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.

Report From the Piracy Contact Group, Working Group 2, Meeting in Copenhagen

Private Security Guards

Cross-posted at international law girls.

In my capacity as an independent academic, as well as a representative of the prominent non-governmental organization, the Public International Law and Policy Group, I had the honor of attending the 12th meeting of the United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2, meeting in Copenhagen, on April 10-11.  I will take this opportunity to briefly summarize some of the key legal issues that were discussed in Copenhagen.

First, many nations seem to be moving in favor of authorizing the use of private security guards on board their merchant vessels.  The use of such private security guards is controversial, and many in the international community feel a general sense of discomfort any times states delegate their traditional duties to private entities.  Others have expressed the view that the use of private security guards on board merchant vessels should be allowed only under strictly delineated guidelines and rules on the use of force.  Contrary to popular belief, such guidelines and rules exist already.  Several International Maritime Organization Circulars provide guidance on matters related to the employment of private security personnel on board merchant vessels.  The Baltic and International Maritime Council (BIMCO) has drafted and made publicly available a standard employment contract between a shipping company and private security providers.  BIMCO has also issued specific Guidance on the Rule of the Use of Force, which suggest under which circumstances private security personnel may use force, including lethal force, against suspected pirates.  The International Organization for Standardization (ISO) issued additional Guidance for private security personnel on board ships, as well as a pro forma contract.  Finally, the Montreux Document provides international law rules applicable to the conduct of private security providers during armed conflict.  Although this Document most likely does not apply to the Somali piracy context because of the absence of armed conflict, it nonetheless sheds light on the international community’s consensus regarding the international law responsibilities of private security providers, operating in a domain otherwise reserved to state powers.

In addition to the above-mentioned guidance, international treaty law provides rules regarding the master of a ship’s duties on the high seas, in a situation where a merchant vessel may be under attack by suspected pirates, regardless of the presence of private security contractors on board.  It is clear under the United Nations Convention on the Law of the Sea as well as under the SUA Convention that the master of a ship retains authority on board his or her vessel, that the master may order any private security personnel to cease using force against suspected pirates at any time, and that the delegation of power from the master to the private security personnel during a piracy incident is temporary.   The general sentiment in Copenhagen was that numerous existing guidelines, principles, and treaty law obligations apply to any use of private security personnel on board merchant vessels, and that states have plenty to work with when determining whether and how to authorize the use of private security on board their own vessels.

Second, states remain concerned with legal issues related to the treatment of juvenile pirates (I had previously reported on this issue from the last Working Group 2 meeting in September 2012).   In order to ensure that juvenile pirates are treated according to relevant human rights standards and practices, states have begun developing guidelines on the treatment of juvenile pirates.  Such guidelines include the necessity to segregate juvenile suspects from the general prison population, to provide educational and vocational opportunities for juveniles, and to generally rehabilitate them so that they re-enter society upon their release and engage in legal, as opposed to criminal, activities.  These proposed guidelines will remain the subject of future Working Group 2 meetings.

Third, states remain committed to the post-conviction transfer model: the idea that pirates, if they are successfully prosecuted and convicted in Kenya, the Seychelles, or Mauritius, will be transferred back to Somaliland or Puntland where they will serve their penal sentences.  This model is important for two reasons.  First, it relieves small capacity nations such as the Seychelles and Mauritius from having to detain convicted pirates for long period of time in their own prisons; prosecutorial nations can, under this model, accept more suspected pirates because they will not run out of detention space.  Second and more importantly, the post-conviction transfer model allows pirates to return home – although they will not be immediately freed upon re-entering their native land, they will presumably be reunited with their families through prison visits and return to their own communities after the end of their sentences.  Any post-conviction transfer requires the successful fulfillment of the following criteria: the applicant must be at least 18; he or she must waive any existing appeals (the sentence must be final); he or she must consent to the transfer; all relevant states, including the apprehending state, the transferring state, and the receiving state, must agree to the transfer.  As discussed in Copenhagen, the post-conviction transfer model has been used successfully thus far, and 59 pirates have been transferred to Somaliland and Puntland as of today.

Finally, states have expressed an important concern regarding hostages.  In many instances, pirate hostages spend months in captivity under very difficult conditions.  Once hostages are released, they may be confused, mentally or physically injured, and may have no meaningful way of returning to their home states.  Several states in Copenhagen expressed the view that it is important to create a hostage release program that would maintain contact with released hostages in order to enable them to successfully return to a normal life after captivity.

The work of Working Group 2 thus far has been outstanding.  It demonstrates that states can, through joint legal efforts and cooperation, contribute significantly to the global fight against Somali piracy.

Broadcast of Mekong Pirate’s Execution May Have Violated Chinese Law

You likely have heard about the execution of Naw Kham, the Mekong Pirate found guilty of killing 13 Chinese in the Golden Triangle. See our prior coverage here. The moments leading up to the execution were televised live in China, although the execution itself was not. Siweiluozi’s Blog points out this violates the spirit if not the letter of Chinese law meant to curb such public executions.

This prohibition was subsequently written into China’s Criminal Procedure Law, and the relevant Supreme People’s Court interpretation on implementation of the death penalty also prohibits “other acts that degrade the personality of criminals” (其他有辱罪犯人格的行为).

Siweiluozi’s Blog also points to a commentary in the Changjiang Daily, the official “organ” of the party in Wuhan, providing the following critique:

Perhaps it is not illegal in China to broadcast live as the condemned are transferred to the execution ground, but I still oppose broadcasting live. Before, China used to have so-called public sentencing rallies and parade bound criminals in the streets for public viewing. Now, live broadcast of the transfer is no different in any real sense and is even more repulsive. Why?
It is because the live broadcast voluntarily and consciously revived these kinds of backward, barbaric scenes lacking in any modern notion of rights or rule of law. The live broadcast even delivered these scenes right in front of your eyes, so that you didn’t even need to go out of doors or be in the streets: you could see the barbarity and backwardness from your own home. You could say, in other words, that this live broadcast was itself barbaric and backwards, displaying no progress at all.

Chinese Drones and Mekong Piracy

Naw Kham (first from right) and members of his gang hear the verdict of the first trial at the Kunming Intermediate People’s Court in Yunnan Province on November 6, 2012. Photo: CFP

There have been some interesting revelations in the case of Naw Kham, the so-called Mekong Pirate who presided over a transnational criminal network in the Golden Triangle of the Mekong river basin. (prior coverage here). Although Naw Kham was convicted of murder, drug trafficking, kidnapping and hijacking across international borders, this does not constitute piracy under UNCLOS as it did not occur on the high seas. Nonetheless, the case provides a fascinating case study in transnational organized crime and has important analogies to piracy on the high seas. Chinese media have focused on the operation to capture Naw Kham, whereas Western media have focused on the fact that China considered using an unmanned drone to kill him.

First the Chinese government-published Global Times provides details on how Naw Kham avoided capture by the Chinese in the Golden Triangle for so long.

During the search, Naw Kham vanished at least three times just as the Chinese police were closing in. [Taskforce leader] Liu said that this was largely because the Chinese police were limited in what they could do overseas. They had to launch appeals before undertaking operations and cooperate with local police.

But Naw Kham had lived in the Golden Triangle for many years and sometimes locals would aid him.

At the end of 2011, Chinese police located Naw Kham at a village by the Mekong River in Boqiao Province in Laos, the hometown of one of Naw Kham’s mistresses.

Chinese and local police encircled the village, but some local officials and villagers obstructed them. “We hit a stalemate. Police were not allowed to enter the village. Even though the local police head was with us, provincial officials were on the other side,” Liu said.

“The deadlock lasted hours, and it was getting dark. According to local customs, the search would have to be suspended after sunset.”

Liu finally found a senior military officer to help break the deadlock; however, police were only able to search six houses in the village and arrest the mistress and some gang members, seizing guns and cash. At night, Naw Kham crossed into Myanmar with the help of locals.

This highlights the fact that transnational criminality, and piracy in particular, will thrive where three conditions coexist: (1) lack of naval/police enforcement; (2) existence of water-borne commerce of significant value; and (3) poverty – motivating foot-soldiers to take extraordinary risks. In this case, the geography and multiple borders provided cross-jurisdictional cover for Naw Kham. Without strong international cooperation, he would not have been captured.

China’s unmanned Yi Long drone on display at the airshow in Zhuhai

In contrast, the New York Times have seized on the mention in the Global Times article that China had considered using an unarmed drone to kill Naw Kham.

Dennis M. Gormley, an expert on unmanned aircraft at the University of Pittsburgh, said of the reported Chinese deliberations, “Separating fact from fiction here is difficult.” But he added, “Given the gruesome nature of the 2011 killings  [for which Naw Kham was convicted] and the Chinese public’s outcry for action, it’s not at all surprising to imagine China employing an armed drone over Myanmar’s territory.”

Mr. Gormley said the decision not to carry out a drone strike might reflect a lack of confidence in untested Chinese craft, control systems or drone pilots. “I think China’s still not ready for prime time using armed drones, but they surely will be with a few more years of determined practice,” he said. “And they surely will have America’s armed drone practice as a convenient cover for legitimating their own practice.”

Similarly, the United States had considered using unmanned drones against Somali pirates in the Indian Ocean, but that program suffered setbacks and U.S. drones were likely only used to surveil pirate-operations off the coast of Somalia. Ultimately, China decided not to use its new assets. Indeed, capturing Naw Kham with no reported casualties and without the need to launch a military strike in Thailand, Laos, or Myanmar was a much cleaner solution.

Update – Le Ponant: Acquitted Somalis Obtain Compensation for Trial Detention

After their acquittal in June 2012, the two Somalis tried for the 2008 hijack of the luxury yacht Le Ponant have recently obtained financial compensation for their 4 year-long detention in France.

The two Somalis Acquitted of piracy on a subway in Paris - Le Monde

The two Somalis Acquitted of piracy on a subway in Paris – Le Monde

We have previously reported about Le Ponant trial here. Along with the 2 acquitted individuals, a third Somali was convicted to 4 years but released immediately after the verdict upon having served his sentence. We have also reported about their living conditions in France here (see also, similarly, here). In addition, 2 other accused were sentenced to 10 and 7 years of detention, respectively. We have made available the judgement in the case here. No appeal was launced by the prosecution or the defendants.

The compensation, among the first of its kind for individuals acquitted in piracy trials before various national courts of States engaged in anti-piracy acitivies off the coast of Somalia, includes 90.000 Euros each in moral damages and 3.000 and 5.000 euros each, respectively, for the loss of their salary as fishermen while in detention. The lawyers for the two Somalis have appealed the decision, seeking 450.000 Euros instead. Meanwhile, the Somalis continue to live in France, pending a decision on their request for asylum. 

Language, Capacity Issues Plague Indian Prosecutions of Somali Pirates

Suspects aboard the pirate ship the INS Taba on their way to Mumbai after being arrested by the Indian navy in March 2011. Photograph: Indian navy/EPA

The trial of about 120 Somalis in India is encountering significant obstacles, including difficulty finding qualified Somali-speaking interpreters, procuring deposition evidence from victims, and dealing with the sheer volume of cases on backlog. India’s navy has been very active in helping to patrol the seas off the coast of Somalia. It also recently used its turn as President of the Security Council to put the fight against worldwide piracy at center stage. Perhaps because of its pro-active approach, India has taken into custody a large number of suspected pirates. As we have seen in any number of western countries taking up piracy prosecutions, there are substantial challenges that come with prosecuting Somalis in a transnational setting. This is not to mention the legal obstacles faced by countries attempting to revive centuries old laws to address the resurgence of this type of criminality. As we surveyed in 2011, India’s legal framework for piracy required updating. Video-link testimony and interpretation, in addition to, a more active foreign office might assist the prosecutions in these cases.  Of course, all of these solutions require resources and technological capacity. This is true whether prosecutions move forward in the Netherlands, the U.S. or in India.

Italian Marines to be tried in Special Court in Delhi for Enrica Lexie Incident

The two Italian Marines to be put on trial before a special court in Delhi

India’s Supreme Court has rejected a bid by the Italian government to transfer to Italy the case of two of its marines charged with the murder of two Indian fishermen. The judges said that the marines would be tried in a special court in the capital, Delhi. As previously discussed here and here, in the Enrica Lexie incident Indian fishermen were shot and killed by an Italian Vessel Protection Detachment on board to protect against pirates operating in the Indian Ocean and Gulf of Aden. Jurisdiction over the incident was contested by Italy and India leading to litigation before the Supreme Court of India which has now pronounced its view. A friend of the blog has provided us the Judgement of the Supreme Court.  Here are the crucial paragraphs:

97. In my view, since India is a signatory, she is obligated to respect the provisions of UNCLOS 1982, and to apply the same if there is no conflict with the domestic law. In this context, both the countries may have to subject themselves to the provisions of Article 94 of the Convention which deals with the duties of the Flag State and, in particular, sub-Article (7) which provides that each State shall cause an inquiry to be held into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State. It is also stipulated that the Flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.

98. The principles enunciated in the Lotus case (supra) have, to some extent, been watered down by Article 97 of UNCLOS 1982. Moreover, as observed in Starke’s International Law, referred to by Mr. Salve, the territorial criminal jurisdiction is founded on various principles which provide that, as a matter of convenience, crimes should be dealt with by the States whose social order is most closely affected. However, it has also been observed that some public ships and armed forces of foreign States may enjoy a degree of immunity from the territorial jurisdiction of a nation.

99. This brings me to the question of applicability of the provisions of the Indian Penal Code to the case in hand, in view of Sections 2 and 4 thereof. Of course, the applicability of Section 4 is no longer in question in this case on account of the concession made on behalf of the State of Kerala in the writ proceedings before the Kerala High Court. However, Section 2 of the Indian Penal Code as extracted hereinbefore provides otherwise. Undoubtedly, the incident took place within the Contiguous Zone over which, both under the provisions of the Maritime Zones Act, 1976, and UNCLOS 1982, India is entitled to exercise rights of sovereignty. However, as decided by this Court in the Aban Loyd Chiles Offshore Ltd. Case (supra), referred to by Mr. Salve, Sub-section (4) of Section 7 only provides for the Union of India to have sovereign rights limited to exploration, exploitation, conservation and management of the natural resources, both living and non-living, as well as for producing energy from tides, winds and currents, which cannot be equated with rights of sovereignty over the said areas, in the Exclusive Economic Zone. It also provides for the Union of India to exercise other ancillary rights which only clothes the Union of India with sovereign rights and not rights of sovereignty in the Exclusive Economic Zone. The said position is reinforced under Sections 6 and 7 of the Maritime Zones Act, 1976, which also provides that India’s sovereignty extends over its Territorial Waters while, the position is different in respect of the Exclusive Economic Zone. I am unable to accept Mr. Banerji’s submissions to the contrary to the effect that Article 59 of the Convention permits States to assert rights or jurisdiction beyond those specifically provided in the Convention.

100. What, therefore, transpires from the aforesaid discussion is that while India is entitled both under its Domestic Law and the Public International Law to exercise rights of sovereignty up to 24 nautical miles from the baseline on the basis of which the width of Territorial Waters is measured, it can exercise only sovereign rights within the Exclusive Economic Zone for certain purposes. The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country. However, the same is subject to the provisions of Article 100 of UNCLOS 1982. I agree with Mr. Salve that the “Declaration on Principles of International Law Concerning Family Relations and Cooperation between States in accordance with the Charter of the United Nations” has to be conducted only at the level of the Federal or Central Government and cannot be the subject matter of a proceeding initiated by a Provincial/State Government.

101. While, therefore, holding that the State of Kerala has no jurisdiction to investigate into the incident, I am also of the view that till such time as it is proved that the provisions of Article 100 of the UNCLOS 1982 apply to the facts of this case, it is the Union of India which has jurisdiction to proceed with the investigation and trial of the Petitioner Nos.2 and 3 in the Writ Petition. The Union of India is, therefore, directed, in consultation with the Chief Justice of India, to set up a Special Court to try this case and to dispose of the same in accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the Code of Criminal Procedure and most importantly, the provisions of UNCLOS 1982, where there is no conflict between the domestic law and UNCLOS 1982. The pending proceedings before the Chief Judicial Magistrate, Kollam, shall stand transferred to the Special Court to be constituted in terms of this judgment and it is expected that the same shall be disposed of expeditiously. This will not prevent the Petitioners herein in the two matters from invoking the provisions of Article 100 of UNCLOS 1982, upon adducing evidence in support thereof, whereupon the question of jurisdiction of the Union of India to investigate into the incident and for the Courts in India to try the accused may be reconsidered. If it is found that both the Republic of Italy and the Republic of India have concurrent jurisdiction over the matter, then these directions will continue to hold good.

The Judgement is something of a compromise as it takes jurisdiction away from the state of Kerala where local press were decidedly one-sided in their evaluations of the parties at fault. The trial will take place in Delhi where the marines might have a better chance of receiving a fair trial. However, the judgement rejects Italy’s claim to exclusive criminal jurisdiction in this case. The Supreme Court’s reading of the Lotus case in view of UNCLOS is crucial and merits further analysis. We hope to provide further analysis soon.

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