NAIROBI/MOGADISHU (Reuters) - A $3.6 million ransom seized in Somalia in May was destined for a pirate boss subject to U.S. sanctions, an illustration of how a criminal enterprise that costs the global economy billions of dollars pays scant heed to policy directives from Washington.
Documents obtained by Reuters and multiple sources in Somalia show the bungled payment was meant to free the Chinese vessel MV Yuan Xiang, and that a pirate gang working for kingpin Mohamed Abdi Garaad was behind the seizure of the ship.
While this transaction did not go through, it shows how the ransom industry can operate efficiently despite the strong public stance taken by the United States to curb the financial flows that fuel the flourishing piracy business.
The payment of ransoms to Somali pirates is a sensitive and delicate subject. Some $240 million was paid to Somali pirates last year to free ships and crew and as of July another 400 sailors remained hostage off the Somali coast.
Those in favour of ransoms argue they are the only safe way to free seafarers. Ransom payments are legal under British law, they are covered by marine insurance, and stopping them would lead to hostages being killed in an attempt to extract payment.
Those against say that without taking concerted action to curb the rapidly escalating ransoms, the piracy business will inevitably become more sophisticated, more violent and more costly to the shipping industry and the global economy.
“Attacks by Somali pirates occur and, in fact, are increasing because of two elements: opportunity and incentive,” said J. Peter Pham, Africa director with U.S. think-tank the Atlantic Council.
“The only way to decrease the incidents is to cut off the incentive for them by obstructing the payment of ransoms, if not banning them altogether. While such a strategy is not without its risks, at least initially, over time it is likely to dramatically reduce incidents of piracy,” he said.
When U.S. President Barack Obama signed Executive Order 13536 in April 2010, including two well-known Somali pirate kingpins on a list of people deemed to be destabilising forces in Somalia, it sent shockwaves through the shipping industry.
But it soon become clear to lawyers that the order was limited in its ability to prevent most ransom payments.
Obama’s executive order prohibits transactions by U.S. citizens, permanent residents, or entities organised under U.S. law with the 11 people named on the list and Somalia’s al Qaeda-linked al Shabaab rebels, one of Washington’s chief targets.
“It is U.S. government policy to deny pirates the benefits of ransom payments, as well as other financial and material support they seek to gather,” said a U.S. Treasury official.
But unless a U.S. person or entity is involved, the U.S. Treasury’s Office of Foreign Assets Control (OFAC), charged with implementing the order, will take no further action — even if other arms of the U.S. government take an interest in the case.
“That’s where it stops for us, at OFAC,” said the official. “From a sanctions perspective ... we have jurisdiction only to the extent that there’s a U.S. person involved.”
In the case of the MV Yuan Xiang, documents obtained by Reuters show a ransom payment was transferred by the shipowner, Hongan Shipping, to the law firm Holman Fenwick Willan’s client account at HSBC bank in Hong Kong on May 18.
The $3.6 million was withdrawn in cash on May 23 and given to a representative of East Africa-based risk consultancy firm Salama Fikira, who took the money into Somalia’s capital Mogadishu on a plane from the Seychelles.
Then it went wrong. Somali security officials seized the cash in unexplained circumstances as it was being transferred to the type of smaller aircraft used to drop ransoms in canisters with parachutes onto hijacked ships, or the sea nearby.
As the payment of pirate ransoms is technically illegal in Somalia, three Britons, two Kenyans and an American were arrested, charged and sentenced to jail. They were eventually pardoned by the Somali president and freed, although the Somali government kept the $3.6 million.
The information about the financial transactions was contained in documents carried by one of the men and obtained by Reuters in Mogadishu.
London-based law firm Holman Fenwick Willan, which has long specialised in shipping, and Salama Fikira declined to comment.
According to Holman Fenwick Willan’s website, one of its partners specialises in piracy and was involved in resolving more than 70 Somali hijacking cases over two-and-a-half years.
In one of the documents, Holman Fenwick Willan states the funds were for humanitarian purposes in the Gulf of Aden and a full explanation of the reason and purpose of the transaction was provided to OFAC and the Hong Kong authorities.
OFAC declined to comment on individual cases.
“Shipowners have come to us in ransom situations because of this Executive Order and because there are pirate kingpins who are listed in the Executive Order to ascertain what their legal restrictions may be in a specific payment of ransom,” the U.S. Treasury official said.
OFAC stressed it has never given “authorisation” for any ransom payments.
“In responding, OFAC makes clear that any correspondence from OFAC on this issue does not authorise the payment of ransom or constitute a ‘non-objection’ to the payment of ransom,” it said in response to Reuters questions.
Garaad is a well-known pirate leader in Somalia who in 2009 told the Globe and Mail newspaper he exerted direct control over 13 pirate groups made up of 800 hijackers, with sub-lieutenants in charge of each group taking his direct orders.
In an Annex to Obama’s order, OFAC states that Garaad has acknowledged hijacking the Maersk Alabama and the Liberty Sun, both vessels carrying food aid to Somalia.
While Garaad did not return calls from Reuters, multiple sources within Somalia said one of his gangs was responsible for the seizure of the Yuan Xiang.
A Somali security officer, who declined to be named, told Reuters that Garaad called the authorities in Mogadishu repeatedly in the days after the ransom was seized — demanding the release of the foreigners and the $3.6 million.
A pirate who has partnered Garaad in hijackings and invested in the Yuan Xiang capture, who also declined to be named, told Reuters on May 26 that the $3.6 million was theirs.
“The seized ransom at Mogadishu airport was ours and we will withdraw the agreement if China doesn’t pay the agreed ransom within 10 days. It is none of our business whether it is seized or not,” the pirate told Reuters.
The Yuan Xiang, seized on November 12, was freed with its 29 Chinese crew in June after the payment of a ransom.
Hijackings off Somalia date back at least 20 years, but it is in the past few years that the business has mushroomed into a multi-million dollar international industry.
According to U.S. think-tank One Earth Foundation, the average ransom per ship in 2005 was $150,000. By 2010, it had jumped to an average of $5.4 million per ship, with large cargo vessels and oil tankers a popular prey for the seafaring gunmen.
In 2011, two ransoms over $10 million have been paid and analysts fear that once the Monsoon season passes and the seas become calmer, there will be a resurgence in violent hijackings.
As of July 20, 20 vessels and 398 hostages were being held by Somali pirates, according to the International Maritime Bureau. So far in 2011, 21 ships have been hijacked off Somalia and seven hostages have been killed.
Studies estimate the cost to the global economy from Somali piracy is about $7 billion to $12 billion a year.
Washington tried to get Garaad added to the list of Somalis subject to sanctions under U.N. Security Council Resolution 1844 last year, but Britain blocked it to look at the legal issues of ransom payments involving British companies.
For now, Britain’s “technical hold” remains in place, and rulings by the High Court in 2010 and the Court of Appeal in 2011 made very clear that the payment of ransoms was legal under British law, even if they are likely to fuel more hijackings.
Britain’s Court of Appeal said in a judgment published on January 26 that there was no recognised principle of morality, no clearly identified public policy, nor any incontestable public interest which could lead the courts to condemn ransoms.
Some analysts say there is growing pressure in the corridors of power in London to look at the ransom issue again.
U.S. Secretary of State Hillary Clinton said in March that international efforts such as naval patrols were not effective and the continued payment of ransoms by major shipping companies had been a huge problem that needed to be addressed.
The U.S. Treasury argues the Executive Order is a powerful tool, not because it will stop a 16-year-old unemployed Somali heading to sea with a gun, but because it can sanction the financial networks that launder pirate kingpins’ windfalls.
“If you are talking about somebody who is opening bank accounts, who is moving money, who is laundering money, those people have a whole lot more to lose typically, and they are trying to keep one foot in the legitimate financial world,” said the U.S. Treasury official.
The official said some individuals involved in cleaning dirty pirate money were the subject of an OFAC investigation.
Shipowners who have been involved in ransom payments, say they are a necessary evil and it’s simply too late to stop them because the lives of hundreds of hostages would be at risk.
Per Gullestrup, a Danish shipowner who paid a ransom in 2009 to free a vessel held by Somali pirates, says for now armed guards aboard ships seem to be the most effective approach.
“The Americans have brought up the issue that ransoms should be illegal,” said Gullestrup, Chief Executive Officer of Clipper Group. “The argument bears some recognition, but we are too late into the game now ... The train has left the station.”
Shipowners say armed guards have already reduced the number of successful hijackings. But some analysts, diplomats and reinsurers fear pirates will simply adapt to the new threats to their business and fight fire with more fire.
Some analysts worry the end result will be more violence: the pirates will get better weapons — or perhaps sink a ship to make a point — and captured seafarers are more likely to be abused or killed.
They also worry that the descent of Yemen into Somali-style anarchy could provide pirates with another base to source weapons and launch attacks.
Michael Frodl, a Washington lawyer and head of C-LEVEL Maritime Risks, said because piracy had not been tackled robustly enough, it was likely to get worse.
“Everything we have been doing now has been half dosages of penicillin against the pirates, and they come back stronger and smarter. We’re creating superbug pirates by all these half measures,” he said.