Indonesia-Singapore Cooperation Essential in Fight against Piracy (Jakarta Post, 9 November 2018)

The recent abduction of three Indonesian crew members in the high seas area off Congo is part of this year’s troubling trend of an increasing number of piracy and armed robbery in the Gulf of Guinea. International Maritime Bureau Piracy Reporting Centre recorded that the area accounts for 57 of 156 reported incidents in 2018. What do we know of the incident, whose jurisdiction applies, and what are states' obligations dictated by international law?

Until now the condition of the kidnapped Indonesian crews remains unclear, so are the perpetrator’s identity and a ransom demand. There are actually two different incidents being intersected. The first incident is the attack on the Singapore-flagged ARK TZE offshore supply vessel 68 nautical miles off west Pointe Noire, Congo on October 29th, 2018. Out of 15 crew members, 12 (twelve) are Indonesian citizens. Nine Indonesian crews have been released, but the other three have been held, hostage. The second incident is the hijacking of a Panama-flagged tanker Anuket Amber, which then used to host the abducted Indonesian crew members along with one Ukrainian crew member from the first ship. In a bid to avoid tracking, the hijacker turned off the Automatic Identification System (AIS) and communication. On November 2nd, 2018, the ship was seen heading southwest from south Lome Togo; it has yet to release any information or demand.

The Government of Indonesia through the Ministry of Foreign Affairs evidently has taken several actions necessary to find out the safety of the Indonesian crew members. First, the government utilized diplomacy to seek international cooperation by contacting countries that are potentially traversed by the hijacked vessel. Second, the government has contacted the ship companies and other related parties and ensured that continuous coordination prevails. Third, the government has contacted the families of Indonesian crew members. Director of Protection of Indonesian Citizens and Indonesian Legal Entities at the Indonesian Ministry of Foreign Affairs, Lalu Muhammad Iqbal, also gave a press statement on November 1, 2018.

Because the act of piracy is an international crime and it took place on high seas, universal jurisdiction under Article 105 of the United Nations Convention on Law of the Sea (UNCLOS) applies where any state may exercise its jurisdiction over the crime. The state is allowed to exercise such jurisdiction on two preconditions: the use of warships/military or government ships and in the high seas (Article 107). However, the choice of action whether or not to apply this jurisdiction will be heavily influenced by the need to protect its national interest(s). Countries that have a national interest to respond to the incidents are the flag state (Singapore and Panama), countries of origin of victims (Indonesia and Ukraine), and countries of origin of perpetrators (unknown).

Article 92 of the UNCLOS dictates that the flag state has the main jurisdiction over the vessel. However, pirates frequently use vessels without nationality to escape from national jurisdiction. Even if the vessel flew a flag of a certain state, it is highly likely a reflagging practice to blur the genuine connection between the vessel and the crews. Article 104 of the UNCLOS says a vessel that is used for committing piracy may lose its nationality if the registration state wishes to do so.

The state origin of the crew has the obligation to protect its nationals everywhere including areas beyond national jurisdiction, dubbed as ‘nationality principle’. It is the duty of the state to make sure the safety of its nationals to the widest extent possible. For those who have legal problems overseas, the state of origin is obliged to provide legal assistance whenever possible.

The Government of Indonesia needs to consider several options to ensure the safety of Indonesian citizens being kidnapped. The options must include, as and when the state political process decides it is necessary, to involve security actors to exercise jurisdiction as stated by the UNCLOS. Indonesia did have the experience in executing a combined operation in an expeditionary mission to release the hijacked MV Sinar Kudus cargo vessel, in the Gulf of Aden in 2011. Before taking considerations for such an option, however, intelligence must take precedence since Indonesia needs to know the whereabouts of the vessel and what are the motives of this kidnapping.

By taking into consideration the level of state’s interest and capability, the most likely country to exercise jurisdiction against the international crime perpetrators is actually Singapore. As the flag country of the ship whose crews were abducted, Singapore is obliged to seek information on the location of the vessel, the motif of the perpetrators, and to liberate the abducted crews- at any cost. In terms of capability, Singapore is currently leading the multinational CTF-151 (Combined Task Force) for counter-piracy in the Gulf of Aden. However, the Government of Singapore has yet to release any public information that gives away hints on how it will respond to the incident in state capacity.

In the context of the abovementioned dual kidnapping and piracy incidents, interstate cooperation is essential because the crime is committed in the area where the flag state’s control or protection is weak. Article 100 of the UNCLOS dictates that all states shall cooperate to the maximum extent possible to suppress piracy on high seas or other places outside the state's jurisdiction. It only makes sense that the Government of Indonesia, the country of origin of the victims, and Singapore, the flag state of the ship whose crew member fell victims to kidnapping on high seas, consider closer cooperation in addressing the incident.