The Human Cost of Somali Piracy

Abstract

The International Maritime Bureau (IMB) provided this report’s foundational 2010 data on attacks by Somali pirates. The IMB receives information directly from ship masters and chief security officers. The IMB’s database was cross-checked against the U.S. Office of Naval Intelligence’s (ONI) weekly worldwide threats to shipping reports. Aggregate numbers from European Union Naval Force (EU NAVFOR) were used as a final check. These comparisons revealed only minor discrepancies in the reported number of attacks and hijackings. A compilation of IMB and ONI reports yielded an aggregate estimate of 53 vessels hijacked in 2010 by Somali pirates (Fig. 1).

Appendix I: Somali Pirates and Torture

Recent reports show that some Somali pirates are turning to violent methods including dragging hostages behind boats, beatings, forcing hostages into freezers, and clamping plastic ties around hostages’ genitals.⁴³ For example, BIMCO, the International Chamber of Shipping, INTERCARGO, INTERTANKO, and the International Transport Workers’ Federation publicly declared that:

The international shipping industry is truly disturbed at reports that pirates have been torturing seafarers physically and mentally, often in the most barbaric ways, including hanging them over the ship’s side by ropes around their ankles with their heads under water and even subjecting them to the horrendous practice of keelhauling.⁴⁴

While these actions are undeniably abuse, whether it is torture depends on the precise definition of the term.⁴⁵ One of the most prominent definitions of torture comes from the 1984 Convention Against Torture (CAT), an international treaty law, which defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.⁴⁶

Under this definition, torture does not require physical abuse. Mental harm alone can be torture. This widens a typical understanding of torture to include intimidation.⁴⁷ However, CAT is designed to protect citizens from states and therefore requires an act to be committed by state actors to be considered torture. Given that Somali pirates are not state actors but are in fact perpetrators of torture, the CAT definition is limited in its scope and ability to protect seafarers from pirates.

The International Criminal Court (ICC) offers a definition that aligns more closely with our common understanding of torture. Although it lists torture as an element of a war crime as well as a crime against humanity, only under the latter crime is it defined. The Rome Statute says torture is:

the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.⁴⁸

The ICC’s definition similarly includes mental harm as torture, though the ICC does not permit intimidation (unless it can be shown to constitute mental harm) to be deemed torture. Unlike with CAT, there is no requirement of a state nexus in the ICC’s formulation. Under the ICC’s definition, Somali pirates’ actions qualify as torture. According to the ICC and even the most restrictive definition from the CAT, the recent repulsive Somali pirate actions do constitute torture. Not only are these acts morally reprehensible and illegal under international law, but they also violate the human rights of seafarers.