Eric Kulisch writing at American Shipper
on Hard target: Maersk Alabama incident highlights growing use of armed guards.
Governments and the private sector are grappling with the fact that each ocean carrier and security team develops its own protocols. A major concern for maritime industry stakeholders is that there are no universal rules of engagement for private contractors on cargo ships.
The IMO on May 20 issued preliminary guidelines for vessel operators, owners and captains, as well as flag states, to consider as they develop corporate and national policies governing qualifications for security service providers and how they should conduct themselves. The effort is intended to prevent rogue outfits from shooting indiscriminately and potentially killing or injuring an innocent boater or suspected pirates that have not taken any threatening action. A tragic accident could create legal liability for the shipping company, either from civil suits seeking damages or even criminal prosecution by governments for violations of national or international laws. And some worry that escalating violence will force pirates, who often fire small arms and rocket-propelled grenades more to intimidate a captain into stopping rather than trying to kill, to react more aggressively if they believe they will be shot at for approaching a vessel without exhibiting hostile intent.
|What are his ROE?|
Lawyers note that authorizing the use of lethal force against a suspicious vessel that is approaching without first giving verbal notice, or a warning shot, could open an individual to assault charges by a coastal state.
“Even the police when they show up have to identify themselves before they shoot you,” said Michael Frodl, an attorney who advises insurance interests about piracy and provides analytical services for a broader maritime clientele.
And unlike in the military, there is no sovereign immunity for officers that authorize lethal force and wind up killing innocent civilians.
The legal boundaries regarding self-protection at sea are murky, especially when trying to determine whether the law of the flag state or the nearest coastal state applies.
The "rules of engagement" for private security forces should require lots of planning including a good understanding of the intended route and current location of the ship being guarded. Experience counts.
UPDATE: See also this
. . . Further, in territorial waters, it will also be necessary to comply with the laws of a coastal or port state. The dangers of not doing so are obvious; in the event of unlawful death or injury, there is a risk that security personnel could be prosecuted for murder or serious injury by the flag state or any other state asserting legal jurisdiction for the crime. In regions such as the Straits of Malacca, unlawful use of force in response to a pirate attack in the region could potentially expose the security personnel to criminal sanctions in Singapore, Indonesia or Malaysia, depending on the location of the vessel at the time. Additionally, there is a risk that the master, the security company, or other parties could be prosecuted as accessories to any unlawful killing or injury caused by the security personnel.
Sometime soon a book about private security companies, to which I have contributed a chapter on some of the legal issues involved, will be available - it's at the publishers.
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