Maritime Terrorism and the Challenges to Counter-Terrorism Efforts

Introduction

The concept of maritime terrorism has developed significantly over the years with the expansion of sea trade and the increase in marine terrorist organizations. Traditional acts of piracy are limited to acts directed towards financial gain while maritime terrorism includes a wide range of activities (hijackings, attacks on vessels, smuggling of weapons, drugs, and human trafficking). The law governing maritime terrorism remains inefficient, featuring the same structural deficiencies as the traditional rules on piracy. There are multiple preventive and defensive measures at the states’ disposal, however, these are not sufficient to counter the magnitude of the threat caused by maritime terrorism.

Why is Maritime Security important?

With the advent of globalization, there has been greater interconnectedness between states which has amplified mobility at sea. States are more interdependent on their resources and consequently, there has been an exponential rise in sea trade and demand for sea-based energy resources.¹ Southeast Asia and the Indian Ocean are the major global passages for trade containing the most important sea lanes for communication.² Specifically, the oil trade sector primarily benefits from this region (including the North Arabian Sea) as 17 million barrels of crude oil daily pass through the Strait of Hormuz.³ Therefore, the conduct of the states in maritime affairs has a significant bearing on the global stage. This has compounded the significance of maritime security.

Maritime security deals with security at sea and protection against threats arising from inter-state territorial disputes, political instabilities, and transnational terrorism. There has been a global reconfiguration of security perceptions after the events of 9/11 and states have been much more stringent in dealing with external threats. However, unlike military schemes, the maritime environment is much more asymmetrical, owing to its innate flexibility and synergistic nature. Therefore, the current international and regional efforts to counter maritime terrorism are not entirely effective or sufficient in ensuring maritime security.

International Law Governing Maritime Terrorism and its deficiencies

The most significant international legal instruments governing maritime terrorism are the 1958 Convention on the High Seas, UNCLOS, the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, and the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The Geneva Convention on High Seas and UNCLOS entail provisions that create a “right of visit” for foreign warships if there are reasonable grounds to suspect that they may be involved in piracy.⁴ Since maritime terrorism falls within the ambit of piracy, this provision would allow states to conduct searches of suspect vessels before they enter their territorial waters. However, the ‘reasonable grounds’ requirement does not allow for random inspections or security screenings. Conversely, Article 110(3)⁵ UNCLOS makes such inspections to be costly procedures, imposing an unfounded burden of compensation. Although the ICSFT does not directly address maritime terrorism, its provisions regarding financing terrorism can apply to maritime terrorism as well. Specifically, Article 2(1)⁶ criminalizes funding, which includes providing funds, resources, or financial support for terrorist acts. This, in conjunction with Article 8, emphasizes states to adopt measures necessary to combat the financing of terrorism in the maritime domain.

As previously discussed in this article, the effects of the 9/11 attacks required significant structural changes to control terrorism and by extension, marine terrorism. However, the only indication of such efforts is witnessed in Article 14 of the Geneva Convention⁷ which places an obligation on the states to “cooperate to the fullest possible extent in the repression of piracy on the high seas or any other place outside the jurisdiction of any State.” This provision is not adequate as it does not consider the fact that there may be multiple perpetrators involved in a terrorist act, both on the high seas and within several national jurisdictions. This notion of state liability/responsibility to take countermeasures against terrorism is reflected in the UN Security Council Resolution 1373⁸ which places a legally binding prosecutorial obligation on States against terrorism. Therefore, if a state assists in transnational terrorism or remains inactive despite having knowledge of the terrorist activity, they stand in clear violation of the UNSCR 1373. It could be argued that the UN Resolutions of the Nations General Assembly exist as ‘soft laws’, without any binding effect or legal force against sovereign states, rendering them ineffective against counter-terrorism efforts.

Finally, the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (CSUA) 1988 brought substantial improvements to the innate defects in the preexisting International Law. The Convention gave clarity to a multiplicity of issues such as the ‘private ends’ and the ‘one ship-two ship’ debates. Particularly, Article 3(1) of the Convention clearly defines six different types of offenses⁹ and further articulates three grounds for mandatory jurisdiction and three for permissive jurisdiction.¹⁰ Therefore, it places a positive obligation on states to extradite the alleged offenders for violation of the Convention. An evident flaw of this convention is that it is merely reactive; in other words, it primarily focuses on responding to incidents rather than proactively preventing them.

Additionally, the CSUA Convention suffers from the same spatial limitations as UNCLOS as it does not apply to territorial waters. In effect, each international convention adjudicating maritime terrorism is riddled with defects and incomplete legal authority.

Distinguishing Maritime Terrorism and Piracy

It is essential to assess what constitutes ‘maritime terrorism’ under international law. A clear definition of maritime terrorism has not been established in the United Nations Convention on the Law of the Sea Treaty (UNCLOS), but Article 101¹¹ – defining piracy – is closely analogous to maritime terrorism. The key distinction between the two paradigms is that piracy is rooted in animus furandi, which is a mere intention to steal for selfish purposes (‘private ends’’). In contrast, terrorism is any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict.¹² There is no all-encompassing legal definition of maritime terrorism as it is much more nuanced in its practicality. These are tactics or strategies an actor may use, either fully and permanently or in combination with alternative non-violent political struggles with guerrilla warfare, to cause death or serious bodily injury to non-combatants.

Piracy exists as one of the chief threats to maritime security. The international convention governing piracy laws are UNCLOS (which superseded the 1958 Convention on the High Seas) and the 1998 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (CSUA). The aforementioned literature suffers from certain limitations. The anti-piracy rules only apply to attacks on high sea waters, despite most pirate attacks occurring in territorial waters.¹³ The remedies to this are partly covered in the CSUA, which covers the same acts, regardless of the motivation and without the ‘two-ship criterion’ (i.e., that the crime must be from a private ship or a private aircraft, and directed against a ship, aircraft, persons or property, therefore requiring the presence of two vessels).

One of the structural deficiencies in International Law regarding piracy exists in the narrow definition of the term under UNCLOS, as the notion of ‘private ends’ would effectively exclude efforts to destabilize a government or terrorize/blackmail a State, which are characteristic components of modern-day terrorism. The word ‘illegal’ within Article 101¹⁴ of the UNCLOS remains ambiguous, as it is the Court’s discretion of the prosecuting States to adjudicate whether the particular act was illegal under International Law.¹⁵

While there is a significant nexus between piracy and maritime terrorism, the two phenomena can be distinguished considering the varying interests and objectives rooted in piracy and terrorism. One of the major differences is the personal greed versus political motivation argument. As pointed out by Carolin Liss,¹⁶ “While the pirate is acting primarily for selfish, personal reasons, the terrorist believes that he is serving a good cause designed to achieve a higher good for a wider constituency.”¹⁷ This distinction is enshrined in UNCLOS Article 101 which introduced the ‘private ends’ characteristic. However, some commentators argue that there are already political underpinnings to piracy agendas. This view is upheld by Luft and Korin:¹⁸ “Unlike the pirates of old, whose sole objective was quick commercial gain, many of today’s pirates are maritime terrorists with an ideological bent and a broad political agenda”.

Additionally, the methods and tactics employed by pirates such as intimidation, violence, and hostage-taking are also similar to those in terrorism, although maritime terrorism has a wider scope of application and deals with a greater degree of threat. The elemental nature of maritime terrorism is a mirror image of piracy and so the laws governing piracy may apply to maritime terrorism as well.

Threat of Maritime Terrorism (Insurgent/Terrorist Groups)

Terrorist groups also have a significant bearing on the threat to maritime security and international peace. The contours of maritime terrorism have assumed a greater dimension in recent decades, specifically since the two attacks by Al-Qaeda on warships. The first was a failed attack one on the USS Sullivan in January 1999, followed by a successful on the USS Cole¹⁹ on 12 October 2000 in the port of Aden, Yemen. The second incident attributed to Al Qaeda was the attack on the French tanker LIMBURG²⁰ in 2002.²¹ Additionally, the attack on Superferry 14 on the 27 of February 2004 significantly increased the threat to maritime security since it accounted for 135 out of a total worldwide death toll of 194 from 2004 to 2007.²² The attack may arguably fall outside the scope of a terrorist incident since it included a selfish motive (vide infra). The perpetrators of this attack were an ostensibly Islamist group, the Abu Sayyaf Group (ASG), who sent an extortion letter to the ferry company demanding a million dollars in exchange for a safe navigation route.²³

Rebel groups such as the Sri Lankan Liberation Tigers of Tamil Eelan (LTTE) and the Palestine Liberation Organisation (PLO) operate extensively through the use of the sea to execute their agendas. The LTTE gained notoriety in 1984 as it established its naval wing, the Sea Tigers, which included phantom/ghost ships and attacked several Sri Lankan vessels. An attack on the Mannar District became the precursor of a battle between the Sea Tigers and the Sri Lankan Navy, killing 11 sailors and 25-30 guerrilla fighters.²⁴

The PLO initially existed as a logistical chain for its land-based forces, with the focus gradually shifting to infiltration from the sea and other coastal raids against Israel (after the Achille Lauro attack in 1985).²⁵ In multiple attacks, Palestinians employed a ‘mother ship’ servicing small dinghies to launch an attack on the Israeli harbors. Similarly, the Lebanese Movement, Hezbollah, has been garnering maritime capabilities by generating funds via illicit diamond market trade.²⁶

Lastly, in the Philippines, Islamist Groups (such as the ASG) push forward their religiopolitical narratives through their ‘signature mission’, i.e. coastal raids.²⁷ The significant ones are the Moro National Liberation Front (MLF) and a splinter group, the Moro Islamic Liberation Front (MILF), fighting against the Philippine Government for independence.

These terrorist groups are part of the webbed expansion of marine terrorist organizations and their encompassing impact on international peace and security. Considering the rapid expansion of marine attacks, maritime terrorism can be considered to be an emerging form of organized crime.

Counter-Terrorism Efforts (State Practice)

Defensive Measures

The discussion on counter-terrorism efforts is two-pronged as it deals with preventive measures, intending to discourage prospective terrorist attacks, and defensive measures, intending to protect/guard against terrorist attacks. The primary defensive mechanism exists in the form of self-defense, enshrined in Article 51 of the UN Charter as well as in customary international law.²⁸

Actions of self-defense may be triggered if an armed attack is launched on a member of the United Nations.²⁹ In lieu of freedom of navigation, self-defense must be necessary and strictly proportionate. In an attempt to protect naval vessels from attacks or other terrorist activities, certain ‘Defense Bubbles’³⁰ or exclusion zones may be established, where mariners are required to identify themselves before entering the warning zone. As illustrated in the attack on USS Cole, the extent of the preventive/defensive measures are reliant on the magnitude of the threat posed by the terrorist activity. Since the rationale behind ‘exclusion zones’ can be rooted in self-defense, it is important to recognize that the relevant measure should satisfy the test of immediacy, necessity, and proportionality, as per the judgment of the ICJ in Nicaragua vs US.³¹ The first occurrence of the use of ‘exclusion zones’ was witnessed in 1982 during the Falklands/Malvinas conflict. The United Kingdom and Argentina declared certain areas to be ‘maritime exclusion zones’. However, the British Government went one step ahead and declared a ‘total exclusion zone’ (TEZ) restricting every aircraft, military or civil from entering the area without the authority of the Ministry of Defence in London. This restriction could be prima facie legal and valid since there is sufficient notice and is located in a remote sea area which would not impact sea traffic. According to Finnick³², this restriction could be considered to be a “reasonable temporary appropriation of a limited area of the high seas”, despite its erroneous nature.

Preventive Measures

Port authorities may take precautionary measures through close monitoring and control of the incoming cargo. Policies may be derived to investigate and inspect cargo shipping containers. Such an initiative was taken by Singapore on 19 September 2002 after signing an agreement with the US allowing them to inspect cargo ships. This has been a prevalent practice between several states such as US and Canada or ports Halifax, Montreal, and Vancouver. Similarly, the US ‘Container Security Initiative’ was introduced to address the threat to border security by identifying potential explosive/weaponry devices such as radiological ‘dirty bombs’ to be detonated in various targeted areas in the US. The CSI³³ would prescreen and evaluate high-risk containers to ensure that no weapons are traded within the territorial boundaries of the US. However, this could be a laborious process given the sheer amount of global container shipping rendering the random checks to be insignificant in comparison to the load of other containers.

Another US-led initiative to control the proliferation of weapons of mass destruction and to control maritime terrorism was the ‘Proliferation Security Initiative’ (PSI) launched in May 2003. It is a global effort against the state delivery of weapons from states to non-state actors. The countries endorse PSI assent to interdicting transfers that pose security concerns and partake in counterproliferation efforts through diplomatic, military, and financial contributions to the initiative. Lastly, there are multiple task forces set up to counter threats to maritime security. The most successful one has been the Combined Task Force 150 (CTF 150) which is a multinational task force with various nations participating. CTF 150’S main Area of Responsibility (AOR) is centered around the busiest nautical choke points(Strait of Hormuz, Bab El Mandeb, and the Suez Canal.) such as covering the Red Sea, Gulf of Aden, Indian Ocean, and Gulf of Oman. CTF 150 conducts Maritime Security Operations (MSO) to deter terrorist activity outside the Arabian Gulf, controlling criminal organizations from conducting maritime attacks.

Conclusion

There is a pressing need for a global reconfiguration of the international and regional arrangements to counter maritime terrorism. The current security model is merely reactive and stunted in its application. There has been a significant paradigm shift as maritime terrorism is emerging as a new type of organized crime, working in congruity with renowned terrorist entities. The nature and gravity of the threat posed by naval attacks have significantly increased since the shift to containerization and the expansion of sea trade. This places the global economy in a sensitive place as maritime attacks may tip the scale of balance in international trade and cause a global economic crisis. Hence, the historical conceptions of piracy and terrorism must be disregarded and a new security regime should be initiated.

Momina Saleem

Momina Saleem is a final-year LLB student at University College Lahore. She has interned at the Centre for Human Rights (CFHR), where she was actively involved in their Marriage Rights Programme and the #HeForShe campaign. She was a Quarter-Finalist in the International Philip C. Jessup National Rounds, having received an honourable mention for the 'Best Memorial' award, and was part of one of the three chosen teams to represent Lahore in the Henry Dunard International Moot Court Competition. Her research interests are International Humanitarian Law (IHL) and Human Rights.