Insight: What is piracy?

Piracy and what it entails is one of the most confusing concepts or illegal acts about which every person has an opinion. Needless to say that some opinions are based on perception or on the “romantic or fearful” recollections of childhood reading. The “Pirates of the Caribbean” may also have an influence on these views.

For a basic understanding it is best to keep the approach very simplistic as a comprehensive understanding of piracy requires a considerable legal background.

Piracy is defined in Article 101 (a) to (c) of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) as follows:

“Piracy consists of the following acts:

a)       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 private aircraft, and directed:

                     i.            on the high seas, against another ship or aircraft, or against persons or property onboard such ship or aircraft;

                   ii.            against a ship, aircraft, persons or property in a place outside the jurisdiction of the state;

b)       any act of voluntary participation in the operation of a ship or aircraft with knowledge of facts making it a pirate ship or aircraft;

c)       any act of inciting or of intentionally facilitating an act described in subparagraphs (a) or (b).”

With a definition like the above at play interpretation becomes important. Without becoming too complicated, the key elements of piracy appear to be

·         The act must be for private gain and must be committed by persons operating from a private ship/aircraft.

·         It must be directed against another ship/aircraft or the property of persons onboard.

·         The act must take place on the high seas outside the jurisdiction of any state. Broadly speaking the act must take place outside “territorial waters” as defined in UNCLOS Article 3. This is probably the element that creates most of the confusion.

Two simple examples could serve as an illustration.

In the first example “A” is an item aboard a merchant ship at anchor in Table Bay. Persons in a speed boat approach the ship, go on board and remove A from the upper deck. They return to shore and the following day sell A and use the proceeds for their own ends.   

This does not constitute an act of piracy because the act of removing A did not take place on the high seas or outside the jurisdiction of the South African state. It is, therefore, an act of theft which in this case could be classified as a maritime crime because it took place at sea.

In the second example a merchant ship sails past Cape Town about 20 nautical miles off shore. The same persons in a speed boat approach the ship, go on board and remove the same object “B” from the upper deck. They return to shore and the following day, sell B and use the proceeds. 

This does constitute an act of piracy because the act of removing B took place on the high seas outside the jurisdiction of the South African state.

According to Article 100 of UNCLOS “all states shall cooperate to the fullest possible extent in the repression of piracy on the high seas or any other place outside the jurisdiction of any state.”

One can, therefore, say that the responsibility to combat piracy belongs to no state in particular but rather to all states that have the means to do so.

Combating piracy in ones own proximity needs a holistic approach. Three areas need to be considered:

·         A comprehensive intelligence system that combines information from all sources e.g. satellite, air, surface, subsurface, coastal and ports is vital. In South Africa the source systems for the mentioned information are located in different national departments. This calls for a comprehensive coordinating mechanism that is free of inter-departmental jealousy.

·         Anti-piracy operations should preferably not only be reactive but must include proactive operations. Based on reasonable intelligence selective ship boarding should be conducted to act as a deterrent. Operations, both proactive and reactive must be based in comprehensive standing operating procedures and under comprehensive rules of conduct and engagement. UN guidelines in this respect are currently sadly lacking. Because of the nature of piracy it is logical that the South African organisation that must be charged with its combating will be the SA National Defence Force. Preparation for and execution of these operations should therefore not require comprehensive inter-departmental co-ordination.

·         Pirates need means with which to operate. The most important of these is probably a safe “base” of operations. Such base(s) must be denied to the prospective pirates through the already mentioned intelligence system including appropriate police action. At the same time one needs to realise that pirates may use a “sea basing” concept where their “land base” is in a different country.

Whether South Africa should send a ship(s) to the Horn would depend on many factors.

Firstly, from an UNCLOS point of view it would be perfectly legal to do so. South Africa would be seen to contribute to the international effort of fighting piracy raising its international esteem.

The SANDF, through the SA Navy, SA Air Force and Special Forces, will gain valuable experience. The lessons learnt in that way would be invaluable when drawing up or updating standing operating procedures for anti-piracy operations conducted from SAN vessels.

South Africa`s readiness to fight piracy in its own proximity or that of its neighbours will be significantly enhanced.

Lastly, the financial implications of doing so need to be weighed up against all the SANDF operational priorities.

The emphasis should be on operational priorities and a fine balance needs to be struck between the financial burden on Joint Operations and on the operating budget for force preparation.

It is not a question of “if” but rather of “when” piracy will become a reality in the proximity of South Africa.

The manifestation will probably be one where pirates operate from other countries or where they use the concept of “sea basing”. In the former case piracy will probably occur primarily in the north-east while the latter could manifest itself in any area around South Africa. It is reasonable to believe that pirates will probably choose the areas where risk and reward is optimally balanced.

The question to be asked is whether South Africa is ready to confront a potential piracy threat. Departing from the holistic approach mentioned above the following is applicable:

·         It appears as if a reasonable anti-piracy intelligence capability exists as a subset of the overall national intelligence capability. Whether a suitable national coordinating mechanism that is able to extract and make available the applicable piracy related intelligence exists is debatable.

·         Anti-piracy operations must be centred in the SANDF. The following is applicable:

o        With the frigates and submarines (covert intelligence gathering) the SAN is well equipped for anti-piracy operations in the international cooperation environment i.e. the Horn of Africa and, to a lesser extent, the Gulf of Guinea. More purpose built vessels like offshore patrol vessels (OPVs) would however be more effective, efficient and economic for the Southern African environment. With a high probability of sea based piracy such vessels need to have a minimum size and endurance. OPVs will not only be more cost effective but could also used in a number of other tasks like the protection of assets in the EEZ, search and rescue etc. This will allow the frigates to fulfil their primary tasks like conventional force preparation to sustain a credible deterrence, naval diplomacy etc.

o        In terms of helicopters the SAAF needs to be able to deploy the same number of helicopters as the SAN would deploy ships. At the moment this is possible but it could become a challenge once the SAN acquires OPVs. A significant gap does, however, exist in terms of long/medium range maritime patrol aircraft.

o        The combined capability of South Africa`s Special Forces and the Maritime Reaction squadron should be adequate for envisaged anti-piracy operations. It is, however, important that standard operating procedures are in place and regularly exercised.

·         Backed by good intelligence the SAPS should be in a position to deny potential pirates the ability to operate from bases in South Africa. This could ease the burden of the SANDF as it will only have to concern itself with piracy originating from countries other than South Africa and with those using sea bases.

To conclude, piracy in the true sense of the word will remain obscure to most. In many cases confusion between piracy and maritime crime will remain. South Africa, through the SANDF, has an international obligation to fight piracy and should be seen to do so.

Although the SANDF has the capability two strategic gaps, i.e. OPVs and maritime patrol aircraft, exist. Furthermore, like in many other cases, inter departmental cooperation or coordination will be critical if South Africa wants to keep this scourge away from our immediate proximity.
Hauter is CE of MMAGS Consulting and was the SA Nationl Defence Force’s Chief Director Strategy before retiring.