When assessing new strategies and approaches to anti-piracy operations, one has to resist the temptation of adopting a “nothing works”-approach. Indeed every policy employed by the international community against piracy off the coast of Somalia has so far been subjected to legitimate criticism. When the Council of the European Union decided to extend the ATALANTA mandate geographically to include Somali land territory and internal waters on the 23rd of March 2012 (Council Decision 2012/174/CFSP), again this new approach was greeted with criticism and concern by commentators of various backgrounds. It is important to highlight what the Council actually decided: it intends for the ATALANTA forces to disable skiffs, arms, gas supplies and other infrastructure of the pirates on shore. It does not however envisage boots on the ground of Somalia. A controversial debate is now ongoing regarding this decision. Some levelled the charge of illegality under international law, some highlighted strategic deficiencies of the EU’s decision (see Archer 2012). This brief seeks to address some of the criticism and develop an understanding of the decision’s consequences.
Concerning the international legality of the new mandate, which still needs to be sanctioned by parliaments, amongst them the German Bundestag, several aspects seem to be the topic of criticism. A logical first challenge against such operations is the sovereignty of the state in which the operations are conducted. While Somalia is popularly categorized as a failing state, this does not mean it lost its sovereignty (Thürer 2009, para. 12). Despite this, no criticism of the new mandate on the basis of Somali sovereignty has a foundation in international law. First, the Transitional Federal Government of Somalia (TFG) consented to operations on land in general (see SC Resolution 1851, UN Doc. S/RES/1851, op. para 6; Schaller, p. 68 et seqq.; Treves (2009), 406 et seqq.) and to the case at hand, the widening of the ATALANTA mandate (see Council Decision 2012/174/CFSP, preambular para. 9 et seq.). Second, to make assurance double sure, the Security Council explicitly allowed operations on shore for the first time in Security Council Resolution 1851, although subject to the consent of the TFG: “for a period of twelve months from the date of adoption of resolution 1846, States and regional organizations cooperating in the fight against piracy and armed robbery at sea off the coast of Somalia for which advance notification has been provided by the TFG to the Secretary-General may undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea, pursuant to the request of the TFG, provided, however, that any measures undertaken pursuant to the authority of this paragraph shall be undertaken consistent with applicable international humanitarian and human rights law” (SC Resolution 1851, UN Doc. S/RES/1851, op. para 6, emphasis added, see also Treves (2009), 404). This authorization was renewed on the 22nd of November 2011 by SC Resolution 2020 (UN Doc. S/RES/2020 (2011)) for 12 more months. A challenge against the legality of the new mandate on the basis of Somali sovereignty therefore fails.
Objections may also be raised concerning the actions allowed by the new mandate themselves. There has been some confusion on this point and media jumped quickly on a statement made by Reinhard Bütikofer, Vice-President of the Greens/EFA group in the European Parliament, allegedly labeling the new mandate illegal under international law by saying it would be illegal to shoot Somali pirates posing no immediate threat (Bütikofer (2012)). These allegations may lead us to examine the legal background a little further, although they prove to be unconvincing at the factual level already, since Bütikofer merely states targeted killings would be illegal under the circumstances, a measure the new mandate is not seeking to adopt. As a starting point, it is important to assess which legal regime is applicable to counter-piracy operations on land. Human rights will generally apply. However, humanitarian law, if applicable, prevails as lex specialis (ICJ, Nuclear Weapons Case, para. 25; Dederer (2010), para. 5). In Somalia there is a non-international armed conflict ongoing (Neumann/Salomon (2011), 166 et seq.; Alasow (2010), 133 et seqq.). As such, the humanitarian law of non-international armed conflicts generally applies. The UN expert on the situation of human rights in Somalia Mona Rishmawi stated already in 1999: “international humanitarian law relating to noninternational armed conflict applies in the whole territory of Somalia, irrespective of whether a specific area is engulfed in active fighting or not.” (UN Doc. E/CN.4/1999/103 of 18 February 1999, para. 33). Yet it is important to stress that an important focus of this legal regime is personal not geographical. While the determination of an existing armed conflict needs geographic borders, within those borders the right to operate against the enemy only applies to the State and non-State actors who are parties to the conflict, while other parties that are taking no active part in the hostilities have no such right and are subject to protection under international humanitarian law (see common Art. 3 of the 1949 Geneva Conventions). Consequently, human rights law remains as a yardstick of actions pursuant to Resolution 1851 and the new ATALANTA mandate as such. In this regard, the clear intention of the mandate seems to be to enable the EU forces operating off the coast of Somalia to disrupt pirate logistics by targeting pirate paraphernalia. It is not the intention of the EU to target pirates themselves by airstrikes, so questions surrounding targeted killings as law enforcement measures do not need to be addressed here (for this see Schaller (2012), 20 et seqq.). While mere property falls under the protection of certain human rights treaties, it is by far not universally protected, being outside the scope of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights due to ideological disputes in the mid 1960s (Kriebaum/Reinisch (2009), para. 7). Admittedly, this does not mean that the right to property should not be regarded in counter-piracy operations at all, but the standard for justification of interference with property rights will not be prohibitive in these constellations (in general Kriebaum/Reinisch (2009)). It is most likely that operations to disable pirate equipment will regularly fulfil this standard, as they are not arbitrary infringements and will generally meet proportionality requirements. A remaining question regards casualties. While the EU has committed itself to the protection of life by intense military reconnaissance and by using precise weaponry in conducting the operations, it is an unfortunate fact that the occurrence of human harm can never be precluded entirely. Such harm may affect the legality of the specific action by which it is caused. In this regard, there may be investigations by the authorities of the acting states. However, it is quite clear that such an event will not affect the legality of the new mandate itself, although it cannot be stressed enough that the forces should do everything in their power to prevent loss of life and the occurrence of harm in general from happening.
While the legal analysis proves to be favorable to the widened mandate, the strategic assessment turns out to be less enthusiastic. It is by now common knowledge that pirates will adapt their tactics to new approaches by the counterpiracy forces. The recent years have been testament to this fact: attacks by multiple skiffs as an answer to evasive maneuvers and private security, rising brutality against hostages in response to prolonged ransom negotiations, the use of hostages as human shields on motherships to prevent attacks by the counter-piracy forces, the list goes on and on (see also Petretto (2012), 29 et seq.). Consequently, it seems likely that the pirates will adapt to the new mandate as well e.g. by using human shields, or relocating to safer ground - by moving inland. Such relocation will certainly ensue should the details of the new mandate, the operation plan or the mandates of the national parliaments become public. Unfortunately, it seems as if the German Bundestag will only decide on a mandate when it publicly specifies the maximum distance the German forces are allowed to go inland under the new ATALANTA mandate. This makes relocation a very efficient option for Somali pirates and is to be regretted, especially because the European Union has fought hard to keep these specifics secret during the negotations, because of the obvious adverse implications a public disclosure would have. However, these well-founded fears and the flexibility of the pirates should not prevent the realization of the new mandate. As stated in the introduction, a “nothing works”-approach would be nothing less than a capitulation of the international community to criminal gangs. Depending on how it will be implemented, the new mandate will contribute to putting a higher pressure on the pirate networks. Seeing that Somali piracy aims at maximizing profit, the abstract pressure posed by military forces able and willing to operate against piracy on shore and certainly the destruction of logistics and supplies will affect the cost-benefit calculation of the pirates (Ehrhart/Petretto 2012: 32 et seqq., 47). In conclusion, while the new mandate has strategic drawbacks, it will in specific instances enable the ATALANTA forces to do what needs to be done in order to disrupt pirate activities where they emanate from.