Private Navies and Ships on Government Service

Blackwater’s failed venture – McArthur

Over the last few years, entrepreneurs and private insurers have floated a number of proposals for the creation of private security escorts (so-called “private navies”). These types of proposals address several pressing concerns. The international naval escorts, such as EUNAVFOR, provide protection to a limited number of ships. But waiting for a critical mass of ships to initiate a convoy at the entrance to the high-risk zone can be time-consuming and costly for shippers. Furthermore, international naval escorts can only provide an escort in the highest risk zones (e.g. the Gulf of Aden), leaving ships vulnerable to attack in other areas such as the vast Indian Ocean. Private security escorts promise to be available to individual ships throughout their journey in high-risk waters. Though the cost of such services could be significant, there is the promise of savings in insurance premiums.

In the past, the U.S. state department has expressed hightened concern with regard to private security escorts vis a vis private security guards on-board ships (the latter are now openly encouraged). What then governs the use of force by these private security escorts and under what circumstances is the use of force permissible pursuant to international law?  Three examples provide a useful backdrop to consider the legal issues. The answer, it turns out, will likely depend on whether private security escorts are “on government service” and whether in the circumstances of a particular encounter, they overstretch the concept of self-defence by engaging in pirate hunting.

Blackwater, the security contractor who ran into trouble in Iraq and Afghanistan, was one of the first companies to venture into the private security escort business. It purchased a retired naval vessel, the 183 foot McArthur and, in 2007, it offered its services as a counter-piracy escort vessel. Perhaps due to uncertainty regarding the legal issues, and Blackwater’s compromised reputation, it received no customers and soon left the counter-piracy business. Maybe it was just before its time as several additional ventures have been announced more recently.

In September 2010, it was reported that:

[A] leading London insurer is pushing ahead with radical proposals to create a private fleet of about 20 patrol boats crewed by armed guards to bolster the international military presence off the Somali coast. They would act as escorts and fast-response vessels for shipping passing through the Suez Canal and the Indian Ocean.

Jardine Lloyd Thompson Group (JLT), which insures 14 per cent of the world’s commercial shipping fleet, said the unprecedented “private navy” would work under the direct control of the military with clear rules of engagement valid under international law. Early discussions have also been held with the Ministry of Defence, the Department of Transport and the Foreign Office. (emphasis added).

This particular venture would place the private security escort “on government service.” Article 107 of UNCLOS provides that a pirate boat may be seized by “other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.” The idea here is the 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. However, the responsible government, in this case the U.K., would be taking a considerable risk in authorizing defensive as well as aggressive use of force.

Most recently, in November 2011, a company put forward a new proposal.

Convoy Escort Programme Ltd., backed by the marine insurance industry, will initially deploy seven former naval patrol boats, each with armed security teams of eight people on board, Angus Campbell, chief executive officer, said by phone from Swarland, England today. The bullet-proofed boats will charge about $30,000 per ship traveling in a convoy of around four vessels over three to four days, he said.

“We are going to be a deterrent,” Campbell said. “We are not in the business of looking for trouble but if anybody tries to attack a vessel we are escorting, our security teams will deploy force if they have to act in self defence.”

It was confirmed yesterday that this project has secured (paid subscription required) additional funding from private insurers and hopes to have boats on the water by the summer.

In contrast to the prior example, there is no indication that Convoy Escort Programme is being coordinated with regular naval forces. Therefore it is not “on government service.”  Although Article 107 of UNCLOS does not permit private security companies not on government service from engaging in pirate hunting, the general principle of self-defence, and defence of others, would justify protecting vessels from an on-going attack. Such conduct must be carefully circumscribed. The risk here is that private security personnel would, in the heat of battle, step outside of the orbit of “self-defence” and into the breach of pirate hunting.  For example, if personnel decide to chase down suspected pirate boats that have (1) not approached the vessel they are protecting or (2) approached the vessel and fled, the personnel may have overstepped what was strictly necessary to protect the vessel under attack. Furthermore, the absence of clear rules of engagement creates the real possibility of mistaken identity at sea. If these projects go ahead, pirates off the coast of Somalia will have to contend with more heavily-armed foes, but so will Somali and Yemeni fishermen who frequent these same waters.