STOP GIVING PIRATES A LIFEBOAT TO ESCAPE FROM THEIR ATTACK: THE PROBLEMS IN CONFLATING MARITIME TERRORISM AND PIRACY.

• Author: Brock, Sarah Brandt

1. Introduction 70 II. Proposed Definitions of Maritime Crimes 71 A. The Definition of Terrorism 72 B. The Definition of Maritime Terrorism 73 C. The Definition of Maritime Piracy 74 III. The Distinct Differences Between Maritime Terrorism and Piracy 76 A. Private Gain 76 B. Two Ship Requirement under Piracy 78 C. Jurisdiction 78 1. Universal Jurisdiction 78 2. The SUA Convention 81 IV. The Conflation of Maritime Terrorism and Piracy 82 A. Similarities between Piracy and Maritime Terrorism 82 1. Enemy of Mankind 82 1. Pirates Acting on Behalf of a Terrorist Group 85 2. Pirates Funding Terrorism 85 C. Why the Similarities led to the Conflation of Piracy and Terrorism 86 1. Conflation after 9/11 86 V. The Problems with Conflating Piracy and Terrorism and Solutions on how to Separate the Crimes 87 A. The Problems 87 B. Solutions to De-conflate Maritime Terrorists and Pirates to Ensure Efficient Maritime Safety 89 1. Policy Recommendations 89 2. State Collaboration 90 VI. Conclusion 92 I. Introduction

   Scholars and military researchers have recently explored the relationship between marine terrorism and piracy, and their findings are shocking. Crimes that threaten maritime security have increasingly become more prevalent and more dangerous over the years. (1) In regards to pirate attacks, between 2000 and 2006, there were nearly 2,500 actual or attempted attacks globally. (2) In 2012, pirates attacked 297 ships; in 2013, pirates attacked 264 ships, and in 2014, pirates attacked 245 ships. (3) However, these numbers do not account for the 50 percent of attacks that go unreported each year because of fear, corruption, or other personal motivations. (4)

   The most notable attack by Somalia pirates was on April 8, 2009, where four pirates in the Indian Ocean seized cargo ship MAERSK ALABAMA 240 nautical miles off the coast of Somalia. (5) The pirates voarded the ship, captured Captain Philips, took him hostage, and beat him badly.. (6) Luckily, the United States Navy took control of the situation, saved Captain Phillips, and detained the one remaining pirate. (7) This incident was the first successful pirate seizure of a ship registered under the American flag since the early 19th century. (8) However, this incident led to a series of other maritime hijackings led by Somalians, who have "had more successful recent attacks than any other region on earth." (9)

   To make matters worse, the geographical region where most attacks occur changes frequently. (10) Once a terrorist organization identifies that a geographical region has a higher frequency of attacks, they make certain safety modifications to their ships. (11) At which time, the terrorist authorities switch their attacks to another location to go undetected. (12) For example, in the 2000s, most cases were reported as being off the coast of East Africa. (13) However, since 2013, most attacks have been reported as being off the coast of Southeast Asia. (14)

   The increase in pirate attacks is well established. (15) However, there is little known about how terrorist groups use pirates, and scholars often speculate about the connection. (16) The general understanding is that terrorist organizations commit acts of terror to "influence political behavior" through the threat or use of violence. (17) For example, Al-Qaeda took credit for the September 11, 2001 attack and the 2013 Boston Marathon Bombings. (18) In regards to the September 11 attack, Osama bin Laden stated in his "Letter to America" that the attack was in response to Western support of injustice against Muslim populations in several countries. These unjust situations include: the attacks against Muslims in Somalia, Russian atrocities against Muslims in Chechnya, the Indian oppression against Muslims in Kashmir, the Jewish aggression against Muslims in Lebanon, the presence of US troops in Saudi Arabia, US support of Israel, and sanctions against Iraq. (19) However, maritime terrorism differs from domestic terrorism because there is no widely accepted goal for terrorists' acts. (20)

   In Part One, this Comment will address the legal definitions of maritime terrorism and piracy. Then, Part Two will distinguish the legal and factual differences between maritime terrorism and piracy. Next, Part Three will address how the similarities between maritime terrorism and piracy have led policymakers to conflate the two crimes. Finally, Part Four will identify a series of problems caused by the lack of differentiation between maritime terrorism and piracy and will propose remedies to ensure that pirates and terrorists are held accountable for their actions.

2. Proposed Definitions of Maritime Crimes

   The definitions of maritime terrorism and piracy give insight into the differences between the two maritime crimes. (21) However, there is no widely accepted definition of maritime terrorism, and is a subsection of terrorism. (22) Therefore, this Comment proposes a definition of terrorism to help limit which acts of terror fall within the meaning of maritime terrorism. (23)

   1. The Definition of Terrorism

      While the United Nations General Assembly officially condemned terrorism in 1985, there is no widely accepted definition for terrorism. (24) Numerous conventions have presented a definition of terrorism; however, none of the definitions have been universally accepted. (25) Scholar Kyle Morrell argues that the controversy over the definition of terrorism stems from the policy behind terrorism, where "one man's terrorist is another man's freedom fighter." (26)

      In 1930, the Third Conference for the Unification of Criminal Law defined terrorism as "[t]he intentional use of means capable of producing a common danger...[including] crimes against life, liberty or physical integrity of persons or directed against private or state property with the purpose of expressing or executing political or social ideas." (27) More recently, in 2011, the ad hoc tribunal, the Special Court for Lebanon, provided what it argues to be a widely accepted customary definition of terrorism. (28) The Tribunal's definition consists of: (29)

      [T]hree key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element. However, the Special Court for Lebanon's definition has not been accepted "by the international community or by any other international court." (30)

      The United States government in 1993 noted that "the international community has repeatedly failed in its efforts to reach consensus on a generic definition of terrorism." (31) Further, Secretary-General Kofi Annan asserted that the lack of definition detracts from "the moral authority of the United Nations and its strength in condemning" terrorists. (32)

      Although there is not a universally accepted definition of terrorism, the combination of the proposed definitions hints at a definition of terrorism. (33) The 1999 Convention on Terrorist Financing arguably provides the most accurate definition, asserting that terrorism is used to "intimidate a population, or to compel a government or international organization." (34) Scholar Bruce Hoffman argues that terrorism is "ineluctably political in aims and motives." (35) As I will address later in this comment, the political aims element is critical in distinguishing maritime terrorism from piracy. (36)

   2. The Definition of Maritime Terrorism

      Until the 1990s, maritime terrorism was not an international matter of concern. (37) Courts would prosecute acts of terrorism under the theory of piracy. (38) Therefore, there is a lack of legislation, guidance, and definitional understanding of what acts constitute maritime terrorism. (39)

      The first international discussion about maritime terrorism took place in 1985 in light of the ACHILLE LAURO incident. (40) The ACHILLE LAURO incident involved four men acting on behalf of the Palestine Liberation Front who hijacked and seized control of the Italian-flagged cruise ship. (41) The hijackers posed as tourists to gain passage onto the cruise liner and, once assail, took the passengers and crew hostage. (42) The Palestine Liberation Front demanded Israel to release 50 Palestinian prisoners. (43) When Israel did not comply, the hijackers killed a United States citizen in response. (44) The United States claimed the incident as piracy; however, Israel deemed it an act of terror. (45) The two States fought over jurisdiction to try the case. (46) Ultimately, the feud led to the creation of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA). (47) However, the SUA has not issued a definition for maritime terrorism. (48)

      While not an internationally accepted definition of maritime terrorism, Christopher C Joyner, Professor of Government and Foreign Service at Georgetown University, defines maritime terrorism as "the systematic use or threat to use acts of violence against international shipping and maritime services by an individual or group to induce fear and intimidation in a civilian population in order to achieve political ambitions or objectives." (49) Further, the council for Security Cooperation in the Asian Pacific (CSCAP) defined maritime terrorism as "the undertaking of terrorist acts and activities within the maritime environment, using or against vessels or fixed platforms at sea or in port, or against any one of their passengers or personnel, against coastal facilities or settlements, including tourist resorts, port areas and port towns or cities." (50)

      While none of the presented definitions of maritime terrorism has taken effect, the definitions generally agree that an act of maritime terrorism is...