Counter Piracy: Rules for the Use of Force International Legal Conference

Legal, Organisations, Piracy and Terrorism, Safety and Security, Story of the Month — By on March 7, 2013 at 8:38 PM
Steven Jones

Steven Jones

The Security Association for the Maritime Industry (SAMI) has been at the forefront of a number of key developments which are shaping the nascent private maritime security industry. Perhaps the most controversial and recent focus has been the work to create an effective and robust model set of Rules for the Use of Force (RUF), under which privately contracted armed security personnel (PCASP) will operate on an worldwide basis.

In order to provide industry with an open forum to discuss RUF, SAMI in concert with 9 Bedford Row International Chambers, held an international legal conference onboard the “HQS Wellington” in London*. This was aimed at providing feedback from leading lawyers and academics while affording key members of the shipping and maritime security industries a chance to openly exchange views and experiences.

 Peter Cook, Founder and Security Director of SAMI chaired the event and provided background to the development work including the reasons underpinning it.  He stressed that there was a clear requirement for a number of core documents to act as the foundations for the on-going wider development of the maritime security industry and in line with the move to a standard contract (BIMCO Guardcon) and common standard (ISO PAS 28007), that a model set of RUF would provide governance grounds upon which armed operatives could work within a sound legal basis.

This has led international lawyers working with industry stakeholders, including shipping associations, flag States, maritime insurers and the private maritime security industry to create a set of model rules now widely known as the “100 Series Rules”.

The aim of these rules has been to provide clarity and certainty as to lawful defensive and armed responses when pirates and/or armed robbers attack. There have long been industry concerns and queries as to potential liabilities over the arming of vessels and it has been consistently stressed that no maritime security action is justified in exceeding the use of minimum force, but interestingly, nowhere is the concept fully articulated, nor codified.

Without a clear, united vision of what could be considered legally acceptable, private maritime security companies (PMSCs) are, in any case, required to have a detailed graduated defensive response plan as part of its team’s operational procedures.  This has led to various concerns, including how an individual flag State may assess the response plan’s acceptability and of how it would be interpreted in a court of law if something went wrong during a transit.

In setting the scene for the presentations and debate, Peter Cook highlighted the likely role of the court’s interpretation in any judicial or jury factual assessment and he reinforced the fundamental importance and significance of the inherent right of individual “self-defence”. Much of the RUF content rests on the concept, that if an individual honestly believes their life or the lives of those around them were under imminent threat, that they should be reassured if they have been forced to squeeze the trigger, they have done so in the knowledge that they did so lawfully, and within an established set of workable and accountable rules.

It is not just within a criminal court that the RUF may be scrutinised and Cook stressed that in civil cases too, there is a clear and vital role for such a model document. Corporate responsibility encompasses those who may take the decision to place an armed team onboard and so senior line managers and corporate executives will also want to be reassured that they acted within the rules and not in a negligent manner. This is especially important, as within any court case, there will be a thorough evidential examination of the background and details relating to all the decisions that lead to an armed response, in the context of the incident as a whole.

In summing up the developmental route to a model set of RUF, Cook stated that maritime security is amazingly simple but astonishingly complex and in opening the debate, stressed just how complicated and problematic every minute detail and decision can be.

The author of the 100 Series Rules, Barrister-at-Law David Hammond of 9 Bedford Row International Chambers, opened by providing an examination of the background and rationale underpinning the need for a model set of RUF, including  the on-going challenges which lie ahead and despite 16 months of work to date.

According to Hammond, there exists much sound industry guidance on drafting individual RUF, but to date there are no model standard rules going to supporting PMSC governance. This, he referred to, was a “perversity” in a modern industry where agreed rules exist for nearly all aspects of shipping regulation, except for the use of force.  Hammond stated that where rules are lacking we can naturally expect uncertainty but that there is clearly no place for doubt and indecision when lives are at risk and where force, including the use of lethal force in the taking of human life is used.

The move, therefore, towards a model set of RUF has always been based on gaining industry consensus to ensure all stakeholders are satisfied. It is a highly complex and contentious issue in bringing the shipping and security industries closer together to one united view and it was never going to be straightforward. However, significant progress has been made and it is continuing to develop on an international scale for the release of the 100 Series Rules.

One of the most basic premises of the Rules, is that they do not provide any form of immunity from prosecution but that they provide some evidential basis for a defence if things do go wrong, assuming that the PCASP has, at all times, acted lawfully.

The 100 Series Rules provides a hierarchy of documents so all stakeholders can be certain of the responses in the event of an exchange out at sea. This is in the form of comprehensive Rules for those ashore at executive levels, including ship owners, flag States, underwriters and P&I Clubs. It provides for a Bridge Card for the Master and a step-by-step card to be held by the operatives. As such, the RUF provides a lawful model to follow, though does not constitute Standard Operating Procedures (SOPs) and it does not encroach on existing company SOPs. As has been previously feared.

While the subject has driven much debate in legal and operational circles, there has also been a keen academic view taken. Dr. Douglas Guilfoyle of UCL was able to provide supporting context of the historical development and the relevance and position of legal arguments within both International Law and International Humanitarian Law for RUF.

The issue is an intricate and challenging one and the presence of various competing jurisdictions only adds to the complex nature of creating RUF which are relevant, applicable and functional.

The conference further explored the concepts of criminal jurisdiction within Territorial Waters (TTWs), Contiguous and Exclusive Economic Zones (EEZ) and, the example of weapons used on one flagged vessel while a person is shot and dies on another flagged vessel, was also explored. Questions of who would then take jurisdictional responsibility were examined, while the issue of where courts may sit and what would be the full implications of killing a foreign national, were also assessed.

In keeping with complex matters, the conference heard that if a crime is committed on board a vessel, flag State laws apply, but if the crime is within the jurisdiction of the coastal State, the criminal jurisdiction of that nation State may prevail, depending on the agreement for primacy of jurisdiction in dealing with the case. Further, if an armed robber (not a pirate as inside TTWs) is killed within the TTWs of a state, the perpetrator of the killing may also become subject to the criminal laws of the coastal state, adding further layers of potential complication.

Such apparent legal complexities therefore emphasise and reinforce the need to ensure that all acts and conduct that fall within the scope of the 100 Series Rules  have as their aim, the objective to ensure that at all times any PCASP actions are undertaken lawfully.

So it remains clear that there are, as yet, no perfect answers, but whether from a legal, operational or academic perspective there was the strong impression that having a model set of RUF, in the absence of anything better, would assist all stakeholders to stay within the law.

The development of the 100 Series Rules has additionally been subjected to extensive legal scrutiny and Steven Kay QC of 9 Bedford Row International Chambers has been involved in identifying the objective international “reasonable and necessary” test for the use of force in lawful self-defence.

According to international law, this recognized objective test for the use of force, in that it has to be reasonable, necessary (and proportionate); is the common theme that runs throughout all of the international State legislative examples reviewed. It is also the test which is at the heart of the development of the 100 Series RUF.

Taken at its most simplistic level, the placing of an armed guard onboard a ship is in itself, straightforward, but Kay stressed that once you begin to examine all the factors involved it can quickly become complex when taking into account jurisdictional matters.

The complexities of providing armed protection and deterrent aboard private vessels therefore supports the need for clarity, accountability and a simplified form of RUF. Kay once again echoed the fact that RUF helps all to stay within the law, but that no rules can provide a guarantee of legal protection or indemnity.

Lawful use of force has often been a fundamental question in cases which have come before the International Criminal Court, the International Court of Justice and European Court of Human Rights, while the use of excessive force resulting in potential murder and manslaughter charges can result, especially if rigorous training and reference standards are not introduced, applied and adhered too.

Another issue facing the shipping community has been the concept of “joint criminal enterprise” as highlighted in GUARDCON. Many a Master and shipowner have been concerned about this concept, whereby it has been suggested that they could be criminally liable in cases where armed security has acted excessively and within their knowledge. Kay stressed that parties will only be jointly liable if there has been intent formed for an agreed joint criminal enterprise and so, the Master must have had the intention to act unlawfully alongside the PCASP for it to apply.

If PCASP exceed the lawful limits articulated within the RUF and without the compliance of the Master, then there is a basis for a defence by a Master to such a charge in that he did not have intent to enter into a joint criminal enterprise. The test is to ask “were they in it together?”. Meantime, the creation of a model set of RUF should provide crew with the reassurance that they can now refer to an internationally agreed set of RUF in order to help keep them on the right side of the law. This should be reassuring to both the Master and owner and clearly suggests that the current lack of RUF could result in Master being more vulnerable to both civil and/or criminal charges.

Responsibility does not however solely rest on the Master alone. Liability can also extend outwards across an organisation in the guise of the UK Corporate Manslaughter and Corporate Homicide Act 2008.

Without some form of reference and agreed RUF it is almost impossible for senior management to be sure that armed guarding activities are actually being performed to their satisfaction and contractual obligations, including having due regard for the duty of care requirement by the corporate body to their employees. Without standardised industry accepted RUF, it is suggested that there is therefore a yawing gap in the means of checking what will be done, by whom and when.

Another key element and aspect of the RUF debate are the commercial implications of both the use of armed guards and the extent of governance which formal RUF could provide. Stephen Askins of Ince & Co, was on hand to discuss the concerns which have stemmed from what has been seen as a “gentle militarisation of shipping over past 2 years”.  Askins highlighted through graphic videos, how the issue of force is a real and live concern and of how the challenges which have emerged and have been shaped by the Somali piracy problem, may now not be fit for purpose or work off West Africa with hijackings.

According to Askins, for him there are serious issues still outstanding in the debate on force. He believes that flag States are not yet fully investigating incidents effectively and which is something which needs to be challenged by all. When flag States begin to investigate properly, Askins suggests that we may then be in a stronger position to fully appreciate the role of RUF and its potential significance and importance.

To date, there is no legal precedence to qualify the effectiveness of model RUF. There have not yet been any test cases or incidents that have been related back to the use of a model set of RUF. In this respect, the 100 Series rules is a first for the industry. It is aimed at safeguarding both the seafarer and the business for which they work and unless an attempt to deliver a workable set of rules to the industry is followed through, those who have engaged will remain complicit in failing to raise standards. It will also otherwise play into the hands of those who wish to destabilise such a project for their own commercial advantages and gains.

It is clear that the use of guns onboard merchant vessels is a complex, difficult and at times a frightening prospect to those not familiar with the concept and associated responsibilities and in closing, Peter Cook stressed that we should not forget that there is still much work to be undertaken by the international community in finding solutions, when viewed through the mirror of RUF rather than a blank canvas.

The on-going drafting work to refine and finalise the rules, including concurrent activity to garner international support and gather weight and momentum behind an industry consensus, remains on-going. It is, however, now close to being realised through the International Organisation for Standards (ISO) and it is intended that the development of the 100 Series Rules will represent an important step in moving from uncertainty in the use of force through to provision of surety to the industry.

*HQS “Wellington” 8 February 2013

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