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Relabeling Piracy: The Story of Maritime Terrorism

On April 13, 2010, President Barack Obama issued Executive Order 13536 stating that the making of any “contribution or provision of funds, goods, or services, by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order” would be prohibited. Of particular interest is the Annex attached to the Executive Order, as it identifies eleven individuals and the terrorist organization al-Shabaab as blocked persons, along with two individuals who have self-identified as pirates. The President specifically mentioned acts of piracy do threaten the peace, security and stability of Somalia and would not be tolerated, thus giving a Presidential nod to the emerging nexus between piracy and terrorism by treating them similarly in the context of Somalia. Regardless of the link the President tried to make between piracy and terrorism, the two concepts are sufficiently distinctive that they cannot be reconciled as the same thing.

On April 30, 2011, a Singaporean flagged and owned oil tanker, the MT Gemini, was heading to Mombasa, Kenya from Kuala Tanjung, Malaysia. During the tanker’s journey, it was attacked and hijacked. The release was arranged for after the pirates received $6 million in ransom for the vessel and 21 crew members. However, the pirates refused to release the four South Korean crew members until the South Korean Government agreed to pay an additional $4 million for their safety and for the loss of life to ten of their colleagues.

This event is a sample of what piracy is about. Pirates are involved in their ventures purely for financial gain and generally have no discernible politics, distinguishing them from terrorists. Under U.S. law, 18 U.S.C. § 1651, Congress has stated that “whoever, on the high seas, commits the crime of piracy as defined by the law of nations, afterwards brought into or found in the US, shall be imprisoned for life.” The law of nations that the code is referencing is Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS), the world’s most widely accepted treaty for all things pertaining to laws of the sea: enforcement, punishment, and general international law.

On the morning of September 11, 2001, the United States was forever changed. At exactly 8:46 A.M., the first hijacked airplane, full of passengers, traveling at hundreds of miles per hour and carrying about 10,000 gallons of jet fuel, crashed into the North Tower of the World Trade Center in Lower Manhattan. The second hijacked plane hit the South Tower at exactly 9:03 A.M. and about 90 minutes later, the Twin Towers came crashing down. That same morning, a third hijacked plane, at 9:37 A.M., smashed through the western wall of the Pentagon. And finally, a group of brave passengers on United Airlines Flight 93 wrested control of the fourth hijacked plane and caused it to crash in an open field in Southern Pennsylvania, avoiding what could have been a devastating attack in the heart of the nation’s capital.

September 11 is just one of many events that have occurred that shows what terrorists do. To be “international terrorism” within the meaning of 18 U.S.C. § 2331, the prohibited activity must “be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.” One of the defining features of terrorism, which may be the only one to never be questioned, is that it is not committed for private monetary means, but to scare civilian populations or to influence government policy. Terrorism was not officially condemned until the 1985 United Nations General Assembly, when members “[u]nequivocally condemn[ed], as criminals, all acts, methods and practices of terrorism wherever and by whomever committed, including those that jeopardize friendly relations among States and their security.”

While piracy and terrorism are not the same concept, there are a few similarities between the two that stitch them together and create a solution to the question of whether terrorism and piracy are one and the same. There are three main factors that must be analyzed to determine whether a specific act of terrorism can also be considered a piratical act and vice versa: the attack occurred on the high seas or outside the jurisdiction of all states, the attack was vessel against vessel, and private ends must be the sole motivation for the attack.

The first factor is accomplished because both piratical and terrorist acts can occur outside any state. Indeed, terrorists can attack ships on the high seas, but the ones that are reported the most occur within State jurisdiction because they constitute major attacks. A piratical act, by definition under UNCLOS, must occur on the high seas, outside of a State’s jurisdiction.

The second factor need not be considered too deeply because the only way for a ship to be attacked in this situation, either on the high seas or outside of a State’s jurisdiction, is if the ship is attacked by another ship since there would be no way to reach the targeted vessel otherwise.

Finally, it has been argued that the definition of private gain can be expanded to include political gain because “‘private interests’ include personal motives arising from real or supposed injuries done by persons or classes of person or by a particular national authority.” This inclusion of political gain and interests in the definition of private interests draws the concepts of piracy and terrorism closer together, though not to the extent that they would be considered the same thing.

Maritime Terrorism is that middle ground to stand on; it is the ‘new’ idea that will allow the government to handle piratical terrorist acts that occur. Maritime Terrorism merges qualities from both piracy and terrorism. Maritime terrorism is defined as the “systematic use or threat to use acts of violence against international shipping and maritime services by an individual or group to induce fear and intimidation on a civilian population in order to achieve political ambitions or objectives.” This would mean that terrorist activities would take on piratical attributes and use the maritime environment to carry out their goals through economic destabilization by destroying shipping lanes or delaying shipping traffic. If terrorists were to start performing on the maritime stage more frequently, the more direct impact of maritime terrorism, like traditional land-based terrorism, would be the “loss of human life, physical destruction of property, and response and recovery from attack.” The indirect impact from a Maritime Terrorist attack would be “businesses being unable to operate because of policing and infrastructure damage around them.”

Maritime Terrorism is not a new concept; however, it has been disregarded as a realistic threat to the security of all maritime nations. It is worthwhile to note that during the last fifteen years, only two percent of all terrorist attacks could be assigned to Maritime Terrorism, but it should not be excluded in the future and should not be played down just because terrorists or terrorist organizations do not have the full capabilities of attacking at sea at their disposal. It should not take a September 11-like attack on the sea to wake up the international community that the threat is very real and far more detrimental to economic stability than they are willing to believe.

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