A maritime mystery

Piracy has always had a spurious glamour. Since the 17th century no case has appeared in Europe. The “Brethren of the Coast” had effectively been controlled even in the Caribbean. However the saga of the Arctic Star, which disappeared at the end of July, has proved more surreal than the Hollywood film, Pirates of the Caribbean.

The unanswered questions surrounding this ship, its disappearance and reappearance continue. Whatever the outcome, the legal dimension needs to be addressed and analysed. Clearly things happened which should not have happened.

Background

The convoluted story of the ship’s voyage involved an alleged hijacking off the coast of Sweden—after it had sailed from Finland, its close monitoring in the Channel, its disappearance “from the radar”, an international police alert and the eventual tracking down of the ship two weeks later and 2,500 miles off course in the Cape Verde Islands, by a Russian anti-submarine vessel summoned from the Black Sea.

Then followed the arrest of the hijackers, who, from the photographs, appeared to be men in peak physical condition.

A spokesman for the Portuguese Navy denied a spotting in the Atlantic, prior to this, saying: “This ship is not, and never has been in the Portuguese jurisdiction.” This suggested that the Arctic Star was deliberately sailing away from normal shipping channels to avoid entering waters where it could be challenged.

Enter the Russian envoy to NATO, Dmitri Rogozin. He may be the one who holds the clues to the whole story, having been previously Vladimir Putin’s special envoy to Kaliningrad. He added to the sense of conspiracy surrounding the whole affair by telling Itar-Tass, the news agency, that the media had been given deliberately misleading information “which did not allow them to calculate the true action of the Russian forces”.

He said that there had been intensive exchanges of information with NATO forces, which had enabled the Russian Navy to seize the ship and “save the crew”.

The investigators in Finland reported that the ship’s owners had received a ransom demand for $1.5m—possibly genuine or opportunistic.
The situation was received with disbelief by the maritime authorities. “This doesn’t really exist in our world at all,” said Jorgen Zachan, chief of the accident investigation unit at the Swedish Transport Agency. “A case like this in the Baltic Sea or in the waters around Sweden has not happened since the 17th century.”

“Any commentary now might harm the investigation”, said Viktor Matveyev, director of Solchart, which operates the ship and is based in Finland.
Applying the law

Piracy is an international crime, and one for which the death penalty has been retained by certain states, while abolishing it for almost everything else. It consists of acts of violence, detention or depredation committed for private ends by the crew and passengers of a private ship or aircraft in or over international waters against, another ship or persons and property on board.
 

The same acts committed in the internal waters, territorial sea, archipelagic waters, or international airspace of a nation do not constitute piracy in international law but are, instead, crimes within the jurisdiction and sovereignty of the littoral nation.

International law permits any warship or government to repress an attack in international waters. In a state’s territorial waters, such attacks constitute an act of armed robbery and must be dealt with under the laws of the relevant coastal state. These laws seldom, if ever, permit a vessel or warship from another country to intervene.

By acts of piracy, the pirates themselves lose the protection of the nation whose flag they are otherwise entitled to fly. Acts otherwise constituting piracy done for purely political motives as in the case of insurgents not recognized as belligerents…are not piratical.

International law has long recognised a general duty of all nations to cooperate in the repression of piracy. The traditional obligation is included in the Geneva Convention on the High Seas 1958 and the LOS Convention 1982, both of which provide: “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”

Deception?

The Maltese Maritime Authority said on 18 August that officials had actually been tracking the vessel for several days, even though it was reported as missing. The deception was carried out by the investigating authorities of Finland, Malta and Sweden “in order not to jeopardize the life and safety of those on board and the integrity of the ship” it said.

This was compounded by the Russian Foreign Ministry, which stated that “of course this bulk freighter with deadweight of 7,000 tonnes was never lost. Its movements were monitored, and its coordinates provided by several sources, including our foreign partners”.

The eight men were flown to Moscow with 11 of the crew members. Speculation over the nature of the cargo was intensified by the manner of their return.

Dmitri Rogozin said that the ship was attacked by a “well-organized network” of pirates, and Serdyukov, the Russian defence minister, said: “This was an act of piracy”, while a spokesman for the Portuguese Navy said that the situation was “very delicate and sensitive”, and “this is not a question of search and rescue; it is a political and police decision”.

While this laconic statement was being digested, the European Commission suggested that a second attack had taken place off the Portuguese coast, a Commission spokesman saying at the time that the reported attacks “have nothing in common with traditional acts of piracy or armed robbery at sea”.

A Russian court has now formally impounded the Finnish-owned vessel, and was reported as being towed to the Russian port of Novorossilisk on the Black Sea. The Moscow-based columnist Yulia Latynina speculated that the ship was secretly shipping arms via Algeria to a rogue state such as Iran or Syria. The Financial Times claimed meanwhile that a source from the ship’s owner, Solchart, suspected a “secret cargo” had been hidden aboard during an extensive refit in Kaliningrad.

Other reports have suggested that the Arctic Star was hiding a second, smaller vessel while sailing off Sweden’s eastern coast. So was the ship re-boarded at this point?

While Dmitri Rogozin dismissed these claims, the head of the Investigations Committee at the Russian Prosecutor General’s Office said “we are not ruling out that it may have carried more than just timber”.

By August 25 the Russian Foreign Ministry were saying that a preliminary search had not revealed any suspicious cargo. “A more thorough search will be conducted in one of the ports on the way to Russia”, the ministry said.
If the original hijacking did take place in Swedish waters, then Sweden—doubtless only too aware of this—would have had the jurisdiction to deal with it, but by the time the international alert had been sounded, the ship had moved on.

Russia was correct in requesting all assistance from other nations, especially those of NATO states, allowing a media voice for Dmitri Rogozin, who, with much political aplomb, turned it to good account for Russia.

Piracy?

But was it really “piracy”? According to the legal definition accepted in international law, acts of violence and detention were indeed carried out (if the story of the hijacking is true). But what if this were for political ends? This brings into focus the stories concerning Mossad, the Israeli secret service.

Were they involved in order to prevent arms reaching hostile states?

Would this be purely political, or does it have to involve “insurgents not recognized as belligerents”?

Did the crew co-operate out of fear, or had there been protests by the crew when they realised what the ship was carrying?

Certainly, one of the unanswered questions is why did it need three aircraft to bring the crew and arrested hijackers to Moscow, and why were aircraft used normally associated with the transport of heavy weapons?

In a new twist, the ship, far from being towed to a Russian port, is anchored somewhere off the Canary Islands, ostensibly for repairs. The Russian authorities have refused the owners access, which in itself might be interpreted, ironically, as piracy, as it is detention both of the ship and of the crew.

By 24 September, Mikhail Voytenko, editor of the online maritime bulletin Sovfracht, who originally leaked the story, reported that relatives of the crew left on board had reported to him that they (the crew) were on the verge of a breakdown. It is significant also that things have become so hot for Voytenko himself that he was advised to leave Russia.

On 5 October the BBC’s Sarah Rainsford, sent to Kaliningrad to investigate, met with a Soviet style wall of silence and refusal.

The overarching impression to any reader of this saga is the quite cynical manipulation and deception of the media, with the explanation that it was for other ends “to save the crew and the integrity of the ship”. The likelihood remains that the deception, which was admitted, was for another end: the closure of knowledge about the true nature of the cargo, its provenance and destination.

Unprecedented

International law is full of lacunae, as may be natural in a system which is hardly a century old, in an institutional sense. This kind of incident, with its disregard for transparency of communication, hardly enforces a sense of reassurance in the international community.

Nobody died, which is always a bonus, but international deception, for whatever reasons, seems to have reached dimensions unprecedented in maritime law.

Michael L Nash, LesRoches Gruyère University of Applied Sciences, Switzerland

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