Rishank Tiwari*

Abstract:

Piracy and Marine Terrorism has been a matter of grave concern for the international community. Those days are gone when pirates like Johnny Depp with an eye patch used to loot the ships with swords. Now the time has changed and with the change in time the way of committing the crime has also modernized. Pirates only loot for their selfish purposes while terrorists have a broader goal to achieve which is mostly political. Piracy and Marine Terrorism have given numerable threats to those who depend upon sea routes for their trade. India is a country where 85% of the total trade is contributed through trade done by sea routes. Along with facing the vicious terror attack India has also in its past demonstrated its power to overcome the challenges of piracy and marine terrorism. The author in this article has focused on how piracy and marine terrorism has affected India and possible course of action that can be taken by India in order to achieve a state which is free from piracy and marine terrorism.

Keywords: Piracy, Marine Terrorism, Political, Selfish, Threat.

Introduction

The International Maritime Organization has a responsibility to make travel and trade through sea as secure as possible. Piracy and Marine terrorism constitute a major threat to the safe navigation and the life of passengers and seafarers. There have been several best sellers written on the threat of piracy and Maritime terrorism; one of them being The Devil’s Alternative, written by Frederick Forsyth. But the reality is considerably different from what has been depicted fictionally i.e. it may result into severe damage to the economies of many countries as well as to the international trade. Actually, what is important to note here is that piracy has led to the evolution of Marine terrorism as piracy in the modern sense means a crime which possess the characteristics of international crimes such as plundering, unauthorized seizure or sinking of the civil / commercial ships on the high seas. The oceans are one of the most important medium for transportation. Many of the world economies are surviving only through the trade that they make with the help of navigating through the oceans. Nearly 90% of the trade of the world is done with the aid of the seas. But along with being an asset to the economy of a nation; ships at seas are under constant threat of being attacked, being hijacked and robbed of goods and navigational equipment. The surprising fact is that the clear-cut extent of the incidents of Piracy and Marine Terrorism is unknown as they remain unreported by shipping companies because they constantly suffer from the fear of increment in the rates of insurance premiums, lingering time consuming investigation, etc.

In this paper the author has attempted to provide the readers a conceptual clarity of the topic i.e. Piracy and Marine terrorism. A two folds approach has been adopted in this paper/essay wherein firstly it will address as to how India has been suffering from the threats of piracy and Marine Terrorism. Secondly, it will deal with recent developments in laws relating to Piracy and Marine Terrorism. Additionally the author has made recommendations as to how can India come out of the vicious circle of the continuous threats of Piracy and Marine Terrorism.

Piracy and Marine Terrorism: Conceptual Clarity

The era has gone when the pirates wore eye patches like Captain Jack Sparrow (Johnny Depp) and fought with the swords along with fleeing the Jolly Roger. A simple definition of Piracy would be ‘armed robbery at the sea by some private persons while acting for economic gain and selfish purpose’ while Marine terrorism on the other hand is not self-centered, it occurs on a larger scale and has deeper impact and consequences.

Piracy has been defined in more modernized terminology by International Maritime Bureau (IMB) to embody maritime malpractice and crime[1]. IMB defines it as “an act of boarding or attempting to board any ship with the apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in the furtherance of that act.”[2]

In comparison to the definition given by the IMB the United Convention on the Law of Sea (UNCLOS) has also provided a definition of Piracy which focuses only on ship which are outside the jurisdiction of the state or on the high seas.[3] It is as follows:

“any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship or a private aircraft, and directed (i) on the high seas, against another ship or aircraft, or against person or property board such ship or aircraft; or (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.”[4]

One can easily spot a difference between both the definitions. The definition given by IMB requires the presence of ship i.e. the piracy could be committed only when boarding a ship or while attempting to board it. On the contrary the definition given by UNCLOS depicts Piracy, as an act which may include aircraft or marine craft; as long as the confinement and devastation takes place outside the jurisdiction of any state.

Terrorism has much wider meaning than what a reasonable person can think of, and its impact is even bigger on the entire society. Terrorist acts comprise of belligerent actions which are illegitimate as per the law of the nation.[5] One of the simplest definitions of terrorism has been given by Arthur H. Garrison, he stated that terrorism is “premeditated violence waged against innocent persons and private property whose goal is to induce a state of fear to intimidate or coerce a government, individuals or groups.”[6] Every definition of terrorism must contain certain general characteristics which are:

1. Actual or threatened violence;
2. Political Motive;
3. Targeted audience against whom the act has been directed.[7]

Marine Terrorism is a bit difficult to define properly as there is no authoritative definition of the same but there is ample clarity between the distinction of both Piracy and Marine Terrorism. Piracy is self-centered or done for the selfish reasons, fast economic gains; Marine Terrorism is undertaken for a much greater cause that involves a much higher level of risk and most importantly it is inspired by political goals.

Following points will illustrate the difference between both Piracy and Marine Terrorism:

1. The target depends upon the motive i.e. financial in case of Piracy and Political in case of Marine Terrorism.
2. Use of violence differentiates Piracy from Marine Terrorism because piracy is usually less violent and there is an aversion to loss of lives. On the contrary, Terrorism gets hype or fame only when there is greater loss of life.
3. Tactics used by the Pirates are usually simple as they mostly do armed robbery while those used by the terrorists are more complicated and strategized as enormous planning is required before execution.
4. Reach of piracy is limited to local or regional level while that of terrorism is more global in nature.

Threats as a result of Piracy and Marine Terrorism

In today’s world it is no more concealed from anyone that the seaports are the safest places for terrorists to take shelter and accomplish their tasks. Ports are mostly crowded with large oil containers, cargo ships, etc. although they are subject to regular inspections but no thorough inspection is conducted. Most of the terrorists find it easy to take help of the shipping containers which were introduced in 1956 as they are comparatively easy to shift to the rail line, trucks, etc.

Maritime security experts believe that these abovementioned containers are the most convenient for the terrorists to transport men and materials.[8] One such incident happened in New Orleans where a container which was labeled as empty, contained radioactive materials which came to be known after the inspection done by the officials. The amount of cargo inspected each day at the seaports is only 2% as per the reports of US custom authorities.[9]

The terror does not stop here, a survey reportpublished through an US magazine regarding the use of false certificates by the crew member’sshows that the amount of cases pertaining to acquisition of fake certificates of expertise has raised by more than 12,000.[10]This led to the warning issued by IMB to those who operated ship that there are thousands of people working illegally i.e. without being qualified for the crew and masters.

The crew themselves may be probable threat. Most of the merchant ship crew is supplied by Indonesia and Philippines, it is also known to everyone that both these places act as home for extremist group; the Abu Sayyaf Group and Free Aceh Movement being two such groups. It is extremely strenuous task to detect the undesired or unqualified crew members. The problem rises more when the vessel which fly FOC i.e. Flags of Convenience because multinational crews are employed there.

Merchant ships are also possessed by some terrorist organization like Liberation Tigers of Tamil Eelam (LTTE) that has a squadron of ship involved in maritime trade. The reason why nobody has been able to catch hold of them is that they frequently change their names and registry.

A London based company named The Lloyds, has listed 11 merchant ships which are managed by LLTE but belong to Asian Front Company.[11]If a check is not kept on the activities of the terrorists it might lead to several economic repercussions which might affect not only one or two countries but the whole world as 80% of total world trade is carried out through seas and oceans.

1.      Maritime Environment in India

India possesses a very long coastline and is fortunate enough that it also has huge number of ports to properly utilize its coast line. It is evident to all that most of the world comprises of seas and oceans, the Nations use them as a vital resource in order to gain economic advantages. India has 11 major ports along with 163 minor ports and the trade that is done with the help of sea contributes 85% to the total trade done by India. India’s Exclusive Economic Zone (EEZ) is nearly 2.3 million square kilometers and is guarded by the Coast guards and the Indian Navy.

India’s proficiency to test itself in the area of maritime security was demonstrated in 1988 when the Education Minister of Maldives was made a hostage. The Maldivian government panicked and made calls for assistance, India came up with the launch of Operation Cactus.[12] Indian paratroopers and Navy took control of the situation in no time and just after 30 minutes the island was secured.

This was not the only time when India’s ability to control maritime terrorism was checked, it has also happened when MV Alondra Rainbow was hijacked in Malacca Straits by the pirates.[13]

“By 2020, India’s oil consumption is expected to reach 38 million barrels per day, with 80 per cent coming from the Persian Gulf through the Indian Ocean.”[14] Therefore, the primary interest of India is to overcome the incidents related to piracy and marine terrorism which occur from the neighbouring countries whose coastlines are adjacent to India i.e. Bangladesh, Pakistan and Sri Lanka.[15]

2.      Dilemma faced by India

An American naval strategist, Alfred Thayer Mahan said that “whosoever controls the Indian Ocean dominates Asia. This ocean is the key to seven seas. In the 21^st century, the destiny of the world will be decided on its waters.”[16] India is a country which has a coastline of more than 7500 kilometres; therefore, it is no surprise that it suffers from the continuous threats of piracy and marine terrorism. Gulf of Aden is the area from where most of the India’s trade passes through rough estimate of the same is nearly $110 billion annually. Approximately 24-25 merchant ships (Indian flagged) cross Gulf of Aden every month. Also, Indian Nationals who are involved in international shipping companies are nearly more than 6% than people of any other country.  Therefore, it is crucial to secure the regions where India has expanded its trade.[17]

Continuous danger of terror attacks: Moreover, the attacks of 26/11 which happened in Mumbai are not beyond the knowledge of anyone. The terrorists sneaked through the Arabian Sea at the Mumbai port along with their bags loaded with arms and ammunitions. This attack showed the carelessness of the Indian Navy and the coast guards. It is considered to be one of the most extreme terror attacks ever happened in the world. Looseness in the security mechanism in the area of maritime poses a serious threat to the integrity and security of a nation and makes it more susceptible to further terror attacks.

Lack of one particular region-wide organisation in Indian Ocean: Several different inter-governmental organizations i.e. are SAARC, BIMSTEC, SADC, IOC, GCC and ASEAN are present that control the affairs in Indian Ocean but they too have limited access, roles and effectiveness. They have limited jurisdiction along with narrow economic mandate. If there will be one particular body to regulate all the affairs then the jurisdiction which will rest with it can be extended to a greater area and the threat of piracy and marine terrorism could be reduced to a greater extent.

3.      Steps taken by India after 26/11 attacks to combat piracy and Marine terrorism

After the terrifying attack of 26/11 which shook the conscience of whole world it was necessary for India to come up with strategies so that it could prevent such attacks in future. As a result the security structure was modified. “The new security structure:

1. gave additional and new responsibilities to maritime agencies and police;
2. provided for the acquisition of additional assets (ships, aircraft, boats);
3. funded the creation of new infrastructure, such as coastal radars, Automatic Identification System (AIS), National Command Control and Communication Network or NC3I, Joint Operations Centers and an information collation and fusion Centre; and
4. mandated setting up of marine or coastal police in all coastal states, introducing better monitoring and identification mechanisms for fishing crafts and fishermen.”[18]

After the implementation of the abovementioned strategies there has not been even a single event of terrorism where the terrorists had penetrated the coastal areas of India. This clearly shows the success of the measures implemented.

The Indian Navy and the Indian Coast Guard have started practicing their drills on the seas, joint exercises and EEZ surveillance with some other countries.[19] Moreover a 24*7 communication centre has been established within the Indian Maritime Administration (IMA) to facilitate and co-ordinate in cases pertaining to piracy. Some units of Indian Navy have also been deployed to EEZ of Mauritius and Seychelles to continuously patrol near Maldives. After these successful deployments not even a single case of piracy and marine terrorism has been reported, which manifests the strength of the efforts put forth by the Indian Navy and Indian Coast Guards.

In 2018,NirmalaSitharaman,the then Defence Minister of India inaugurated SAGAR (Security and Growth of all in the Region) along with Indian Navy’s Information Fusion Centre (IFC) for the Indian Ocean Region (IOR). The Prime Minister of India has said that “even sky is not the limit when it comes to regional cooperation” it means that the Nation is ready to give whatever it takes, whether through regional cooperation or anything else for preventing acts of piracy and marine terrorism. “The IOR accounts for 66 % of world’s oil, 33 percent of bulk cargo and 50 percent of container shipments with over 100,000 ships transiting through it annually. With over 75% of the world’s maritime trade and 50% of daily global oil consumption passing through the region; IOR is vital to world trade and the economic prosperity of many nations.”[20]

Laws governing piracy in India and Legal Recourse to tackle Piracy and Marine Terrorism

In India, ship safety and security are handled by the International Maritime Organization (IMO) under the International Ship and Port Facility Security Code, which itself is an amendment to the International Convention for the Safety of Life at Sea (SOLAS) of 1974/78 and came into force in 2004.[21] At the international level, Sections 101 to 107 of the United Nations Convention on the Law of the Sea (UNCLOS) relate to sea piracy. But India has still been unable to adopt and form any express municipal legislation to tackle this issue. A domestic legislation is the basic need to regulate the laws in a state, merely adopting the international laws and being a signatories to the international treaties will not help any country in regulating its legal affairs. India lacks a domestic legislation to tackle the issue of Piracy and Marine Terrorism, the recourse that can be taken by India is that it can through an amendment in The Indian Penal Code, 1860 and The Code of Criminal Procedure, 1973 bring provision which will provide procedure and punishment for the offences concerned with Piracy and Marine Terrorism. Also along with the amendment in the said codes India needs to have a separate legislation to control the menace caused by the offenders through Piracy and Marine Terrorism and in the said act more powers needs to be given to the Indian Navy and the Coast Guards. The objective of the new act should be to make special provisions for the suppression of piracy, criminalise the act of piracy and to establish universal jurisdiction for Indian Courts. One such step has been taken by India in such regard was the passing of The Piracy Bill, 2012 by the Indian Union Cabinet which seeks to criminalise the offences related to Piracy and Marine Terrorism. The severest punishment for the acts of Piracy and Marine Terrorism include provision relating to life imprisonment and also death penalty where the act of the offender leads to the death of the victim. The bill was proposed in 2012 and got passed by Union Cabinet in 2018 but is still in the process of becoming a law.[22]

Conclusion

Piracy and Marine Terrorism seem opposite concepts as it is very arduous to find any common ground between them but when the definitions of both are illustrated the difference between them automatically starts fading away and commonality gets reflected. The conditions with the help of which piracy and marine terrorism prosper are analogous but the objectives are distinct. The desire of piracy is because of money while that of terrorism is due to political ideology. The piracy and marine terrorism pose a great threat not only to a single country but to the whole world as the economic prosperity of the whole world is in danger due to piracy and marine terrorism because 80% of the world’s total trade is carried out through sea routes. Apart from the economic danger, there is a high risk of continuous terrorist attacks in the countries adjacent to sea like India, which suffered a massive devastating terror attack on 26/11/2010.

What needs to be done to prevent the world from piracy and marine terrorism is that there should be a strong urge to strengthen regional cooperation along with the use of newer technology to secure the ports and to make the crew and other staff more vigilant and canny to enhance ability rather than ignoring a serious threat. Also India needs a special legislation to control the menace caused by Piracy and Marine Terrorism. That legislation should contain provision in consonance with the Indian Penal Code, 1860 and The Code of Criminal Procedure, 1973 and should give more powers to Indian Navy and the coast guards. In the concluding view the author wants to assert that the most important factor in order to combat terrorism or piracy is intelligence. There should be information sharing mentality i.e. “a responsibility to share” rather than “need to know”.

*Student of National Law University Odisha.

This essay has been selected for publication through the 1st NLUO-Ganesh & Co. National Maritime Law Essay Writing Competition, 2019.

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[1] ICC Commercial Crime Services, International Maritime Bureau, http://www.icc-ccs.org/imb/overview.php.

[2] International Maritime Bureau, Piracy and Armed Robbery Against Ships: 2006 Annual Report, Int’l chamber of comm. (2007), http://www.imo.org/includes/blastDataOnly.asp /dataid%3D18566/98.pdf.

[3] Id.

[4] Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].

[5] Jon M. Paladini, Terrorism: War or Piracy?, 40 Ari. Att’y 38 (2004).

[6] Arthur H. Garrison, Terrorism: The Nature of its History, 16 Crim. Just. Stud. 39-52 (2003).

[7] Tina Garmon, International Law of the Sea: Reconciling the Law of Piracy and Terrorism in the Wake of September 11th, 27 Tul. Mar. L.J. 257, 270 (2002).

[8] AL Baker, A Nation Challenged: Cargo; Port of Entry Now Means Point of Anxiety, The  New York Times (DEC. 23, 2001), https://www.nytimes.com/2001/12/23/nyregion/a-nation-challenged-cargo-port-of-entry-now-means-point-of-anxiety.html.

[9]Id.

[10]IMB calls for clamp-down on fake maritime documents, international Chamber of Commerce (Jan. 17, 2001), https://iccwbo.org/media-wall/news-speeches/imb-calls-for-clamp-down-on-fake-maritime-documents/.

[11]Military Analyst, Killing of Sea Bird not a big blow to LTTE shipping operations, The Military Column (Feb. 18, 1996), http://www.sundaytimes.lk/960218/oped/mil.html.

[12] Vijay Sakhuja, Maritime Order and Piracy, Strategic Analysis (Aug. 2000), https://www.researchgate.net/publication/233217070_Maritime_order_and_piracy.

[13]Id.

[14]  Major Frederick Chew, Piracy, maritime terrorism and regional interests, Geddes Papers (2005) http://www.defence.gov.au/ADC/Publications/Geddes/2005/PublcnsGeddes2005_310310_PiracyMaritime.pdf

[15]B.Raman, Maritime Terrorism: An Indian Perspective, South Asia Analysis Group (Oct. 29, 2004), http://www.southasiaanalysis.org/paper1154.

[16]Bimal N. Patel, Maritime Security and Piracy (Global Issues, Challenges and Solutions) 288 (Eastern Book Company 2012).

[17]Statement by Ambassador Hardeep Singh Puri,Permanent Representative of India at the UN Security Council briefing on the 1737 Committee concerning Iran, Ministry of External Affairs(Mar. 21, 2012), https://mea.gov.in/in-focus-article.htm?19100/Statement+by+Ambassador+Hardeep+Singh+PuriPermanent+Representative+of+India+at+the+UN+Security+Council+briefing+on+the+1737+Committee+concerning+Iran.

[18] Vice Admiral AbhayRaghunathKarve, Maritime security: a decade after 26/11, Gateway  House ( Nov. 29,  2018).

[19]Nirupama Rao, Maritime Dimensions of India’s Foreign Policy, Ministry of External Affairs (Jul. 28, 2011), https://www.mea.gov.in/Speeches-Statements.htm?dtl/53/Address+by+FS+on+Maritime+Dimensions+of+Indias+Foreign+Policy.

[20]Huma Siddiqui, India’s SAGAR inaugurated, to help fight maritime piracy and terrorism, Financial Express (Dec. 23, 2018), https://www.financialexpress.com/defence/indias-sagar-inaugurated-to-help-fight-maritime-piracy-and-terrorism/1422761/.

[21]Aditya Dutta, Sea Piracy – The Legal lacunae that exist, Legal Service India  http://www.legalservicesindia.com/article/793/Sea-Piracy—The-Legal-lacunae-that-exist.html

[22]PTI, Union Cabinet approves stringent anti-piracy law, Economic Times (Aug. 01, 2018), https://economictimes.indiatimes.com/news/defence/union-cabinet-approves-stringent-anti-piracy-law/articleshow/65233755.cms?from=mdr