Libya: When is Piracy not Piracy

One of the problems when examining current affairs is the temptation to try and examine events in the light of similar situations. Just as examining an object in the light casts shadows, the approach of examining events in the light of another, casts shadows and leads to conclusions that are unsupported by facts, conclusions drawn simply because a “similar” situation has led to certain developments. The current situation in Libya for example has been variously compared to Syria, Iraq and Somalia, while in reality it bears elements of each conflict some of the other elements are missing. Possibly the Libyan civil war- and make no mistake the 3 way conflict in Libya at present is a civil war- is most similar to Somalia in the early 1990s as we have stated before. It is in this light and in the wake of emotive warnings by commentators that led to the excitement on Friday about the detention of an Italian fishing vessel by Libyan “coastguard”.

Early on Friday a Libyan vessel operating out of Misrata and carrying a party of Misratan militia approached and boarded an Italian fishing boat about 40 nautical miles off the Libyan coast. After firing warning shots when the Italian fishing vessel refused to stop the Misratan vessel placed some men aboard and detained the Italian fishing vessel, ordering it to return to Misrata for investigations. After several hours of sailing supposedly the fishing vessel’s crew- 3 Sicilians and 4 Tunisians- retook the vessel and were swiftly rescued by an Italian warship operating in the area.

Predictably when confronted with news of this report commentators leapt to the conclusion that it was an act of piracy perpetrated by a possible range of actors, including the Islamic State, people smugglers or Libyan militia. These same commentators then beat the drum for their chosen theory, making the evidence fit their particular theory. However the truth as it turns out is somewhat more mundane and less exciting, but speaks volumes about the West’s approach to Libya.

The reality of the incident was that, as far as the Libyan’s are concerned this was a case of maritime law enforcement conducted by appointed representatives of the state. Although answering to the Tripoli regime as opposed to the internationally recognised Tobruk Government, the Libyan militia who seized the Italian fishing vessel are authorised by the Ministry of the Interior to act as a coastguard and this is just what they were doing. The confusion lies in how far offshore they are allowed to operate and far from the Italian fishing vessel being the 1st to fall foul of this confusion, this is merely another in a long list of similar cases.

International maritime law documented in the UN Convention on the Law of the Sea holds that a state directly controls upto 12 nautical miles offshore as “territorial waters” (TTWs) and then has certain rights pertaining to the exploration and use of marine resources upto 200 nautical miles offshore, defining these waters as the “Exclusive Economic Zone” (EEZ). Certain countriesattempt to exert control of more than the 12 nautical miles of territorial waters including Libya, who since 2005 have claimed upto 50 nautical miles offshore as their territorial waters. So by Libyan law the action of detaining a fishing vessel operating without a permit inside territorial waters is not only permissible but has the full backing of the legal system.

Now whether or not the Libyan claim to control 50 nautical miles as TTWs has merit or not is beyond the scope of this article. Similar legal disputes over maritime boundaries have been solved by taking the case to the International Court of Justice in the Hague. But just as the legal merits of the Libyan position are beyond this article, compliance with the maritime law is in itself not a matter of choice. The owner of the Italian fishing vessel stated in an interview on Friday that at least 12 similar incidents have occurred since 2005, this of course ignores the dozens of Egyptian and Tunisian vessels that have also been detained and then released, even as recently as January. That the Italian fishing vessel owners are aware of the Libyan law- whether it is right or wrong- and then willingly flout it is possibly more serious than the detention of the fishing vessel itself.

Aside from the evidence of a fishing vessel willingly flouting a nation states law, the incident also reveals another disturbing trend, the seeming banging of war drums concerning Libya. We would be the first to admit that Libya is a divided nation and the situation could get a lot worse before it gets better. Some commentators have said Libya is on the brink of a civil war and as we have been saying since January the current situation is a civil war, not the precursor. Yet too many commentators look at Libya and see undirected chaos which is also incorrect. The theories put forth by pundits on Friday ranged from the unlikely- the vessel was taken by people smugglers- to the outlandish- it was an act of piracy by the Islamic State. Even the fishing vessel owner promoted similar theories leading to the Italian naval intervention Friday afternoon. These theories of course are based on the commentators pre-conceived and erroneous views of Libya.

Misrata, who openly admitted detaining the fishing vessel, is about as far from people smugglers and the Islamic State as can be found. People smugglers while not exclusively based there, primarily operate out of Zuwara in the west of Libya, between Tripoli and the Tunisian border, the Islamic State on the other hand is spread all over with coastal enclaves in Derna, Sirte and Sabrata. But the one place neither smugglers nor the Islamic State have a toehold is Misrata and to suggest otherwise shows a distinct lack of understanding of the dynamics of the Libyan conflict. Indeed just the suggestion that the Islamic State could operate at sea off the coast of Misrata or somehow get the Misratans to hand over the detained crew to them ignores the very real conflict between Misrata and the Islamic State. Even the idea that the Islamic State would ask Misrata for anything is erroneous, the Islamic State has been fairly clear in its condemnation of Misrata as apostates, an attitude that is unlikely to change.

So then aside from the incident exposing flagrant disregard for a nations laws by the fishing vessel owners and the lack of understanding by many commentators, the incident also revealed the wests schizophrenic approach to Libya. The Italian intervention to “rescue” the fishing vessel from the Libyan “coastguard” seems to indicate that they feel there is no law and order in Libya and that even the authorities of a city that the Italian government has regular dealings with cannot be trusted. Contrast this with international dealings with the Tripoli regime- the same regime Misrata is nominally loyal to- and you begin to see the contradiction. If the Tripoli regime can be trusted to be part of the Unity Government and therefore be part of the solution to the Libyan crisis then surely their forces can be trusted? Equally if delegates from Misratacan be courted by the EU and invited to a conference in Brussels to discuss peace then surely they can be trusted? It seems ironic that on the one hand the international community and Italy say they trust Misrata, but then when push comes to shove their actions say something different.

The concern at this point must be what happens the next time the Libyan “coastguard” detain a vessel they catch illegally fishing in Libyan waters. Will they as in this case aim to take it back to Misrata for investigation or simply sink it at sea? Equally how will the intervention of another nation to disrupt what amounts to regular law enforcement activity be perceived by Misrata? It is worth considering that Misrata is likely to emerge from the civil war with much of its power intact and will remain a prominent city going forward, if the wests response to this incident has damaged relations it has the potential to unbalance the future. The other concern is how will the international community respond to what it erroneously perceives as an act of piracy? Could we see some attempt to arm vessels in the Mediterranean, with maritime security companies trying to transplant the anti-Somali piracy solution to an area where a similar problem does not exist? This solution if it becomes popular could have the effect of increasing tensions in an already contested area of sea. The combination of Libyan “coastguards”; people smugglers; naval forces and regular maritime traffic with armed guards is a dangerous concept.



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