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Criminalizing terror from the sea

A landmark multinational counterterrorism treaty you’ve likely never heard of is poised to emerge from relative obscurity later this year and will transform the fight against terrorism.

The treaty commits states to criminalize, for the first time in an international document, the maritime transport of terrorists and the illicit shipment of weapons of mass destruction (WMD), including illegal chemical, radiological, nuclear and biological materials, precursors and components and their delivery systems.

Even more remarkable, the treaty bans “dual use” material from being used illegally to craft terrorist weapons.

The 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation grew out of international abhorrence over a cruise ship hijacking and murder. Even though the treaty now has 150 state parties, it has been rarely invoked, even though its provisions are designed to facilitate extradition of maritime criminals.

However, a new protocol to the treaty was adopted at the International Maritime Organization in 2005, and it transforms the original agreement into a progressive and powerful new authority for the fight against terrorism and WMD at sea.

Threat from the sea
Protecting states against the threat of terrorism and the deployment of weapons of mass destruction has been a growing concern for more than a decade.

Mumbai suffered devastating terrorist attacks in March 1993 and again in December 2008, and both assaults emerged from the sea. In 1993, terrorist groups clandestinely smuggled arms, ammunition and explosives by ship from Karachi into the Indian state of Maharashtra. More recently, in December 2008, terrorist commandos traveled from Karachi across the Arabian Sea, entering India from speedboats launched from trawlers. Once in India, the group went on a rampage through Mumbai, murdering nearly two hundred people and bringing the financial center to a standstill.

Across the 40-mile wide Palk Strait in South Asia, neighboring Sri Lanka has waged a 30-year war against maritime terrorism from the Liberation Tigers of Tamil Eelam (LTTE). The small and fast suicide boats of the “sea tigers,” the maritime wing of the LTTE, are the most effective maritime terrorist platform in the world. Over the years, they have sunk dozens of Sri Lankan ships. The group has engaged in numerous vessel hijackings, including the Irish Moa in 1995, Princess Wave in 1996, Athena, Misen, Morong Bon, and the MV Cordiality in 1997 and the Princess Kash in 1998.

The group is accused of hijacking the Malaysian-flagged MV Sik Yang in 1999 – neither the ship nor the crew of 63 were ever heard from again. In February 2008 the “sea tigers” sunk a Sri Lankan fast attack craft in the sea of Thalaimannar almost 200 nautical miles from Colombo. The “sea tigers” have been extraordinarily successful, sinking over 30 percent of the small boats in the Sri Lankan navy.

In the intervening decades since the LTTE began its campaign, other prominent maritime terrorist attacks have occurred throughout the world, including the bombing of Lord Mountbatten’s private yacht in 1979 by the Provisional Irish Republican Army and the attack against the USS Cole in 2000 by Al Qaeda in Yemen. The slow, low-tech assault against the USS Cole nearly sunk the powerful warship. The attack on the French oil tanker Limburg by Al Qaeda off the coast of Yemen in October 2002 exposed the vulnerability of energy links between the precarious oil transshipment route through the Strait of Hormuz and markets in Europe and Asia. Other maritime terrorist attacks have included the deadly bombing of Super Ferry 14 in 2004 by the Abu Sayyaf organization in the Philippines and the strike against the Israeli Corvette, INS Hanit, which was hit by a C-802 cruise missile launched by Hezbollah in 2006.

Amendments with teeth
The 1988 treaty helps states cooperate to take criminal action after such attacks, but the 2005 protocol is significant because it will commit states to a framework of cooperation that can prevent or disrupt such attacks. The SUA Amendments, which were the culmination of three years of negotiation at the IMO by dozens of nations, represent the most sweeping and authoritative terrorism and WMD treaty in the post 9/11 era.

The SUA Amendments prescribe, among other things:
· Using a ship to commit terrorist acts, such as the intentional/unlawful release of substances like chemical, biological or radiological material capable of causing serious injury;
· Proliferation-related acts, such as the unlawful transport of WMDs, delivery systems and related materials, including “dual-use” materials; and
· Transport of persons alleged to have committed offenses under any of the 12 United Nations terrorism conventions with the intent to help them evade prosecution.

The underlying SUA Convention was created in response to the hijacking committed on board the Achille Lauro in 1985. At the time of the attack, many states did not have criminal legislation for extradition or prosecution for vessel hijacking. The 1988 SUA Convention was referenced in two recent United Nations Security Council Resolutions for its use in prosecuting pirates. In part, this is because SUA commits states to criminalize the unlawful and intentional seizure or exercise/control over a ship by force or threat. The treaty further provides that state parties shall criminalize such conduct and either prosecute a violation or extradite the offender. But the Convention did not address the maritime transport of WMD or terrorists, nor did it contain a boarding regime.

There was widespread support for the 2005 amendments at the Diplomatic Conference, with only two states not signing the final act in the meeting. The SUA Amendments complement both the Proliferation Security Initiative and the United Nations Security Council Resolution 1540, adopted in 2004, which affirmed, among other things, “that proliferation of nuclear, chemical and biological weapons as well as their means of delivery constitutes a threat to international peace and security…”

The SUA Amendments also contain the most comprehensive boarding regime ever included as part of a multinational document, providing an operational enforcement mechanism. Any boarding under SUA is based on flag state consent. Of course, a flag state can always authorize another to conduct a boarding on its behalf either on a case-by-case basis or through a written agreement. A requirement for boarding is that “reasonable grounds” exist to suspect that a ship has been, or is about to be involved in, the commission of a Convention offense. There is even a framework for liability and claims that may arise from damage, harm or loss attributable to a State during a boarding that is widely considered the most thorough of any international document.

The SUA Amendments define a terrorist act as occurring “when the purpose of the act, by its nature or context, is to intimidate a population or to compel a government or an international organization to do or to abstain from doing any act…” The “dual use” article, which is the first of its kind in any international treaty, defines it as, “any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a BCN (biological, chemical, nuclear) weapon, with the intention that it will be used for such purpose.” Further “transport,” “means to initiate, arrange or exercise effective control, including decision-making authority, over the movement of a person or item.”

Six states have ratified the SUA Amendments: Estonia, Fiji, Marshall Islands, Spain, Switzerland and Vanuatu. At least 18 others, including the United States, have signed the SUA Amendments, subject to ratification. In the case of the U.S., the SUA Amendments have secured the advice and consent of the Senate, but await implementing legislation.

The IMO Secretary General, Efthimios E. Mitropoulos observed that, “in the fight against terrorism, which, in these uncertain times, has tragically succeeded in shaping the political agenda worldwide, it is vital that the international community has in place a framework for legal action capable of ensuring that terrorists are apprehended and brought to trial wherever in the world they may seek to hide.”

As the fight against terrorism continues, the entry into force of the SUA Amendments will alter the operational and legal landscape by creating a network of states to coordinate legal aspects of counterterrorism at sea.

Captain Brian Wilson and Commander James Kraska served as oceans policy advisers for the Under Secretary of Defense for Policy and the Director of Strategic Plans & Policy, Joint Chiefs of Staff, respectively. Both officers are senior lawyers who represented the Pentagon on U.S. delegations at the International Maritime Organization. Their views do not necessarily represent the official policy or position of the United States Department of Defense.

Editor’s note: Canada ratified the Convention on 10 March 1988; it entering into force on 1 March 1992. The 2005 amendments have not yet entered force. For more, see www.admiraltylawguide.com/conven/suppression1988.html

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