The International Maritime Bureau Piracy Reporting Centre recorded that the area has accounted for 57 of the 156 reported incidents so far in 2018. What do we know of the incident, whose jurisdiction applies and what are states’ obligations as stipulated by international law?

The condition of the kidnapped Indonesian crew members remains unclear, as are the perpetrators’ identities and
purpose.

The kidnappings occurred in two separate incidents that intersected. The first incident was the attack on the Singapore-flagged ARK TZE offshore supply vessel, 68 nautical miles off west Pointe-Noire, Congo, on Oct. 29. Of 15 crew members, 12 were Indonesian citizens. Nine Indonesian crewmen have been released, but the other three are still being held hostage.

The second incident was the hijacking of a Panama-flagged tanker the Anuket Amber, which was then used to host the abducted Indonesian crew members along with one Ukrainian from the first ship.

In a bid to avoid tracking, the hijackers turned off the Automatic Identification System (AIS) and communication. On Nov. 2, the ship was seen heading southwest from Lome Togo; the hijackers have yet to release any information or demand.

The Indonesian government through the Foreign Ministry has made several efforts to ensure the safety of the Indonesian crew members.

First, the government has utilized diplomatic channels to seek international cooperation by contacting countries whose maritime territories are potentially traversed by the hijacked vessel.

Second, the government has contacted the shipping companies and other related parties to ensure that continuous coordination prevails.

Third, the government has contacted the families of the Indonesian crew members.

Because the act of piracy is an international crime and it took place on the 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.

A state is allowed to exercise such jurisdiction on two preconditions; it uses naval, military or other government ships and it does so on the high seas (Article 107).

However, the choice of whether or not to apply this jurisdiction is heavily influenced by the need to protect national interests.

Countries that have a national interest in response to these incidents are the flag states (Singapore and Panama), countries of origin of victims (Indonesia and Ukraine) and the countries of origin of the perpetrators
(unknown).

Article 92 of UNCLOS stipulates that the flag state of the ship being used in piracy has the main jurisdiction over the vessel. However, pirates frequently use vessels without nationality to escape from a national jurisdiction. Even if the vessel flies the flag of a certain state, it is highly likely it will be reflagged to blur the genuine connection between the vessel and the crew. Article 104 of UNCLOS says a vessel being used for piracy may be stripped of its nationality if the registration state wishes to do so.

The state-of-origin of the crew has the obligation to protect its nationals everywhere including areas beyond national jurisdiction, this is dubbed the “nationality principle”. It is the duty of a state to ensure 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 Indonesian government needs to consider several options to ensure the safety of abducted Indonesian citizens. The options must include, as and when the state political process decides it is necessary, the involvement of security actors to exercise jurisdiction as stated by UNCLOS.

Indonesia did have the experience of 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 considering such an option, however, intelligence must take precedence since Indonesia needs to know the whereabouts of the vessel and the motives for the kidnapping.

By taking into consideration the level of state interest and capability, the most likely country to exercise jurisdiction against the perpetrators is actually Singapore. As the flag country of the ship whose crew members were abducted, Singapore is obliged to seek information on the location of the vessel, the motives of the perpetrators, and to liberate the abducted crews at any cost.

In terms of capability, Singapore is currently leading the multinational CTF-151 counterpiracy force in the Gulf of Aden. However, the Singaporean government has yet to publicly state how it will respond to the incident.

In the context of the abovementioned dual kidnapping and piracy incidents, interstate cooperation is essential because the crime has been committed in an area where the flag state’s control or protection is weak. Article 100 of UNCLOS dictates that all states should cooperate to the maximum extent possible to suppress piracy on the high seas or other places outside a state’s jurisdiction.

It only makes sense that Indonesia, the country of origin of the victims, and Singapore, the flag state of the ship whose crew members have fallen victim to kidnapping on the high seas, should forge closer cooperation in addressing the incident.

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Curie Maharani is the coordinator of defense transformation at P8 and lecturer at Binus University. Arie Afriansyah is the head of Center for International Law Studies and lecturer in international law at the University of Indonesia.

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