Gwynne Dyer: Insurers' anti-piracy force drop in ocean

The good news is that something is finally going to be done about the pirates who infest the Somali coast and raid far out into the Indian Ocean.

A group of London-based insurance companies led by the Jardine Lloyd Thompson Group (JLT) is planning to create a private navy to protect commercial shipping passing through the Red Sea and the north-western Indian Ocean.

It's about time. Even now, after the monsoon season has kept the pirates relatively quiet for months, 16 ships and 354 sailors are being held captive in the pirate ports along the Somali coast.

The average ransom paid to free those ships and their crews has risen to around $4 million, and it's also taking longer - an average of almost four months between the hijacking of a ship and its release.

It's the maritime insurance companies that pay the ransoms, and they are deeply unimpressed with the performance of the warships from various Nato and other nations that are patrolling the region. Even when the warships do catch some of the pirates, they often let them go again because they are operating under severe legal constraints.

So a fleet of 20 fast patrol boats crewed by well-armed mercenaries could be just what the doctor ordered. Unhampered by the legal considerations that paralyse the navies, they could just kill the pirates wherever they found them and dump their bodies into the sea.

True, this would deny them the privilege of a fair trial, but that's not really necessary. The crime is being a pirate, not some specific act of piracy, so you don't have to catch them in the act.

When you find men hundreds of kilometres from shore in an open boat, equipped not with fishing gear but with automatic weapons and ladders to scale the sides of passing ships, there is really no room for argument. They are pirates.

The bad news is that this is not what the insurance companies are planning to do at all. Instead, this private navy would operate under the direct control of the international naval force that is already in the area, with "clear rules of engagement valid under international law". What a pity. That's exactly what is crippling the navies.

"We would have armed personnel with fast boats escorting ships, and make it very clear to any Somali vessels in the vicinity that they are entering a protected area," JLT senior partner Sean Woollerson told the Independent newspaper in London.

In other words, if you have insured your ship with JLT or its associates and paid the anti-piracy insurance premium (up to $450,000 per voyage for a supertanker), then you will be escorted by this private navy.

The pirates, not being complete fools, will just go and attack other ships instead. (JLT and its associates insure about 14 per cent of the world's commercial shipping fleet).

There is still no actual plan to get rid of the pirates.

How can it have come to pass that we have a major pirate problem in the 21st century. They sorted that out in the early 18th century. Why has it got unsorted again? Blame international law. When they were codifying the law of the sea back in the 1970s, the world had no pirate problem worth talking about.

So they dropped the rule of "universal jurisdiction" that had been the key to suppressing piracy in the bad old days.

"Universal jurisdiction" meant that every navy could arrest suspected pirates of any nationality and try them under its own national laws, since pirates had been defined as "the enemies of all mankind".

A British warship could arrest Portuguese pirates off some Caribbean island belonging to the Netherlands, and they would be tried under British law.

If they were captured in battle, they could be summarily executed.

That's how piracy was wiped out in the first place. But when they were writing the United Nations Convention on the Law of the Sea in the 1970s, there were no pirates any more, so they dropped the rule of "universal jurisdiction" in favour of a legal regime more attuned to modern notions of human rights and national sovereignty.

What has replaced those old rules, in practice, is a legal quagmire where you can never be sure who has legal jurisdiction. So the navies (which could easily suppress the piracy if they were free to act) refrain from using force, and are reluctant even to arrest people at sea who are quite obviously pirates.

To extinguish piracy again, we need a modernised version of the old rules.

That requires prompt action to create a comprehensive international agreement that gets around the Law of the Sea - tricky, but that's what diplomats get paid for.

And if we got such an agreement, we wouldn't even need private navies - the regular navies would be happy to do the job.

There is one other issue, of course. If we use serious force against the pirates, they will threaten to use force against their captives.

Some of them might be killed. But since there will never be a time when there are no captives in the hands of the Somali pirates until and unless we crack down hard, that is a risk that we just have to take.

* Gwynne Dyer is an independent journalist based in London.