Last year, a drafting group consisting of private security associations, flag states and maritime industry associations began working on the so-called 100 Series Rules “for the establishment of a clear and concise model set of Rules for Use of Force that may be used by Privately Contracted Armed Security Personnel in the maritime domain.” This effort is now bogged down by disagreements and competing initiatives, illustrating the difficulty in arriving at an agreed standard. The discussion surrounding this issue must take into account the multi-faceted, complex nature of counter-piracy vessel protection activities. Despite multiple attempts to provide guidance on the matter, no single solution has been accepted as universal or authoritative.
Under the current system, Private Maritime Security Companies (PMSC) are responsible for abiding by rules for the use of force (RUF) in accordance with the laws of the Flag State of the vessel on which they are embarked, and if applicable, the laws of the port state or territorial waters. Variance between Flag State laws and policies, and lack of robust oversight has made it difficult to ensure accountability in the proper and ethical use of force. The increasingly complex nature and greater geographic proliferation of PMSCs makes the conversation about RUF more important than ever. Additionally, proposed private navy initiatives such as Typhon might further challenge the boundaries between the public and private security and military apparatuses charged with protecting merchant vessels (MVs).
UNDERSTANDING THE TERMINOLOGY
To preface the discussion on civilian security providers at sea, it is important to properly understand the various terms and concepts involved. Well over 200 Private Maritime Security Companies (PMSC) provide security services to Merchant Vessels (MVs) and fishing vessels during transit through the Indian Ocean, Gulf of Aden, Red Sea, and the Gulf of Oman. To this end, they hire out Privately Contracted Armed Security Personnel (PCASP) teams consisting on average of 3-4 armed guards. The fully civilian composition of PCASP teams differentiates them from Vessel Protection Detachments (VPD). A VPD is a team of military personnel, usually from the Marine force of the flag state. Several Flag States prefer the use of VPD over PCASP as they are generally more professional, accountable, and as military personnel, subject to significant oversight. The primary drawback to VPDs is the cost difference between a VPD team and a PCASP team.
This discussion also necessitates that we distinguish between the two types of rules that govern the use of force at sea, Rules on the Use of Force (RUF) and Rules of Engagement (ROE). RUF are explicitly defensive in their mandate. In this way they differ substantially from Rules of Engagement (ROE). Rules of Engagement outline appropriate parameters for offensive action (though they may also contain defensive provisions as well), and are only applicable to legitimate, state military forces. RUF, as an outline for defensive conduct, are applicable to both state and private security forces, and therefore apply to both VPD and PCASP. In the interest of brevity, and given their applicability, RUF will be the focus of this discussion.
THE PURPOSE AND NEED FOR RUF
RUF serve a twofold purpose: protecting potentially innocent bi-standers against the inappropriate, indiscriminate or abusive use of force, and protecting security and military personnel by outlining the legitimate parameters for the use of force in self-defense and the defense of others. Demonstrated compliance with the RUF serves as a potential defense in the event of litigation.
Though PCASP operate in a quasi-military capacity they are civilians, working under a civilian mandate. This civilian mandate should inform RUF by permitting the use of force only in self-defense and the defense of others. The rights to preemptive force, boarding operations, and detention of suspects are held exclusively by military forces. Self-defense for a PCASP team, however, falls into two categories:
- Individual self-defense, which gives the individual the right to use force to defend his person from an attack or imminent attack.
- Use of force in the protection of others, the right to defend specific persons against attack or imminent attack with the use of force.
EVENTS DEMONSTRATING THE NEED FOR STANDARDIZED RUF
The importance of understanding RUF and the discussion surrounding its proper application have been highlighted by events such as: (1) the Enrica Lexie incident, involving the alleged killing of two Indian fisherman by an embarked VPD of Italian Marines; (2) footage of a PCASP team on board the MV Avocet shooting at an approaching pirate skiff, which calls into question accepted standards for escalation of force and proportionality; and (3) questions associated with an encounter involving the MV Almezaan. During this incident, EU naval forces came across a pirate skiff after the Almezaan issued a distress call about a piracy attack. The skiff was shot full of holes and taking on water, with one occupant dead. During questioning, the Ship’s Master denied having security and weapons on board, and claimed the pirates were deterred by pen flares.
In the absence of sufficient incentives to adhere to rigorous RUF, some PMSC have begun adopting more lax standards, exemplified by policies where PMSCs have designated 350m “no skiff zones.” Such policies operate under the premise that deadly force is authorized by virtue of proximity. This exceeds the US Coastguard’s definition of imminent threat: “aiming or firing weapons at a …vessel with individuals embarked, or an attempted armed, non-consensual boarding, … or brandishing weapons directed at crewmembers or security personnel, where there is a reasonable belief that the attacker(s) also has the means and opportunity to inflict great bodily harm or death on the individual or others in the vicinity.” This guidance provides an example of how an RUF requirement could clearly define imminent threat, the activities it authorizes, and the limits it establishes.
ONGOING REGULATORY ATTEMPTS
While not yet endorsed by the International Maritime Authority, the International Standardization Organization (ISO) Standard for Guidelines for Private Maritime Security Companies (PMSC) providing privately contracted armed security personnel (PCASP) on board ships (and pro forma contract)- also known as the ISO 28007 – requires that the MV Master and the PMSC contracted to provide a PCASP team must agree on an RUF policy. This policy must be in accordance with Flag State and International law and provide for:
- Reasonable steps to avoid the use of force
- A graduated deterrent approach including non-lethal methods and warning shots
- Force being used only in self-defense (necessary to deter a perceived threat and proportionate to that threat)
- The master possessing final fire/cease fire authority
- Written incident reports being provided to “appropriate international liaison,” the flag state, the client, and the insurer
- “Where possible and practicable, a visual (and audio) record of any attack”
As stated at the beginning of this article, several large Flag States, industry associations, and industry actors have participated in the drafting of the 100 Series Rules for the Use of Force. The 100 Series will draw on UNCLOS, the Montreux Document, the International Code of Conduct, Industry Best Management Practices (Version 4) and a range of other documents to inform the drafting of an RUF that is both consistent with international law and complementary to ISO 28007. Like other RUF documents and standards, implementation, compliance certification, and enforcement will be the primary challenges. The willingness of Flag States and the shipping industry to require compliance by PMSCs will be key to the success or failure of the 100 Series. The 100 Series is expected to be released sometime in mid 2013.
Without comprehensive, enforceable, and properly administered RUF, PCASP teams will continue to operate in what amounts to a regulatory vacuum. Given the greatly expanded number and geographic range of armed security teams at sea, the stakes to local fishermen and seafarers are potentially life and death. The human cost of piracy includes not only the life, health, and freedom of the seafarers taken captive by pirates, but also any who may be victims of wrongful or indiscriminate use of force by PCASP teams. PCASP serve a vital function in protecting seafarers and cargo from the threats that evade the international naval presence, but they must operate within a legitimate and thoughtful regulatory scheme. The professional, international naval forces function within the constraints of Rules of Engagement, military law, and humanitarian principles; PMSC should follow suit.
– Matt Walje is a Project Coordinator at Oceans Beyond Piracy | @PiracyOBP