Communis Hostis Omnium

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.