Are we hunting for sea pirates or robbers?

Hanys Salmi, Kuala Lumpur

When Adm. Thomas B. Fargo presented to Congress his argument on the need to secure sea lanes in Southeast Asia, the message that reached Kuala Lumpur and Jakarta was rather alarming. So high-profile was the move that many circles thought Washington was aiming to hide behind the notion of stamping out al-Qaeda- linked terrorists to pursue other ambitions.

In Kuala Lumpur, senior intelligence officials swiftly declared that based on their investigations, there were no indications of terrorists having plied the Malacca Strait. In Jakarta, newspapers ran analyses warning against what was presumed to be a U.S. ambition to increase its military presence, which could threaten the sovereignty of countries in the region in spite of the noble idea of crushing terror.

There are three different issues to be proportionally analyzed to determine the motives of the American maneuvers as promulgated by the commander of the U.S. Seventh Fleet.

First is the need to trace al-Qaeda's subsystems in Southeast Asia. Malaysian Prime Minister Abdullah Badawi told the BBC on July 25 that Southeast Asia would win the war against terror provided that Jamaah Islamiyah (JI) could be uprooted. But he doesn't know how, neither do Indonesian and other ASEAN leaders.

The fight against terror is the hardest bone to crack because it has to do with divergent perceptions. Why has America found it hard to win the hearts of the Muslim majority in such countries as Indonesia and Malaysia on this particular issue? Insensitive political terminologies are to blame for this. The terminologies CIA has been using all along are not pleasing to Muslims' ears even though they support the idea of combating terror. Had the CIA created a more "Muslim-friendly" code-name to replace JI, perhaps Washington would have been able to gather sufficient support from community leaders in this region.

The second issue Admiral Fargo has raised is piracy. This is where another big misunderstanding has occurred. According to Article 15 and 16 of the April 1958 Geneva Convention on High Seas, piracy does not occur within sovereign nations' territorial waters.

It only occurs in what the Convention defined as "high seas." The term "high seas" refers to the international waters that begin after the 12 nautical mile range from a country's coast.

Under this definition, cases of bandits robbing merchant ships within the 12 mile range of Indonesian or Malaysian waters, or within sovereign territorial waters elsewhere should be categorized as "sea robbery" instead of "sea piracy". And "sea robbery" is a crime the concerned countries' naval forces should tackle without having to call for a superpower intervention; because robbers do not use missiles or those stupid weapons of mass destruction.

The Geneva Convention on this issue reads as follows:

"ARTICLE 15:

Piracy consists of any of the following acts:

(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any state;

(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(3) Any act of inciting or of intentionally facilitating an act described in sub-paragraph 1 or sub-paragraph 2 of this article."

This explains why the Indonesian Navy and its Malaysian counterpart keep rejecting as untrue the allegations that "sea piracy" has become so rampant in Malacca Strait that a mighty American naval presence would be needed to wipe it out.

According to reports by the Kuala Lumpur-based International Maritime Bureau (IMB), which has a branch in London, in the first half of 2003, up to 234 incidents were reported as against 171 in the same period in 2002 and 165 in the same period in 2001. In total, 445 acts of piracy were reported in 2003. In the first half of 2004 there were 182 cases. "Indonesia remains the country worst afflicted by piracy," IMB said. This is a dangerous assessment that tarnishes Indonesia's image, because it does not make any distinction between sea piracy and sea robbery.

Since the waters of Riau province near Singapore comprise the bulk of the Malacca Strait, and given its common maritime boundary with Vietnam in the South China Sea, Indonesia needs to clarify its sovereign position to prevent external interventions.

Jakarta must state clearly that based on international law of the sea, the bulk of the issue to be tackled is the need to eradicate "sea robbery" within Indonesian waters, and not "sea piracy" because piracy happens only in the high seas which do not fall under Indonesian jurisdiction. And the question of combating sea robbery is an internal Indonesian affair of which prompt settlement should not wait for external prodding.

The IMB tabulation began when Jakarta was trying to put down renewed armed rebellion in Aceh. There is the temptation to assume that much of the robbery has probably involved the separatist Free Aceh Movement (GAM) trying to generate funds for its struggle.

Before President Megawati Soekarnoputri ordered troop deployment into Aceh, the number cases of sea robbery in Malacca Strait increased to 445 (in 2003) from 192 the previous year. So it is safe to assume that this crime has nothing to do with al- Qaeda-linked terrorism, unless proven otherwise with hard evidence.

But a big puzzle has emerged -- a recent discovery in Central Sulawesi by the Indonesian police, of VCDs containing Osama bin Laden's provocative sermons.

Shall we say that Admiral Fargo may eventually be found right and that what he was aiming to do may not necessarily run counter to Southeast Asia's own interests? Or shall we say that the distortion in the usage of the term "sea piracy" and "sea robbery" was a strategy to weaken the sovereignty of countries sharing the Malacca Strait?

Indonesia and neighbors should not try to block American maneuvers, because no country can do so. With the U.S. Congress having approved a $416 billion budget for the Pentagon, America's overseas engagements would surely be stepped up across the globe.

Southeast Asian countries can only enhance cooperation among themselves and with the U.S. for "coordinated patrols" across the region -- and not just in the Malacca Strait -- in the sense that warships would ply the waters outside the coordinates of sovereign countries' maritime borders as a form of shock therapy against all kinds of crime and terror.

The writer is a researcher at a Kuala Lumpur-based company. He can be reached at hanyssalmi@malaysia.com