Review: War by Contract – Private Contractors in the Fight Against Piracy

War by Contract – Human Rights, Humanitarian Law, and Private Contractors, Eds. Francesco Francioni and Natalino Ronzitti

Considering the increasing magnitude of maritime piracy, and the resulting growth of the private security field, it is surprising that very little in the legal literature has addressed the convergence of the two. In his article, The Use of Private Contractors in the Fight Against Piracy: Policy Options, Professor Ronzitti provides a unique survey of the legal implications of employing private contractors on maritime vessels.  It appears in War by Contract, analysing the legal regime applicable to private military and private security companies (PMSCs), including the Geneva Conventions and Human Rights Law. The article is a meaningful and necessary first step in such an analysis. But by answering the most pressing questions, it raises yet others.

The analysis is most relevant to the shipping industry, in particular, shipping companies, ship-owners and their insurers. Ronzitti briefly addresses an array of mechanisms available to shippers in order to safeguard the passage of their goods through pirate infested waters, both territorial and international. Among those options are pirate hunting by PMSCs; self-defence by seafarers; employing armed guards; detachments of armed soldiers employed by national militaries; the practice of escorting merchant vessels by military vessels; dispatching security teams from land bases and policing territorial waters.

Ronzitti bases his analysis mainly on the language of international treaties and the interpretation thereof by resort to recorded statements during their negotiation. For example, in the case of perhaps the most controversial topic, pirate hunting (i.e. hiring of PMSCs to pursue and capture/kill pirates), Ronzitti notes various maritime law treaties, including the 1958 Convention on the High Seas which provides in Article 21, “A seizure on account of piracy may only be carried out by warships or military aircraft, or other ships or aircraft on government service authorized to that effect.” He concludes that pirate hunting may be legally permissible if the vessel is on government service, authorized to chase pirates, and the hiring government bears international responsibility. However, he states that no practice of this kind currently exists.

Ronzitti asserts that the use of private contractors is, under appropriate conditions, legally permissible for each of the mechanisms considered. At the heart of his analysis is the concept of self-defence. Although some have suggested that ships possess a right of self-defence embodied in Article 51 of the UN Charter, such a right only applies to states.  Alternatively, Ronzitti suggests what permits ships to take action against pirates attacking them is “the right of self-defence of human beings, a right which is recognized by all legal orders of the members of the international community.”  The reference here is to the ICJ Statute, Article 38(1)(c), naming as a source of international law “general principles of law recognized by civilized nations.”

The basic principle of self-defence in that one may protect oneself against threats to one’s life by resort to force may be relatively uncontroversial. But Ronzitti takes the principle further stating, “Usually domestic legal orders recognize not only the right of self-defence but also the consequential right to take into custody the aggressor for the short span of time necessary for handing him over to the police authority” and further that the right of self-defence includes the right to intervene on behalf of a threatened individual.

However, there are differences between legal orders as to the proper scope and application of the principle of self-defence. For example, how much force is permissible? Must it be shown that there was no possibility of escape to justify the use of force? In addition, it is at least debatable whether the principle of self-defence would encompass the concept of “citizen arrest” by a merchant marine vessel.

Finally, what legal orders would be controlling here? If a death is to occur at sea as a result of piracy, jurisdiction to prosecute such a crime may be limited to the flag state, victim or defendant’s state. However this does not mean that the applicable substantive law should derive from the prosecuting state rather than international law. The ICJ suggests in the North Sea Continental Shelf case that in ascertaining general principles of international law, reference should be made predominantly to states with an interest in developing relevant practices. For example, in ascertaining the law applicable to the continental shelf, reference should be made to the practice of coastal nations. However, in the case of the basic concept of self-defence, most if not all legal orders have had an interest in developing the law on this topic. In ascertaining the bounds of the general principle of self-defence, the collection of states selected to evaluate state practice will determine its permissible bounds. One might also reference sources of customary international law such as Article 31(1)(c) of the Rome Statute (defining self-defence). The point is that it is an open question as to how the principle of self-defence would be defined and applied in the maritime piracy context.

In the end, Ronzitti’s analysis suggests that arming guards aboard ships has been made necessary and is legally permissible within certain bounds. He suggests that further regulation should be applied to conform the practice to international norms. However, the basic countervailing concern here is that it will lead to an escalation of violence by pirates. The International Maritime Organisation (IMO) has indicated the success-rate of pirate attacks in the Gulf of Aden has fallen from 50 percent to less than 20 percent this year. As a result,

“They [pirates] have become more aggressive, audacious and better organised.” This view was echoed by International Maritime Bureau director Captain Pottengal Mukundan, who said, “Attacks off the coast of Somalia have been characterised by a greater degree of violence against crews than before.”

Although legally justifiable in appropriate circumstances, the use of PMSCs will inevitably lead to more violent and deadly clashes with pirates.