2.1. Causes Related to the Milieu

2.1.1. The weight of tradition

1Though hard to evaluate, the existence of this factor cannot be ignored. According to Eric Ellen, Director of the International Maritime Bureau, the Malay pirates most often originate from small fishing villages or kampung, where piracy is considered not just as a source of income but also as a tradition. For a long time now, being a pirate has allowed youngsters to prove themselves97. Prior to Ellen, Aleko Lilius, a Finnish-American journalist who was able to follow the band of Laï Chon San in the early 1920’s, had reported, based on his experience in the region of Macao, that the holding to ransom and hijacking of ships was in a certain way considered by the local population as “a legitimate trade98”

2As we are going to see, the regional perception of piracy is ambiguous. But ours is not any less so. Of course, the dictionaries Robert or Larousse qualify piracy as “clandestine” and “illicit”. But the corsairs Duguay-Trouin (1673-1736) and Surcouf (1773-1827) are still praised to the skies and statues are erected in their honour on the shores of the Atlantic, despite their obvious brutality and their overt independence vis-à-vis the reigning powers at the time. The situation is not different in the Malay world. As in Normandy in the past, the sailor-ancestors of the Malay Archipelago still fascinate the young orang laut. Ordinary pirates in our eyes as they are fierce enemies and not part of any clearly identified political entity, these terrible navigators resemble, in the eyes of the local population, the glorious ancestors who roamed the seas in search of riches essential for their people. Here, one nostalgically remembers the old exploits of Jean Bart (1650-1702). There, one proudly recalls the distant expeditions of Raga. Joseph Conrad himself describes with some feeling, Karain, a bugis pirate chief, and all these “faces, dark, truculent and smiling, the frank audacious faces of men barefooted, well-armed and noiseless”:

3“They thronged the narrow length of our schooners decks with their ornamented and barbarous crowd, with the variegated colours of checkered sarongs, red turbans, white jackets, embroideries, with the gleam of scabbards, gold rings, charms, armlets, lance blades and jewelled handles of their weapons. They had an independent bearing, resolute eyes, a restrained manner; and we seem yet to hear their soft voices speaking of battles, travels and escapes, boasting with composure, joking quietly; sometimes in well bred murmurs extolling their own valour.

4We remember the faces, the eyes, the voices, we see the gleam of silk and metal, the murmuring stir of that crowd, brilliant, festive and martial and we seem to feel the touch of friendly brown hands that after one short grasp, return to rest on a chased hilt…99”

5Les Aventures de Reuben Davidger in 1869, along the coasts of Borneo and the island of Celebes, has also contributed to the development of the pirate myth. Its author, James Greenwood, knew how to transport his readers to the land of the head-hunters, to discover the dayak dances and the inevitable brigands of the sea. Thanks to him and to others, the population of Borneo represents, to the 19^th century Europeans, a sort of natural state. Due to a lack of precision and to a taste for exotic caricature, the Makassar of the southern part of Celebes are generally termed as “fearsome” whereas their activities are essentially limited to a simple trade within the islands. Likewise, the novels of Conrad and their long opposition to the Dutch would have earned the Bugis, the neighbours of the Makkassar, the terrible reputation of pirates which they only partly merited100.

6Nevertheless, diverse factors contributed to the development of real piracy much before the arrival of the Europeans. The phenomenon whose Malayan dimension was evoked also occurs in Borneo. The topography, the inhospitable environment, the absence of real agriculture, the small population as well as the unstable nature of the political organisations have never made it possible to promote the position of the island in the region, although it is centrally located. Likewise, the coastal population was never allowed to establish its domination in the interior. In the end, the rare structures that were able to emerge, such as the Sultanate of Bruneï in the North which attained its zenith in the 16^th century, relied upon administrations that were greatly decentralised, constituted by loose networks made up of simple warehouses at the mouth of rivers.

7In this context, the rival chiefs of the banks of the big island resorted to piracy in order to maintain or increase their control over trade. One found, in the crew of the Malay chiefs, the Bajaun, the Illanun, the Balanguingi and the sailors of Sabah. The Iban of East Borneo were recruited in the 18^th and 19^th centuries by the instigators of the coastal raids. Since then, they have been nicknamed “Dayak of the sea” after the ethnic group reputed for its propensity for head hunting. In this huge island, piracy was therefore widely exploited by the local politicians101.

8This observation also applies to the Muslim population of the Philippine archipelago whose banks have for a long time been used for trade and piracy. In the Sulu archipelago for example, the Sama and the “terrible” Tausug of the island of Jolo have a long tradition of maritime crime. Besides, the hijackers of the Abu Sayyaf group have originated from these groups which, a few centuries earlier, already used to carry out raids against the villages of the nearby archipelago of the Visayas. More peace-loving than their proud neighbours of the North, the Sama nevertheless engaged in smuggling activities with Borneo.

9In their study on these “Berbers of the Eastern seas”, Guislaine Loyré and Alain Rey lay emphasis on the nature of piracy among these people, grouped by the Spanish under the general term “moro”. Piracy here would be “the expression of a tenacious ethnic particularism102”. Against the Spanish in the 16^th century, against the Americans at the end of the 19^th century and today against the Central and Catholic power, these pirates do not defend a religion. They fight “against the intruder (…) to defend that which represents their independence, their freedom to trade and to procure for themselves booty and slaves”. The authors therefore bring up the idea of “a way of life already fixed in its particularities long before the arrival of the Westerners103”. There is a strong temptation to look for the prolongation of these traditions today. In fact, the inhabitants of Sulu still perpetrate maritime crime. They continue to maintain a close relationship with the people of East Borneo and Sabah, made up of a number of more or less legal Filipino immigrants.

10Though the former Sultanates of Borneo offered new infrastructure to their people, inciting them to give up violence, the people of Sulu still pursue their illicit activities defying all borders and governments. The guerilla and the violence to the South of the Philippines have not contributed to changing these practices.

11The hostages have simply replaced on an ad hoc basis booty and slaves. It is therefore not surprising that today piracy is wreaking havoc mainly in this zone.

12Further to the South, in the 19^th century, the Tolebo were nicknamed “terror of the Moluccas”. From the islands of Halmahera and Morotai, these coastal communities perpetrated fierce acts of piracy, mainly against European ships.

13Near the Malacca Straits, the orang laut on their ships, gathered their wealth from the sea through the ages. Right from the end of the first millennium of the Christian era, a reference is made to these new migrants, settled on their boats and making a living from piracy in the vicinity of Riau and the Malay Peninsula. In the 15^th century, these nomads of the sea offered their support and their considerable experience to the Sultanate of Malacca to help control the payment of “taxes” by ships passing through the Straits. Nearly two centuries later, we find the orang laut at the sides of the Sultan of Johor, forcing the trading ships to make a halt at his city.

14Should one however deduce an indefectible attachment to a practice that is many centuries old? This somewhat provocative question leads us to a bigger debate which is that of culturalism. It is not a question of explaining, let alone justifying, the pirate activity of the Malay people by some gene or natural penchant. It is only a question of describing the often historical, but also geographical context, which has made piracy “culturally thinkable104”.

15In fact, piracy is still perceived in certain areas of East Asia “as an ordinary profession which is socially permitted105^”. This would explain the permanence of semi-professionalised armed bands, sometimes placed under the protection of an influential local politician for whom they also play the role of a private militia106. The people may tolerate the pirates on account of economic incentives, but also because piracy may be acceptable in this context and as the pirates offer them better protection, that is perhaps more efficient than that of a corrupt army that is sometimes cruel.

16Drawing from their experience of drug trafficking in the Golden triangle (between Thailand, Burma and Laos), some specialists think that it will be extremely difficult to eradicate piracy, just as it is difficult to impose substitute cultivation in the place of poppy. Whether it is the peasants of Burma and Laos or the fishermen of Sumatra, it is impossible to ignore the influence of the context.

17Other more external events also encourage maritime delinquency. The support of Libya and Sabah to the Muslim separatists of the Philippines in the seventies (dispatch of uniforms, paramilitary training on the island of Pangkor or opposite Sandakan) has probably contributed to the instability of the region and to the development of an area open to all excesses, piracy being one of them.

2.1.2. The geographical background

18Other than the monsoon, which, in earlier times, drove the pirates of Borneo to the vicinity of the Malay Peninsula, several geographical elements favoured the development of piracy.

19First of all, we will note that the Malacca Straits which shrink to 1300 metres at the narrowest point, force ships to reduce speed. The traffic is so dense that the fastest ships cannot exceed ten knots (around 18 km/h). To make things worse, this sea route is subject to the formation of sand banks and heavy rainfall. All the elements that are conducive to maritime guerilla warfare, to attacks, to ambushes and other skirmishes recorded in the various jungles, mountains and canyons of America and Asia, are to be found here.

20The Malacca Straits, a veritable 937 km. long funnel, however still constitutes the only passage that is economically viable. On account of their location and their lack of infrastructure, the Straits of Lombok and Sunda remain secondary routes. And if by chance other routes were to develop, the areas requiring supervision would increase proportionately.

21Pirates know how to make full use of the opportunities offered by the 17000 islands of the Indonesian Archipelago which constitute as many points of shelter. The port of Tanjung Pinang, on the island of Bintan-sometimes nicknamed the local Tortoise island, sees a great deal of activity. All kinds of boats anchor near the quays. It is useless to search for any aggressor here. Nothing resembles a fishing boat from Riau more than another fishing boat from Riau, these islands that are far-flung and dispersed between Sumatra and Singapore. This difficulty is cruelly experienced by the Royal Malaysian Air Force and the Royal Malaysian Navy whose patrols have to face daily problems of identification107.

22The proximity of the various countries also facilitates the escape of the pirates. Even an old ferry sailing from Tanjung Pinang, to the west of Bintan, needs only one and half hours, to reach Tanah Merah, the new landing stage situated to the east of Singapore. One can, in half an hour, make the journey from the island city to Sekunpang, on the island of Batam situated on the other side of the Singapore Straits in Indonesia. Thus, when the forces of law and order intervene, pirates, equipped with a motorboat, need only a few minutes to seek refuge on the other side of the border.

2.1.3. The technological evolution

23The “kit of the perfect pirate” has been modernised. After giving in to the steamboats of the 19^th century, the lawbreakers in their turn made full use of the new techniques and also of the growing number of available weapons108. They possess M-16 and AK-47 assault rifles and also 50 caliber machineguns, RPG (hand grenades) and even small rocket-launchers. In addition to this artillery, they possess light craft equipped with powerful motors which move at a speed of 40 knots (more than 70 km/h), ideal for threading one’s way through the shallow waters of the big archipelagos109. The pirates also use radars and deliberately scramble the emergency frequencies. It is likely that they made use of the arms of the Red Army’s campaign in Afghanistan and the Cambodian surpluses.

24Their arsenal sometimes even includes Strella surface-to-air missiles, mortar or underwater mines110. It is therefore hardly surprising to learn that in August 1991, a Filipino DF-304 patrol boat was sunk by the pirates. In April 1992, the Assistant Director of the Filipino police acknowledged the death of five coastguards on the occasion of another naval encounter with brigands111. As for the report of the IMB for the year 2000, it recorded 4 rocket-launch attacks. After Singapore in the 19^th century, it is Borneo which acted as a hub for the arms trade in the early 1990s.

25Apart from armaments and fabrication of false papers for the phantom boats (Refer. below), modern communication and information technology favours piracy on a big scale today. A French specialist in maritime transport in East Asia used to point out that the containers loaded on a boat generally being identical, it was difficult for the pirates to know the contents without the help of informants112.

26In the early 1990s, it was reported that in the ports of Santos and Rio de Janeiro in Brazil, the bandits climbed aboard ships equipped with a complete list of merchandise on board. In East Asia, fax messages, e-mails and telephone calls are exchanged between gangs. They possess “computerised information furnished by dockers or agents who were duly paid113”. Often, the cargo would have already been sold before the boat left the port.

27A sailor captured by pirates in China maintains that he saw “a hotel room full of maritime communication instruments114”. A few weeks before being attacked on the high seas, ships may thus be sold for between 100 000 to 300 000 dollars115 by unscrupulous ship owners. Three hundred thousand dollars: this was the sale price of the Cheung Son, a ship captured in late 1998 by twenty-three Chinese pirates who were sentenced to death and later executed in January 2000116 (refer to Boarding incident 3).

28It is to be noted that the transformation of the ships also favours pirate attacks. Bigger and bigger, these ships can hardly facilitate subtle maneuvers in the narrow navigable routes and their crew has to devote its attention to the risk of accidents rather than to the possibility of a pirate attack. At the junction of the Malacca Straits and of Singapore, currents sometimes reach six knots (more than 10 km/h), which makes navigation delicate, to say the least. In these conditions, it is impossible for the sailors to think only about surveillance. So more than 85% of the pirate attacks that succeeded in the second half of the nineties relied on the surprise effect.117

29The reduction of personnel on board has also contributed to the slackening of vigilance. The problem is especially acute for oil tankers. In nearly twenty years, the crew of a tanker 230 metres in length has decreased from fifty sailors to around twenty118. In addition, maritime regulations dissuade these vessels from carrying firearms due to the obvious risk of explosion. Finally, the bridge of a fully loaded oil tanker rises barely two metres above the water and this facilitates boarding119.

2.2. Political Causes

2.2.1. Instability always conducive to piracy

30If factors related to the milieu constitute the necessary fuel for the propagation of the pirate inferno, political circumstances are the sparks capable of igniting this potential furnace.

31In Sri Lanka, Tamil guerillas, brought in by the LTTE in opposition to the Singhalese Government, attacked two ships in April 1995. Warships as well as commercial vessels were targeted by this piracy, which continues at sea, the activity begun in the northern part of the island.

32Further to the East, the events of 1998-1999 in Indonesia have, to be sure, given rise to more than one pirate vocation. The clashes between Christians and Muslims in the Moluccas provoked the escape by the sea route of refugees who became easy prey. Ships loaded with relief requirements for the victims of the religious clashes were even hijacked120. At the end of 1999, to the north of Sumatra, an official of the Gerakan Aceh Merdeka (Movement for the liberation of Aceh) announced the threats that he intended to pose to the port at the mouth of the Malacca Straits, as well as to the safety of international maritime routes121. The movement, which considers itself to be representative of the province of Aceh, is currently fighting against the Central Government to secure its independence.

33More generally, Noel Choong, representative of the IMB in the region, referred to the political instability in Indonesia to explain the renewed violence in the Malacca Straits in the year 2000. An aggravating factor is that a large part of the Archipelago would have been abandoned by the Javanese high officials of Jakarta who were facing other challenges on the political scene. As a result, the smuggling of arms-to secessionist movements at Aceh, in the Moluccas, and also in West Papua (ex-Irian Jaya) – risked aggravating more than ever the violence of the boarding incidents.

34In Sabah (Malaysia), piracy is part of a bigger problem, related to both religion and immigration. As the population has always proclaimed itself to be Christian, the political leaders of Muslim faith did not hesitate to open the door to a number of Indonesian or Filipino Muslim immigrants. The objective of the maneuver was to secure voting rights for the latter as quickly as possible in order to supplant the electorate of Protestant or Catholic origin. A Christian journalist of Tawau (Sabah) who carried out an investigation on this situation recently wrote an article on the Bureau of Immigration and its fence that was sectioned in places122.

35The Indonesian immigration candidates arrive early in the morning before the department opens. By making a few contortions under an old barbed wire fence, they can enter the Malaysian territory without the least problem. As for the naval patrols, their efficiency is only relative as is illustrated by the new hostage taking by the Abu Sayyaf group, in spring 2001, between Palawan and Basilan.

36This massive inflow of immigrants, due as much to vote-catching considerations as to the situation in Indonesia and to the south of the Philippines, jeopardises the already very difficult living conditions, in these fishing villages nestling within the towns of the east coast of Sabah. Weapons circulate easily here. Relations with the outside world and the islands of the Sulu archipelago are good. It is likely that some inhabitants of the kampung regularly alert their cousins settled in the Philippines about the possible arrival of “goods” that can be sold. Familiar with the terrain, as they sometimes had stayed there, the pirates could organise a raid right into the Malaysian waters, without taking into account borders which artificially separated the same population. The maritime racket served as a good opportunity for the refugees of Sabah to improve their life.

37One is greatly tempted to compare this situation to others, far less exotic to the Westerners, in the lawless areas such as Harlem in the United States or some French housing estates of Seine-St-Denis. The only difference here is the marine element and translation into piracy of crime founded on petty theft. Here too, the Muslim immigrants are accused of all wrongdoings by the police authorities of Kota Kinabalu, the capital of Sabah. In the absence of car radios in graceful sedans parked in residential parking lots, the youth of the kampung target the lockers of the luxurious yachts anchored in the creeks of Borneo or the merchant ships which sail in the vicinity. A few hundred metres away, the port of the town of Kota Kinabalu and the camp of the Filipino immigrants of the island of Gaya face each other. It seems to be very easy for these residents to blend into the traffic of boat-taxis in order to commit their robbery on the docked ships before getting home furtively.

38In Sabah more than elsewhere, the pirate is mistaken for the brigand who can hardly be distinguished from the religious extremist who in turn is confused with the separatist. The only common denominator is banditry in a gray area with hazy borders.

2.2.2. The Power Vacuum following the Cold War, a decisive factor for the resurgence of piracy

39The “Power vacuum123” existing in East Asia since the end of the Cold War explains the outbreak of piracy to a large extent. The end of the East/West opposition resulted in certain States quitting some regional zones, giving way to “new barbarians” embodied by the mafias and the armed bands mentioned by Jean-Christophe Rufin124.

40Even immediately after the Second World War, the withdrawal of the Dutch colonial troops had led to a significant slackening in the control of the waters bordering the Malay Archipelago.

41The insurrections in the sixties and the seventies in Malaysia and in Indonesia had also been conducive to piracy. But shortly afterward, the Vietnam War had led to the strengthening of the American military presence in the China Sea. To the East, the triumphant Brejnevism benefited from the success of Vietnam to assert itself from Vladivostok and the huge aero naval base of Cam Ranh, in the south of Vietnam. In reaction, two groups of American Navy ships had scoured the Southeast Asian waters forcing the pirates of the region to suspend their activities.

42The retreat to Pearl Harbour (3^rd fleet) and Yokosuka (4^th fleet) of the US navy two years after the fall of the Berlin Wall once again left the field free for the sea bandits. For the latter, the risk of coming across an American patrol ship diminished further after the abandoning of the Clark airbase and the naval base of Subic Bay in the Philippines.

43Following these withdrawals, it is possible to advance a hypothesis. In the early nineties, China was suspected of wanting to occupy the power vacuum, which followed the Russian and American withdrawals by supporting its government officials accused of having opened fire and seized ships outside the Chinese waters. Peking however denied all official involvement125.

44Whatever be the case, the end of the Cold War gave way to a proliferation of territorial conflicts. The Asian countries rapidly studied the question of maritime demarcations. A litigation pertaining particularly to the Paracels Archipelago is a bone of contention between China, Taiwan, Vietnam, Indonesia, Philippines and Brunei.

45We could also cite problems concerning Macclesfield (between China and Vietnam), the Spratly archipelago (China, Taiwan, Vietnam, Malaysia, Philippines, Brunei, Indonesia), the Natuna archipelago (China, Indonesia, Vietnam), Sabah (Malaysia, Philippines) and in the vicinity of Sipadan-Ligitan (Indonesia and Malaysia). There too, the pirates proved to be opportunistic operating in these areas where, in fact, no government authority could really be exercised.

46In July 1999, a diplomatic report rightly concluded that the struggle against piracy could attain full efficiency only if the litigations pertaining to maritime borders were resolved. In any case, this remains an absolute prerequisite for a cooperation without any ulterior motive in the whole of Southeast Asia.

2.3. Socio-economic causes

2.3.1. Piracy and Development

47Generally, countries which, following the example of Indonesia, experience significant socio-economic shocks, are naturally the principal victims of the development of piracy126. Creating numerous and richer preys, the economic expansion in Southeast Asia has contributed, during the nineties, to the rapid resurgence of piracy.

48In 1964, the share of East Asia in the GWP (Gross World Product) was 4%. It was 25% in 1992 and should, according to the estimates of the United Nations, reach% in 2010127. This remarkable economic development is largely based on trade.

49With Japan in the lead, the Asian fleet, from 15% during the course of the last twenty-five years128 represents approximately 30% of the global fleet. In addition, in 1994, eight of the ten most active port facilities for the transit of containers were situated in East Asia. Hong Kong, Singapore and Kaohsing in Taiwan took the top three places129. Finally, it is to be noted that Asia’s share in commercial exports has gone from 37% in 1985 to 45% in 1993130.

50This expansion, veritable manna for the pirates, also allowed them to blend into the multitude of ships in the region. Finally, it led to structural changes131. The transition to an urbanised and industrialised society further increased crime as the differences in revenues increased132.

51Deprived of the benefits of the ongoing economic growth, the coastal villages sought their salvation at sea. This artisanal piracy is clearly illustrated by the image presented by Weber and Roche:

52“The Captains who traverse the Straits catch a glimpse of the illuminated skyscrapers of [Singapore] from portside and the lamps of the shanty towns from starboard side. The Malacca Straits are like Monte Carlo adjoining the Central African Republic, with a channel as a narrow border133”.

2.3.2. The economic crises and the promised sea134

53According to Jean-Luc Domenach, author of l’Asie en danger, “the return of piracy shows how progress and danger go together in the new regional zone of East Asia. Economic development not only means more trade, but also (…) the economic differences which motivate predatory activities135”.

54If development and the inequalities which it causes are therefore conducive to maritime piracy, crises also have the tendency to encourage it. On 2^nd July 1997, the fall of the Thai baht heralded an economic upheaval which was going to fall on Southeast Asia.

55People were soon going to face the consequences, as victims of inflation and unemployment. Brutal reactions were reported, as in Java where newly formed bands attacked overloaded trucks around Lebaran, the festival celebrating the end of Ramadan. A number of policemen were finally deployed along the communication routes to ensure the security of the island that was more and more prone to crime, according to the national police136.

56The phenomenon logically spread to the sea. In 1996, 26 crewmembers were killed. The number recorded two years later was three times higher.

57At the level of the local revenues, the ransoms commonly demanded were certainly motivating. In 1999, the figures in the Philippines were 20000 pesos (around 600 euros) for a cargo of fish, 30000 pesos (900 euros) to free the crew members and 100000 pesos (3000 euros) to recover the trawler137.

58Off the coast of Java and Sumatra, the pirates could, in fifteen minutes, earn more than 30 000 dollars138. Asia had already seen precedents. In the 10^th century, the Japanese peasants, ruined by the abusive taxes and duties, resorted to maritime pillage… as if misery “destined one for the career of buccaneer139”.

59Armed with this observation, the President of the International Ship Owners Association of Malaysia, Abdul Latif Abdullah, recalled in November 2000 that in the Golden Triangle, drug trafficking had been checked thanks to the implementation of substitute cultivation. Inspired by this experiment, he wished to encourage alternative economic activities in the areas affected by piracy by developing, for instance, industry and agriculture142. Abdul Rahim Hussin, Director of the Maritime Safety Policy in Malaysia, said the same thing while declaring on the same day, “If we can fill their stomachs, they will not engage in piracy143”. As for the Japanese Prime Minister, Yoshiro Mori, he proposed at the end of the year 2000, a plan to combat poverty along the Malacca Straits144. This kind of preventive measure is recent and naturally difficult to implement in a regional economic context, which remains depressed.

2.3.3. “Cop or hooligan?”

60It is difficult to highlight the links between piracy and the endemic corruption that reigns in the Indonesian and Filipino archipelagos. However, one question surfaces immediately-are the Government officials ideally placed to combat piracy? In October 2000, a group of ship owners called for a reaction from the Indonesian military authorities, specifying that the pirates seemed to have a “military behaviour and a military past145^”. At the end of 1999, an investigation on piracy in Indonesia confirmed that Customs officials by day could transform themselves into pirates by night. The maritime circles, one and all, denounced the presence of rebel and corrupt elements among the military and the Indonesian police. There is a lot of money to be made by disposing off petroleum from a tanker in the black market, infinitely higher than the remuneration of a senior officer (the monthly basic salary of a general was around 120 euros in the year 2000146). This “dark alliance” between buccaneers, coastal patrols and officers of the Indonesian Navy was particularly confirmed by an investigation conducted by a Thai daily147.

61In fact, it is clear to all that the Indonesian army was confronted by “disciplinary problems”. In 1993, the Commander in Chief of the armed forces, General Sudradjat, acknowledged in a press conference that he had had to face numerous violations of military regulations148. This is probably why the Japan Association for Marine Safety (JAMS) made known its reservations against the transfer to Indonesia of patrol ships taken from the Japanese fleet. In a confidential document in July 2000, the JAMS expressed its fear of seeing these units “being utilised by the unscrupulous Indonesian military and police wanting to engage, in their turn, in ill-intentioned acts”. This fear was justified by the denouement of the Petro Ranger. A diplomatic incident was only just avoided between Malaysia-the victim-and China-who retained the ship “for investigation” for several weeks. The twelve pirates were finally deported by the Chinese authorities to their country of origin-Indonesia. And to the great displeasure of the Malaysian authorities, the pirates were set free a few days later149.

62Testimonies like that of Captain Millar, in charge of the Seakittle attacked on 21^st October 1991, had already mentioned the use of commando techniques, good English and the capability of the pirates as far as transmission150 was concerned. In 1993, in the Baltimar Zéphyr case, the investigation was hampered by political considerations and finally resulted in the drawing up of conclusions judged by the IMB and the British authorities as erroneous. Despite evidence of a pirate attack, the Indonesian official in charge of the inquiry into the deaths of the British captain John Bashforth and the Filipino First Officer Teodolfo Pereja, had hastily concluded that there had been a mutiny led by the Chief Engineer151.

63In any case, the friction between the Indonesian headquarters and the regional military command, desirous of increasing their autonomy by establishing links with the business world and certain private militia, has been referred to several times during the last few years. The highest spheres of the State themselves are not above suspicion. (Refer to Boarding Incident 3).

64Indonesia is not the only one involved. On 11^thNovember 1993, correspondence from the French Embassy to the Philippines reported the disbanding of 444 “private militia” and the seizure of more than 16000 firearms156. In 1991, a Japanese ship relieved of its sailors was even sold to fishermen by the Deputy Mayor of the nearby island of Zamboanga. However, Manila never investigated it in order to ensure that its loyalty to the struggle against the armed rebellion in Mindanao remained unendangered157.

65Finally, there is the notorious case of the Chinese coastguards that puzzled the Japan Association for Marine Safety. For the Association, the independence enjoyed by these government employee-pirates vis-à-vis the Central power was questionable. According to the JAMS, Peking would have turned a blind eye for a long time to the incidents that were taking place on its waters. On their part, the Chinese authorities referred to the conclusions of the 72^nd session of the MSC (Maritime Safety Committee). This Committee of the IMO (International Maritime Organisation) had emphasised, in May 2000, the relative calm of the Chinese waters, spared from piracy since early 1999. It had laid emphasis on the arrest and later, on the sentencing, in January 2000, of the bandits who had attacked the Cheung Son in November 1998.

2.4. Legal Causes

66The outbreak of piracy can at least partly be explained by the weaknesses of the legal framework. The latter is based on the agreements of the Montego Bay Convention (1982) and the Rome Convention (1988). Now, these two texts, either because they define piracy in a lacunary fashion or because they have not been sufficiently ratified, can hardly be perceived otherwise than as fragile milestones on the road of the anti-piracy war.

2.4.1. The initial legal considerations

67The history of the search for a clear definition of piracy reflects the complexity of the procedure. The first effort of codification in matters of piracy dates back to a committee of the Society of Nations (SON), in 1924. Nations, at that time, had great difficulty agreeing upon the crimes that the concept covered. This difficulty revealed, among others, an incapacity to perceive the problem other than from a state-centred point of view. Not arriving at a convention, the SON incited the Harvard Law School to found another committee. The work of the American academics concluded with the drafting of a convention158. The authors of the text wanted it to be integrated into the existing international legal order, but emphasized on piracy jure gentium (in international public law) rather than on provisions made in the national law. Despite its ultimate failure, this move, according to Samuel Menefee, renowned specialist on maritime violence, constituted an interesting step159. Besides, he draws attention to the influence of the Harvard legal experts on the debates in 1954, when during the Cold War, the United Nations discussed acts of piracy perpetrated in the vicinity of Taiwan. The political dimension of this violence was disturbing.

68The following year, the Commission of International Law of the United Nations in its turn, studied maritime crime as it is viewed today. Should the definition of piracy take into account political motivations? From which point do acts of piracy motivated by political considerations become international crimes? Should the right of investigation and research be limited to certain waters? In which places does international law apply? Will the attacks against airplanes be considered piracy? So many questions that resulted, in 1958, in the Convention on the high seas. This text, which came into force in 1962, was the first real codification of international law insofar as maritime piracy was concerned. Sections 13 to 19 deal primarily with this subject and Section 15 which defines, in particular, the nature of crime would have directly inspired Section 101 of the United Nations Convention on the Law of the Sea (UNCLOS) signed in 1982 in Montego Bay (Jamaica)

69From 1958 to 1982, the provisions regulating piracy on the high seas hardly evolved despite the creation of the Exclusive Economic Zones (EEZ)160 and the new questions that were raised in its wake. In the tense situation between the coastal States and the international community, the discussions opposing the representatives of governments resulted in the “diplomatic fudging” that is the Montego Bay Convention161.

2.4.2. The Montego Bay Convention: a definition that is both too restrictive and too broad

70Aricle15 of the Geneva Convention of 29^th April 1958 as also Article101 of the Montego Bay Convention of 10^th December 1982, that entered into force on 16^th November 1994, lay down at least three conditions for defining piracy: two ships, personal motivations as also a place: the high seas. The 1^st article of the Geneva Convention defines the high seas as “parts of the sea that are not part of territorial seas or territorial waters”. The Montego Bay Convention further excludes the Exclusive Economic Zone from the provisions laid down in Part VI. However, there is one exception, if the interests in question concern “the entire international community” (Article 59), certain acts committed within the EEZ may be qualified as acts of piracy162. For the moment, only these provisions are legally valid, those of the IMB being purely indicative.

71By acknowledging piracy only on the high seas, international law gives a lot of leeway to pirates. All violent acts committed within the territorial waters of a State fall within its jurisdiction. But the inspection of a ship can take place only on the territorial waters where the infraction was committed, even on international waters. If the chase began on the high seas, it should end as soon as the miscreants enter the waters of another State, unless there is an explicit authorisation163

72That is why pirates generally act at the border of the territorial waters of a State in order to be able to escape into those of its neighbour as soon as a pursuit is launched. The bandits thus experience a “feeling of growing impunity164”.

73It is this right of pursuit, nicknamed “hot pursuit” that raises doubts about the efficiency of the patrols165. By the time they receive a notification authorising them to continue the pursuit beyond their territorial waters, the coastguards can only helplessly watch the escape of the pirates, who are faster and less concerned about respecting sovereign rights. As the composition of the gangs, often multinational in nature illustrates, the pirates are above all “citizens of the world” or, at the very least, in the region, they are “citizens of the Malay world”. They mock at the established borders as much as the Filipinos of the Sulu archipelago spread out between the refugee camps at Sabah and on the island of Mindanao. In fact, the police of Ketam, island off the port of Kuala Lumpur, confirmed that the pirates of Sumatra preferred waiting to attack on the high seas at the border of the territorial waters, before withdrawing rapidly from the other side of the border. The case of the MV Hazel 1, attacked in October 2000 not far from Singapore, perfectly illustrates this.

74For more than two months, the boat’s crew was waiting for spares to repair their broken-down motors166 at only eleven miles off the Singaporean coast but beyond the territorial waters. The pirates attacked at this exact point, aware that the Singaporean coastguards did not have the right to sail there167.

75However, by including “any act of violence” or of “depravation” against persons or goods on board a ship, the Montego Bay Convention has proved to be innovative. It goes well beyond the simple definition of acts of piracy, by including acts of vandalism or quarrels.

2.4.3. The Rome Convention: a relevant text, albeit not ratified

76Following the taking of hostage of the passengers of the Achille Lauro by a Palestinian commando on 7^th October 1985, the international community tried to perfect a new tool to concretely fight maritime violence. This study resulted in the adoption, on 10^th March 1988, of the Convention on the suppression of illicit acts against the safety of maritime navigation, under the auspices of the International Maritime Organisation.

77In fact, this text, termed by some as “a treaty that is relevant to the suppression of piracy168”, takes up again the multilateral legal antiterrorist instruments169, that contribute two interesting elements: an operational definition of piracy and a framework for legal cooperation.

78As in the case of terrorism, the question of piracy is a very sensitive issue with the states. In fact, even the term “piracy” is not used, but its practices are carefully broken down (see inset below).

79As is the custom and echoing Article 95 of the Montego Bay Convention (immunity granted to military ships on high seas), Article 2 of the Rome Convention specifies that warships are excluded.

80However, for the first time, an international convention does not limit itself to a few cases in particular. The 1988 Convention covers a number of reprehensible acts that can be treated as piracy, considered in broad terms from then on.

81The prerogatives of the States are also extended in matters of intervention. The Rome Convention, circumventing the restriction of 1982 which limited piracy to acts perpetrated on the high seas, can henceforth be applied “if the ship is sailing or if, as per its navigation plan, it must sail through waters, across waters, or is coming from waters situated beyond the external borders of the territorial seas of a single State”.

82Another extension concerns the target. On 10^th March 1988, the Protocol for the repression of illicit acts against the safety of fixed oil rigs situated on the continental shelf took up once more the terms of the Rome Convention to qualify as penal infraction any act of seizure of a fixed oil rig or exercise of control through violence. Unlike the Montego Bay Convention, it is the behaviour at sea rather than the target (ship or oil rig) that is important, that is to say the techniques used, similar to maritime guerilla warfare, as also the extent of violence, threats, surprise and escape into international or foreign waters.

83Extension finally as piracy is no longer limited to “personal motivations” inspired by only animo furandi (purely monetary motivation).

84The Rome Convention however has its limitations. The acts of the crew which “pertain to discipline on board” are explicitly excluded in the preamble. In this manner, brawls and mutinies cannot be treated as acts of piracy. Besides, unless there is destruction or disturbance that affects navigation, the text does not take into consideration the violence committed. Threats, robbery and coastal crime are therefore excluded from the definition. In this respect, the Montego Bay Convention was broader, despite not being more precise, as it included “violence”, “detention”, “depravation” against “persons and goods”.

85To conclude temporarily on the question of the definition, let us simply note that the terms retained in the fourth paragraph of the Preamble of the Rome Convention may appeal to people who are indecisive as it includes “planned illicit acts against the safety of maritime navigation [that] compromise the safety of persons and goods, seriously impede the operation of maritime services and undermine the confidence of people the world over in the safety of maritime navigation”.

86Further, the major progress of 1988 deals in fact with the possibilities of enforcement. In this area, the Montego Bay Convention was not very emphatic as it only required that the States cooperate “as far as possible” (Article 100). In the Rome Convention, every person who is party to the contract is required to undertake the necessary measures to exercise its jurisdiction on the acts defined in the text or to extradite the offender. The persons responsible for the acts of piracy thus become “international criminals” who can be tried anywhere. Aut dedere, aut judicare (either we extradite, or we judge): this principle generally allied to terrorism may also be applied to piracy.

87Apart from extradition (Articles 7 to 11), the legal cooperation laid down by the Rome Convention targets both prevention (Articles 13 and 14) and investigation procedures subsequent to the attack (Articles 12 and 15). Its impact could very rapidly be a determining factor. The case of the Petro Ranger, detained by China while Malaysia demanded the extradition of the pirates, clearly demonstrates its impact on application as far as the countries are concerned (refer to Boarding Incident 4)

88We will note however that in the whole of the Asia-Pacific area, only Australia, India and Japan had ratified the text174. Four months later, the signatures of 150 of the 192 member nations of the United Nations Organisation were still missing. Indonesia (119 attacks), Bangladesh (55 attacks) and the Malacca Straits (75 attacks) who sail the Malaysian, Singaporean and Indonesian waters, account for more than half the acts of piracy in the world. Yet, in January 2001, not a single one of these nations had ratified the Convention. The Malaysian Security Council has since then declared that it will carefully study the question, “conscious of the utility” of the text in the struggle against piracy175.

89On the same note, in November 2000, an official of the Singaporean Coastguards acknowledged the importance of the ratification. Their reticence in this respect is related to the fact that they see in this text an element of restriction, albeit insignificant, to the exercise of their sovereignty.

2.4.4 A highly under-estimated threat

90The definitional problem born of the difference between the Montego Bay Convention and that of Rome hampers the institution of a unified statistical apparatus, thus making it impossible to have any credible analysis. The data collected differs considerably according to the bodies and the texts adopted. Thus, the majority of the attacks against fishing ships, even though they are reported to the local police, are never communicated to the IMB, which itself constituted its statistical apparatus only in the early 1990s. They have been classified as theft or robbery rather than as piracy176. Eric Ellen even maintained that in the Philippines, in 1993, the Regional Centre of piracy177 would not have registered at least 143 aggressions that cost the life of nearly 30 people. In 1998, the Filipino Navy counted 139 acts of piracy while the IMB enumerated only six178. The following year the web site www.maritimesecurity.com estimated the number of unreported attacks at 130179. The very large gap that separates the figures of the IMB (91) from those furnished by the authorities of Manila (1108) between January 1991 and September 2000 would prove that the magnitude of the phenomenon of piracy today is fundamentally under-estimated180.

91While the legal experts debate on the elements that are to be retained for defining acts of piracy, many private players withhold information. Around one-third of the maritime companies in Singapore acknowledge only in private, attacks against their ships181. An enterprise that would admit having been victim of such an incident would in fact risk affecting its credibility and therefore its business182. Their reluctance to inform the authorities of the aggressions is even greater as this would mean additional expenditure. First, because at the time of recruitment, the personnel would be reluctant to sail into dangerous waters and it would therefore necessitate higher salaries. Further and particularly because the berthing of a ship for investigation purposes results in significant expenditure (the cost of keeping of a cargo ship at port is estimated to be between 15000 and 40000 euros per day183). Finally because of the fear of insurance premia going up. It is in any case what Christopher Rome, officer of the Lloyd’s Syndicate of Maritime Insurance predicts, when he declares that “piracy, we can live with, it is enough to increase the premia184”. Besides, the insurers tend to mistrust their own clients. Piracy or fraud, the disappearance of crew, cargos and boats is quite common.

92The maritime authorities, on their part, fear that their image will be tarnished if they acknowledge attacks within their jurisdiction. It is probably why, in September 2000, the officers in charge of the naval Headquarters on the Indonesian island of Bintan (to the south of Singapore) declared peremptorily that there was not a single act of piracy to report in their sector185. Over the last twelve months, the IMB however had recorded more than a hundred. The same year, the Maritime and Port Authority of Singapore too emphasised on the safety of its territorial waters, forgetting the raid led from the sea against the Taoist temple on the island of Kusu186.

93Finally, good neighbourly relations require that States handle their neighbours with diplomacy rather than accuse them of laxism or spite.