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The Pirates of Puntland: Practical, Legal and Policy Issues in the Fight Against Somali Piracy

New U.S. Military Orders and Government Policy in the Fight Against Somali Piracy Result in First Capture of Suspected Pirates by U.S. Forces

Last month, for the first time since the U.S. Navy's engagement in the international anti-piracy force patrolling the Gulf of Aden and adjacent waters, a U.S. Navy vessel, the USS Vella Gulf, captured seven suspected pirates whose attack on a Marshall Islands-flag vessel Polaris had been disrupted by the Polaris' crew moments earlier. The suspects were then transferred to the supply vessel USNS Lewis and Clark, where they were held along with nine others captured the following day, also by the USS Vella Gulf. The seven suspects have been turned over to Kenya for prosecution after the Navy determined there was enough evidence to prosecute.

This capture represents an important turning point in the efforts of the U.S. and the international community to combat piracy in that area. Previously, U.S. vessels were under orders to "disrupt, deter, but do not capture." The new orders adds the U.S. to the ranks of other members of the international counter-piracy coalition - such as France, Netherlands, and the United Kingdom - that have captured pirates, and boosts the implementation of an effective deterrent, and important tool in the medium-term strategy against piracy.

The change of orders was the direct result of the U.S. having reached a Memorandum of Understanding with Kenya (MOU) under which Kenya agrees to accept at least some pirates captured by the U.S. and try them in a Kenyan court. This MOU had been anticipated in press reports and was confirmed by U.S. Navy, Coast Guard and Maritime Administration representatives testifying before Congress in early February.

The change of policy reflected in the new orders was subsequently confirmed by the head of the U.S. Coast Guard's office of Maritime and International Law, Capt. Charles Michel, who stated: "It's now the policy of the Obama administration to curtail piracy with law enforcement measures."

The capture and prosecution of suspected pirates raises numerous, complex issues involving the interaction of the laws of multiple states and international law. In addition, ship operators confronted with the mere possibility of pirate attacks face difficult practical and legal issues, such as: protection of the crew and the vessel, including the implementation of a number of on-board measures advanced by industry and governments for ship operators to observe in order to impede access by pirates; interpretation of charter and insurance clauses; higher payments to crew transiting through attack-prone areas, as well as timing and delivery of such payments; hiring of armed security personnel; and the legality and mechanics of ransom payments, to name a few.

A thorough legal analysis is an indispensible part of any plan to respond to pirate attacks. In addition to the more obvious items, such as interpreting relevant laws and contract clauses and evaluating risk coverage, a ship operator's legal team can assist efforts to comply with industry-prescribed self-help measures, and provide input to important decisions, such as whether or not to hire a security firm, and the evaluation and vetting of such firms.


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