165n5, 140, 177-79 Decatur Maritime Security, 56 Derby, pirated ship, 11 DM 234, private armed vessel, 55 Drum Cussac, 56-57, 182, 191n41

Faina, piracy incident involving, 32 Fairchem Bogey, piracy incident involving, 154 Farragut, American warship, 36 Federal Government of Somalia, 198-99 Feisty Gas, piracy incident involving, 31 fisheries enforcement, 108, 208-10 flag states: legal and regulatory issues with, 92-93, 121n6, 95-98, 101-5, 107-9, 112-14, 116-17, 166n22, 183, 186, 227, 229; operational issues and, 139, 155, 159, 162, 164; possible correlation between ships targeted and, 138n5; private naval vessels and, 59-60, 71n97, 227-28 flags of convenience, 43n48, 59, 78, 96-98, 124n49, 103, 108, 222n95 floating armories, 70n73, 79, 153

East India Company, (Honourable), ix-x, xii, 2, 7-14, 18-19, 21, 40, 107 Edinburgh, British warship, 211 1856 Paris Declaration Respecting Maritime Law, 19, 96 embarked guards: costs of, 55, 76, 78-79, 81, 83; operational role of, 142-43, 147, 150-53, 171n104, 160, 163, 192n43, 201-3, 207; regulatory efforts and, 83, 180, 183, 222n95, 2056; shipping industry’s use of, 24, 39-40, 48n116, 55, 57-60,

Index freeloading, potential problem for private convoys, 109, 154-55 Ganj-i-Sawai, pirated ship, 9 Galmudug, region of Somalia, 29, 198-99 Glenn Braveheart, private armed vessel, 51 Golden Nori, piracy incident involving, 31-32 graduated escalation of force, 102, 143, 156-57, 159-61, 229 group transit schemes with regular navies, 144, 154 Guardafui, Cape, 43n37, 198 GUARDCON contract, 48n116, 7980, 106, 130n158, 118-20, 135n236, 157-58, 182, 186 Guinea, Gulf of, xi, 2, 61, 110, 188, 195, 199-203, 218n41, 220n75, 220n77, 221n91, 205-6 Gulf of Aden Group Transits (GoAGT), 54-55 Gunston Hall, American warship, 31 Handytankers Magic, piracy incident involving, 35 Harardhere, port of, 32, 198 hardening of merchant ships, 38, 137, 139-42, 141n22, 151, 196, 200 Harry S. Truman, American warship, 197 Hart Security Maritime Services, 52, 188, 196, 208-9, 224n122 high and fast vessels, 83 High Risk Area (HRA), 3, 36, 46n93, 38-40, 53, 55, 58, 70n74, 77-78, 87n17-18, 82-83, 132n194, 117, 120, 139-42, 152-53, 166n22, 169n61, 180, 193n62, 186-88, 197, 215n11, 200, 204, 206 Hobyo, port of, 198 Holman Fenwick Willan, 59 hostis humani generis, 92 HRA. See High Risk Area

269 ICoC. See International Code of Conduct for Private Security Service Providers illegal fishing off Somalia, 29-30, 52, 63 IMB. See International Maritime Bureau IMO. See International Maritime Organization Ince & Co, 59 incident recording, 105, 117, 134n223, 179, 182-83, 192n43 incident reporting, 38, 82, 97, 102, 105, 139-40, 158, 162-63, 17879 Indian Ocean: characteristics of, 7, 145, 169n62; historical piracy in, ix-xi, 7-14; recent decline of piracy in, 39-40, 195-96, 227; recent spread of piracy in, 2839, 78, 137, 144 insurance industry: costs to piracy of, 52, 75, 77-78, 81-83, 116, 177-81, 185; PMSC-related requirements of, 53, 77-80, 97-99, 101-6, 119-20, 155, 159; private navy plans by, 58-60 International Association of Maritime Security Professionals (IAMSP), 103, 156-58, 161; See also Voluntary Code of Practice International Code of Conduct for Private Security Service Providers (ICoC), 99-100, 102, 104, 106, 180, 195, 208, 212, 229 International Criminal Court, 93 International Maritime Bureau (IMB), 30, 165n5, 141, 178-79 International Maritime Organization (IMO), 38, 159, 101-4, 110 Internationally Recommended Transit Corridor (IRTC), 144 Iran: potential incidents with, 115; saber rattling by, 39 IRTC. See Internationally Recommended Transit Corridor Islamic Courts Union (ICS), 29, 31 ISO 28007, 70n69, 79, 104-6, 130n158, 159, 174n157, 164, 180, 195, 205, 208, 229

270

Index

Jardine Lloyd Thompson (JLT), 5860, 183, 192n48 John C. Stennis, American warship, 39 joint criminal enterprise, 156, 158 Joint War Committee, Lloyd’s, 82, 195, 221n91 jurisdiction: pirates and questions of, 91-92, 111-13; private naval forces and questions of, 108, 113-18, 134n223 Kenyan intervention in Somalia, 198 khat, 34, 45n77, 144, 147 Kidd, American warship, 39 kidnap and ransom (K&R) insurance, 82-83, 178 Kismayo, port of, 198 knock-for-knock principle, 118-119 large private escort vessels, 51-54, 57, 61-63, 147-48, 180 legal authority in combat: embarked guards and, 158, 160, 186-87; private escorts and, 160, 163-64, 186-87 legitimacy of private naval forces, 23, 38, 91-96, 101, 107, 116, 118, 155-56, 159, 161-62, 164, 195, 213 lethal force, 1, 3, 28, 34, 91-94, 97, 114, 117, 142-44, 168n44, 150, 155-58, 161, 187, 205 letters of marque, 9, 19-20, 95-96 Limburg, terrorist attack on, 151, 161, 203 Lloyd’s Market Association, 82, 221n91 Lotus Maritime Security, 54-55 low and slow vessels, 82-83, 138 LRAD (long-range acoustic device), 142-43, 158, 193n65 M. Star, terrorist attack on, 162, 202 Maersk Alabama, piracy incident involving, 33-35, 78, 97, 146 Maersk conglomerate, 77-78, 192n47 197 Mahrattas, 10-12 Malacca Straits Maritime Security, 51

Malaccan piracy, 51-52, 66n4, 188, 203 Marida Marguerite, legal case involving, 78 maritime terrorism: events of, 151, 161-62, 202-3 207, 223n111; potential for, 80, 161, 195, 2024, 207, 228; MARLO (Maritime Liaison Office), 139 Marque Star, 56, 209 MarSecPro Standard, 103 Marshal 1-5, private armed vessels, 56, 63-64 Marshal Shaposhnikov, Russian warship, 36 McArthur, private armed vessel, 5354, 57, 148, 180 mid-sized private escort vessels, 5460, 148-149, 170n82 Mee, Dom, 55 Mogadishu: battle of, 27-28; civil war violence around, 29, 198-99 Montreux Document, 99-100, 183, 229 Moscow University, piracy incident involving, 36, 132n192 motherships, pirate, 19, 35-36, 137, 165n1, 165n4, 140, 144-45, 171n90, 191n36, 187 MSC Circulars: MSC 1405, 101-3; MSC 1406, 101-2; MSC 1408, 101-2; MSC 1443, 101-3 MSCHOA (Maritime Security Centre – Horn of Africa), 139-44 Murray, Simon, 60, 206 National Security Inspectorate, 104 NATO Operation Ocean Shield, 3537, 36n93, 146, 195, 197-99 Navarra, Spanish warship, 36 Navy SEALs, 34, 37, 39, 146, 199 necessity, self-defense concept of, 92-95, 102-3, 155-57, 173n132, 161, 164, Nicholas, American warship, 36 Nisoor Square shooting, 53-54, 113, 117, 182, 187, 228 Naval Guards, 55-56, 58, 61, 63-64, 149, 151, 180, 205-6, 227

Index Ocean Atlas, piracy incident involving, 152 Oceans Beyond Piracy: criticism, 88n48, 89n66, 177; Economic Cost of Piracy 2012, 81-82, 189n5; Human Cost of Piracy 2012, 218n49 100 Series Rules for the Use of Force, 116, 158-64, 174n157, 229 Operation Atalanta. See EU Navfor Operation Linda Nchi. See Kenyan intervention in Somalia opposition to PMSCs, 110, 154, 182, 186, 194n70, 201 origins of private escort vessels, 5157, 69n63, 148 overreporting of regulatory compliance, 179 Palmer v R, 93 PCASP. See embarked guards peremptory norms in international law, 96, 123n45 Perpetual Maritime Truce, 14 P&I clubs, 2, 79, 99, 103-4, 155, 183 Pinguin, German auxiliary cruise, 17 Piracy Reporting Centre, 30, 48n125, 66n4 pirate action groups (PAGs), 39, 78, 138-40, 144-45, 179, 187 PMSC industry: economic underpinnings of, 75-80; regulation of, 96-107; response to Somali piracy epidemic by, 37-40. See also private naval sector PMSC regulation: in Greece, 98; in Norway, 97; in the United Kingdom, 98; in the United States, 97 Porter, American warship, 31 private convoy schemes, xi-xii, 3, 5, 58-63, 77, 79, 83-84, 109, 14849, 151-52, 154-55, 206, 227 private naval sector: future of, 155, 181, 183, 192n44, 188, 195-214, 227-29; origins of, 1-3, 51-55; human rights record of, 58, 97, 114, 143, 182, 227; size and

271 composition of, 55-58, 70n73, 192n44 private escort vessels: costs of operation, 152-55, 180; fees charged by, 51-56, 62, 78-79; legal standing and questionable status as warships, 1-2, 4, 91-92, 96, 107-9 privateering: historical, 8-9, 12; proposals for modern use of, 19-20, 95-96 Privately Contracted Armed Escort Vessels (PCAEVs), 97 Protection Vessels International (PVI), 55-56, 58, 64, 110, 135n236, 149, 180, 182, 191n41, 227 Puntland, 29, 32, 37, 52, 67n22, 57, 94, 188, 196, 198, 208-9 PVI. See Protection Vessels International Quest, piracy incident involving, 37, 183-84 R v Owino, 93 Ras al-Khaimah, raid on, 12-14 reasonableness: as legal standard for self-defense, 92-95, 103, 114, 156-57 160-62, 176n190, 164; in UNCLOS governing acts by warships, 108 regular navies, role of, 34-40, 14347, 195-98 rerouting of merchant ships, 17, 78, 82, 186, 194n69 RIBs (rigid-hulled inflatable boats), 37, 53, 56-57, 59, 61, 147-49, 208 right of refuge, conflict with territorial laws, 110-111 Risk Intelligence, PMSC screening guidelines by, 100-1 risks of wrongful shootings, 4, 20, 53, 58, 94, 96, 113-14, 116-18, 134n223, 168n45, 143-44, 149, 160-62, 181-82, 187 Romia Island, incident with PMSC personnel caching weapons on.

272

Index

See Eritrean detention of PVI personnel rules for the use of force (RUFs): compliance with, 4, 5, 48n116, 84, 95, 101, 103, 116, 118, 137, 143, 155-64, 201, 229; potential affect of maritime terrorism on, 151-52, 161-62; training for, 164 rules of engagement. See rules for the use of force Saiga case, 93 Samho Jewelry, piracy incident involving, 146 SAMI. See Security Association for the Maritime Industry SCEG (Security in Complex Environments Group), 98 Sea Patrol, private armed vessel, 57 Seaguard, private armed vessel, 56 seasteading, 196, 213-14 Security Association for the Maritime Industry (SAMI): accreditation process of, 104-6, 164, 180; role of, 4, 39, 70n69, 7980, 103-6, 183, 195, 205, 208, 229 seizure on account of piracy, 92, 95, 123n40 self-defense: legitimacy paradigm of, 92-96, 107, 116-18, 155-64; merchant ships and, 10-12, 17, 38, 107, 141-42; pressure to allow more robust, 38, 97-98. See also self-defense laws self-defense laws: international, 9293, 155-56; of India, 94; of Nigeria, 94; of Somaliland and Puntland, 94; of the United Kingdom, 93-94; of the United States, 94. See also self-defense Shapiro, Andrew J., 40, 84, 97 Sharia law, 162 Sharp, Anthony, 60-63 shipping industry: complacency within, xii, 18, 40, 196; recent losses by, 77-83, 179-80, 19798; reluctance to use PMSCs by, 53-54, 154-55, 227

Sirichainava 12, piracy incident involving, 52 Sirius Star, piracy incident involving, 32-34, 203 skiffs, characteristics of, 137-38, 140, 150, slow steaming, 77, 79-80 small private escort vessels, 61-63, 148-49. See also RIBs soft approaches by pirates, 138 SOLAS (Safety of Life at Sea) Convention, 134n224, 159, 163, 173n190 Somali Civil War, 3, 27-29, 42n22, 32 Somali piracy: epidemic at peak, 3137; origins of, 27-30; recent decline in, 39-40, 195-96, 227 Somalia: famine in, 27, 199; human rights record of, 146; present outlook on land in, 195-96, 19899, 227-28. See also Federal Government of Somalia, Somali Civil War, Transitional Federal Government (TFG) of Somalia Somaliland, 67n22, 94, 209 SomCan, 52, 67n17 startup costs: for embarked guards, 57; for escort vessels, 53, 57, 59-62, 83, 89n73, 179-80 Strait of Malacca. See Malaccan piracy substandard PMSCs, entry into the market by, 57-58, 70n72, 81, 88n54, 98, 104, 106, 153, 179, 182, 209 Suez Canal, 56, 78, 87n27, 109, 194n66, 197 SuperFerry 14, terrorist attack on, 207, 223n111 superyachts, 185-86, 193n65-67 support for PMSC usage, 40, 77, 84, 97 Suppression of Unlawful Acts (SUA) Convention, 113-14 swarm attacks, likely exaggeration of, 170n79 Swordfish Guardian, private armed vessel, 56

Index tactics: regular navies and, 143-47, 187; private escorts and, 4-5, 147-52, 154-55, 163; Somali pirates and, 51, 137-39, 178; West African pirates and, 150, 199203 Team Leader (TL), responsibilities with embarked guards, 151, 157-58, 160 territorial laws: friendly to private escorts, 56, 109-11, 171n104; hostile to private escorts, 88n39 110 terrorism. See maritime terrorism Transitional Federal Government (TFG) of Somalia, 29, 31-32, 198-99, 223n119 trials of pirates, 9, 35-37, 112, 168n55, 146, 179 Trident, 56, 134n223 Typhon, 3, 5, 60-63, 148, 170n83, 154, 206, 227 UNCLOS. See United Nations Convention on the Law of the Sea underreporting of attacks, 82, 105, 162-63, 178-79. See also incident reporting UNITAF (Unified Task Force), 2728 United Nations Charter, 92 United Nations Convention on the Law of the Sea (UNCLOS): Article 2, 110; Article 29, 108; Article 95, 108, 114; Article 96, 108; Article 101, 115; Article 105, 92; Article 107, 92, 95; 107-9, 115-16, 213; Article 110, 108; Article 111, 108; potential amendment to, 212 United Nations Mercenary Convention, 96, 123n45 United Nations Security Council Resolutions: UNSCR 837, 28; UNSCR 1838, 108-9; 1844, 109; 1846, 109; 1851, 109; 1897, 109; 1918, 109

273 United Nations Trust Fund to Support the Initiatives of States to Counter Piracy off the Coast of Somalia, 59, 84 UNOSOM I (United Nations Operation in Somalia I), 27-28 USS Cole. See Cole, terrorist attack on Vanguard, private armed vessel, 56 waste dumping off Somalia, allegations of, 29-30, 52 water cannons, 35, 141, 193n65 Weber, Max, 91 West African piracy: characteristics of, 150, 178-79, 182, 188, 195, 199-207, 218n41, 218n49, 220n75, 220n77, 221n86, 221n91, 222n99, 224n120; growing threat of, 2, 5, 40, 6263, 110, 182, 195-96, 228; legal issues and, 94, 109-10, 117, 188, 195; PMSCs and, 56-58, 61-63, 188, 195, 228 Wolf, German auxiliary cruiser, 1617 Woollerson, Sean, 58-59, 192n48 World Bank 2013 report on Somali Piracy, 29, 75, 81, 178, 200, 221n86 Xeer traditional Somali clan law, 162

About the Authors John J. Pitney, Jr. is the Roy P. Crocker Professor of Government at Claremont McKenna College, where he teaches courses in American government and politics. He has served a New York State Senate Legislative Fellow and Congressional Fellow of the American Political Science Association. He has written articles for numerous publications, including The Wall Street Journal, The Washington Post, Politico, and The Christian Science Monitor. He is the author of The Art of Political Warfare and coauthor of several books including Epic Journey: The 2008 Elections and American Politics (revised 2011), and American Government and Politics: Deliberation, Democracy, and Citizenship (2d edition, 2012). John-Clark Levin is a writer, currently pursuing a degree in public policy at the Harvard Kennedy School. He received the 2010 Arthur R. Adams Fe llowship at the Keck Center for International and Strategic Studies, r esearching private maritime security. He also served as a Harrison Fellow at the Salvatori Center for the Study of Individual Freedom in the Modern World in 2011-2012. He was the winner of the 2010 Eric Breindel Collegiate Journalism Award, and has written for publications such as The Wall Street Journal, The Daily Caller, and City Journal Online, and the Southern Economics Journal. Private Anti-Piracy Navies is his first book.

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