| by Dr. Ruwantissa Abeyratne
(November 23, Montreal, Sri Lanka Guardian) This article is written in the aftermath of a recent event in Sri Lanka on maritime security.
Transportation has become an increasingly global network that enables the carriage of people and freight across the globe. It has been claimed that the most important element of international trade is the maritime trade and that it is a vital driver of the world economy. It is vital, therefore, that stringent measures are taken to counter acts of unlawful interference with this area of transport. The threat against the security of maritime transport is growing. What is alarming is the evolution of the nature of threats and the unpredictability of their nature and occurrence. Blaise Pascal, in his book Ars Cogitandi states that fear of harm ought to be proportional not merely to the gravity of the harm but also to the probability of the event. It is also a fact of risk management that, under similar conditions, the occurrence (or non‑occurrence) of an event in the future will follow the same pattern as was observed in the past. Based on these premises one is confronted with the terrifying possibility that there could be a nuclear 9/11 sometime in the future.
The word “security” in the transportation context has not been defined. From a maritime perspective, security has many meanings ranging from the protection of territorial integrity in a military sense against armed attack to ensuring the freedom of navigation, the flow of commerce and the protection of ocean resources as well as protecting maritime interests from threats posed by piracy, drug trafficking and environmental destruction.
From a maritime context, the act of terrorism could be applied to acts of piracy; acts of violence of a general nature not necessarily confined to piracy against a ship, its crew or passengers; acts using a ship as a weapon of destruction against navigational and public safety; acts of sabotage using the high seas or territorial waters of a nation to support and sustain terrorism; using the sea as a platform to launch attacks against States, persons or property; and transport of weapons over the seas for terrorism purposes. From an aviation perspective, these definitions can be used to describe acts which unlawfully interfere with civil aviation, including hijacking of aircraft; using aircraft as weapons of mass destruction; destruction of aircraft whether in-flight or on the ground; unruly conduct on board an aircraft which is calculated to endanger the flight or to cause death or bodily injury to persons or property; and acts of sabotage.
The adoption of the 2005 Protocol to the Convention for the Suppression of Unlawful Acts (SUA) Against the Safety of Maritime Navigation, otherwise known as the Rome Convention which was adopted in 1988, shares commonality with air transport. Both the Protocol and the Convention prohibit a wide range of offences at sea such as: killing or injuring persons; seizure or taking control of a ship by threat or force; and performance of an act of violence against a person or persons on board a vessel calculated to endanger the safe navigation of the vessel. Of particular relevance is Article 3 bis introduced by the Protocol which stipulates that a person commits an offence within the meaning of the Convention if that person unlawfully and intentionally commits one of the acts listed in the Protocol, if the intent and purpose of that act is to intimidate a population or to compel a government or an international organization to do or abstain from any act. The acts listed in the Protocol, most of which may apply to aviation security, create a useful precedent for aviation lawyers if they were to list acts that constitute unlawful interference with civil aviation. Some of these acts are: using against or on a ship or discharging from a ship any explosive, radioactive material or biological, chemical or nuclear weapon in a manner that causes or is likely to cause death or serious injury or damage; discharging from a ship oil, liquefied natural gas, or other hazardous or noxious substance, in such quantity or concentration that causes or is likely to cause death or serious injury or damage; using a ship in a manner that causes death or serious injury or damage; transporting on board a ship any explosive or radioactive material, knowing that it is intended to be used to cause, or in a threat to cause, death or serious injury or damage for the purpose of intimidating a population, or compelling a government or an international organization to do or to abstain from doing any act; transporting on board a ship any biological, chemical or nuclear weapon, knowing it to be such a weapon; and transporting on board a ship any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a biological, chemical or nuclear weapon, with the intention that it will be used for such purpose.
The Secretary General of the United Nations acknowledged in 2008 that there is no specific definition of “maritime security” but identified seven activities that endanger maritime security: piracy and armed robbery against ships; terrorist activity involving shipping, off shore installations and other maritime interests; illicit trafficking in arms and weapons of mass destruction; illicit trafficking in narcotics and psychotropic substances; smuggling and trafficking of persons by sea; illegal fishing and intentional and unlawful damage to the oceanic environment. With regard to air transport, the United Nations Security Council, in 1985, adopted Resolution 635 which states inter alia that the United Nations condemns all acts of unlawful interference against the security of civil aviation; calls upon all States to co-operate in devising and implementing measures to prevent all acts of terrorism, including those involving explosives; and welcomes the work already undertaken by the International Civil Aviation Organization, and by other international organizations, aimed at preventing and eliminating all acts of terrorism, in particular in the field of aviation security.
There is simply no doubt that an act of piracy is an act of terrorism. Disturbing trends off the coast of Eastern Africa, particularly starting from 2008 and mostly affecting the Gulf of Aden and the coasts off Kenya and Somalia in the Indian Ocean, portend an ominous threat for maritime security. It is reported that in 2008 the International Maritime Organization recorded 121 pirate attacks on merchant vessels globally 34 of which were off the Eastern seaboard of Africa and 17 in the Indian Ocean region. The seizure of the Sirius Star in November 2008 off the coast of Mombasa, Kenya drew world attention, particularly since a cash ransom of $3 million was paid to the pirates for the release of the ship. During the same period 14 ships were being held along with 268 hostages.
Waters off the Indian Ocean coast of Somalia have proved to be a dangerous area that threatens the shipping industry with acts of piracy. Somali waters have far overtaken traditionally dangerous areas such as the Straits of Malacca in the South East Asian, the waters of Nigeria and Iraq with the recent spate of piracy off the Somali coast. The pirates carry out daring acts of stealing goods or food aid with the use of speedboats, frequently extending their illegal activity to impounding ships for ransom.
The advantage maritime transport has over other modes of transport is that it carries large volumes of energy, food, precious metals and consumer goods. Although the biggest threat to maritime security is the smuggling of goods and people, piracy has raised its head, making the basic assumption that terrorist interference is rare in maritime transport a thing of the past. It is reported that since 1968, there have been 162 maritime incidents that can be associated with terrorist acts.
The biggest problem associated with responding to terrorism is that often, accusations of terrorism are met not by a denial of the fact of responsibility but by a justification for the impugned actions. This obfuscates the issue and makes what constitutes “terrorism” highly contentious and controversial. When some who perform acts of violence justify their acts as espousing a cause and expressing their right of self-determination and the resistance to an oppressive and totalitarian regime, and some societies condone or agree with such an interpretation, it becomes increasingly difficult to establish global consensus on terrorism.
It has been suggested that concise and direct action, even deadly force, must be employed to deter piracy. The development and implementation of a coherent tactical response to maritime terrorism is necessary, where forces have to be trained. This has to be done holistically and not in a fragmented manner which would focus only on any one type of transport. The concerned bodies of the United Nations must get together to address maritime, air and surface transport on the valid basis that the threats faced by all three modes of transport are common and adopt basic standards for cargo, passenger, baggage and document screening. Above all, these standards should arm the UN bodies with enforcement powers and require them to establish joint security intelligence centres. Therefore, although it is quite evident that the world community has diligently addressed threats that confront transportation security, it is evident that much needs to be done; both on a pre-emptive and preventive basis and that the success of measures taken to counter this threat would mostly depend on the political will of States.
The author is a senior professional at the International Civil Aviation Organization