Lessons from the Somali Pirate Experience
d to be down 12.5 percent from 2011 figures.1 This still amounted to an eye-popping $5.7 to 6.1 billion, but indications suggest that 2013’s figures, when available, will be significantly lower again.2 Despite the decline in Somali piracy, statistics gathered by the International Chamber of Commerce show that the scourge is spreading, with recent incidents reported off the west coast of Africa, Indonesia, and South America.3Under international law, all countries have jurisdiction to try offenses of piracy committed in international waters.4 The elements of piracy are: (a) an illegal act of violence or detention or an act of depredation; (b) committed for private ends; (c) by the crew or passengers of a private ship or aircraft; (d) on the high seas or in an exclusive economic zone; (e) against another ship or aircraft, or persons or property on board that other ship.5
Element (a) is not confined, as some have suggested, to acts that would amount to armed robbery.6 Similarly, element (b) is not limited to acts committed for financial gain. In a recent case in the United States, anti-whaling demonstrators who believed they were acting for the public good in disrupting the activity of a whaling ship were still held to be acting for private ends. Chief Judge Alex Kozinski said, “You don’t need a peg leg or an eye patch. When you ram ships, hurl glass containers of acid, drag metal-reinforced ropes in the water to damage propellers and rudders, launch smoke bombs and flares with hooks, and point high-powered lasers at other ships, you are, without doubt, a pirate, no matter how high-minded you believe your purpose to be.”7
Elements (c) and (e) are often referred to as the “two ship” rule. It means that acts committed by passengers or crew against their own ship such as hijacking or sabotage are not piracy, although they may be offenses under other international law instruments.
Element (d) shows that piracy must be committed in international waters, outside the territorial sea of a country. This includes the high seas and any country’s exclusive economic zone.8 Many of the recently reported incidents of piracy off the west coast of Africa actually occurred within countries’ territorial seas. These acts were therefore not piracy under international law, even if they did violate the coastal country’s criminal law. The United Nations Convention on the Law of the Sea (UNCLOS) does not allow other countries to enforce a coastal country’s domestic criminal law. For that, a U.N. Security Council Resolution (UNSCR) or the consent of the coastal country is required, as the Somali experience shows.
A Case Study in International Action
NATO, the European Union, and the U.S.-led Combined Task Force 151 established counter-piracy operations off the coast of Somalia. Some countries, such as Russia, India, and China, are conducting unilateral operations. In a recent comprehensive report, the U.K. House of Commons Foreign Affairs Select Committee correctly observed that the myriad command structures are operationally suboptimal, but that establishing a unified command was a lower priority than achieving the broadest possible international participation.10
Despite international commitment to the various missions, problems remained. The naval presence off the coast of Somalia is the equivalent of “patrolling a landmass twice the size of mainland Europe with 25 police cars.”11 The number of reported pirate attacks remained stubbornly high into 2011 despite the naval presence, leading the House of Commons Foreign Affairs Select Committee to be guarded about the success of naval operations.12
However, focused naval operations were highly successful. The introduction of the Internationally Recognized Transit Corridor, a designated shipping lane along the main shipping route through the Gulf of Aden, allowed naval forces to concentrate their efforts where the volume of vulnerable shipping was highest. NATO and the European Union Naval Force’s focus on protecting U.N. World Food Program (WFP) shipments to Somalia meant that no WFP shipping was attacked once escorts began. Furthermore, naval forces have captured and sent for trial over 1,000 piracy suspects since 2008.13
Piracy Prosecutions
States carrying out enforcement operations have engaged the cooperation of countries closer to Somalia in accepting captured pirates for trial.14 Use of local jurisdictions has been criticized on the grounds that it leads to an inconsistency of procedure and outcome, and that local criminal justice systems lack the capacity to deal effectively with the workload. The latter criticism is partially justified. Many Kenyan piracy trials have been beset by long delays and allegations by suspects of mistreatment while on remand.15
As to inconsistency, in the United States alone two courts in concurrent trials managed to reach opposite decisions upon whether the aforementioned element (a) required an armed robbery and whether the crime of piracy required intention to rob. The inconsistencies were rectified on appeal, where both questions were answered in the negative.16 Worse still, the Kenyan high court ruled in 2010 that its domestic law did not recognize jurisdiction to try international-waters piracy. This decision was a major operational setback.17 The ruling was thankfully reversed on appeal in 2012.18
While there has been variance among decisions of lower courts, appellate decisions in domestic piracy cases have proved remarkably consistent. Accordingly, bilateral arrangements with local countries to receive captured pirates for trial remain the best approach to prosecuting them. The alternative is to transfer suspects back to the capturing country. For countries remote from the scene, this is expensive, time-consuming, and can lead to lengthy time “off task” for the capturing warship.
Where there is no chance of a criminal trial, captured pirates are released and returned to Somalia. Interdicting countries often destroy suspected “piratical” equipment before releasing them and leave them only enough fuel to reach safety. This practice is justified on the basis that UNCLOS article 100 imposes a broad duty on countries to “cooperate to the fullest extent in the repression of piracy.”19 While none would put forward “catch and release” as an ideal solution, it does disrupt pirates’ activities, especially when accompanied by the destruction of their equipment.20
Armed Guards and Private Navies
The shipping industry has developed best management practices (BMPs) including recommendations on self-protection measures for vulnerable vessels.21 These include advice on speed, maneuvering techniques, the use of physical deterrents such as water sprays, and the installation of “citadels,” or strong rooms. BMPs assert that no vessel traveling at faster than 18 knots has been successfully pirated.22
Most controversial (but also most effective) has been the employment of private armed security guards on commercial vessels. There have reportedly been no successful pirate attacks against vessels carrying armed guards.23 Estimates suggest that at least 25 percent of vessels in the Gulf of Aden now employ armed private security contractors even though the International Maritime Organization still does not endorse their use.24
Controversy surrounds the level of force contractors may lawfully use. Under English law, the answer is “reasonable” force in self-defense or law enforcement. What is reasonable will depend on the circumstances, but will rarely include lethal force unless there is an imminent threat to human life that can only be averted by lethal force. However, different countries’ domestic laws have different approaches to this issue. This variance can lead to uncertainty for security guards when their ships enter foreign jurisdictions. However, security companies who undertake to provide this service are well remunerated for doing so and carry this risk themselves.25
Some security contractors have gone further than providing armed guards. Typhon, incorporated in the United Kingdom, offers a “private navy” that it claims operates globally and can fill the gaps where navies are not operating.26
Piracy Lessons
The experience of dealing with Somali piracy allows the following lessons to be drawn:
1. International law permits international operations against piracy in international waters. The mandate provided in the Somalia UNSCRs provided a basis for operations in Somali territorial seas and encouraged broad participation and increased the effectiveness of multinational operations.
2. Focused naval operations have been shown to be effective in reducing piratical attacks.
3. Arrangements with local domestic jurisdictions for the prosecution of pirates are the most effective post-capture procedure.
4. Tactics such as the destruction of piratical equipment can effectively disrupt piracy, even without sending suspected pirates for trial.
5. Merchant ships’ employment of private security contractors has proved highly effective. In addition, BMPs developed in response to Somali piracy will continue to be important first-order prevention measures.
1. The Maritime Executive, “Global Cost of Somali Piracy Down as Higher Security Deters Attacks,” 9 April 2013, www.maritime-executive.com/article/Report-Economic-Cost-of-Somali-Piracy-2013-04-09.
2. NATO Shipping Centre’s Pirate Activity in the High Risk Area, updated 30 April 2013, www.shipping.nato.int/Pages/Piracystatistics.aspx.
3. See http://www.icc-ccs.org/piracy-reporting-centre/live-piracy-map.
4. 1982 UN Convention on the Law of the Sea, article 105.
5. UNCLOS article 101.
6. See United States v Hasan 747 F Supp. 2d 599 (E.D Va 2010) at page 636–7, approved in the U.S. Court of Appeals for the Fourth Circuit in United States v Said 2012 WL 1868667 (4th Cir. 23 May 2012). See further Maggie Gardner, “Piracy Prosecutions in National Courts,” 10 Journal of International Criminal Justice (2012) 797 at 800, 814–6; and David W. Robertson and Michael F. Sturley “Recent Developments in Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits,” 37 Tulane Maritime Law Journal, 492–3.
7. Institute of Cetacean Research (and others) v Sea Shepherd Conservation Society (and others) No. 12–355266 U.S. Court of Appeals (9th Cir. 25 February 2013), 2.
8. UNCLOS article 58(2).
9. UNSCR 1816, paragraph 7 & 9; most recently renewed in UNSCR 2125, paragraph 12 (18 Nov. 2013).
10. HC 1318 “Piracy of the Coast of Somalia,” 5 January 2012, paragraphs 44–47.
11. Douglas Guilfoyle, “Prosecuting Somali Pirates,” 10 Journal of International Criminal Justice (2012), 769.
12. “Piracy off the Coast of Somalia,” paragraph 52.
13. Report of the Secretary General on specialized anti-piracy courts in Somalia and other States in the region, 20 January 2012, 5, www.refworld.org/docid/4f2a604f2.html.
14. “Piracy off the Coast of Somalia,” paragraphs 28–40.
15. James Thuo Gathii, “Kenya’s Piracy Prosecutions,” 104 American Journal of International Law (2010), 432–3 and 435.
16. United States v Said 2012 WL 1868667 (4th Cir. 23 May 2012).
17. Thuo Gathii, 435.
18. Hashi [2012] eKLR, http://kenyalaw.org/CaseSearch/view_preview1.php?link=38656751089581753125617.
19. Gardner, 803–808.
20. “Piracy off the Coast of Somalia,” paragraph 74-76.
21. Best Management Practices for Protection against Somalia Based Piracy (Version 4 – August 2011), www.imo.org/MediaCentre/HotTopics/piracy/Pages/default.aspx.
22. Ibid, 7.
23. www.cimicweb.org/Documents/CFC%20Anti-Piracy%20Thematic%20Papers/CFC_Anti-Piracy_Report_Armed%20Guards%20October%202011_Final_rmb.pdf, 10 Journal of International Criminal Justice (2012), 841.
25. “Piracy off the Coast of Somalia,” 4–5.
26. Jonathan Sibun, “Typhon Fights Back Against Pirates,” The Telegraph, 15 January 2012.
‘Drowning in Data, Starving for Information’
Today I came to work to support naval aviation, just like every other day for the past 27 years. But today is different: The system of my dreams is finally here. It gives me unprecedented views of readiness and cost information on the entire fleet of 3,900-plus aircraft and 20,000-plus engines, 13,000 different types of repairable components, and 138,000 different consumable components, and operates on more than 400 squadrons/detachments all around the world. It gives me all of this information in real time embedded into a single web-based front-end with top-level heat mapping and analysis charting while keeping me connected to the detailed transactional data I need to do proper root cause and analysis. In addition to giving me indications of where to look for trouble, it continually adapts to current readiness and cost challenges, opening a whole new world of predictive analysis and “just in time” logistics support.
As you might have guessed, this system does not exist today.
Understanding the Past
To overcome the complexities of naval aviation data, it is important to understand a little bit about our past. The beginnings of electronically warehousing naval aviation data started with a Secretary of Defense directive in 1962 to develop a maintenance data collection system. However, from the 1960s to the early 1970s, little aviation maintenance, flight, and supply data were accessible.
In 1975, the Naval Aviation Logistics Data Analysis mainframe computer was successfully deployed and started the journey on computer generated analysis. Naval aviation captured aircraft maintenance, flight, supply, and configuration data through a process known as batch processing. Basically, key punchers hand-typed all of the coded information from various source documents into the computers, which stored information on magnetic tapes.
But relatively little access to the data was available to the Fleet. In those days, requests would be forwarded to the Navy Management Systems Support Office in Mechanicsburg, Pennsylvania, and pre-formatted “Yellowbook” reports would be run against the mainframe and forwarded via snail mail to the customer. This process would often take weeks, and typically the data in the reports would be several months old and no longer effective by the time the information reached the customer.
The next logical step was to make computer-generated analysis through standardized reports available at the squadron level and up the chain of command. We did this through the AV-3M micro processing code, a series of computer codes that could run against microcomputers located at data service facilities at all Navy and Marine Corps air stations and produce standard monthly data reports. Analyzing the Fleet through these standardized reports was crucial throughout the 1980s and 1990s but would be insufficient for future challenges.
In the early 1990s the possibility of building top-tier decision-support tools started to become a reality. Decision-support tools such as the Aircraft Engine Management System and the Logistics Management Decision Support System (LMDSS) were designed, tested, and deployed. For the first time, users from anywhere in the Fleet could access the data on any particular squadron or type model series, and critically analyze the entire Fleet without relying on paper reports.
These top-tier warehousing and analysis initiatives were critical in moving us forward but were not going to be adequate for the future. In 2004, the Naval Air Systems Command deployed a teradata- and COGNOS-based system that allowed us to properly warehouse data and bridge the gap to near-real-time information. This system is our authoritative data warehouse for maintenance, flight, engine, and configuration data known as “deckplate.”
Drowning in Data
In 2000, with over 4,500 aircraft, LMDSS contained approximately 38 million maintenance records totaling 300 gigabytes of digital information. Today, even though our aircraft inventory is about 4,000 aircraft, we warehouse over 195 million maintenance records totaling 2.5 terabytes of digital information. The growth is from 307,200 megabytes to over 2.5 million megabytes of information.
But are we taking full advantage of this data? (See Figure 1.) Naval aviation does an outstanding job of warehousing it. The problem lies in its analysis. But how do we move from just facts and knowledge to true intelligence that makes better readiness and cost decisions and provides predictive analytics?
Today, data grow so rapidly that they create many layers of abstraction. The human ability to access this data is relatively stable, but we do not have the top-tier analysis capability to keep pace. Naval Aviation Expertise (NAE) leadership has an insatiable appetite for metrics and information. Like many large organizations the NAE is drowning in data and starving for information. It is estimated the data doubles every 18 months. Extracting meaningful information from this data is increasingly important and time sensitive, but today it is done in very manual and time-consuming stove-piped processes.
The process of turning data into information can be summarized as the process of determining what data are to be collected and managed, and in what context. Turning information into intelligence is where the big payoffs will happen. A systematic and disciplined approach like business intelligence (BI) can help the NAE find these critical pieces of knowledge. Simply stated, a BI architecture that combines products, technology, and methods aimed at key NAE business processes can help to effectively distribute data.
Closing the Gap
The only way to close the data analysis-to-intelligence gap is to build better collaborative analytical IT systems and bring higher levels of analysis education across the Fleet. The time and cost necessary for developing and deploying a much needed system of systems is the biggest problem. Like many other large scale organizations, the NAE is faced with trade-off decisions on software development because of constrained budgets. Large BI analytical IT development may be losing out to software requirements for transactional systems, which keep the organization running. However, by working together with a focused approach we can achieve true intelligence and prepare our Fleet of sailors, Marines, and weapon systems for the fights of the future.
Mr. Talbert is the lead readiness analysis contractor support working for OPNAV N43 in the Pentagon. Also a 20-plus-year career AZ, he currently is working with N431/N432 on Surface/Aviation Readiness, Joint Service Readiness, and Congressional Readiness Reporting.
Ms. Kirk is the Special Advisor for Defense Programs for Veracity Forecasting and Analysis. She started her career in the Navy as an AZ becoming the aviation data analyst for Commander, Naval Air Pacific and for the Chief of Naval Operations Resource and Analysis department.
Response: The Key to Sexual Assault Prevention
Sexual assault is a tragedy. It wrecks lives, devastates morale, and can severely diminish the warfighting capability of any unit. The most alarming statistic comes from a recent Pentagon report and is frequently cited: “Despite the estimated 26,000 incidents of unwanted sexual contact in 2012, only 3,374 were actually reported.” The near-constant presence of military sexual assault cases in the media has led to increased pressure on military leaders from their civilian overseers, which has been translated into several mandatory, Navy-wide sexual-assault-prevention videos, discussions, and focus groups over the past year. This is all in addition to the already-present grassroots efforts of unit-level Sexual Assault Prevention and Response (SAPR) leaders.
The crux of recent efforts—from Congress down to unit-level leaders—has been centered on the concept of prevention. However, if we are truly serious about preventing sexual assault, we must recognize that our ability to respond is as important as our efforts to prevent. Indeed, the two are inextricably linked.
History of the SAPR Program
The Navy’s SAPR program is responsible for the regular training and oversight of all naval personnel regarding the issue of sexual assault. Originally created as Sexual Assault Victim Intervention in 1994, the Navy formally adopted DOD standardization in 2006, fully incorporating prevention efforts into the program and adopting the SAPR moniker.
For more than two decades, the Navy has led the military in the scope and creativity of its prevention efforts. No private or corporate initiative in the civilian realm compares to Navy SAPR, with the exception of large multinational groups such as the Rape, Abuse and Incest National Network and the National Organization for Victim Assistance (NOVA). On Naval Station Norfolk alone, there are nearly 1,000 victim advocates—volunteers who assist victims through the emotional aftermath of a sexual assault.
A recent NAVADMIN message requires SAPR victim advocates to achieve NOVA’s stringent civilian qualifications and annual refresher training. Sexual assault response coordinators (SARCs) are civilian employees and experts on sexual assault response who guide commands and victim advocates through the process of responding to incidents of sexual assault.
Reporting Methods
SAPR has established two reporting methods. In unrestricted reporting, a victim may report his or her sexual assault to anyone in the chain of command, a victim advocate, SARC, chaplain, or medical personnel. Victims will be offered or may request a specific victim advocate to guide them through the reporting process and help them receive the medical and other services they are entitled to. Only those in the chain of command with a legitimate need to know will be informed of the report. Navy Criminal Investigation Services (NCIS) will be notified and initiate an investigation. In all instances, reports are confidential.
In restricted reporting, victims may only report their sexual assault to a victim advocate, SARC, chaplain, or medical personnel. As in unrestricted reporting, victims will be offered or may request a specific victim advocate to guide them through the reporting process and help them receive the medical and other services they are entitled to. However, the chain of command will not be notified of the specifics of the incident—only that there is a restricted report in their command. Commanders are not authorized knowledge of the case or the victim’s name. No investigation will be launched, and all reports are completely confidential.
Victims may elect to change an initial restricted report to an unrestricted report, thus notifying their chains of command and initiating an investigation. However, an unrestricted report can never become a restricted report.
NAVADMIN 195/12 removed investigative responsibilities (initial disposition authority) from a victim’s commanding officer to the O-6 Special Court-Martial Convening Authority (SCMCA) level. This means that, for sexual assault cases, a commanding officer’s only responsibilities are confidentiality and maximum support to the victim.
Conflict
If leadership cannot appropriately respond to incidents of sexual assault, how can sailors feel confident reporting these incidents in the first place? If sailors do not feel confident in reporting, how can we stop perpetrators from freely committing such heinous acts? If we are powerless to deter offenders, how can we begin to prevent sexual assaults from ever occurring?
There were approximately 23,000 victims of unwanted sexual contact in 2012 who did not report their incidents. The most frequent reasons provided for their decisions were: “I did not want anyone to know,” “I do not feel comfortable making a report,” and “I do not think my report will be kept confidential.” More than anything, these justifications reflect a failure of leaders to inspire confidence in their ability to effectively respond to sexual assault when it happens.
Resulting from this failure to respond is perhaps the most damning statistic of all. According to the Sexual Assault Prevention and Response Office’s report on iscal Year 2011 sexual assaults, nearly 90 percent are committed by repeat offenders. This is a serious shortcoming, but one that we can take immediate action to correct.
Command Leadership Drill
In March 2013, the SAPR team at VAW-124—a carrier-based E-2C squadron of approximately 160 sailors—created, developed, and implemented a “command leadership drill” to gauge the ability of the leadership triad—commanding officer, executive officer, command master chief—to effectively respond to an alleged sexual assault case in the command.
Using victim advocates as actors, the commanding officer was informed that “this is a drill” and was approached with the following scenario: One of the sailors in your command believes she has been sexually assaulted and has confided this to two of her closest friends in her division. One of them is a victim advocate; the other is not. The victim has not yet approached anyone else, but one of her confidants informs the CO out of a sense of duty to report the assault and get his friend the support and protection she deserves.
In order to organize their initial response to these incidents, commanding officers typically employ a detailed checklist to guide them, step-by-step, through each duty required of them. However, there is no checklist to prepare commanders for the emotional impact a sexual assault report will have on their own psyche. The ability to mitigate this factor will largely determine how effectively a commander is able to respond to such an incident.
Administrative duties are secondary to the command’s duty to the victim. Creating and delivering a voice report or situation report (SITREP) to higher headquarters should never prevent a command from ensuring the victim’s safety or access to appropriate services. This “victim first” mindset must be established before a sexual assault case ever occurs.
The VAW-124 scenario allowed the SAPR team and command triad to test their response checklist. Some of the most important considerations were verifying accurate phone numbers for the judge advocate general, NCIS, SARC and chain of command; determining the most appropriate SITREP type to send in each instance of sexual assault (either Navy Blue or Navy Unit); and how best to fill out the required SITREP in a way that does not provide any identifying information about the victim.
To measure their performance, VAW-124 invited a local SARC to gauge their progress and the appropriateness of their actions. The SARC was able to interject best practices and correct deficiencies, significantly improving the response process.
No experience can fully prepare a commander to deal with a real-life sexual assault case. However, practicing a command’s response and—most important—sharing lessons learned with the rest of the command can go a long way in securing the confidence of all sailors in SAPR response confidentiality and proficiency.
SAPR Intervention Roundtable
Ineffective communication can fail even the best planned missions. In sexual assault cases, it can have dangerous, long-term effects on both victims and the confidence of sailors in the reporting process. Over the course of a sexual assault case—including investigation and immediate medical support—a victim and command will interact with a plethora of individuals. Rather than waiting for an event to occur for all of these players discuss expectations, an annual “SAPR Intervention Roundtable” can establish early positive relationships.
Suggested attendees are as follows: command SAPR victim advocates, CO/XO/CMC, SARC, local medical personnel, chaplain, local JAG representative, local Naval Criminal Investigative Service representative, Summary Court-Martial Convening Authority representative, and SITREP/voice report representative (Fleet Battle Watch Captain or other as required).
These players should discuss, step-by-step, every aspect of a sexual assault case. Additionally, it may be beneficial to further inspire confidence in the process by inviting the entire command to observe the roundtable, ask questions and affirm the dedication of commanding officers to confidentiality and care in responding to sexual assault.
The Way Forward
As a CO in a unit with a sexual assault case, you are not the prosecutor or adjudicator. You are not determining the facts of the case nor gathering evidence. Your most important function is to ensure that the victim is safe, has a victim advocate at his or her disposal, and is getting the services he or she desires.
In order to prevent sexual assaults, we must prove that all commands can respond to them appropriately, without prejudice and with a “victim first” mentality. With confidence in the reporting process, more victims can feel comfortable coming forward to report incidents of sexual assault. With stronger confidence and better reporting, we can finally stem the tide of sexual assault in our Navy.