{'fraction_non_alphanumeric': 0.018135825758874978, 'fraction_numerical': 0.01136168753215572, 'mean_word_length': 4.917047184170472, 'pattern_counts': {'":': 0, '<': 0, '<?xml version=': 0, '>': 0, 'https://': 0, 'lorem ipsum': 0, 'www.': 2, 'xml': 0}, 'pii_count': 0, 'substrings_counts': 0, 'word_list_counts': {'cursed_substrings.json': 0, 'profanity_word_list.json': 0, 'sexual_word_list.json': 0, 'zh_pornsignals.json': 0}}
Somali Piracy and the Human Rights of Seafarers

Somali piracy has attracted the world's attention over the last decade and whilst Somali piracy abates, the debate on its various aspects remains lively. This paper aims to shed light on one particular aspect of Somali piracy that remains unexplored – the violations of the human rights of seafarers, and especially those taken hostage. Despite the suffering of seafarers at the hands of pirates, their protection seems to fall beyond the human rights framework due to the non-State status of pirates. The lack of a human rights-oriented approach is reflected by significant counter-piracy responses, including the United Nations Security Council Resolutions, criminal responses and the conduct of naval operations that are reviewed here. Therefore, it is suggested that the traditional negative obligations of States and the evolution of the positive human rights obligations of States can offer a legal avenue for the better protection of the human rights of seafarers.


INTRODUCTION
Piracy has been known since antiquity, but it drew the world's attention over the last decade when pirate attacks revived off the coasts of Somalia. 1 The high rates of Somali pirate incidents produced various responses from the international community. Co-ordinated counter-piracy efforts yielded significant results and over the last year Somalia-based attacks dropped to their lowest level in six years, with only 9 recorded pirate attacks. 2 Arguably, the international community did not only commit to put an end to the 'evils' of piracy, but also demonstrated its commitment to achieve this goal without sacrificing human rights. Therefore, human rights law seems to have played a crucial role in how counter-piracy responses have been shaped and States seem to have acknowledged their human rights obligations towards pirates.
Nevertheless, this paper is not aimed either at assessing the effectiveness of counterpiracy efforts per se or their compliance with the human rights obligations of States to pirates. The aim of this paper is to examine counter-piracy responses from the perspective of the victim. More specifically, this paper aims to shed light on a piracy related problem that has not gained the attention it deservesthe violation of the human rights of seafarers, and especially those who have been taken hostages. Although there has been no successful hijacking over the last year, as of July 2015, there were still 26 seafarers in captivity for more than two years. 3 The development of Somali piracy into a business model generating profits through ransom has made pirates daring and violent. 4 Somali pirates do not hesitate to employ lethal force during their attacks or inflict severe pain on seafarers with a view to extracting their ransom. This means that seafarers, and particularly those taken hostages, suffer a significant risk of human rights violations, such as threats against their life, illtreatment, illegal detention and breach of their privacy. Seafarers in other regions around the world affected by piracy are also confronted with the same risks. While the focus of this paper is on Somali piracy, it should be noted that the 'kidnap and ransom' model of piracy article relevant to the protection of human rights of seafarers attacked and held hostages in other regions. 5 While there have been some regional soft law instruments, namely the Djibouti Code of Conduct and the Declaration condemning the violence against seafarers, which pay due attention to the suffering of seafarers attacked and held hostages by pirates, their human rights protection has yet to be seriously considered. Arguably, the status of pirates as 'nonstate actors' may mean that the protection of seafarers falls beyond the human rights framework, as States do not bear responsibility for the suffering of seafarers at the hands of pirates. 6 However, the evolution of the positive obligations of States to prevent and put an end to human rights violations, when they know or ought to have known that individuals are at risk, 7 offers an alternative avenue for the protection of the human rights of seafarers. This paper will first discuss the violations of the human rights of seafarers in the context of piracy.
It will then assess some of the most significant counter-piracy responses, namely the United Nations Security Council (UNSC) Resolutions, the criminalisation of piracy and the naval operations, which mirror the lack of recognition of the human rights of seafarers. The lack of a human rights conscious approach will be contrasted with the evolution of the human rights framework that demonstrates how States could be responsible for stepping in and putting an end to the violations of the human rights of seafarers, while also respecting their traditional negative human rights obligations in the fight against piracy. It will be concluded that some regional and international efforts made to protect the victims of hostage-taking can provide a pattern for more human rights oriented initiatives that could offer enhanced protection to seafarers. 5  There are many areas around the world affected by piracy, 8 but Somali piracy has at least two distinct characteristics that make it important to assess from the victim's perspective. The first is that Somali piracy has proved highly adaptive and the modus operandi of pirates has been fast evolving. This has made Somali piracy a constant threat to the welfare of seafarers.
Despite the reduced pirate activity, the sustainability of the current counter-piracy measures has been questioned and fears have been expressed that Somali piracy has not come to an end yet. 9 The second trait of Somali piracy is that it has developed into a business model that yields profits through ransoms. 10 Unlike piracy in other regions, Somali piracy has a dominant objective, which is to ransom the crews and vessels. 11 Given that seafarers are the target of Somali pirates, the human cost of Somali piracy demands special review. Although the human cost of piracy has been discussed by officials and analysed by various research, it is worth asking what the human cost of Somali piracy means. In the context of the human cost of piracy, the deaths, injuries, ill-treatment, prolonged captivity and breaches of privacy of seafarers have been examined. Translating the suffering of seafarers into the language of legal norms means that we are not talking about anything else but the violations of the human rights of seafarers, namely their right to life, freedom from torture, freedom from illegal detention and privacy, which are being reviewed below. 8 See the IMB live piracy map at www.icc-ccs.org/piracy-reporting-centre/live-piracy-map (accessed 11 October 2015). 9 Report of the Secretary-General on Somalia (S/2014/140) 7 at 37, Huggins, above n 2, 9, Report of the Secretary-General on the situation with respect to piracy and armed robbery at sea off the coast of Somalia (S/2013/623) 16 at 70. Palmer, above n 1, challenges this approach and argues that piracy is not a function of the failure of Somalia, but a result of the failed reconstruction attempts of the West, 9-10. 10

ABDUCTORS
The phenomenon of piracy has evolved over the last decade and has now been transformed into a profitable criminal business. It is estimated that an amount between US$340 million and US$435 million was paid in the form of ransoms for ships and/or seafarers kidnapped by Somali pirates between 2005 and 2014. 13 Apart from the marginal opportunities to escape poverty that have encouraged Somalis to turn to the lucrative business of piracy, it should also be noted that Somalis possess the sea-going and military skills to become pirates. 14 Pirates have been heavily armed and do not hesitate to fire automatic weapons and Rocket Propelled Grenades (RPGs) against vessels and their crews. 15 Pirates have also proved to be highly adaptive, and the sophistication of their modus operandi is striking. Among the most notorious techniques operated by pirates remains the use of the "mother vessels", which ranges from fishing dhows to larger vessels. 16

THE ESCALATING VIOLENCE AGAINST SEAFARERS
The highly evolving nature of piracy has had an adverse impact on the welfare of seafarers.
The victims of piracy have been confronted with unprecedented levels of violence. During the period 2010-2014, almost 9,688 seafarers were attacked by pirates, 2,878 seafarers came in close contact with pirates, when their vessel was boarded, and 2,060 seafarers were taken hostages. 17 During a pirate attack, seafarers face serious risks of being injured or killed, as pirates employ lethal force against them. The perils posed to the welfare of seafarers are increased when a vessel has armed guards on board, as seafarers may get caught up in the crossfire. 18 The psychological distress that seafarers suffer is also severe. In the case where seafarers have to hide in a citadel upon a pirate attack, they may be attacked by pirates for The Human Rights of Seafarers 20 days awaiting help from naval forces. 19 It is worth highlighting that up until 2011-2012, when piracy reached its peak, seafarers did not receive any anti-piracy training or counselling, and the seafarers who come from developing countries still do not have access to these services. 20 This means that seafarers are prepared only for the traditional hardships experienced at sea, but not for exchange of fire and armed attacks, as if in a warzone. The first clinical research conducted on the psychological impact of piracy on seafarers shows that they do not have enough 'mental preparation' for pirate attacks and suffer increased anticipatory stress about traversing known zones of piracy. 21 The same results were released after a survey of the IMB on the feelings of seafarers about piracy across regions, in which on a scale of 1 to 5, seafarers rated with a 4 their stress and scare when they have to transit sea routes off Somalia, and with a 3.5 their inability to focus on work. 22 In addition to the risks of being injured or killed and the great distress that seafarers face upon a violent pirate attack, they also face the risk of being taken hostages. In the same IMB survey on seafarers' concerns about specific events in Somali piracy, seafarers rated with more than 4 out of 5 their concern about being kidnapped by pirates. 23 It was noted that there has been no successful hijacking over the last year, but at the time of writing, there are still 26 seafarers being held hostages by pirates. 24 The hostages, who are still in captivity, are considered to be 'high risk' hostages, as there is an increased likelihood of abuse or death and minimum chances of release. 25 Apart from the hostages still held in captivity, the abuses that seafarers have already suffered at the hands of pirates should not be ignored. Hostages have been facing extremely long periods in captivity, with periods of detention on the increase. In 2010, the average of detention was five months, 26 in 2011 it increased to six months, 27 and for the seafarers captured in 2012 the 19 According to the IMO, 'a Citadel is a designated pre-planned area purpose built into the ship where, in the Other reported abuses included systematic isolation, deprivation of privacy, malnutrition and lack of drinkable water. 34 Pirates also put psychological pressure on their hostages, as they make them phone their relatives to beg for help at gunpoint, tell them that their families abandoned them or the negotiations broke down and their organs will be cut out and sold on 28 ibid 4. According to OBP, the crew of FV Naham 3 has been in captivity for 1,140 days, OBP (2015), above n 3, 30. Overall, the evolving nature of Somali piracy has had a significant human cost, which is often overlooked in the literature, as seafarers suffer a number of human rights violations upon a pirate attack and while in captivity. Their right to life is constantly threatened, they remain in captivity for prolonged periods of time and they are deprived of their right to privacy. The forms of physical and psychological ill-treatment that hostages suffer are also severe and can, in some instances, amount to torture. 37 The following assessment of some of the most vital counter-piracy responses will demonstrate that States have failed to address the issue of the violations of the human rights of seafarers.

AGAINST PIRACY
The impact of Somali piracy shocked the international community that adopted a range of those who have paid the highest price'. 38 Although States are aware of the suffering of seafarers, they have failed to acknowledge that one of the humanitarian costs is the actual violation of the human rights of seafarers. As it will be explained below, the recognition of the breaches of the human rights of seafarers means that States could have positive obligations to protect seafarers, while also complying with their negative obligations in the fight against piracy. Nevertheless, States have not seriously considered their human rights obligations yet and this is reflected in the current counter-piracy responses that suffer human rights gaps.

THE UNSC RESOLUTIONS
The UNSC has adopted a number of Resolutions that focus on piracy 39 or the chaotic situation in Somalia that contributes to piracy. 40 On 2 June 2008, the UNSC first used the powers under Chapter VII of the UN Charter and authorised States, which cooperate with the Transitional Federal Government of Somalia (TFG) in the fight against piracy, to enter the territorial waters of Somalia for the purpose of repressing piracy. 41 Although this decision may seem revolutionary, the UNSC was extremely careful when crafting the Resolution. A number of strict restrictions in relation to the time and space, the protection of innocent passage, respect for international law and cooperation with the TFG limit the use of these powers. This cautious approach of the UNSC has been seen as more hortatory than a revolutionary one that could bring effective results in the fight against piracy, 42 but it could be understood in the light of the paramount importance for the UNSC to clarify and ensure that this authorisation is a special exception which will not create customary international law. 43 However, what cannot be explained is that the UN, as a major international human rights actor, failed to prioritise the protection of seafarers against the increasing violence they

Practical constraints
As outlined from the outset, it must be noted that the case of piracy in Somalia is more  secondly, they cannot deport pirates to States where they might face the risk of torture; 85 and finally, they cannot transfer pirates to countries where their right to a fair trial might be denied. 86 The ECtHR has now well-established case law that protects the human rights of those on board intercepted vessels. In both the Medvedyev and Rigopoulos cases, the ECtHR found that a 13-day and 16-day detention, respectively, on board of the vessel for the purposes of transferring the captured persons to national ports were incompatible with the meaning of promptness under Article 5(3) of the ECHR. 87 However, in these cases no violation was found because the delays were justified under the exceptional circumstances of these cases. These obligations have been reiterated by cases examined in the context of counter-immigration operations. In the key case of Hirsi Jamaa, the ECtHR held that the applicants, who were originally found on board of vessels that were intercepted by the Italian naval forces, and were then transferred to Italian military ships and returned to Libya, 'were under the continuous and exclusive de jure and de facto control of the Italian authorities'. 88 Therefore, the ECtHR found that the alleged violations brought before it by the applicants fell within Italy's jurisdiction. 89 In line with this jurisprudence and within the context of piracy, the Rotterdam District Court also found that a time span of 40 days between the apprehension of a Somali pirate and his presentation to a Judge brings about a violation of Article 5(3) of the Convention, but this was found irrelevant to the criminal proceedings. 90 The ECtHR also examined cases brought by Somali pirates who challenged the legality of their detention by French agents. 91

The Impact of the Criminal Counter-Piracy Responses on the Human Rights of Seafarers
States, for a considerable period of time, let pirates escape justice due to practical constraints,  land, there seems to be no reason why these could not apply to rescue missions at sea. This means that hostages should be entitled to human rights protection, and they could potentially bring claims under Article 2 against the States whose naval forces conduct rescue missions.
Whereas it was concluded that hostages could and should be protected during the conduct of rescue missions, two more legal barriers may arise. The first one derives from the extra-117 D Howden, 'Somali pirates are using torture as defence shield' (2011) The Independent at www.independent.co.uk/news/world/africa/somali-pirates-are-using-torture-as-defence-shield-2202614.html

Rights of Seafarers During Rescue Missions at Sea?
The developments of extra-territorial human rights law, and the IO's responsibility, discussed below, could potentially offer solutions to these legal problems, but it is noted with concern that seafarers may remain exposed to human rights violations due to the limitations of the contemporary human rights framework. While it was explained that the human rights jurisprudence has now established that those arrested and detained at sea are brought within the jurisdiction of flag States, the question that remains is whether seafarers are brought within the jurisdiction of those States, which conduct rescue missions and employ lethal force at sea. In its more recent case law, the Court has shifted its focus again on the effective control States exercise on areas beyond their territories. 128 In the case of Al-Skeini, the Court found the UK to have 'assumed authority and responsibility for the maintenance of security in South East Iraq' and hence, the effective control the UK exercised over the territory brought the deceased within the jurisdiction of the UK. 129 The ECtHR made another step towards a more Whereas the Court made it clear, once again, that the 'cause and effect notion' of jurisdiction is not followed, 132 it cannot be denied that the Jaloud reasoning lessens the threshold of effective control required by the earlier case law of the ECtHR.
It seems that the strict personal or spatial link required for holding States accountable for extra-territorial human rights violations might not be easily satisfied in the case of the rescue missions conducted in the Horn of Africa, as it could be difficult to argue that flag States establish effective personal or territorial, within the ECtHR notion, during rescue missions.
This could leave hostages exposed to more human rights violations. The recent case of Jaloud suggests that the Court has taken a more liberal approach to the interpretation of jurisdiction. In this light, it could be argued that the naval rescue missions off the Somali coasts bring seafarers within the jurisdiction of the operating States, as these are conducted for the purposes of assuming control and asserting authority over the persons on hijacked vessels. Although it might be still early for this argument, this would also echo the increasing calls for interpreting the personal and spatial links in a more liberal fashion that responds to the needs of a globalised world. 133 It has been argued that there should be a shift from the personal and spatial link to the factual link. The latter is established between the acts of State agents and the persons whose human rights are affected by these acts and should suffice to bring the individuals within the jurisdiction of States. 134 In the same vein, seafarers, whose human rights are directly affected by rescue missions, should fall under the jurisdiction of States and they should be entitled to human rights protection. The Human Rights of Seafarers 44 recognises that the increasing violence against seafarers remains underreported. 156 Therefore, the signatories affirmed their commitment to the collection and dissemination of information regarding the levels of violence against seafarers. 157 The coordinated collation of information by four of the largest flag States aims to offer an invaluable tool to stakeholders that could use this credible data for the preparation and adoption of new strategies against piracy with a view to better protecting seafarers.
Sadly, apart from the practical difficulties that these two initiatives encounter in achieving their aims, they both remain non-binding. This means that their effectiveness relies on the willingness of States, and compliance is not compelled by enforcement mechanisms. In addition, both the documents come into play after seafarers' rights are violated. Although post incident responses should be praised, this is also indicative of the lack of focus in the human rights prevention phase, which is the most significant and most efficient stage to protect the human rights of seafarers. Despite the weaknesses, it is suggested that these regional responses offer an alternative bottom-up approach to the problem of the inadequate protection of the human rights of the victims of piracy. The more States join these efforts, the more effective the protection of the victims will become. Unlike the difficulties of a topdown approach that would require States to convene and decide on this issue, increasing human rights initiatives escorted by extended State participation could offer constructive and timely solutions to the human rights gaps in the protection of seafarers. Emmerson noted with concern that as long as States seek a nexus to State responsibility for the violations of the human rights of hostages, this allows 'victims of terrorism to remain as legally ossified "prisoners of doctrine"' and leads to secondary victimisation. 161 The identical suffering and legal gaps in the protection of seafarers suggest that similar responses should be adopted by the UN in the context of piracy. These two reports summarise in the most eloquent manner most of the legal defects of the contemporary human rights framework discussed above that leave the victims of piracy exposed to violations. Thus, the emerging recognition of the violations of the human rights of the victims of terrorist hostagetaking and the relevant human rights obligations of States to protect hostages can become a beacon inspiring similar responses in the context of piracy.

CONCLUSION
This paper has highlighted the complexities of Somali piracy and shed light on one particular aspect that remains unexploredthe violations of the human rights of seafarers. Although it was discussed that the human cost of piracy has drawn the attention of the international community, the latter has been rather reticent about acknowledging that this human cost is nothing else but breaches of the human rights of seafarers, and especially those taken (9,818 words -13,226 including footnotes)