The Legality of the SEAL Team 6 Rescue in Somalia

US Navy SEALs have rescued two foreign aid workers (one American and one Dane) deep within the territory of Somalia, killing 8-9 Somalis and perhaps capturing 3-5. This is not the first time the US has authorized deadly force against Somali criminals. In 2009, pirates took hostage the captain of the Maersk Alabama, Richard Phillips. A team of snipers from the Navy SEALs shot the captors from the deck of an aircraft carrier, killing the pirates and freeing Captain Phillips. There are significant differences, however, between the attack on the Maersk Alabama and the most recent attack mainly because the latter occurred within the territory of Somalia on land. The location of the capture and rescue, Galkayo, is divided between the break-away regions of Puntland and Galmudug and, according to the New York Times is at the edge of pirate-controlled territory. Most news organizations are referring to the Somali captors as “pirates” and it may be that the criminal organization that kidnapped and held for ransom these two aid workers has also perpetrated acts of piracy in the seas off the coast of Somalia. But the act of kidnapping in central Somalia is not an act of piracy. This has several implications.

First, what is the legal basis for the incursion into Somali territory? States have a right to capture and prosecute criminals for acts of piracy on the high seas and for armed robbery within a state’s territorial sea. Piracy, however, does not extend to acts without any connection to sea-based criminality. In contrast, for land-based incursions violating the territorial sovereignty of another state, prior assent is required. The U.S. raid of Osama Bin Laden’s compound in Pakistan was ostensibly justified by national self-defence in order to prevent future attacks against Americans which were in the process of being developed. But the criminals in Galkayo did not appear to be threatening the national security of the United States. They seek ransom money, and not some political objective. Therefore national self-defence would not provide a justification for the raid. Nonetheless, the areas of Somalia we are talking about are lawless and without effective governments. In these circumstances, it is doubtful the U.S. considered permission was required prior to invading the territory.

Second, what is the legal basis for the killing and capturing of these criminals? As a legal matter, the former is actually simpler to explain. The doctrine of personal self-defence sometimes extends to the protection of others. If it was determined that the hostages’ lives were in danger, it could justify the use of deadly force. However, news reports indicate the operation was intended to capture, not kill, the criminals in question. Therefore, what is the legal basis for the capture of these Somali criminals? This is actually the more difficult legal question. International treaty and customary law give states the right to arrest and prosecute suspected pirates for criminality on the high seas. Likewise, commercial ships have the right to defend themselves against violent attack. In contrast, yesterday’s rescue occurred on land and the law of piracy is inapplicable. In addition, no Somali law is readily apparent. However, the United Nations Convention against Transnational Organized Crime requires states parties to pass legislation prohibiting the commission of serious crimes involving an organized criminal group where the crime has transnational effects. (the U.S. is a state party, obviously Somalia is not). Likewise, there appears to be a developing consensus that kidnapping is a crime under customary international law with certain well-defined attributes. Therefore, the United States has a jurisdictional basis to prosecute these criminals as the victim was American and there is, arguably, substantive international law applicable in the territory of Somalia which prohibits and would permit a prosecution for kidnapping. Normally, a prosecution would require the U.S. to seek extradition from the suspect’s resident state. Here, where no sovereign exists, the U.S. could argue that it had no such duty. These are some of the arguments that might justify the arrest and detention of the Somali captors pending trial.

Apart from these legal questions is a more practical one: does this signal a new U.S. policy of using its armed forces to rescue American kidnapping victims throughout the world? Following the raid, President Obama issued a statement asserting, “The United States will not tolerate the abduction of our people, and will spare no effort to secure the safety of our citizens and to bring their captors to justice.” This statement must be narrowly construed. Although the U.S. State Department does not publicize the number of Americans kidnapped and held for ransom, it is clearly a widespread problem. The expense and risks of sending in a SEAL team anytime an American is kidnapped would be extraordinary. The Somali context is exceptional in this case because there is no sovereign with whom to negotiate. In addition, this may be a shot across the bow to organized criminal gangs in Somalia. The hope will likely be that this incredible rescue will have a deterrent effect that would diminish the need for similar missions in the future. It could also serve as leverage in ransom negotiations, discouraging captors from becoming too greedy in their demands. On the other hand, there is a concern that the apprehension and killing of these transmaritime criminals will lead to a further escalation in violence.

UK House of Commons Issues Piracy Report, Eyes Private Security Guards on Board, Local Prosecutions in East Africa (Part I)

The Foreign Affairs Committee of the UK House of Commons recently released an interesting report on piracy off the coast of Somalia.  For those who are not conversant with its work, here is some background.

The Report was originally commissioned in June 2011 in response to the growing concerns from piracy and armed robberies activities in recent years, particularly off the coast of Somalia, and on their effect on the UK’s economy and security:

“Piracy off the coast of Somalia has escalated over the last four years and is a major concern for the UK. The threat is not primarily to UK ships as very few have been captured. Rather, the threat is to the UK’s economy and security. Piracy affects the UK’s banking, insurance and shipping industries, and threatens the large volume of goods which are transported to the UK by sea.” (para. 20)

More particularly, the Committee examined the role of the Foreign Commonwealth Office (FCO) in support of UK and international efforts to combat piracy, including the adequacy of international and domestic anti-piracy legislation, the support for anti-piracy projects on the ground in Somalia (including coordination at the international level, particularly with the United Nations), as well as UK naval involvement with NATO and EU anti-piracy operations. As part of this inquiry, the Committee received evidence from shipping and insurance industries, EUNAVFOR and the Ministry of Defence, in addition to experts on piracy and Somalia. Paul and Rachel Chandler, whose yacht was hijacked by Somali pirates in October 2009 and who were held captive for over a year also provided testimony.

The Report contains a set of wide ranging conclusions, the most important of which is a call for the UK, as a state “whose strengths and vulnerabilities are distinctly maritime”, to “play a leading role in the international response to piracy.” However, while its publication has been promptly noted by an authoritative legal source and welcomed by experts in the shipping, naval and security fields, the Report is yet to receive an in-depth legal analysis, at least with regard to some of its main recommendations. It is hoped that the UK Government response to the Report will help generate more discussion on the UK policies (as well as those of the international community) towards piracy in Somalia. As noted in the Report, the UK is also soon to host an high-profile international conference on piracy, to be held in February 2012.

The Committee’s final recommendations touch upon several relevant issues. These include the UK’s overall response to piracy and the need for the FCO to increase its support to victims and families as well as the continuation of the UK contribution to the naval task forces patrolling the Gulf of Aden. The Report also commended the positive efforts made by the shipping industry to ensure safety and exercise self-defence and discussed the appropriateness of the payment of ransoms to pirates to rescue hijacked boats and kidnapped seafarers as well as the need to improve the financial tracking of the monetary flows connected with piracy. In addition, the Report called for  more coordination in the international response and local solutions on the ground to tackle the social and economic root causes of piracy in Somalia. Finally, the Report addressed the deployment of armed security guards on board of vessels and local efforts to prosecute and enforce penalties against pirates. These two last points appear of particular momentum and interest, thus warranting a more focused comment.

Private Armed Security Guards (paras 26-43)

The use of private armed security guards (PASG) in post-war settings is not a novelty. Most recently, governments have increasingly resorted to outsource their security functions while private security companies have notoriously rushed to provide relief to military intervention forces in places such as Iraq and Afghanistan. It is therefore not surprising that, also considering the high costs associated with episodes of piracy and armed robberies off the Somali coast, the sector of private armed security on board of shipping and cruise vessels is booming. A simple internet search reveals a plethora of security companies offering services to the maritime industry. One cannot but agree with the Report when it cautions a “‘gold rush’ of new private maritime security firms.” As discussed in a recent post, the unprecedented launch of a fleet of fully fledged private armed ships appears imminent. As suprising as this might sound, worthy of note is that private security contractor Blackwater Worldwide appears to have previously attempted to provide similar security services. See also a comprehensive jurisdictional analysis on the use of PASG here, particularly noting how the underlying legal issue is mainly one of the exercise, and limits, of self-defence.

The Report notes and supports the recent UK Government about-face by now permitting the deployment of PASG on board of UK-flagged vessels:

“the evidence in support of using private armed security guards is compelling and, within legal limits and according to guidance, shipowners should be allowed to protect their ships and crew by employing private armed security guards if they wish to do so.”

This recommendation certainly marks a shift in favor of the deterrent effect and towards empowering and calling for shipowners, as well as insurers, to bear some of the responsibilities and costs associated with providing security along the main shipping routes. However, regulation and accountability mechanisms have not kept pace with the surging growth of the private security sector. The Report addresses the various risks of using PASG on board (particularly using lethal force), and calls for further formal and practical guidelines to better regulate their operation. However, it falls short of emphasising any concrete direction on what force can be used and when. The International Maritime Organization (IMO) has also issued interim guidelines on the use of private security guards as well as several aspects of their activities. The IMO previously clarified that these guidelines are not intended to institutionalise the use of armed and privately contracted security guards on ships and that they do not address all the legal issues that could be linked to their use. India and the U.S. have also issued guidances.

Calls for further and uniform clarifications have already been raised and, together with an assessment of the need for a permanent legislative framework that substitutes the current interim guidelines, should be on top of the agenda for the Government response to the report. In addition, with other States having opposed the use of such armed guards, the risk of fragmentation between flag, port and coastal states is of particular concern.  This leaves PASGs in the awkward position of being permitted by a flag-state to bear weapons on board and ship and tossing those weapons overboard before calling to port in a jurisdiction that may not permit armed personnel aboard commercial ships

In addition to the security of commercial ships, any holistic solution will encompass mechanisms for the prosecution, transfer and imprisonment of pirates. The solutions suggested by the Report in this regard will be discussed in a forthcoming separate posting.

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.

A War on Piracy? (Part 1)

“The only way to fight piracy is to hang the pirates.” “The only language they understand is force.” “This is war.” So says, a veteran of Norway’s shipping industry, Jacob Stolt-Nielsen. He acknowledges that his company is arming guards on board their vessels and suggests that the pirates should be executed on the spot.

US NAVY: Suspected pirate skiffs burn from weapons fire from the guided-missile destroyer USS Momsen (Feb. 2011)

To be sure, if a commercial ship is under hostile attack by Somali pirates on the High Seas, the ship may exercise the right of individual or collective self-defense under Article 51 of the U.N. Charter. But it is a great extension of this principle to say that it permits preemptive action against suspected pirates who are not in the midst of an attack.

The so-called War on Terrorism provides a useful analogy here. In the wake of the 9/11 attacks, the second Bush Administration outlined its goals in the war on Terror in the National Security Strategy. That document provided:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.

We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning.

The targets of these attacks are our military forces and our civilian population, in direct violation of one of the principal norms of the law of warfare. As was demonstrated by the losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction.

The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.

One might argue that Somali Pirates, armed with Rocket-propelled grenades and AK-47s pose an imminent threat to ships in the Indian Ocean, thereby justifying preemptive attack on pirate skiffs.  Such an analogy is flawed in several ways.

First, who are the parties to such a “War on Piracy?” According to the UN Special Adviser for Piracy’s report, there are around 1,500 Somali pirates and about 10 commanders. These are multiple enterprises; there is no single “Somali Pirate” outfit akin to Al Qaida. Second, against whom did Somali pirates declare war by attacking commercial ships, owned by companies in Norway, South Korea, India, and Malaysia, flagged in Malta and Liberia, and whose seafarers are nationals of the Philipines, India, and Kenya (to name but a few interested States)?

Second, the threat posed by piracy is largely financial. According to one estimate, the cost of Somali piracy to the world economy is between $7-12 billion per year. In addition, a large number of vessels and hostages remain captive. The International Chamber of Commerce reports that there are currently 33 Vessels and 712 Hostages being held by Somali pirates. But there are few reported incidents of civilian casualties. And certainly, the use of more destructive weaponry would be counterproductive for pirates as they can only ransom goods and hostages that remain intact.

Finally, this is not a battle of ideology as pirates and their victims are pursuing the same goal – that is to enrich themselves.  The difference is that pirates seek to enrich themselves illegally.

In short, even if one were to accept that a war on terrorism is a legitimate legal construct, the rationale does not extend to Somali piracy. For (1) there is no logical coherence to a war between disparate groups of pirates and the rest of the shipping world; and (2) piracy poses an economic threat, not a threat to the safety and security of the nations of the world.

This is not war; this is organized crime. And the scourge will only be eradicated when crime bosses are apprehended and prosecuted.

Manning up – Guns on Board

Navy commando is seen detaining a speedboat with suspected Somali pirates

Private security firms have found a new niche. In the absence of naval forces sufficient to protect all of the commercial ships traveling through the Indian Ocean and the Gulf of Aden, ship owners must decide whether to take the risk of hiring a private firm to protect their ships, with lethal force when necessary. Here and here are a few examples. One proposed venture would offer the following:

Vessels transiting Gulf of Aden waters will get both armed patrol boat escort and full anti-piracy cover for an average of US$21,500 per voyage, dependent on speed. This so-called Convoy Escort Program scheme would be classed as a “flag naval company” under the maritime and criminal law of a still-to-be-decided flag state.

Many ship owners have been reticent to hire private security companies to protect their ships because of: (1) the potential for escalation of violence; (2) questions regarding the legality of the use of force to prevent pirate attacks and (3) potential liability for injuries to seamen.

The need for adequate self-defence measures at sea leads to some surprising outcomes when faced with national regulation.  The criminal and regulatory regimes of a given State apply to a ship in a State’s territorial waters (usually 12 miles from shore). But when a ship is on the High Seas, the flag State where the ship is registered dictates what law applies. Considering the number of ports where a ship may dock, this makes for a complicated patch-work of laws. As a result, in order to avoid running afoul of local gun control laws, some maritime security companies are tossing weapons overboard prior to reaching port. There is a need to establish some kind of uniformity:

The Swiss government led efforts last year to create the International Code of Conduct for Private Security Service Providers, a set of principles for the growing global industry. But it is up to the countries that licence ships to oversee security teams.

Countries have vastly different laws for the use of force and for carrying weapons on board. The US allows for pre-emptive attacks on pirates, while Sweden will not allow any guns except for a single shotgun on any merchant ship it regulates.

For the time being, the International Maritime Organization Best Management Practices only provide, “The use of additional private security guards is at the discretion of the company, but the use of armed guards is not recommended.”