Counter-piracy Operations by PMSCs

Journal of International Criminal Justice

1 September 2012

J Int Criminal Justice (2012) 10 (4): 839

Counter-piracy Operations by PMSCs

AUTHOR: Alice Priddy, Stuart Casey-Maslen,

The authors are both researchers at the Geneva Academy of International Humanitarian Law and Human Rights. [alice.priddy@geneva-academy.ch; stuart.casey-maslen@genevaacademy.ch]

TEXT:

Abstract Private maritime security contractors (PMSCs) are being hired with ever-increasing regularity to guard vessels passing through areas where the risk of being attacked by pirates is particularly high. While this may bring greater security to ships and their crews, it also raises a number of important issues, especially what constitutes lawful use of force by armed guards belonging to PMSCs. It is sometimes a fine line between lawful self-defence and homicide, but it is one that needs to be drawn clearly. This article discusses the applicable standards – human rights as well as other relevant frameworks and standards – and concludes that further work is required to ensure that the rights of all concerned are respected and protected.

CRIMINAL LAW

1. Introduction

On any given day, as many as 16 military vessels may be deployed on counter-piracy operations in the Gulf of Aden and Indian Ocean, patrolling an area 10 times the size of Germany. n1 This military presence has been relatively successful in disrupting piracy attacks. However, the huge cost of these operations, estimated to amount to more than US$1.25 billion in 2011, and the ever-expanding area in which piracy is occurring (which has reached as far east as the Maldives), n2 means that maintaining the status quo, or even improving upon it, will likely prove to be an unsustainable drain on governmental resources. Furthermore, the huge operational area of modern-day pirates means that military patrols will rarely be on hand to prevent an attack being successful, creating a ′security gap′. n3 The general escalation of piracy over the past decade and the corresponding overstretch of state resources, along with this security gap, have combined to spur an increasing number of ship-owners and operators, in the context of a competitive and economically troubled industry, n4 to turn to private maritime security contractors (PMSCs) to help protect their ships and customers′ cargoes.

There are certain advantages to hiring PMSCs to protect commercial ships, most prominent of which is the oft-chanted mantra that no vessel with armed guards on board has ever been successfully hijacked. n5 Furthermore, the role that PMSCs are playing in counter piracy is easing the burden on states patrolling the most at-risk areas. There are, however, legitimate concerns that recourse to armed guards may trigger a further escalation in violence, prompting pirates to carry and use even heavier weaponry. (Already, pirates typically arm themselves with a range of weapons, including semi-automatic and automatic guns and rocket-propelled grenades (RPGs). n6) Furthermore, there are major concerns that PMSCs may operate without the controls and accountability required from states under international law, especially with respect to the use of force. A major increase over the past five years in companies specializing in or offering maritime security services, too often with little to no corporate experience in this area, has only served to heighten those concerns. This article explores these issues by describing the existing and emerging legal regimes that govern PMSCs in the counter-piracy context, as well as the governance gaps that remain. It recommends greater oversight of PMSCs engaged in counter piracy and further clarification of what constitutes lawful use of force by their personnel when addressing a threat from suspected pirates.

2. The Rise and Role of PMSCs in Counter-piracy Operations

It is important to bear in mind that the work of states and PMSCs in counter piracy is not identical. Under international law, states have far more extensive powers – and obligations – to prevent and repress piracy than PMSCs do. These powers include the rights, under customary international law and the 1982 UN Convention on the Law of the Sea (LOS Convention), in particular, to interdict suspected pirate vessels; arrest and detain suspected pirates; and confiscate their weapons, ships and assets. PMSCs, which generally have none of these rights, n7 are primarily employed to deter and if necessary ward off attacks against their clients′ vessels. n8 These may be commercial ships, cruise boats, private yachts or oil rigs, and may even include ports.

In doing so, PMSCs will typically offer a range of services to their customers: risk assessments, practical advice on how to improve the security of vessels, and anti-piracy training for crew members, in addition to the possible provision of armed or unarmed guards to protect or escort vessels. It is estimated that at least one-quarter of the approximately 42,000 vessels transiting the Gulf of Aden each year already employ PMSCs, and the percentage is believed to be increasing. n9 But such protection does not come cheap, with an average bill of US$50,000 for a PMSC team (normally of three persons) per transit. n10 Considering the cost implications, the ever-greater numbers of ship-owners and operators who are engaging the services of PMSCs evidence the seriousness with which they take the threat of piracy.

One of the shipping industry′s concerns about the use of armed guards was that crews would come to demand armed guards on board vessels or seek significant additional protection, increasing costs in an already squeezed industry. Recent developments lend credence to this concern. n11 Although most PMSCs are professional organizations who approach their work in a responsible manner and only employ highly qualified ex-military personnel, the rapid growth of the potentially lucrative counter-piracy market has seen a corresponding increase in the number of maritime PMSCs. It cannot be said that all meet the same professional standards. n12 Following a high-level debate on the issue of privately contracted armed security personnel on board ships in May 2012, the International Maritime Organization (IMO)′s Maritime Safety Committee agreed to develop new guidance to private maritime security companies to complement existing guidance. It is hoped that this new guidance would also assist policy development at the national level and promote greater harmonization of policies at international level. n13

The increased recourse to PMSCs imposes a concomitant obligation upon states to regulate their activities effectively. n14 First, although an increasing number of states are allowing armed PMSCs on board their flagged vessels, not all do. Where the employment of PMSCs is prohibited, it is the duty of the flag state to police and enforce this prohibition. Secondly, human rights obligations demand that states not only respect but also protect from interference by others the following rights: to life; to freedom from torture and other cruel, inhuman, or degrading treatment or punishment; to freedom from arbitrary deprivation of liberty and to security. Thus, states should have in place a legislative and administrative framework to regulate PMSCs ′ actions and ensure accountability where they are permitted to operate on a state′s flagged vessels. n15 This framework should determine, inter alia, whether personnel may be armed, under which circumstances, with which weapons, and when and how those weapons may lawfully be used. Although in most cases a general framework exists, more specific regulation and guidance is urgently needed, especially with respect to the use of force and firearms. We turn, then, to the current state of the law and the legal lacunae that must be addressed.

3. Use of Force by PMSCs

Wherever and whenever private security service providers are engaged, particularly when their personnel are equipped with firearms, concerns have been raised with regard to the regulation of, and accountability for, any forceful action they may take. n16 These fears are particularly acute in the counter-piracy paradigm at sea, where action takes place far from the watchful eyes of the media, corporate oversight mechanisms and non-governmental organizations. Furthermore, the maritime environment dictates that a state response to instances where PMSC personnel are faced with an attack is usually not immediately available, as it could otherwise be on land. This puts PMSC personnel in hostile and volatile situations where raised tensions can lead to a precipitate and/or excessive use of force.

To date there has been one clearly reported incident of PMSC personnel using lethal force against a suspected pirate. n17 In March 2010, the merchant vessel Almezaan was travelling to Mogadishu when it came under attack from pirates travelling in high-speed skiffs. PMSC personnel on board the Almezaan returned fire to the suspected pirates, successfully repelling a first attack. However, the pirates launched a second attack in which gunfire was again exchanged. It is in this second attack that one of the suspected pirates sustained fatal, small-calibre gunshot wounds. Although it is reported that the surviving pirates were captured by European Union Naval Force (EU NAVFOR) officers, and their skiffs and other paraphernalia destroyed, there are no reports of any investigation into the lethal force used by the PMSC team.

Recently leaked video footage, however, highlights concern as to how much force PMSC personnel engaged to protect a vessel from piracy can lawfully – or in practice – use. n18 The footage, filmed on 25 March 2011, was taken by the helmet camera of the leader of a team from a private security service provider specialized in maritime security. The team was guarding the Avocet, a bulk cargo vessel passing through the Gulf of Aden. According to Thomas Rothrauff, a senior official of Trident Group Inc., the PMSC concerned, who later spoke about the incident, the Avocet had first been approached by pirates on 22 March 2011. The pirates fired at the Avocet but retreated, for unspecified reasons.

Three days later, the Avocet was approached again. The film footage shows dozens of rounds being fired by two PMSC personnel from the Avocet at an oncoming skiff that was approaching at high speed. Upon sighting the skiff, the team leader ordered ′warning shots′ to be fired. It would be difficult to describe what follows as merely warning shots that would form part of a graduated response. Indeed, gunfire appears to continue even as the skiff crashes into the Avocet n19 and for around 15 seconds before the skiff falls behind the Avocet. The PSMC team then turn their fire to another suspected skiff in the distance, although the outcome of this round of fire is unknown as the footage ends.

Rothrauff insisted that ′full compliance with rules for the use of force were [sic] in place′ and that the shootings were justified as the guards feared for their lives, having spotted rocket-propelled grenades on the first skiff that approached the Avocet on 12 March. Since the incident, however, Trident Group has changed its procedures so that only team leaders can fire warning shots. n20 Moreover, firing in response to ′fearing for one′s life′ is likely to go beyond warning shots, as appears to have occurred in this instance.

Indeed, one expert has criticized the actions of the PMSC team, describing ′the rate of fire that went down as just not acceptable at all′, n21 and stating that the team was not ′necessarily′ taking action that was a ′graduated, proportional, necessary response′. n22 In contrast, the International Maritime Bureau described the Avocet incident in its 2011 report simply as ′[a]rmed security team aboard fired warning shots. The pirates aborted the attempted attack′. n23 According to the chief operating officer at International Registries Inc. (which runs the registry of the Marshall Islands, the flag state of the Avocet), there will be no further investigation of the matter. n24

The Avocet incident illustrates the need for greater clarity about when PMSCs may use deadly force and what constitutes an appropriately graduated response?

A. The Lawful Use of Force in Self-defence

PMSC personnel – unless explicitly operating on behalf of a state – are citizens with the same rights and responsibilities as any other citizen. Their actions are primarily governed by applicable national law, which may be the law of the vessel flag state, the law of the nationality (or nationalities) of the PMSC personnel involved, or, if they are in territorial waters, the law of the territorial state. More than one state may thus have jurisdiction over their actions. In general, however, the right of PMSC personnel to use force is typically restricted to lawful acts either in self-defence or in the defence of others. If PMSC personnel use force beyond what is deemed lawful, they are liable to criminal prosecution. n25

The extent to which PMSC personnel, or any other ordinary citizen for that matter, may use force in self-defence or the defence of others varies from state to state. Under the law in the United Kingdom (UK), for example, it is lawful to use force in self-defence or in the prevention of crime so long as the force used was necessary in the circumstances as the individual believed them to be. n26 There is no rule, in the UK law, whereby a person must wait to be struck first before they may forcibly defend themselves or another person. n27 This use of force in self-defence may even result in the death of the attacker. Under the UK common law, however, the use of lethal force to protect property ′is unlikely to be found to be reasonable by a jury′. n28 This situation differs in other states, notably (but by no means only) in the United States. n29

To further clarify the law for PMSCs operating on UK-flagged ships, the British Department for Transport released interim guidance in 2011 advising that:

Lethal force can generally only be used in the context of self-defence or defence of others. The decision to use lethal force must lie with the person using force where they believe there to be a risk to human life. Neither the Master nor the security team leader can command a member of the security team against that person′s own judgement to use lethal force or to not use lethal force. n30

The guidance states that PMSC personnel must use the ′minimum force necessary′ to prevent the illegal boarding of a vessel and protect the lives of those on board, and that procedures adopted should allow for a ′graduated response, each stage of which is considered to be reasonable and proportionate to the force being used by the attackers′. n31 The guidance warns, though, that adherence to these rules would not in itself serve as a defence if criminal charges were brought, and that the applicable laws on self-defence ′will depend on the court where charges are brought, which may depend on where the offence took place and/or where the victim (or possibly the alleged perpetrator) is from′. n32

The United States has gone a step further than the UK by legislating specifically to codify a right to use force to deter unlawful attacks on the US-owned vessels. The master or crew (which would include PMSC personnel) ′of any merchant vessel of the United States, owned wholly, or in part, by a citizen thereof′ is authorized to ′oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such a vessel′. n33

To further clarify the degree of force that can be used by PMSC in defence from pirate attacks, the US Coast Guard and the Department of Homeland Security jointly issued a Port Security Advisory in 2009 entitled Guidance on Self-defence and Defence of Others by U.S. Flagged Commercial Vessels Operating in High RiskWaters. n34 The Guidance, which is provided for all personnel on board US-flagged vessels, including contracted security personnel, sets out the current United States rules for defence against piracy. Use of lethal force is permitted in self-defence or defence of others where there is reason to believe that there is an imminent danger of death or great bodily harm. n35 Non-deadly use of force is permitted in self-defence or defence of others as well as in defence of the vessel and its cargo from theft or damage. n36 In the latter regard, force used in defence of the vessel and its cargo can only be used on the authorization of the vessel′s master.

Although the degree of force that may lawfully be used in self-defence may differ somewhat across countries, it is essential that all seafarers, but especially PMSC personnel, clearly understand their legal rights and responsibilities. The international law enforcement standard for the use of firearms remains the best guide to legality: intentional use of lethal force may only be made when strictly unavoidable in order to protect life. n37

B. Graduated Response

Although it is clear that the use of force by PMSC personnel is authorized, so long as it is used lawfully in self-defence or defence of others or, in more limited circumstances, in the defence of the vessel and its cargo, the intricacies of the type and degree of force that can be used remain unclear. The UK Department of Transport Guidance speaks of the need for a ′graduated response′. What does this mean in practice? Can shots be fired across the bow of a suspected pirate vessel in warning? Can PMSC personnel even lawfully fire warning shots? Can they seek to immobilise the suspected pirate ship by firing into the engine block? If so, in what situation and at what point can such actions be taken? The answers to these questions will depend on national legislation (and case-law), and will also have implications for a state′s human rights obligations (see below).

Indeed, with regard to the UK, British Parliamentarians have made it explicit that the parameters on the use of force by PMSCs need further clarification:

The Government should not offload responsibility onto ship owners to deal with the most difficult aspects of handling private armed guards. The question anyone would ask is that if a private armed guard on board a UK flagged vessel sees an armed skiff approaching at high speed, can the guard open fire? We conclude that the guidance on the use of force, particularly lethal force, is very limited … . The Government must provide clearer direction on what is permissible and what is not. Guidance over the use of potentially lethal force should not be left to private companies to agree upon.

We recommend that the change of policy be accompanied by clear, detailed and unambiguous guidance on the legal use of force for private armed guards defending a vessel under attack. This guidance should be consistent with the rules that would govern the use of force by members of the UK armed forces …, and should include: the circumstances in which private armed security guards faced with a clear threat of violence may respond with force, including lethal force, where proportionate and necessary, and examples of a ′graduated response′ to an attack, including confirmation that nothing in UK law or the CPS [Crown Prosecution Service] guidance requires a victim of pirate attack to await an aggressor′s first blow before acting in self-defence. n38

In contrast, for PMSCs operating on US-flagged vessels, warning shots are not deemed to be a use of force, meaning that recourse to such measures would be lawful under the United States law if used to signal to a vessel to stop or retreat. However, firing shots to signal deadly force is imminent is prohibited. n39 In practical terms, the intended effect of shooting across the bow of a suspected pirate vessel may be the same (to ward off an attack), but the distinction is one based on the character of PMSC personnel as private citizens. Private US citizens may only use lethal force where there is an imminent threat to life or grave injury; only law enforcement personnel may have recourse to broader powers of warning.

Further confusion exists on the question of graduated responses to the threat of pirate attacks. The International Tribunal for the Law of the Sea′s judgment in the Saiga case appears to suggest that a warning shot does not constitute a use of force, asserting that:

The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered. n40

However, such an assertion would be questionable under international human rights law. May PMSC personnel fire into the engine block of a suspected pirate ship? n41 Could this or similar action potentially expose PMSC personnel to a charge of piracy themselves? Related to this is the absence of consensus on the type of firearms that may be used by PMSCs, some of which are using 12.7mm sniper rifles to fire warning shots at distances greater than that which observers deem to be safe and appropriate. n42 But where, for example, PMSCs are protecting ships with a cargo of petroleum, which is highly flammable, and are faced with a pirate about to fire an RPG, it might be necessary to fire first in order to protect life, even if no individual was being specifically targeted. Greater harmony of laws across national jurisdictions and better transparency in this area could be beneficial for better control over the use and conduct of PMSCs.

C. Carriage of Weapons

The weapons that may lawfully be possessed and used by PMSC personnel will also vary widely from state to state. In the United States, for example, the US Gun Control Act, the National Firearms Act and the International Traffic in Arms Regulations (ITAR) n43 will all be applicable. Under the personal use exemption, n44 the US citizens are authorized to export up to three non-automatic firearms and one thousand rounds of ammunition, not greater than 0.50 calibre, for personal use. Security personnel using firearms must be trained and licensed to use their firearms. Alternatively, heavier firearms (certain shotguns, with a barrel length of under 18 inches) can be licensed under certain circumstances. n45

The extent to which national legislation allows weapons to be carried into the respective national territory (especially ports) or through territorial waters also differs. n46 The LOS Convention allows a right of ′innocent passage′ through territorial waters (Article 17), n47 but the extent to which the carriage of weapons to be used in self-defence violates the constraints upon that right (as set out in Articles 19 and 21) is not clear. n48 Different national jurisdictions require that either the weapons or the personnel carrying them, or both, be licensed under the law of the transiting state. There may also be import or export restrictions relating to the disembarkation of weapons in port. n49 Various regimes are currently in force to ensure that weapons are safely stored and delivered when a ship is in port, including gun-rental schemes whereby PMSCs are able to rent government-owned firearms for a daily fee. Faced with complex regulations, some PMSCs have relied on floating ′arms platforms′ to embark and disembark firearms at sea, while others have simply dumped firearms at sea before entering territorial waters. n50

4. Application of Human Rights Law to Actions by PMSCs

A. Responsibility of States under Human Rights Law for Actions by PMSCs

Where a state allows the use of PMSC personnel on board its flagged vessels n51 and authorizes civilians to possess weapons through a licensing regime, does this make the state responsible for any lethal force used by licensed PMSC personnel? As Douglas Guilfoyle notes, ′there is nothing magical about the maritime environment′. n52 If an individual injures or kills another with a licensed weapon, it does not generally invoke the responsibility of the state. This equally applies to the action of a licensed PMSC.

With regard to PMSCs operating on vessels flagged by states parties to the 1950 European Convention on Human Rights, and in situations where lethal force has been used by PMSC personnel, the European Court of Human Rights has said that the deprivation of life must be subjected to the most careful scrutiny, taking into consideration not only the acts in question but also all of the surrounding circumstances. n53 According to the European Court of Human Rights:

The acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage that State′s responsibility under the Convention. Any different conclusion would be at variance with the obligation contained in Article 1 of the Convention. n54

Stefano Bodini suggests that the acquiescence or connivance test could ′very well be applied in cases where armed contractors operate on board commercial ships, whether their activities have been officially authorized or whether the flag state has simply turned a blind eye to them′. n55 It is, however, hard to sustain the argument that PMSC personnel who have been diligently licensed by a state to carry a weapon and who unlawfully use lethal force on board a flagged vessel are acting in connivance with that state. Undoubtedly, on the other hand, if fatal force is used by a PMSC in accordance with state guidance on the use of force by PMSCs that is ′tantamount to a license to kill′, according to Guilfoyle, that state would have legal responsibility under the European Convention. n56 States must not turn a blind eye either to the employment of PMSCs or their actions; and by enforcing their own laws states can improve the likelihood that they will not be held liable for violations of international human rights law on the basis of excessive use of force by privately employed PMSCs.

B. Responsibility of PMSCs under International Human Rights Law

Although the issue remains highly contentious, the authors believe that at least fundamental human rights are directly binding on PMSCs. Thus, for example, the February 2012 report of the International Commission of Inquiry on Syria provided as follows:

[T]he commission notes that, at a minimum, human rights obligations constituting peremptory international law (ius cogens) bind States, individuals and non-State collective entities, including armed groups. Acts violating ius cogens – for instance, torture or enforced disappearances – can never be justified. n57

If the Commission is right, such obligations, which would also include a prohibition on executions by PMSC personnel, clearly have potential relevance for counter-piracy activities.

C. Obligation to Rescue at Sea and Standards of Detention

International law imposes a general obligation on the master of a vessel to rescue anyone (including suspected pirates) in danger of being lost at sea. n58 At the same time, however, the master also holds ultimate responsibility for the safety of the vessel and its crew. n59 Accordingly, the duty to rescue those in danger is not absolute but rather qualified on the basis that the rendering of assistance would not pose a serious danger to the vessel, its crew or passengers. n60 For example, if a pirate is in a skiff that is in danger of sinking, but he is still attempting to hijack another vessel or is using a weapon against the vessel, the vessel′s master would not be obligated to rescue that individual. However, if the skiff then sinks and the pirate is drowning and no longer poses a danger, the master would be obligated to conduct a rescue. It should be noted that the obligation to rescue those in danger at sea rests with the master of a vessel, not the vessel′s crew or PMSC personnel on board.

If a suspected pirate is rescued or detained, he may have to be kept on board the vessel for the duration of the journey to a port. n61 During his detention, the suspect must be provided with adequate food and water. The national law of the flag ship will prohibit the use of violence against the detainee. n62 Furthermore, the international prohibition on torture and other forms of cruel, inhuman, or degrading treatment clearly applies to anyone detained on board a ship. For PMSCs, there is the potential concern that by detaining prisoners they are in effect kidnapping them. Common sense, however, suggests that PMSCs should be allowed to detain suspected criminals until they can be handed over to the authorities on the basis of either some form of citizen arrest n63 or the master′s ′power to detain′. n64

5. Soft Law Standards

In addition to the IMO′s recent decision to develop additional guidelines, two other soft-law standards provide guidance to PMSCs on their responsibilities as private actors.

A. The International Code of Conduct

In November 2010, an International Code of Conduct for Private Security Service Providers (ICoC) was opened for signature after an 18-month process of drafting. n65 The ICoC is a multi-stakeholder initiative convened by the Swiss government that aims to clarify international standards for the private security industry operating in complex environments and to improve oversight and accountability of such companies. n66 As of 1 June 2012, more than 400 companies from 57 countries had signed the Code. A draft Charter for an independent governance and oversight mechanism for the ICoC was under consultation as of that date. n67

Although not beyond debate, the ICoC appears to cover the gamut of actions by PMSCs operating on the high seas. Paragraph 13 of the Code states that: ′This Code articulates principles applicable to the actions of Signatory Companies while performing Security Services in Complex Environments.′ Complex environments are defined in section B of the ICoC as ′any areas experiencing or recovering from unrest or instability, whether due to natural disasters or armed conflicts, where the rule of law has been substantially undermined, and in which the capacity of the state authority to handle the situation is diminished, limited, or non-existent′. The reference to ′any areas′ as opposed to ′any territory′ suggests that the definition was intended to be broader than acts within the exclusive territorial jurisdiction of a state. In considering whether the open sea near Somalia is a complex environment within the meaning of the ICoC, one should take note of the fact that Somalia, for instance, is certainly unstable, it continues to suffer from armed conflict, and its capacity to handle the situation is unquestionably limited.

Paragraph 7 provides another indication that the ICoC should be read as being relevant to maritime security. That paragraph states that the Signatory Companies to the Code commit to considering the development of ′additional′ principles and standards for related services, such as the provision of maritime security services. Use of the word ′additional′ is understood to mean further principles and standards as well as those laid down in the Code itself. Moreover, more than half of the signatory companies to the Code are either partly or wholly engaged in maritime security, which might indicate that they perceive that the ICoC has relevance to their work. n68

In signing the ICoC, companies commit to supporting the rule of law, respecting the human rights of all persons and protecting the interests of their clients. n69 With regard to the use of force, PMSCs which have signed the ICoC commit to requiring their personnel to take all reasonable steps to avoid the use of force and in no circumstances exceed the use of force that is strictly necessary and proportionate to the threat. The Code requires that PMSC personnel are not to use firearms against any person except in self-defence, the defence of others, or to prevent the perpetration of a particularly serious crime involving grave threat to life. Turning back to the question of the use of warning shots, this latter exception to the use of force would in the authors′ opinion allow PMSC personnel to shoot across the bow of a vessel or even at its engine block since piracy is undoubtedly a particularly serious crime and does often involve grave threat to life. Alternatively, it could be argued that at least warning shots not targeting the suspected pirate ship are not a use of force against a person and thereby do not breach the ICoC, even when not used in accordance with one of the exceptions.

B. The UN Framework and the Guiding Principles for Business and Human Rights

Paragraphs 2 and 3 of ICoC refer to the 2008 UN ′Protect, Respect and Remedy′ Framework for Business and Human Rights. The UN Framework, developed by the UN Special Representative on Business and Human Rights and endorsed by the Human Rights Council, n70 is divided into three complementary pillars: protect, the state′s duty to protect against human rights abuses committed by third parties including businesses; respect, the corporate responsibility to respect human rights; and remedy, the need for more effective remedies. The protect pillar highlights that states have a duty to protect against human rights abuses by non-state actors, including businesses, affecting persons within their territory or jurisdiction n71 – this would clearly include PMSCs. Protection should be in the form of effective policies, legislation, regulation and oversight – the latter an element that is still somewhat lacking in regard to the work of PMSCs. The respect pillar calls on PMSC to respect their responsibility to act with due diligence to avoid infringing the human rights of others. n72

Following on from the UN Framework, and upon the request of the Human Rights Council, n73 the UN Special Representative on Business and Human Rights authored the 2011 Guiding Principles, n74 to provide practical recommendations for the UN Framework′s implementation. The Guiding Principles articulate existing standards applicable to states and all businesses, including transnational businesses ′regardless of size, sector, location, ownership or structure′. n75 The Principles constitute a global standard of expected conduct that applies to all business enterprises wherever they operate. They have implications both for flag states and for the states of registration and operation of the PMSCs providing services.

The Principles clarify that businesses have a responsibility to respect internationally recognized human rights; n76 that businesses should seek to prevent and avoid causing or contributing to adverse human rights impacts; n77 and therefore that they should have in place a policy commitment to respect human rights and a due-diligence process to identify, prevent, mitigate and account for how to address their potential human rights impact, as well as a process to enable remediation of any human rights impact that the business causes or contributes to. n78

6. Concluding Remarks

The relative success of armed PMSC personnel in foiling piracy attacks combined with increasing state endorsement of their use, as well as the implicit endorsement of the IMO (which as we have seen has released Interim Recommendations on their use) indicates the employment of armed PMSCs will likely increase. Further guidance on the lawful and appropriate use of force by PMSCs is, though, needed. As the Bloomberg report on the Avocet incident cited above noted:

Fear of pirate attacks is creating more violent and chaotic seas, where some overzealous or untrained guards are shooting indiscriminately, killing pirates and sometimes innocent fishermen before verifying the threat, according to more than two dozen interviews with lawyers, ship owner groups, insurance underwriters and maritime security companies.

First and foremost, more specific guidance from states (individually or collectively) on the circumstances in which armed guards from PMSCs may lawfully open fire upon suspected pirates is urgently needed. It is sometimes a fine line between lawful self-defence and homicide, but it is one that needs to be drawn more clearly. Although not an incident involving PMSC personnel, in April 2012 Italian marines on board an Italian oil tanker they had been commissioned to protect shot and killed two Indian fishermen after mistaking them for pirates. The incident occurred on the high seas. Italy argues that its marines lawfully fired in self-defence as the fishermen manoeuvred aggressively and ignored warning shots. India argues that the marines used a disproportionate degree of force and should stand trial for manslaughter in India. n79 Similar situations could arise with greater frequency as the use of armed guards on merchant vessels continues to increase.

In the interests of transparency, it should also be a requirement that all incidents involving the use of force by PMSC personnel against suspected pirates should be the subject of a formal report, as is required of signatory companies to the ICoC. n80 Currently, ship operators and owners are only requested, but not required, to report all incidents involving pirates or suspected pirate sightings to the International Maritime Bureau or UK Maritime Trade Operation. Moreover, where there are serious injuries or fatalities at sea as a result of counter-piracy actions by PMSC personnel, a full independent and effective investigation by law enforcement personnel needs to be undertaken to ensure that national and international law have been correctly applied. Where breaches have occurred, PMSCs and the relevant personnel within the company concerned must be held accountable for their actions.

In sum, there is a major challenge to be met if the high seas are to be subject to the rule of law and not just to the law of the gun.

FOOTNOTES:

n1 One Earth Future Foundation, ′The Economic Cost of Somali Piracy 2011′, Working Paper, February 2012, at 25.

n2 ′Somali Pirates seize ship off the Maldives′, BBC, 26 March 2012.

n3 On 10 May 2012, the Greek oil tanker, MT Smyrni, with her 135,000-ton cargo of crude oil was successfully hijacked in the Arabian Sea. ′Pirates hijack Greek oil tanker in Arabian Sea′, Guardian, 11May 2012.

n4 Growing fuel costs, and a slump in freight rates have left the shipping industry struggling. According to SeaIntel Maritime Analysis, container-shipping lines lost more than US$11.4 billion in 2011. See ′Shooting to Kill Pirates Risks Blackwater Moment′, Bloomberg, 9 May 2012.

n5 Of course, the same function can be performed by navy personnel acting as Vessel Protection Detachments, or VPDs.

n6 Oral evidence of Captain Reindorp RN before the UK House of Commons Foreign Affairs Committee, ′Piracy off the Coast of Somalia′, 29 June 2011, Q113.

n7 Most states have some form of ′citizens′ arrest′ by which a person may detain an individual or individuals they reasonably suspect to be in the act of committing or even to be about to commit a crime. For the case of the UK, see e.g. J. English and R. Card, Police Law (12th edn., Oxford University Press, 2011) 61-62. The power to detain suspected pirates and the role of PMSCs in doing so is discussed infra.

n8 As such, ′anti-piracy protection′ rather than ′counter-piracy′ is perhaps a better description of what PMSCs generally offer to customers.

n9 One Earth Future Foundation, supra note 1, at 17. The paper notes ′this figure of 25% is an estimation of the entire year of 2011. From discussions …, we understand that the proportion of vessels employing armed guards increased rapidly throughout 2011, and by the end of the year this figure was closer to 50% of vessels′.

n10 Ibid., 17.

n11 ′Arms suit hits Heidmar′, Tradewinds, 21 June 2012. In June 2012, two seafarers sued Heidmar and Marida Tankers for failing to place armed guards on a ship that fell into pirate hands. Two assistant engineers from the Marida Marguerite (built in 2008) filed a complaint in the United States, asserting also that sending the ship through pirate-infested waters gave rise to liability under the US Jones Act (46 App. US Code 688 (2002)), under which an employee has a right to a ′safe place to work′. The two plaintiffs have claimed the vessel was not seaworthy as it did not have ′adequate security, including but not limited to, weapons and non-lethal methods of resisting intruders′. It also suggested the crew were not given an adequate security plan. The plaintiffs, who along with their crew mates were held for eight months by pirates, further suggest negotiations with the pirates were not completed in a timely manner. According to the US Maritime Law Centre, the Jones Act (among other things) governs the relationship between the employer and crew aboard a US-flagged vessel. Prior to the Act, seamen were very limited as to their ability to recover for injuries on board ship. The Jones Act made the Federal Employers Liability Act applicable to seamen. Under admiralty law, seamen are entitled to a broader interpretation of the concepts of negligence, and the employer has a higher degree of care. Under the Jones Act, the employer is liable for ′any injury′ arising in whole or in part from the negligence of any of the officers, agents, or employees of the employer, or by reason of any defect or insufficiency of equipment due to negligence of the employer. The employee must prove negligence. The negligent act is not required to be the sole proximate cause of the injury

n12 See e.g. UK House of Commons Foreign Affairs Committee, Piracy of the Coast of Somalia, Tenth Report of 2010-12, December 2011, § 39. INTERTANKO, for example, reported in May 2012 that companies had ′varying standards of service and operation′. J. Boreman, ′IMO′s MSC guidelines for private security companies′, last updated on 25 June 2012.

n13 IMO, ′Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area′, MSC.1/Circ.1443, 25 May 2012.

n14 See further, below, the discussion of the UN Framework and the Guiding Principles for Business and Human Rights.

n15 The draft Convention on Private Military and Security Companies, if it were ever finalized and adopted, would strengthen this obligation, at least for the states parties to it. Among other things, the draft Convention notes that respect for human rights as an erga omnes obligation, and draft Art. 4 provides that each state party ′bears responsibility for the military and security activities of PMSCs registered or operating in their jurisdiction, whether or not these entities are contracted by the State′. It further requires that each state party ′ensure that the PMSCs it has contracted are trained in and respect international human rights and international humanitarian law′. Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. A/ HRC/15/25, 5 July 2010, Annex.

n16 M. Cottier, ′Elements for Contracting and Regulating Private Security and Military Companies′, 88 International Review of the Red Cross (2008); and H. Born and A.-M. Buzatu, Recommendations to the Council of Europe Parliamentary Assembly for Effective Regulation of Private Military and Security Companies, Geneva, 1 September 2008.

n17 EU NAVFOR, ′Pirate Dies in Attempted Hijacking – EN NAVFOR Detains Pirate Action Group′, 24 March 2010.

n18 The footage can be viewed on Bloomberg, supra note 4.

n19 Rothrauff is reported to have stated that ′at least some of the boats′ occupants were probably killed or injured′. Ibid.

n20 Ibid.

n21 Darren Knight, a former UK Royal Marine, who leads on-board security teams, cited in ibid.

n22 Chris South, deputy director at West England Insurance Services, cited in ibid.

n23 International Maritime Bureau, Piracy and Armed Robbery Against Ships, Report for the period 1 January-31 December 2011, January 2012: Attempted Attack; Africa (Somalia), Incident no. 64, at 87.

n24 He further noted: ′It′s very unfortunate that the Somali pirates got injured but they shouldn′t be doing it in the first place.′ See supra note 4.

n25 The question of state immunity is only relevant to a PMSC if they have been recruited by a state and are incorporated into or working on behalf of that state′s military.

n26 The use of force in self-defence is governed by the common law in the UK: ′It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.′ Palmer v. R [1971] AC 814. See English and Card, supra note 7, at 854. The use of force in the prevention of crime is governed by section 3 of the 1967 Criminal Law Act. The 2008 Criminal Justice and Immigration Act, Section 7, established a statutory framework (based on existing case law) for assessing reasonableness.

n27 R. v. Deana (1909) 2 Cr App R 75.

n28 English and Card, supra note 7, at 854.

n29 See e.g. J. Getzler, ′Use of Force in Protecting Property′, 7 Theoretical Inquiries in Law (2006) 131.

n30 Department for Transport, Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances, UK, November 2011, § 5.6.

n31 Ibid., §§ 8.3, 8.5.

n32 Ibid., § 8.7.

n33 ′Resistance of Pirates by Merchant Vessels′, 33 US Code § 383. See Clyde & Co, Shipping and Insurance Update: Piracy, July 2011.

n34 US Coast Guard and the Department of Homeland Security, Guidance on Self-Defence or Defence of Others by U.S. Flagged Commercial Vessels Operating In High Risk Waters′, Port Security Advisory (3-09), 18 June 2009.

n35 This reflects the US domestic law standard for the intentional lethal use of force by police, which sets a lower threshold than the 1990 Basic Principles on the Use of Force or Firearms by Law Enforcement Officials, a soft-law instrument adopted within the context of the United Nations. The US standard was set out in Tennessee v. Garner, 471 US 1 (1985).

n36 US Coast Guard and the Department of Homeland Security, supra note 34.

n37 Principle 9, 1990 Basic Principles on the Use of Force or Firearms.

n38 UK Parliamentary Foreign Affairs Committee, Piracy off the Coast of Somalia: Tenth report of 2010-12, December 2011, § 37.

n39 US Coast Guard and the Department of Homeland Security, supra note 34.

n40 The M/V ′Saiga′ (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999, § 156. The Tribunal further noted (in § 158) that: ′The Guinean officers also used excessive force on board the Saiga. Having boarded the ship without resistance, and although there is no evidence of the use or threat of force from the crew, they fired indiscriminately while on the deck and used gunfire to stop the engine of the ship. In using firearms in this way, the Guinean officers appeared to have attached little or no importance to the safety of the ship and the persons on board. In the process, considerable damage was done to the ship and to vital equipment in the engine and radio rooms. And, more seriously, the indiscriminate use of gunfire caused severe injuries to two of the persons on board.′

n41 In this context, should the pirate skiff or ship be immobilized, the obligation to rescue those in danger of being lost at sea would kick in.

n42 See e.g. S. Casey-Maslen and A. Priddy, ′Countering piracy: what are the rights and obligations of states and private security providers?, Monday 30 January – Wednesday 1 February 2012, Conference report,WP1150 ′,Wilton Park, UK, March 2012.

n43 Found in 22 C.F.R, Parts 120-30.

n44 22 Code of Federal Regulations, § 123.17.

n45 DSP-73 allows certain weapons to be exported and imported into and out of the USA over a four-year period.

n46 In March 2012, for instance, it was reported that PMSCs were storing their guns aboard floating armouries in international waters so ships that want armed guards for East Africa′s ′pirate-infested waters′ could cut costs and circumvent national laws limiting the import and export of weapons. Few, if any, governments have laws governing the practice, and according to unnamed industry officials, some security companies ′have simply not informed the governments of the flag their ship is flying′. K. Houreld, ′Piracy fighters use floating armories′, Associated Press, Nairobi, 22 March 2012.

n47 Subject to the LOS Convention, ′ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea′.

n48 Art.19 provides that passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal state (and therefore not ′innocent′ if in the territorial sea) if it engages in, inter alia: ′any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations′ or ′any exercise or practice with weapons of any kin′. Art. 21 requires that ships ′exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations′ adopted by the costal state.

n49 Thus, for example, the UK′s Interim Guidance of November 2011 requires that the shipping company satisfy itself that the relevant PMSC has ′[a]n understanding of port State and coastal State laws and requirements with respect to the possession, carriage, and movement of firearms, ammunition and other security related equipment (such as body armour, night vision/ thermal imaging equipment etc.)′. UK Department for Transport, supra note 30, § 3.2.

n50 N. Florquin, ′Escalation at sea: Somali piracy and private security companies′, Small Arms Survey 2012 (Cambridge University Press, forthcoming, 2012).

n51 A growing number of states have endorsed the use of PMSCs on board commercial vessels to deter piracy attacks, including the UK, the USA, Germany, Cyprus, Denmark, Finland, Greece, Hong Kong (China), India, Italy, the Netherlands, Norway, Panama and Spain.

n52 D. Guilfoyle, ′Shooting Fisherman Mistaken for Pirates: Jurisprudence, Immunity and State Responsibility′, EJIL Analysis blogpost, 2 March 2012, available online at http://www.ejiltalk.org/shooting-fishermen-mistaken-for-pirates-jurisdiction-immunity-and-state-responsibility/ (visited 23 July 2012).

n53 Avsar v. Turkey, App. No. 25657/94, European Court of Human Rights, Judgment, 10 July 2001, § 391.

n54 Cyrus v. Turkey, App. No. 25781/94, European Court of Human Rights, Judgment, 10 May 2001, § 81.

n55 S. Piedimonte Bodini, ′Fighting Maritime Piracy under the European Convention on Human Rights′, 22 European Journal of International Law (2011) 829, at 846.

n56 Guilfoyle, supra note 52.

n57 ′Report of the independent international commission of inquiry on the Syrian Arab Republic′, Human Rights Council, UN Doc. A/HRC/19/69, 22 February 2012, § 106.

n58 The duty to render assistance to anyone in danger of being lost at sea is contained in four international conventions: the LOS Convention; 1958 High Seas Convention; 1989 International Convention on Salvage; 1974 International Convention for the Safety of Life at Sea (SOLAS). Flag states may adopt legislation that extends the international law obligation. Canada, for example, has legislated to make it a criminal offence for a master not to render assistance to a distress call, unless this would pose a danger to the master′s vessel. Art. 131(1) read with 137(1)(a) Canada shipping Act 2001.

n59 Indeed, as stated in SOLAS XI-2, Reg. 8(1),′The master shall not be constrained by the Company, the charterer or any other person from taking or executing any decision which, in the professional judgment of the master, is necessary to maintain the safety and security of the ship.′

n60 Art. 98 LOS Convention. The obligation contained in Art. 98 LOS Convention repeats Art. 12 High Seas Convention. See also Art. 10(1) International Convention on Salvage, and SOLAS, Chapter V, Reg. 33(1).

n61 It is possible that a patrolling military vessel may agree to meet the vessel at sea and take custody of the detainee.

n62 E.g. the 1861 Offences Against the Person Act will be applicable to the conduct of those on board a UK-flagged vessel.

n63 E.g. under section 24A of the UK 1984 Police and Criminal Evidence Act, a person may make a citizen′s arrest of anyone who is in the act of committing an indictable offence or whom he has reasonable grounds for suspecting may be committing an indictable offence.

n64 E.g. under section 105 of the UK′s 1995 Merchant Shipping Act, the master of any UK ship ′may cause any person on board the ship to be put under restraint if and for so long as it appears to him necessary of expedient in the interest of safety or for the preservation of good order or discipline on board the ship′.

n65 See generally www.icoc-psp.org/. A draft of the ICoC was developed by members of the private security industry in cooperation with the Swiss Department of Foreign Affairs and facilitation by the Geneva Centre for the Democratic Control of Armed Forces (DCAF) and the Geneva Academy of International Humanitarian Law and Human Rights (ADH). In a series of multi-stakeholder workshops the final version of the ICoC was agreed upon at a multi-stakeholder conference at the end of September 2010. Swiss Federal Department of Foreign Affairs (Directorate of Political Affairs, Political Affairs Division IV), Fact Sheet: International Code of Conduct for Private Security Service Providers (ICoC), November 2011.

n66 See ′About the ICoC ′, undated. Arguably, the 2009 Montreux Document on Private Military and Security Companies is not directly applicable to counterpiracy as it applies to ′PMSCs operating in areas of armed conflict′. See, ′The Montreux document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict′, Montreux, 17 September 2008, Part II, Introduction. The same introduction notes, however, that the good practices outlined may also provide useful guidance for states in their relationships with PMSCs operating outside of areas of armed conflict.

n67 http://www.icoc-psp.org/uploads/Draft_Charter.pdf (visited 23 July 2012).

n68 Casey-Maslen and Priddy, supra note 42, § 14. For further details of signatories to the ICoC see http://www.icoc-psp.org.

n69 ICoC, § 3.

n70 Human Rights Council Res. 8/7, 18 June 2008, § 1.

n71 UN Doc. A/HRC/8/5, § 18.

n72 Ibid., § 24.

n73 Human Rights Council Res. 8/7, 18 June 2008, § 4.

n74 UN Doc. A/HRC/17/31. In June 2011, the Human Rights Council endorsed the 2008 Guiding Principles. See UN Doc. A/HRC/17/4.

n75 Ibid., Preamble.

n76 Ibid., § 12.

n77 Ibid., § 13.

n78 Ibid., §§ 15-22.

n79 See, generally, Guilfoyle, supra note 52; M. Nalapat, ′The Italian Navy strikes again′, Sunday Guardian, 21 May 2012; and also ′Italian naval guards will have to undergo trial in India′, The Times of India, 27 June 2012.

n80 Under Art. 63 ICoC, signatory companies are required to prepare an ′incident report documenting any incident involving its Personnel that involves the use of any weapon, which includes the firing of weapons under any circumstance (except authorized training), any escalation of force, damage to equipment or injury to persons, attacks, criminal acts, traffic accidents, incidents involving other security forces, or such reporting as otherwise required by the Client, and will conduct an internal inquiry in order to determine the following:a. time and location of the incident;b. identity and nationality of any persons involved including their addresses and other contact details;c. injuries/damage sustained;d. circumstances leading up to the incident; ande. any measures taken by the Signatory Company in response to it. Upon completion of the inquiry, the Signatory Company will produce in writing an incident report including the above information, copies of which will be provided to the Client and, to the extent required by law, to the Competent Authorities′.

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