| by Dr. Ruwantissa Abeyratne
( January 21, Montreal, Sri Lanka Guardian) At the forefront of the subject of piracy at sea have been the United Kingdom and several other countries who have initiated legislation and rules that would enable the use of armed guards in merchant vessels who would protect them from acts of piracy. This approach brings to bear the issue as to whether the measures will have the desired effect of curbing, if not eradicating piracy in the critical areas of the ocean This article discusses the various instances of legislation around the world and regulations pertaining to the use of armed guards on board sea faring vessels.
Piracy at sea has been a worrying issue for the international community in general and the maritime community in particular. According to the International Maritime Organization (IMO) 316 people and 15 vessels were being held hostage as of early October 2011. At the present time, there are no binding international rules that govern the use and selection of private armed security guards in merchant vessels.
The main hotspots of maritime piracy are the coastal waters off Southeast Asia, West Africa, Somalia, South America, The Caribbean Islands and some areas bordering countries in the eastern Mediterranean. In the centre of attention have been the Somali pirates where commercial shipping vessels transiting off the coast of Somalia continue to be frequent targets for pirates. The BBC reports that 49 of the 53 instances of piracy and hijackings of ships took place off the coast of Somalia. There have been various instances of piracy at sea elsewhere over the past few years which have prompted countries to mull the introduction of legislation that would enable the use of armed guards on ships. Taiwan is one of them. The problem is so acute for Taiwanese ships that leading shipping firms Evergreen Marine Corp and Yangming Marine Transport Corp have both already taken steps to protect their vessels by hiring armed guards from a French company, deploying three on each ship travelling through risky waters near Somalia. Additionally, other nations have also commenced measures in this regard. In August 2011, the Egyptian Ministry of Defence withdrew an earlier announcement that imposed a prohibition on the carriage of armed guards, weapons and ammunition on vessels in transit in the Suez and Egyptian territorial waters. The new measure requires that vessels carrying armed guards, weapons or ammunition must submit to the Suez Canal Authority in advance or transit a letter endorsed by the flag state certain critical information.
Guidelines issued by the Mumbai Ports authority in India require all vessels intending to carry security personnel through the high risk waters of the Indian Ocean bound for Mumbai or Jawaharlal Nehru port, to notify authorities at least 96 hours before ship’s arrival. Notification is required even if guards are not armed. Italy has already in place general principles of the deployment of military forces or private security guards onboard Italian Ships. In June 2011 the Norwegian Government announced a new framework on the use of armed guards. This framework allows Norwegian owners to have armed guards onboard in a certain geographical area within the legal limits laid down. South Africa has a requirement that imposes a 21 day period to obtain a permit to allow weapons to be on a vessel in a South African port, this seems not to be the case anymore. This has been extended in application from a local to a national level. At the time of writing, Cyprus was preparing legislation that will allow armed guards onboard merchant ships. Greece was also preparing legislation which will allow armed guards on Greek flagged ships which would be authorized to carry up to six armed guards in a ship.
The United States has also taken meaningful steps forward to respond to piracy off the Horn of Africa. The authorities are reportedly working closely with industry and transit countries to make it less burdensome for privately contracted security personnel to transit foreign ports with weapons intended for the self-defence of ships. In pursuance of this approach a national policy encouraging countries to allow commercial ships transiting high-risk waters to have armed security teams on board has been adopted. The United States has recognized correctly that no ship that has armed guards on board has ever been the subject of successful pirate attacks.
Arguably, the most significant recent initiative in this area has been in the United Kingdom where, in November 2011 the British Prime Minister David Cameron announced that ships carrying the British ensign would be able to carry armed guards on board to protect them against piracy. Under the plan, the Home Secretary would be given the power to license armed guards for ships. The BBC reports that the Prime Minister, in an interview was vehement about the need for this measure when he said: “Frankly, the extent of the hijack and ransom of ships round the Horn of Africa is a complete stain on our world. The fact that a bunch of pirates in Somalia are managing to hold to ransom the rest of the world and our trading system is a complete insult and the rest of the world needs to come together with much more vigour”.
This leaves Netherlands, France and Japan the only countries to ban the use of armed guards on board merchant vessels.
The above notwithstanding, one must issue a note of caution. The use of armed guards on ships should not replace the critical role played by the naval forces in curbing piracy. The Secretary General of the International Transport Forum David Cockroft has observed: “Somali-based piracy has been allowed to become so successful, savage and wide-ranging that seafarers’ and seafaring organisations’ worries about armed guards have had to be set aside. However, guards can never be anything but a supplement to the sorely tried existing naval presence, which is now trying to cover an entire ocean”.
On Thursday 10 November 2011 the Indian Navy patrolling the Gulf of Aden successfully repulsed and frustrated the efforts of pirates who launched a multi-boat attack on merchant vessels. The Navy apprehended 26 Somali pirates and confiscated arms and ammunition. This was its fifth successful anti-piracy operation since September 2011
In November 2011, the United Nations Security Council adopted a Resolution (Resolution 2020 Extending for 12 Months authorization for those Cooperating with the Somali Government to Use All Necessary Means to Combat Piracy, SC 10454, Security Council 6663rd Meeting (AM). condemning and deploring all acts of piracy and armed robbery against vessels in the waters off the coast of Somalia and extended for 12 months its authorizations granted to States and regional organizations cooperating with the Transitional Federal Government of Somalia in the fight against such acts. In its Resolving Clauses the Resolution reiterated that it condemns and deplores all acts of piracy and armed robbery against vessels in the waters off the coast of Somalia and recognized that the ongoing instability in Somalia is one of the underlying causes of the problem of piracy and contributes to the problem of piracy and armed robbery at sea off the coast of Somalia. The Resolution stressed the need for a comprehensive response to repress piracy and tackle its underlying causes by the international community and recognized the need to investigate and prosecute not only suspects captured at sea, but also anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who illicitly plan, organize, facilitate, or finance and profit from such attacks. It called upon States to cooperate also, as appropriate, on the issue of hostage-taking, and the prosecution of suspected pirates for taking hostages. Finally the UN member States of the Security Council renewed its call upon States and regional organizations that have the capacity to do so, to take part in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with the Resolution and international law, by deploying naval vessels, arms and military aircraft and through seizures and disposition of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery at sea off the coast of Somalia, or for which there are reasonable grounds for suspecting such use.
Earlier in 2009, the IMO Assembly adopted a Resolution encouraging Governments inter alia to increase their efforts to prevent and suppress, within the provisions of international law, acts of piracy and armed robbery against ships irrespective of where such acts occur and, in particular, to co-operate with other Governments and international organizations in the interests of the rule of law, safety of life at sea and environmental protection, in relation to acts occurring or likely to occur in the waters off the coast of Somalia.
The Maritime Safety Committee of IMO, at its 89th Session in May 2011 approved interim guidance to ship owners, ship operators and shipmasters on the use of privately contracted armed security personnel on board ships in the high risk area. This guidance provides inter alia that it is essential that all Privately Contracted Armed Security Personnel (PCASP) have a complete understanding of the rules for the use of force as agreed between ship owner, Private Maritime Security Companies (PMSC) and Master and fully comply with them. The guidance goes on to say that PCASP should be fully aware that their primary function is the prevention of boarding using the minimal force necessary to do so. The guidance recommends that PMSC should provide a detailed graduated response plan to a pirate attack as part of its teams’ operational procedures and that PMSC should require their personnel to take all reasonable steps to avoid the use of force. If force is used, it should be in a manner consistent with applicable law. In no case should the use of force exceed what is strictly necessary, and in all cases should be proportionate to the threat and appropriate to the situation. Of significance is the provision that PMSC should require that their personnel not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, or to prevent the perpetration of a particularly serious crime involving grave threat to life.
The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation adopted in Rome on 10 March 1988 has several provisions of relevance to the topic under discussion. According to Article 3 of the Convention a pirate in the classic mould of a Somali pirate fits the description of an offender who is any person commits an offence if that person unlawfully and intentionally: (a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or (b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship. The Convention, in Article 7 implicitly legitimises the placement by a State of private security personnel in its flagship and provides that, upon being satisfied that the circumstances so warrant, any State Party in the territory of which the offender or the alleged offender is present shall, in accordance with its law, take him into custody or take other measures to ensure his presence for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
There are two aspects to the issue of providing armed guards to merchant vessels. The first is that, as discussed, many States are now initiating legislation that would enable ship operators to carry armed guards in their vessels. The second aspect is that ship operators may not have an excuse for not carrying armed guards in their ships in the face of such flexibility and their negligence in not making use of applicable legislation may expose them to legal liability. In the ultimate analysis the master of a ship or a director of a shipping company is in the same position of trust as a physician who is in charge of his patient’s life. The one approach that could be useful in this regard is for such categories of persons to adopt a security culture that would keep them informed of new and emerging threats and enable the company to adequately prepare for such threats and avoid liability. This culture should mesh with a risk strategy which is incorporated in the annual planning cycle, and therefore in the business strategy. It has to be approved by the board of management on the fundamental basis that the risk strategy takes into account the interests of both clients and shareholders.