Piracy, Firearms and the High Seas

The first time I held a rocket-launcher was in the summer of 1982. I was an eager 23 year old working as a shipwright on Sydney Harbour at Rushcutters Bay. I had just completed a six-month major refit on an elegant 80-foot aluminium ketch and it now sat moored in port, anxiously awaiting its voyage to the Mediterranean. The ketch was refitted with all the luxuries of the day, a large saloon and galley, fully equipped bar and most importantly a hidden armoury that sat disappointingly empty following an inspection by Australian customs on arrival. The owner of the ketch was an eccentric American millionaire known only as Walker. It had been months when I last saw him – rumour had it he had bought himself a Harvey Davidson and was travelling across the country. Nevertheless, it seems he had made himself a few very good contacts in Kings Cross. Early one morning close to delivery date I was onboard completing some finishing touches when a truck pulled up unannounced at the marina. Several unmarked wooden crates were unloaded onto trolleys and wheeled over to where I was working and before I knew it I was unpacking an arsenal of military-grade pistols, rifles, grenades and of course a hand-held rocket launcher. Legalities aside, Walker was not prepared to risk the notorious northern high seas without adequate defences against pirates.

In the decades that followed piracy has made a significant resurgence both in popular culture and within international waters. While, for many of us talk of pirates on the high seas evokes images of swashbuckling-rum-drinking-Jonny Depp lookalikes, many international sailors will tell you this romanticised view couldn’t be further from the truth. The modern pirate does not cross the oceans in large wooden sailing ships but rather small high-powered motorised crafts. They are heavily armed not with swords but with machine guns and pistols. These increasingly professional units are not interested in mere loot and plunder instead they are hijacking vessels and kidnapping crews for lofty ransoms. Modern pirates are technologically capable, highly organised, efficient and at times deadly. Indeed six seafarers lost their lives last year as a result of pirate attacks. The question for international yachting enthusiasts, sailing in pirate-infested waters, is to what lengths legally or otherwise should they go to protect against these ‘pests of the sea’?

International Law

Piracy is one of the oldest examples of international crime. From the early Roman Empire all those engaged in its practice have been held to be hostis humani generis, the enemies of all mankind. Deemed stateless and beyond the reach and protection of any jurisdiction pirates have traditionally faced harsh universal punishment. The golden age of piracy in the 17th and 18th century frequently saw accused pirates executed on-the-spot , their bodies soaked in tar and hung from stocks above the entrance to major ports as a means of deterrence. Today, pirates are treated to due process and capital punishment is uncommon. There is a duty on all states to take all reasonable steps to repress piracy and this requires warships of flag states to engage, seize and detain those committing acts of piracy. Understandably, many nations don’t want the responsibility and expense of prosecuting and imprisoning pirates under their jurisdiction and it is common practice to simply confiscate their weapons and let them go.

Further, there is uncertainty as to what constitutes piracy in the 21st century. According to the United Nations Convention on the Law of the Sea (UNCLOS) piracy is any illegal act of violence, detention or depredation committed for private ends by the crew or the passengers of a private ship on high seas. Therefore, an act can only be called piracy if it occurs outside any state jurisdiction in waters more than twelve nautical miles from the coast otherwise, the act is referred to as ‘armed robbery’ and subject to the coastal state’s national criminal laws, an issue in prosecuting pirates. Recent highly publicised attacks on ships along the coast of the failed state of Somalia highlight the difficulties of prosecution facing the international community.

Earlier this year the UN Security Council unanimously adopted Resolution 1918 calling on all countries to criminalise piracy within their national laws. Piracy is already a criminal act under Australian law punishable by life imprisonment and like UNCLOS, Australian law frames piracy as a matter of the state and largely envisions a military solution. While a variety of international efforts to reduce piracy seem to be working such as the Indonesian, Singaporean and Thai military sea patrols in the Strait of Malacca it is unreasonable to expect such forces to be able to provide direct and immediate support when one’s cruising vessel is being boarded. Subsequently, the Walker’s of the world are sceptical of the international community’s capacity to fight piracy and would rather take protection into their own hands.

Carriage of Arms

No subject in cruising is as fiercely debated as the question of carrying firearms at sea. Firearms can not only help you defend your vessel and crew from actual attacks they can also act as a powerful deterrence, a crew wielding shotguns makes for an intimidating sight. UNCLOS does not regulate the carriage of arms for defensive purposes and there is no express legal prohibition on having firearms in international waters. Despite this, virtually all international and Australian maritime guidelines strongly recommend against the practice of carrying arms at sea due largely to the threat of violent escalation and higher associated risks. Unless the crew is educated, trained and comfortable in the handling and operation of firearms, they are a liability on-board.

Firearms complicate matters even further when entering territorial waters as the vessel becomes subject to the laws and regulations of the coastal state. Although, each state may have different requirements for processing international yachts, virtually all countries require you to declare onboard firearms, with customs often confiscating them for the duration of your stay. To avoid this scenario ship masters would adopt the philosophy that it was better to beg for forgiveness than ask for permission. However, stricter global regulations post-9/11 makes the begging option exceedingly risky. In not declaring arms to custom officials you are automatically in possession of illegal firearms and may even be charged with import offences. A case in point was in 2005 when wealthy Australian yachtsman Christopher Packer was boarded and searched by Indonesian authorities as he left Bali. Undeclared firearms were found and he was imprisoned for three months in Denpasar’s notorious Kerobokan prison. To avoid a similar fate it is essential to check with customs and port authorities regarding local firearm laws before entering a port.

Another legal concern is the very hazy area of self-defence and while customary international law allows for the use of appropriate force when coming under attack all action on-board vessels is governed by the jurisdiction of the vessel’s flag state. However, in cases where a crime impacts on a specific coastal state its criminal jurisdiction may be exercised and unlike Australia, some states will not exonerate on the basis of self-defence.

To Arm or Not to Arm

So should yacht owners arm themselves? On one hand yachts are particularly susceptible to attack lacking the speed, manoeuvrability and other defensive capabilities of larger vessels. This makes them relatively easy targets for opportunistic pirate activities. However, on the flipside there has been a dramatic decrease in attacks against yachts over the last couple of decades. Professional pirate groups recognise in these circumstances risk will normally outweigh reward. Indeed, according to current International Maritime Bureau (IMB) reports, of the 196 attempted and actual pirate attacks reported so far in 2010, not one of these has been carried out against a yacht, down from four attacks during the same time in 2009. When you consider the thousands of yachts cruising sailing around the world on daily basis you are statistically much more likely to be struck by lightning at sea. This does not mean yachting enthusiasts should feel invincible as these figures rely on self-reporting and it has been suggested the numbers are much higher, particularly in South-East Asia and Somalia. British couple Paul and Rachel Chandler had their yacht commandeered in October of last year on a voyage from the Seychelles towards Tanzania. A year later the couple is still counted among the 595 sailors currently being held captive in Somalia for ransom. It is worth considering would this outcome have been different had the Chandler’s been armed?

Ultimately, the decision to carry arms for protection at sea is one of personal preference. Walker never returned to Australia so I’ll never know if he ever got an opportunity to fire the rocket-launcher. Had he run into pirates it would have been very tempting to simply blow them out of the water. Yet, as exciting and empowering as owning such an arsenal must be, it is naive to think that firearms will automatically protect you against pirate activities. Guns are rendered useless without the requisite training, skill and confidence when under fire and there is little point in owning firearms if you never intend to use them. Therefore, shipmasters should consider both the added legal complications and the very real danger of escalating violence before deciding to adopt Walker’s defensive strategy at sea. While the idea of fighting pirates may have captivated an impressionable 21 year old shipwright, looking back through the eyes of a wiser man, I would be reluctant to venture into the high seas so armed and dangerous.

Some Practical Suggestions for Avoiding Pirates

  • Monitor radar and communications
  • Provide crew with security awareness and detection training
  • Travel in convoys
  • Hire independent security
  • Avoid high-risk areas