The 100 Series Rules: An International Model Set of Maritime Rules for the Use of Force – An Update

A guest post by David Hammond. For a background, see also our previous post on the publication of the 100 Series Rules. 

David Hammond is the Head of Maritime Practice at 9 Bedford Row International Chambers London, author of the 100 Series Rules, a former frontline Royal Marines’ Officer and former head maritime lawyer to the United Kingdom’s Chief of Joint Operations for counter-piracy matters. He is an Associate Research Fellow of the Greenwich Maritime Institute and international speaker on maritime Rules for the Use of Force. The comments within this post comprise the personal opinion of the author and do not constitute any measure of formal legal advice whatsoever and howsoever read. Formal legal advice may be obtained on instruction.

Also posted at All About Shipping and the Bridge.

Background

Over the past two years, the 100 Series Rules (“the Rules”) have been conceived, researched, drafted and finally published in soft-copy form as of May 3, 2013 as a first edition. They are a first for the commercial maritime industry and go one step further than simple guidance for the drafting Rules for the Use of Force (RUF) and guidance as to where responsibility lies for producing RUF as an inclusive part of a commercial contract. At the time of writing, the 100 Series Rules have been short-listed in support of one of the five finalists for the Lloyds List Global Awards 2013 Maritime Lawyer of the Year.

At the very least, the Rules provide a lawful core set of principles and RUF for use by emerging companies. At best, they provide a point of reference that can be relied upon as a robust legal interpretation for the lawful use of force by international organisations and State entities, enabling auditing, standardisation and accountability in any chain of events where force is lawfully used at sea in self-defence.

The Rules have been developed for the benefit and use of the entire maritime industry, intended to be referred to without the imposition of State or geographical boundaries, overly restrictive interpretations, interference from commercial entities seeking commercial advantage or State authorities seeking State advantage.  In short, the previous lacuna in provision to the international community of an actual model set of rules has been filled and is now being further developed alongside the registered “Supporting Entities”, as highlighted on the website.

The Law

The law that underpins the Rules is that of individual self-defence; itself a universal concept that can be found to outdate modern legislative interpretations going back to the Bible, Koran and other main religious texts by way of example. It is the individual right of all persons in every region, in every country and that includes indigenous seafarers, merchant sailors, as well as Privately Contracted Armed Security Personnel (PCASP), to be able to lawfully defend themselves against criminal acts of violence.

The Rules themselves are concise in terms of their core principles. They are concise in their outline of graduated defensive response measures that individuals may be required to undertake to protect themselves and those immediately around them. This, of course, includes the use of lethal/deadly force as a last resort, in self-defence.

The drafters of the Rules have researched significant numbers of individual State’s legislation covering the issue of self-defence (presentations containing this research may be found open-source on the website). They have subsequently identified the international objective law test of what is “reasonable and necessary” within the Rules, while accounting for proportionality in the use of any force as against an identified treat. The objective test stands as a higher standard as against which actions may be measured than that necessarily found in some State’s legislation at the individual national subjective level. In some cases, individual State’s legislation may well exceed that laid down in the Rules.

The 100 Series Rules will not, however, provide any form of indemnity or immunity whatsoever against civil or criminal liability when force has been used unlawfully.

International Supporting Entities

The Rules are currently supported in their conception and use by over 40 international entities. These currently include a main flag State, ISO, Lloyds Register, BIMCO, UNICRI, SAMI as well as international maritime associations representing the world’s shipowners and ship managers, international PMSCs, insurance and maritime intelligence providers and leading international law firms specialising in piracy matters. In short, this is an international effort driven by leading commercial entities based upon practical and pragmatic real-time experiences, combined with the general call for clarity of rules, transparency in their use and accountability for the lawful use of force at sea.

IMO and ISO

In support of ISO PAS 28007-2012, the Rules were first submitted to ISO in October 2012. They were accepted a work item and are undergoing a final review at the time of writing.

 In June 2013, the Rules passed through the IMO at Maritime Safety Committee 92 as an INF paper sponsored by the Republic of the Marshall Islands, ISO, BIMCO and the International Chamber of Shipping. They were subsequently noted by the IMO and unchallenged for the detail of their contents following the session.

American Standards

There appears to be a dual-track approach to this issue of standardisation as between the US-based ASIS organisation and the European International Organisation for Standardisation (ISO). This article will not debate the pros and cons of the two initiatives, noting only that up to the point of the release of the 100 Series Rules, there was no other reference to an international model standard freely made available to the maritime industry.  Further, without competition, in what is an otherwise commercially focused arena, lone imposed standards may fall foul of anti-competition rules and legislations.

The maritime environment is of course is an entirely different environment to that of both established and emerging land-based operations, often undertaken with the backing of a UN mandate following a period of war-fighting as part of an international, non-international or internal armed conflict, often involving NATO forces and where the Law of Armed Conflict may have been invoked.  In stark comparison and as most readers will know, piracy, armed robbery and hijacking are criminal acts that require a constabulary response and hence the restriction in the maritime environment, (outside of armed conflict) for the need for recognised RUF, as opposed to offensive Rules of Engagement (ROE).

In tandem with the text of the American National Standard PSC 1-2012 ‘Management System for Quality of Private Security Company Operations – Requirements with Guidance’ and reassuringly so, the 100 Series Rules includes the same consideration and understanding for the need of the requirement for human rights at a State, commercial and individual level. The essence and intent of the American and European Human Rights Conventions, as well as the UN Universal Declaration of Human Rights and supporting texts have been rightly integrated as part of the comprehensive approach to the issue of maritime RUF.

Furthermore, 9 Bedford Row International (9BRi) Chambers’ Maritime Practice, will shortly be releasing the first international model guideline document “Model Guiding Principles and Best Practice for Human Rights Considerations in the Maritime Industry” ©Copyright 2013 9BRi. It will be available through http://www.100seriesrules.com/Human_Rights. This will be for the reference and use by the maritime (including the maritime security) industry and interested third parties. It will be based upon current international conventions and decided international case law, backed by a comprehensive legal advice.

Summary

Currently, there stands a lawful international model for maritime RUF that works, is internationally supported, widely socialised and rapidly growing so.  As a model set of actual rules, the 100 Series addresses the commercial requirements of the international maritime industry in greater depth than any other currently available RUF guidance and there are no cogent reasons why the established 100 Series cannot complement emerging land standards.

As seen with the development of Best Management Practice (BMP), the 100 Series Rules will remain at the disposal and for the use of the international maritime industry. It will be an iterative document that will develop over time, but most importantly, it should not be undermined by entities seeking commercial advantage at the expense of supporting and protecting seafarers in undertaking often difficult and dangerous roles at sea.

When the Use of Force is Lawfull: The 100 Series Rules are Released

After a lengthy incubation process, the 100 Series Rules have finally been released. Courtesy of the author, David Hammond, we have obtained a copy here.

The Logo of the 100 Series Rules

The Logo of the 100 Series Rules for the Use of Force

The 100 Series Rules are an international model standard and example benchmark of best practice for the use of force in the maritime security and anti-piracy fields for application by privately contracted armed security personnel (PCASP) and private maritime security companies (PMSCs) on board ships.

The Rules are set out for the benefit of the Master, Ship owner, charterer, insurer, underwriters, PMSCs, PCASP and interested third parties, providing guidance on lawful graduated response measures and lawful use of force, including lethal force, in accordance with the right of self-defence in the context of maritime piracy, armed robbery or hijacking. The Rules aim to provide for transparency of rules, clarity in use and accountability of actions in those situations, and hope to fill gaps in these areas often lamented by the stakeholders of maritime industry and maritime security.

The 100 Series Rules have been developed for the benefit of the entire maritime industry and under-pinned by a thorough public international and criminal law legal review of what is “reasonable and necessary” when force is used, as a lawful last resort, in self-defence.

Further details about the 100 Series Rules can be found at www.100seriesrules.com.

The “Private Ends” Requirement of UNCLOS in the 9th Circuit: Are Sea Shepherds Pirates?

Sea Sheperd Conservation Society Vessel

The United States Court of Appeals for the 9th Circuit recently discussed the “private ends” requirement of the crime of piracy under international law.  In Cetacean v. Sea Shepherds, Judge Kozinski reversed the lower court and enjoined the Sea Shepherds, an international non-profit, marine wildlife conservation organization, from coming within 500 meters of any Japanese whaling vessels.  Judge Kozinski held that Sea Shepherds satisfied the “private ends” requirement of the United Nations Convention on the Law of the Sea (UNCLOS), and that they could accordingly be considered pirates under international law, regardless of their political and non-pecuniary motivation.    According to Judge Kozinski:

“You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.” (p. 2).

Scholars interested in the field of maritime piracy have been most fascinated by Judge Kozinski’s discussion of the “private ends” requirement.  Many have already debated Judge Kozinski’s determination that Sea Shepherds could be considered pirates under UNCLOS, with both enthusiasm and disagreement.  Eugene Kontorovich on Volokh Conspiracy agreed with Judge Kozinski and argued that the relevant distinction under UNCLOS is between private ends committed by private parties, and other acts committed by governments.  Thus, according to Kontorovich,

“It does not turn on whether the actor’s motives are pecuniary, political, operating under mistake of fact, or simply insane. Private ends are those ends held by private parties. The converse is also true: a government-owned ship in government service cannot commit piracy even if it attacks another vessel solely to enrich itself.”

According to Kontorovich, as long as the Sea Shepherds were acting as private parties, and not governmental agents, their actions would satisfy the “private ends” requirement, despite the fact that the Sea Shepherds’ goals may be purely political (“private” clearly means ‘non-governmental,’ rather than selfish or not selfish”).   Kevin Jon Heller on Opinio Juris disagreed, and argued instead that the “private ends” requirement of UNCLOS excludes all politically motivated acts, not simply those committed by governments or governmental agents.  According to Heller,

“politically-motivated acts of violence on the high seas were not traditionally considered piracy under international law, but were instead simply criminal acts that the offended state could prosecute as it saw fit.”

Pursuant to Heller’s argument, as long as the Sea Shepherds were acting toward a political goal, their actions could not satisfy the “private ends” requirement and they could not be considered pirates under UNCLOS.  Both Kontorovich and Heller would apparently agree that the Shepherds’ acts could be considered acts of maritime violence under the SUA Convention.

Finally, Jon Bellish on EjilTalk! acknowledged the debate between Kontorovich and Heller, and noted that both positions had significant support in the drafting history of UNCLOS and in other international law documents.  Bellish also argued that the question of what exactly the “private ends” requirement constitutes today was more nuanced than either Kontorovich or Heller seem to acknowledge:

“The outer bounds of the private ends requirement are relatively clear. On one end, proving animus furandi – or the intention to steal for personal pecuniary gain – is not required to satisfy the private ends requirement. On the other end, it is undisputed that acts of violence committed on the high seas under state authority fail to satisfy the private ends requirement. But there is significant room between these two extremes. Just exactly where the line should be drawn between these two extremes, and on which side of that line the Sea Shepherds fall, is a more difficult issue.”

Bellish concludes by agreeing with Kontorovich, and Judge Kozinski.  Bellish notes that if one were to adopt a narrow interpretation of the “private ends” requirement and to inquire in each instance about the perpetrator’s subjective intent (whether it was private/pecuniary or political), then one would have to exclude acts of Somali “pirates” from piracy, because their alleged motivation was announced as protecting their waters from illegal fishing exploitation and environmental dumping.

While it is difficult to disagree with this argument, it is equally difficult to conclude that Sea Shepherds easily fit within the traditional paradigm of piracy.  They do not.  Their goals truly are political and non-pecuniary, and their intent belongs more in the “political” category rather than the “private” one.  The Ninth Circuit may have adopted a too formalistic approach and a too wide reading of UNCLOS in holding that they were pirates.  When interpreting UNCLOS, modern-day judges may need to resort to a more flexible approach.  Instead of adopting a strict private/public distinction when interpreting the “private ends” requirement, it would be possible for judges to adopt a presumption that private parties act for private ends, unless such parties can demonstrate convincingly that their acts had a bona fide political purpose.  Under this approach, Sea Shepherds, as private parties, would first be classified as acting for private ends, but presumably they would be able to demonstrate that their purpose is purely political.  Sea Shepherds are not pirates, although their acts of violence at sea may be reprehensible.  Kevin Jon Heller, in the above-mentioned post, quoted the following language, from an essay by His Excellency Jose Luis Jesus, a judge on the International Tribunal for the Law of the Sea:

“This requirement seems to exclude sheer politically motivated acts directed at ships or their crew from the definition of piracy. In the past the issue of whether a politically motivated act was a piratical act drew substantial support from some publicists and governments. The piracy rules, specifically tailored to handle piratical acts, were in the past stretched in their interpretation and application by some national jurisdiction and by some commentators to also cover, by default, other unlawful, politically related, acts against ships and persons on board, such as terrorist acts….Today, however, especially after the adoption of the SUA Convention, it would appear to be a lost cause to continue insisting on considering such a politically-motivated act as piracy. If, in the past, politically-motivated acts of violence or depredation against ships and persons aboard, short of being piracy, were left out of the international regulatory system, as it were, today they are covered by Article 3 of the said SUA Convention.  Likewise, the ‘private ends’ criterion seems to exclude acts of violence and depredation exerted by environmentally-friendly groups or persons, in connection with their quest for marine environment protection. This seems to be clearly a case in which the “private ends’’ criterion seems to be excluded. “

I agree with Judge Jesus, and Kevin Jon Heller, and would encourage courts to adopt a more flexible approach in their interpretation of the “private ends” requirement.

Upcoming Event: “Counter Piracy – Rules for the Use of Force” Conference in London, UK

The international conference “Counter Piracy – Rules for the Use of Force” will take place in London, UK on 8 February 2013. The event aims to bring together various stakeholders in the anti-piracy field, including maritime lawyers, flag States, ship-owners and shipping  associations, insurance companies and P&I Clubs as well as maritime security companies and other interested parties. The main topic of discussion will be the legal framework relevant to the use of force by privately contracted security personnel in the maritime industry, particularly the status of the so called “100 Series Rules”.

The 100 Series Rules, developed by David Hammond, aim to be an international model standard and example benchmark of best practice for the use of force in the maritime and anti-piracy field for application by privately contracted armed security personnel and private maritime security companies. Further details about the 100 Series Rules can be found at www.100seriesrules.com.

Liability for the Destruction of Suspected Pirate Skiffs?

In one of their latest reported joint anti-piracy operation, EUNAVFOR and Combined Task Force 151 announced the disruption of potential piracy attacks off the Somali coast. In November 2012, the Romanian frigate ROS Regele Ferdinand, under EUNAVFOR command, and Turkish warship TCG Gemlik, of Combined Task Force 151, apprehended nine suspected pirates at sea off the coast of Somalia. Earlier, a Swedish EUNAVFOR maritime patrol aircraft located the skiff at 420 nautical miles east of Mogadishu, an area known for pirate activities. At the scene, the TGC Gemlik sent a boarding team to intercept and search the suspected vessel, which for over an hour tried to evade capture. The suspected pirates were then embarked onto the ROS Regele Ferdinand for futher questioning and evidence collection to assess the possibility of their prosecution. No fishing supplies were found on board, while it remains unclear whether the suspects were armed. Shortly after their apprehension, the suspected pirates were released onto a Somali beach for lack of sufficient evidence to proceed to their prosecution. According to EUNAVFOR, despite the strong suspicion that it was a pirate boat, it was determined that there was not sufficient evidence to build a case and prosecute the suspected pirates, as they were not caught actually committing any crime. In additon, building a case against the suspects would be too time-consuming and onerous.

German frigate Hamburg sinks an abandoned skiff off the coast of Somalia. Credit: Christian Bundeswehr - Reuters

German frigate Hamburg sinks an abandoned skiff off the coast of SomaliaCredit: Christian Bundeswehr – Reuters

However, their skiff and other effects on board, including fuel and ladders, were instead destroyed. According to EUNAVFOR, this will prevent the suspected pirates from using the skiff to attack ships in the future. By means of example, this incident, by no means uncommon, raises the question of the diffferent evidentiary grounds and standards of proof for the prosecution of suspected pirates and the destruction of boats and equipment belonging to them. While the destruction of a pirate vessel can prevent the perpetration of further piracy attacks, the sinking of a fishing boat, however small, might put a strain to the fishermen’s livelihoods. Article 106 of UNCLOS (and Article 110(3)) provides for the possible liability for any loss or damange caused by the seizure of a suspected pirate ship when effected without adequate grounds.

Liability for seizure without adequate grounds

Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

What are the grounds for the seizure and destruction of suspected pirate vessels and how do these differ from those provided for the arrest and prosecution of suspected pirates? In this regard, the legal framework applicable to the contrast to piracy, particularly in Somalia, needs some additional clarification and interpretation. UNCLOS explicitly provides only for a right of visit when there are reasonable grounds for suspecting that a ship is engaged in piracy (Article 110) and for a right of hot pursuit of a ship into the high seas only when there are good reasons to believe that a violation was committed (Article 111). The SUA Convention, its additional protocol, as well as the Djibouti Code of Conduct also contain references to various evidentiary thresholds, mainly reiterating the principles above contained in UNCLOS relevant to cooperation, rights of visit and liability for loss or damage.

In its recent Resolution 2077 (2012), approved after a significant debate on piracy as a threat to international peace and security, the Security Council renewed its call to continue the fight against piracy, including through the disposition of boats and other relevant equipment for which there are reasonable grounds for suspecting their use in the commission of piracy and armed robbery at sea:

10. Renews 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 this 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;

Indeed, EUNAVFOR’s seizures or disposals of suspected pirate skiff are premised upon the standard of “reasonabile grounds to suspect” (see also here). How to interpret, therefore, this standard? Resolution 2077, issued under Chapter VII of the UN Charter, also makes various references to the need to ensure compliance with international law and more particularly, “applicable human rights law” and “due process of law in accordance with international standards” in the pursuit of accountability for suspected pirates (see also paras 16-18 and 20). A review of international human rights and criminal law, while concerning crimes of a different nature, might thus provide for futher guidance. Various standards exist and, admittedly, some differ from others by mere semantics. Article 58(1) of the ICC Statute, relevant to the issuing of a warrant of arrests, provides for the evidentiary threshold of “reasonable grounds to believe”. This is significantly different from the threshold required for the confirmation of charges against an individual under Article 61(7) of the same Statute (“substantial grounds to believe”) or, obviously, for a conviction under Article 66(3) (“beyond reasonable doubt”). “Reasonable grounds to believe” are also required before the ICTY for the submission of an indictment by the Prosecutor or in relation to contempt proceedings (Articles 47 and 77(c) of the ICTY Rules of Procedure, respectively). The ICC Pre-Trial Chamber equated the “reasonable grounds to believe” standard to the “reasonable suspicion” standard under Article 5(1)(c) of the European Convention on Human Rights. Arguably, this comparaison appears questionable. Believing is a concept stronger than suspecting. However, while also relevant to arrest and detention, the ECHR determined that this standard consists of the existence of facts and information which would satisfy an objective observer that the person concerned may have committed a crime. The procedure for the submission of an indictment before the ICTY provides the following description of the meaning of “reasonable grounds”:

Reasonable grounds point to such facts and circumstances as would justify a reasonable or ordinarily prudent man to believe that a suspect has committed a crime. To constitute reasonable grounds, facts must be such which are within the possession of the Prosecutor which raise a clear suspicion of the suspect being guilty of the crime. […] It is sufficient that the Prosecutor has acted with caution, impartiality and diligence as a reasonably prudent prosecutor would under the circumstances to ascertain the truth of his suspicions. It is not necessary that he has double checked every possible piece of evidence, or investigated the crime personally, or instituted an enquiry into any special matter. […] The evidence, therefore, need not be overly convincing or conclusive; it should be adequate or satisfactory to warrant the belief that the suspect has committed the crime. The expression “sufficient evidence” is thus not synonymous with “conclusive evidence” or “evidence beyond reasonable doubt.” (Review of the Indictment against Ivica Rajic, Decision of 29 August 1995, Case no. IT-95-12)

Given the limited role played by EUNAVFOR in the investigation and prosecution of piracy, perhaps reference to recent international commissions of inquiry, whose standards are generally lower than those of purely judicial institutions, might also provide for additional guidance. For instance, the International Commission of Inquiry on Darfur acted upon a standard of “reliable body of material consistent with other verified circumstances, which tends to show that a person may reasonably be suspected of being involved in the commission of a crime” (para. 15).

Pirates or Fishermen? - Courtesy AP

Pirates or Fishermen? – Courtesy AP

Put plainly, the review above shows that a discrete amount of supporting evidence and the mere possibility, rather than the certainty, of the commission of a crime are therefore required to meet the “reasonable suspicion” standard encompassed in Resolution 2077 for the seizure and disposition of suspected pirate skiffs. It is, arguably, an extremely low standard but it demarcates the basic threshold for piracy-disruption activities. Suspecting the commission of a crime, however, falls a long way from having demonstrable proof. While this standard might also be akin to that required for the arrest of a suspected pirate, those necessary to proceed to his investigation and prosecution are increasingly higher and still depend upon factors such as the quantity and the quality of the evidence, as well as the willingness of State actors to proceed. Finally, several questions remain on the suitability and susceptibility of claims of unlawful destruction of vessels to be brought before Somali authorities when adequated grounds for such destruction are missing or in doubt.

Private Security Liability under the Alien Tort Statute

Hasan Abdullah Quanas, a Yemeni fisherman, stands at the prow of the fishing boat on which his nephew Mohammed Ali Quanas was killed by shots fired from the Nordic Fighter tanker in the Red Sea on Aug. 3, 2011. Photo: Alan Katz

There has been a long discussion concerning if and how to regulate private security contractors hired to protect merchant vessels against pirates. See e.g. here and here. Only last week, the Security Council emphasized in the Presidential Statement issued after its debate on piracy that it “encourage[d] flag States and port States to further consider the development of safety and security measures onboard vessels, including regulations for the deployment of PCASP [privately contracted armed security personnel] on board ships through a consultative process, including through International Maritime Organization and International Standards Organization.”

As noted by Christine, two incidents in particular have raised the specter that innocent fishermen have been killed by PMSCs (Private Military and Private Security Companies)(the term we have used on this site). One incident involved a vessel protection detachment (VPD) of Italian special forces who killed two Indian fishermen believing them to be pirates. See here and here. Another incident involved the death of a Yemeni fisherman allegedly at the hands of a Russian VPD. As to the latter incident, it was reported:

From 500 meters (1,640 feet) away, gunshots erupted from the tanker toward Quanas’s skiff and its unarmed fishermen. Two rounds pierced the water on the motorboat’s starboard side, and a third slammed into Quanas’s face, just under his right eye, according to survivors on the boat and a Yemeni Coast Guard investigation. As the bullet came through the back of his neck, Quanas moaned, held out a hand, collapsed and died.

“He was killed while he was holding some dough for dinner,” says Quanas’s uncle, Hasan Abdullah Quanas, who was in the prow and saw his nephew fall. Hasan abandoned fishing after the shooting for fear that he too could become collateral damage in the increasingly violent fight to tame piracy on the high seas.

These are some of the few incidents that have been reported, but there are very likely more incidents where PMSCs or VPDs have mistakenly fired upon, injured, or killed innocents on the high seas. Presently, a ship’s flag state regulates the conduct of PMSCs and VPDs aboard ships on the high seas. There is no universally binding code of conduct, although the IMB has published interim guidelines. Nonetheless, PMSCs are potentially liable for acts of piracy for the killing of fishermen based on universal jurisdiction in the United States.

As many readers know, the Alien Tort Statute in the United States authorizes civil suit in U.S. federal courts against individuals (and perhaps corporations) who have violated the law of nations. The Alien Tort Statute has generally been used to pursue perpetrators of mass human rights violations. Although the drafting history of the statute is scarce and has made it very difficult to ascertain the original intent of Congress in adopting the statute, many are of the view that the Alien Tort Statute was initially intended to cover, at least, acts of piracy. Professor Alfred Rubin, in his treaty on the law of piracy, notes that the original intent was to provide a basis for civil suit against pirates:

[In 1792, US Attorney General Randolph envisaged the Alien Tort Statute to be a] supplement to criminal process to permit the victim of a wrongful taking aboard to recover his property when the tort law of the place of taking and the tort law of the United States coincided and the taker or the property was in the territorial jurisdiction of American courts. It would have had obvious applicability to aliens seeking to recover their goods from “pirates” as well as from those taking their property aboard, but seems to have rested on Blackstone’s naturalist conception of the ‘law of nations’.

In other words, the original intent of the Alien Tort Statute was to permit civil suit against pirates in US federal court. The law of nations defines piracy as any illegal acts of violence committed for private ends by the crew or the passengers of a private ship and directed against another ship (UNCLOS Art. 101(1)(a)). An act of violence by a PMSC against fishermen on the high seas would satisfy this definition. Therefore, PMSC’s are themselves liable for acts of piracy if they mistakenly injure or kill fishermen. Further, the Alien Tort Statute provides jurisdiction in US Federal Court to seek compensation for such illegal acts.

Acts of violence by a VPD might not fall within this definition since VPDs are state-sponsored and therefore precluded by the “private ends” requirement of the piracy definition. However, PMSCs are not state-sponsored. Another question is whether the law of self-defence may authorize some acts of violence against ships believed to be carrying pirates. On this point, it has been suggested that the permissibility of self-defence against possible pirates is determined by reference to the subjective intent of the private security detail. One proposed self-defence guideline provides, “A person acts in lawful self-defence of himself or another when he has an honest belief that he or the other person is under attack or imminently to be attacked so that it is necessary to defend himself or the other person by using no more force than is reasonably necessary to repel the attack or threatened attack.” (emphasis added).

I am sceptical that this formulation of self-defence is comprehensive and inclusive of general principles of law as understood by the major legal systems of the world. See here. It is more likely an expression of black letter law from the British common law system. In any event, under most systems of law, self-defence must be proportionate to the danger posed. The question remains whether the objective fact that an approaching boat is composed of unarmed fishermen would preclude self-defence as a justification for such conduct.

Another possible obstacle is a jurisdictional one. Currently before the US Supreme Court is the question whether there must be some nexus with the United States, in addition to the requirements of universal jurisdiction, to permit suits based on the Alien Tort Statute. This might be satisfied if an act of violence by a PMSC were committed against an American ship, seafarer, or perhaps even cargo while on the high seas or if they were committed by an American PMSC. If the US Supreme Court were to require such a nexus, it could preclude other civil suits with no connection to US interests.

In any event, PMSCs should be cognizant of the fact that they could be subject to civil and was as criminal penalties for causing damage to or killing individuals who are not in fact pirates on the high seas.

Private or Pirate Navy?

Puntland Marine Police Forces source:Somaliareport.com

The autonomous region of Puntland in Somalia has gotten a bad rap for being a hotbed for pirates. Though unrecognized as a state, there has been some international expectation that Puntland should take steps to prevent and punish acts of piracy, particularly those originating from within Puntland. In this regard, there have been efforts to create a Puntland coastguard or Navy (the “Puntland Maritime Police Force”), bankrolled by the United Arab Emirates and with training from private security firms. This is where the story of Sterling Corporate Services takes off. The New York Times reports:

Concerned about the impact of piracy on commercial shipping in the Middle East, the United Arab Emirates has sought to take the lead in battling Somali pirates, both overtly and in secret by bankrolling operations like Sterling’s.

[…]

A United Nations investigative group described the effort by a company based in Dubai called Sterling Corporate Services to create the force as a “brazen, large-scale and protracted violation” of the arms embargo in place on Somalia

[…]

Sterling has portrayed its operation as a bold private-sector attempt to battle the scourge of piracy where governments were failing.

Somalia Report notes that the UN effectively shut down the estimated $50 million per year program by threatening sanctions against UAE for violations of the Somalia arms embargo. In addition to the illegal shipments of arms, the program may have been a criminal pirate enterprise.

A Private Navy?

There is an argument that private navies are legally permissible under the law of the sea, particularly the legal regime governing anti-piracy operations on the high seas. Such navies are permissible if the navy is “on government service and authorized to that effect” pursuant to Article 107 of UNCLOS. The idea here is that a government may hire private companies to engage in police functions so long as it is made explicitly clear by markings and identification that the ship is controlled by the government and under a presumably military chain of command. It has been argued that ships on government service could not only provide self-defence to an escorted ship but could also engage in pirate hunting. Alternatively, if a private navy is not on government service but limits its actions to those justified by individual (as opposed to sovereign) self-defence, it may also be legally permissible. Here, aggressive acts would be strictly limited to those necessary to repel an attack, as is consistent with general principles of the law of self-defence. It would not include acts intended to prevent future attacks.

This is where the status of Puntland as an autonomous region becomes important. Though the international community has chosen to engage the Puntland government, it has chosen not to recognize Puntland’s sovereignty instead deferring to the project of solidifying the new Somali Federal Government in Mogadishu. Therefore, naval vessels patrolling the territorial waters of Somalia off of the coast of the autonomous region of Puntland are not “on government service” for purposes of Article 107 of UNCLOS.

Alternatively, there is some evidence that other states may have supported the Puntland Navy:

American officials have said publicly that they never endorsed the creation of the private army, but it is unclear if Sterling had tacit support from parts of the United States government. For instance, the investigative group reported in July that the counterpiracy force shared some of the same facilities as the Puntland Intelligence Service, a spy organization answering to Puntland’s president, Abdirahman Farole, that has been trained by C.I.A. officers and contractors for more than a decade.

Even if this is the case, the Puntland naval vessels are not “clearly marked and identifiable as being on government service” by a recognized sovereign such as the United States or the UAE. Therefore, seizing pirates on the high seas would not be justified pursuant to Article 107 of UNCLOS.

A Pirate Navy?

This raises the question of whether an act of violence by the Puntland Navy against another ship on the high seas constitutes piracy. Although there is some continuing debate as to the “private ends” requirements in Article 101 of UNCLOS, the better view is that it excludes from the definition of piracy, acts of violence by a sovereign. As Puntland is not a sovereign power, this exclusion from the definition of piracy does not apply. Therefore, acts of violence, detention or depredation committed by a Puntland Navy on the high seas (even if purportedly for the purpose of protecting the territory and people of Puntland) would constitute acts of piracy.

As noted above, the other possible justification for the seizure of pirate vessels on the high seas by the Puntland Navy is the doctrine of personal self-defence. This would justify acts strictly necessary to repel an ongoing attack. It would not justify acts of violence against suspected pirate vessels prior to an attack. Nor would it justify acts within the typical mandate of a sovereign navy or coast guard, including patrolling waters and interdicting ships.

The International community was displeased that Sterling was training these individuals because it was an apparent violation of the arms embargo imposed on Somalia. But, technically, Puntland’s Navy may have also been engaged in acts of piracy.

Territorial Waters

The Puntland Navy was also likely conducting operations within Somalia’s territorial waters which are part of the sovereign territory of the Somali Federal Government. The latter has the exclusive right to protect its territorial waters and to restrict traffic through this zone (See e.g. Article 25 UNCLOS “Rights of protection of the coastal State”), although a number of Security Council Resolutions have given foreign sovereigns some powers of interdiction in these waters as an exceptional measure. It is theoretically possible that the Somali Federal Government would attempt to delegate this coast guard function to an autonomous region’s forces such as the Puntland Navy. But it is unclear if this would be permissible pursuant to international law or whether Puntland would be willing to act on behalf of the Somali Federal Government, as opposed to under its own asserted authority as a sovereign.

Free Agents

The more practical question, now that the funding for Puntland’s Navy has disappeared, is what will happen to the individuals who were trained by Sterling. The New York Times reports:

With the South African trainers gone, the African Union has turned to a different security contractor, Bancroft Global Development, based in Washington, to assess whether the pirate hunters in Puntland can be assimilated into the stew of other security forces in Somalia sanctioned both by the United States and the African Union. Among those groups are a 10,000-man Somali national army and troops of Somalia’s National Security Agency, based in Mogadishu, which is closely allied with the C.I.A.

[…]

But with the antipiracy army now abandoned by its sponsors, the hundreds of half-trained and well-armed members of the Puntland Maritime Police Force have been left to fend for themselves at a desert camp carved out of the sand, perhaps to join up with the pirates or Qaeda-linked militants or to sell themselves to the highest bidder in Somalia’s clan wars — yet another dangerous element in the Somali mix.