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EU NAVFOR: Countering Piracy in Somali Waters

Commentary, 21 November 2008
International Institutions, Maritime Forces
The European Union is set to launch its first naval operation off the coast of Somalia. A number of operational and legal challenges will have to be confronted.

The European Union is set to launch its first naval operation off the coast of Somalia. A number of operational and legal challenges will have to be confronted.

By Bjoern H Seibert, Research Fellow, Massachusetts Institute of Technology (MIT) and Visiting Fellow, RUSI.

Following a recent spike in piracy activity, the European Union is set to launch a naval operation to counter piracy off the coast of Somalia. The significance of the Gulf of Aden as one of the world’s most important sea lines of communication (SLOC), and increased pressure by the merchant navy together with public opinion has galvanised political will within the EU to put up a joint effort to launch the operation.

Overview of the Operation

Known as EU NAVFOR Somalia, the operation will be based on UN Security Council resolution 1838, which encourages the international community to address the piracy problem. The operation’s objective will be to conduct naval surveillance in Somali waters and protect merchant ships (including those of the World Food Programme) by deterring acts of piracy, and if possible, capturing perpetrators of such acts.

The EU flotilla is expected to be made of up to six ships and three fixed-wing observation aircraft. The operational commander will be British Rear Admiral Philip Jones who will be based out of the operational headquarters (OHQ) in Northwood (United Kingdom), while the force commander, the Greek Commodore Antonios Papaioannou, will be based in theatre. The operation is to be launched by December 2008, and is planned to last one year. EU NAVFOR will replace the currently deployed two frigates (the British HMS Cumberland and the Hellenic HS Thermistocles) and destroyer (the Italian Luigi Durand De La Penne) of the Standing NATO Maritime Group II (SNMG2).

Operational Challenges

An analysis of the core military operational factors – namely space, time and force – and their impact upon capability, operations and tactics will highlight the operational challenges that EU NAVFOR will face.

Space

Given the regional/neighbouring states’ effective inability or unwillingness to contribute to the fight against Somali piracy, naval operations will have to cover a sizeable area, which will likely include a large part of Somalia’s remote 2,300 nautical mile long coastline. The area of operation will be near the Red Sea, in the Gulf of Aden, in the Indian Ocean and in the vicinity of the Seychelles. The Gulf of Aden, a key area affected by piracy, is one of the world’s busiest waterways with some 20,000 ships passing through each year.

Time

The speed with which the pirates operate – attacks generally last less than twenty-to-thirty minutes – leaves a very limited window of opportunity to respond. An important force-multiplier will be ship-borne rotary-wing aircraft, which would allow rapid reaction over a larger area, as the Djibouti-based fixed-wing aircraft could take hours to arrive to the scene of attacks. Pre-emptive action will be significantly complicated by difficulties distinguishing between pirate and fishing vessels.

Force

There are still uncertainties about force-size and make/mix of the forces. As described above, the EU Task Force is expected to comprise five or six ships and three fixed wing aircraft. Currently, five countries have expressed their willingness to send a ship: France, the United Kingdom, the Netherlands, Germany and Sweden. It is as yet unclear which nations will be providing the other vessels. There is also little information about who would provide fixed-wing observation aircraft, which will probably be based in Djibouti. Despite these early pledges, force generation could still be difficult, given the current state of European navies.

The relations with Combined Task Force 150 (CTF 150) will also be important. Commanded out of the US 5th Fleet headquarters in Bahrain, CTF 150 recently established a security corridor (known as Maritime Security Patrol Area, or MSPA) in the Gulf of Aden which it patrols. Initial reactions in Bahrain towards the EU’s counter-piracy plans have been cold, for fears that the EU Task Force would reduce European commitment to CTF 150. In order to reduce tensions with CTF 150, the EU agreed to take over the patrols of the MSPA and thereby free up CTF 150 assets.

In sum, the combination of a vast, remote area of operation, lack of host nation support, the need for rapid response and a relatively modestly-sized force will make EU NAVFOR’s task operationally very challenging. At the same time, the simple presence of a capable European task force could have a non-negligible deterrent effect.

Legal Challenges

The legal challenges facing EU NAVFOR are manifold. Three issues stand out:

Rules of Engagement (ROE)

A key complicating issue is the fact that the EU is not a recognised entity under the UN Convention on the Law of the Sea (UNCLOS). Participating forces will hence be bound by substantially different domestic anti-piracy legislation. Formulating common ROE for EU NAVFOR that comply with the domestic anti-piracy laws of all participating states will thus be not be adopted. In practice, this will mean that tasks requiring robust action will have to be undertaken by nations whose national laws permit such actions.

Hot Pursuit of Pirates

The ability to pursue pirates mainly depends on their location. In international waters, such pursuits fall under the piracy clause of the UNCLOS, which authorises states to take measures, including the use of force, to act against piracy. In territorial waters, i.e., within the twelve-mile territorial limit, suppression of what is legally defined as armed robbery, rather than piracy, is solely the responsibility of the states in question.

The Somali government’s inability – or unwillingness – to suppress pirates has resulted in the transformation of its territorial waters into a safe zone for pirates. In response, UNSC Resolution 1816 has, for a period of six months with an option for renewal, effectively extended the UNCLOS piracy clause to Somali territorial waters. Other countries are thereby legally permitted to use force against pirates operating in Somali waters. The resolution, however, does not permit the pursuit of pirates into their bases on Somali territory, so the ability of other countries to tackle the issue remains ultimately limited.

Detained Pirates

Legal uncertainties also exist in relation to the fate of detained pirates, given restrictions on jurisdiction. Participating states have two options: either seek to try the pirates in front of their national courts, or hand them over to Somali authorities. Neither option is legally unproblematic. On the one hand, successfully trying pirates in European courts will be difficult, as courts would likely decline jurisdiction.

Add that to the risk that the pirates could then seek asylum in Europe under international humanitarian law. On the other hand, handing the pirates over to Somali authorities raises the issue of Somalia’s record of human rights violations. In light of this dilemma, many detained pirates could end up being set free.

Likelihood of Success

There are few illusions that the solution to the piracy problem in Somalia is not at sea, but ashore. Maritime operations can, in the best case, achieve a temporary reduction in piracy activity, but not its eradication. The eradication of piracy requires the re-establishment of a functioning Somali state, reasserting control over its territory, including its coastal areas. Under the given circumstances, a temporary reduction of piracy to an acceptable level might at best be a short-term outcome.

The success of the first EU naval mission, once undertaken, must therefore be judged within these limited parameters. While it is too early to judge, the combination of both operational and legal challenges will make the EU’s task formidable. However, despite these difficulties, the EU effort should be welcomed given the economic importance of the open sea lines of communication for Europe’s economies.

The views expressed above are the author's own, and do not necessarily reflect those of RUSI.

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