A More Detailed Look At The Law Of The Sea And The Gaza Flotilla Incident

As discussions and comments about the Gaza Flotilla Incident continue, the legal issues involved have been bandied around in ways that, at times, leave much to be desired. Advocates on both sides have tried to invoke elements of international law to bolster their opinions, to the consternation of some well-informed, objective observers.

In response to things, I recommend reading a piece in today's issue of The Globe & Mail written by Ed Morgan, a professor of international law at the University of Toronto (viewable by clicking here). In it, Prof. Morgan outlines the various laws and regulations about the Law of the Sea and rules of engagement pertaining to naval warfare.

"Reactions to the Israeli seizure of the Gaza-bound flotilla have shared two traits," Morgan writes, "They have virtually all invoked international law, and they have virtually all been marked more by their rhetorical excess than their knowledge of international law."

Morgan goes on to write, "Accordingly, the accusation of piracy is inapt, since under both customary law and Article 101 of the UN Convention of the Law of the Sea that applies only to acts done for private gain. Israel's acts must be analyzed in terms of the law of naval warfare."

He then goes on the detail what constitutes a blockade and the laws regulating force at sea.

Gaza Flotilla Incident & Piracy Assertions

In response to a number of queries, I'm finally able to find time to comment on the recent incident off the Israeli coast involving the flotilla of vessels trying to reach Gaza. Specifically, I'd like to point out that under international law, the actions of the Israel Defence Forces (IDF) do not constitute an act of piracy. (See Article 101 the UN Convention On The Law Of The Sea, here.) As EagleSpeak's notes, here, the key part of the Article's wording defines an act of piracy as being one committed for private ends, not one committed by governmental personnel.

That is, the IDF was not intent on seizing the flotilla vessels in order to ransom them, hold the crews hostage, etc. Compare, for example, the actions of international naval forces in the seas off the Horn of Africa, in which vessels have been stopped and boarded in international waters. Sometimes those vessels are seized (and sunk), at other times they are left to continue on their way. Either way, no international laws are being broken either off Somalia or in the eastern Mediterranean. It is important to remember the true definition of acts of piracy and not allow certain individuals to use the terminology to describe this rather bizarre incident.

What is slightly more odd about how events unfolded is the manner with which the IDF decided to carry out the boardings. As others have commented (such as Information Dissemination's lengthy posts, here), the IDF actions seem somewhat stupid in light of previous incidents in which security personnel have engaged in vessel boardings. Putting some commandos on a freighter held by pirates is one thing: A good commander knows the pirates and their hostages will likely be contained within a specific area and there is likely to be ample space on the vessel to effect a safe boarding. But dropping personnel via helicopter onto a heavily populated passenger vessel, at night, no less, virtually invites a confrontation, especially when the passengers aboard said ship are expecting something and are knowingly antagonistic to the idea of being boarded.

In the "what were they thinking?" mode, Information Dissemination posted the following cartoon, which comes from the Center for a New American Security blog (here):

The Arctic Sea Incident and the Media: Getting it Wrong

It's been a few days since the saga of the Maltese freighter MV Arctic Sea came to a conclusion, of sorts, with the freeing of her crew by Russian naval forces, who also apparently apprehended the suspected pirates who'd seized the vessel. But all the unanswered questions that linger, as well as the way things played, out raise some serious questions about the media's role in the incident. Not just in the way things were reported, but also in the way it appears the media was deliberately misinformed. None of this does much to much to better the public's awareness of global piracy and the threats mariners face on a daily basis. If anything, it may have muddied the proverbial waters by stoking more skepticism and the reality of things and fueling those conspiracy theorists who feel there are all sorts of grand geo-political machinations going on.

As piracy expert EagleSpeak has alluded to on his site, sometimes it's better to keep things simple (and you, too, can look up the definition of Occam's razor he mentions). Instead, what we've seen since the Arctic Sea disappeared in the Baltic was ever increasing misreporting, misinformation and mistakes.

In my opinion there are two culpable players whose actions should be looked at: the media itself and several governments and NGOs.

The Media: Filling a Void

I'm a professional journalist, so am implicitly aware that headlines garner attention and sensational stories - like a freighter going missing in European waters - captivate audiences. But I'm also aware that one shouldn't fill a vacuum of information with mere speculation or, worse, self-serving innuendo. Too many journalists and would-be experts (and some real ones, too), threw their hats haphazardly into the ring on this one. And in many cases they should not have.

For the record, I received a number of requests for interviews about this incident over the last few weeks. Most wanted to know if terrorists had taken the ship or if piracy off Europe was about to rival that of the Horn of Africa. I disagreed, saying to all who contacted me that we just didn't have enough information to come to any firm conclusions.

That's not very sexy, but there were enough others willing to postulate on the potentials of something dramatic to fill the airtime. Yet it seemed as though most ignored the obvious while spinning ever more complex ideas. Drug smuggling, nuclear weapons, even a strange idea that the whole thing was some bizarre Russian naval exercise (see CNN's report here). And, more problematic, is that many media outlets simply got things wrong when a little research - a Google search, in fact - would have corrected things.

For instance, the Arctic Sea is not a Russian vessel. Russian-built, yes, and crewed at present by Russian nationals, but she's registered in Malta so flies the Maltese cross off her transom. And managed by a Finnish company, to make things more complex - welcome to the world of modern shipping. Small details, but nevertheless important if you're a journalist looking at current events.

Also, this was not the first time we've seen an act of piracy in European waters in centuries, as some have said. I've myself written about an incident a decade ago that mirrored, in some ways, the Arctic Sea event (see here), and then there's the Achille Lauro hijacking back in 1985. Yes, the liner was seized by Palestinian terrorists, but they still committed an act of piracy in so doing.

By the definitions of piracy used by the United Nations, the International Maritime Bureau and a number of sovereign states, what happened to the Arctic Sea most definitely constituted an act of piracy. So I take exception when experts or pundits played this down (see The Telegraph, for instance, which insisted on putting the word pirates in quotation marks).

This was a pirate incident, pure and simple. What the intentions of those who controlled the Arctic Sea the last few weeks was remains to be seen. If it was terrorists who had hijacked the vessel, they had still committed an act of piracy. If it was criminal gangs who'd sent a team to seize her, those boarders were still pirates. If the crew had gone rogue, they would be considered pirates.

So, the media didn't exactly do a bang-up job in reporting on this one. Some blame may be "summer journalism", something outsiders are not much aware of. It's what happens when the more experienced staffers take their vacations and leave juniors to deal with things. But juniors become senior and need to learn the game and how they're manipulated. Which leads me to the second element in this story...

The Official Story

Without a doubt, one of the most troubling aspects of the Arctic Sea incident is the dearth of information that has been provided by the Russian government and what seems to be a number of other offical bodies. I find it very hard to believe that the Russians - and others - knew what was going on all along, and spun a web of deceit to the media in order to safeguard the lives of the freighter's crew. It sounds too much like a case in which parties were initially unaware of the true danger and, effectively, caught with their pants down. Then, after scrambling to deal with the situation, the mantra became "We were always in control of things."

In the days since the vessel was freed, we have yet to receive a full public accountability that can fill in the gaps. This is odd, to say the least, and makes one wonder if the reality of what transpired isn't more confusing. I, for one, would have expected to Russian official to have by now stood up in a press conference and said something like:

"Ladies and gentlemen, I apologize for the lack of information that's been provided but rest assured we've been on top of this situation from day one. On July XX at YY hours, we learned of the fate of the vessel and mobilized our assets. In communication with the authorities in ZZ we set out to track the ship, knowing it had been hijacked. At no point was anyone in Western Europe or any other mariner at risk by this incident. Our decision to allow it to transit the busy Kattegat and English Channel at no point was something to be concerned about..."

Was the Arctic Sea ever at risk to other vessels? Why was it allowed to exit the Baltic Sea, where Russia maintains a strong naval presence, to say nothing of the other littoral states there? And why was it deemed necessary to dupe the media - and the public - about what was going on in this particular case?

When a vessel is commandeered by Somali pirates, there is never a news blackout to ensure the safety of the captives, though this is sometimes because the pirates themselves make the news available. I, for one, cannot help but wonder if the Russians succumbed to American envy after the Maersk Alabama incident. The US Navy resolved that situation successfully in order to resuce their own citizens. Was the Arctic Sea incident supposed to be a Russian variation that showed their own resolve?

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Hiding details, misinforming the public or filling columns and airspace with innuendos are not the way to deal with the threats that incidents like this one reveal. Piracy, maritime crime and seaborne terrorism are grave problems for the global community. And they should not be hidden away or glossed over.

Phantom ships

It's the dog days of summer in my part of the stick ('dog days' being an ancient reference to Sirius - the dog star), and I've been trying to take some time off from my usual reporting. But the strange case of the Arctic Sea has kept intriguing me. EagleSpeak has provided great information on this bizarre incident (see here), which continues to unfold. Was the vessel seized by pirates? Perhaps.

But another possibility - as Eagle1 has alluded to - is that the ship might have fallen prey to rogue elements in the shipping community who might be seeking to profit through less than legal means. It's not inconceivable and there are many cases of ships 'disappearing' off the radar - literally and figuratively speaking. They're known as phantom ships or ghost ships, vessels that have their flag of registry, name and other details altered while at sea. And though there are some who wonder how a vessel sailing in European waters could do so, I was reminded of an incident a decade ago that has certain similarities to the ongoing mystery of the Arctic Sea. It concerned the very dramatic final voyage of a Panamanian-flagged general cargo vessel called the Kobe Queen I. I wrote about it in my first book, Ocean Titans: Journeys in Search of the Soul of a Ship, and here's an excerpt of what transpired:

The Kobe Queen I was a rust bucket of a ship built in 1976 and displacing 18500dwt, less than half the size the Emerald Star. In the summer of 1999 she was being operated by a shadowy shipping firm based in Odessa with a crew of twenty-five Ukrainian sailors under the command of Captain Yuri Levkovsky. That July, the Kobe Queen loaded a cargo of 15000 tons of steel in Istanbul (worth over $5 million), bound for the Caribbean with a stop in Senegal along the way. But sometime after leaving Turkish waters, new orders came from Odessa and the vessel began an erratic and elusive journey through the Mediterranean and around West Africa. A few weeks later, she made port in Dakar, Senegal and 2000 tons of the steel were quickly sold before the ship headed out to sea once more. By now, several interested parties – such as the owners of the cargo – were getting concerned about the whereabouts of the ship and attempted to contact Levkovsky and the owners, neither of whom bothered to respond. It appeared that the Kobe Queen had disappeared off the face of the map, hijacked by her own crew.

The maritime equivalent of an “all points bulletin” soon went out worldwide to port authorities, shipping agents, law enforcement agencies and others to find the Kobe Queen. Among those notified was Lloyd’s Register (not to be confused with Lloyd’s of London, which is an insurance company). Lloyd’s has a network of agents in ports around the world and these “ship spotters” were told that the Kobe Queen was now a wanted vessel with a $100,000 reward posted for information leading to her arrest and the recovery of the cargo. Throughout September and October, these spotters caught glimpses of the phantom ship, first in Cape Verde, then off Nigeria. It was noticed that she had a new name painted on her transom – the Gloria Kopp – and was making for the Cape of Good Hope.

For two months, the Kobe Queen/Gloria Kopp wandered the South Atlantic and Indian Oceans while her mysterious owners tried to figure out what to do with the remaining cargo. Rumours of Russian Mafia or drug smugglers being involved in the case began to swirl in some quarters, but all that was known was that the shipowners had also disappeared, leaving only an empty office in Odessa. Finally, on Christmas Eve of 1999, a Lloyd’s agent in the southeastern Indian city of Chennai reported that the ship was anchored six miles offshore and the Indian Coast Guard dispatched the patrol boat Vikram to intercept her. As the Vikram came into sight, Captain Levkovsky ordered his crew to weigh anchor and get underway as quickly as possible, intending to make for the safety of international waters in the Bay of Bengal.

While a storm erupted overhead, the Coast Guard boat battled through heavy winds and high seas to get within hailing range of the Kobe Queen and order her to stop engines. When her captain refused, the Vikram brought her 30mm cannon to bear and fired rounds across the bow of the cargo ship while preparing an armed boarding party to deploy. The Kobe Queen continued steaming at full speed until more cannon fire finally convinced Levkovsky to heave to and the Coast Guardsmen clambered about his ship, whereupon the Ukrainian crew put up a short fight before surrendering. As they prisoners were lined up on the rain-swept deck, noticeably missing was Captain Levkovsky, who had retreated to his cabin. When the Indian sailors finally broke down his door, they found the Master dead: he had hung himself with a nylon rope. The Kobe Queen’s owners were never heard from again.