Leading the way; making a difference

Click to edit Master title styleLEGAL ASPECTS OF THE USE OF PRIVATE

ARMED GUARDSHellenic Mediterranean Panel 29th March 2012

Michele WhiteGeneral Counsel, INTERTANKO

Leading the way; making a difference

Armed guards a commercial necessity or slippery slope?

- 2009 – 117 attacks ; 46 successful hijacks – 39%- 2011 – 151 attacks ; 25 successful hijacks – 17%- 2012 – attacks up; success rate down again - BMP and military intervention insufficient- Wider use of private armed guards- No ship with PAGs successfully hijacked- Financial cost – in 2011 - USD 500 million? - Who do you trust? Standards? - --Regulation/Accreditation?- Standard contracts – GUARDCON?

Overview

Leading the way; making a difference

Use of Armed Guards

• Who are the PMSCs?– Private companies– Private individuals – ex military (Royal Marines; US Navy

Seals; Yemeni coastguard?)– Governed by national not international laws– Not military– Not police– BUT – they may use lethal force

Leading the way; making a difference

Do you need Armed Guards?

• Risk Assessment– Current threat levels (MSCHOA, UKMTO, IMB, INTERTANKO

Security Alerts)– Ship’s proposed route– Ship’s vulnerability – size, freeboard, manoeuvrability, BMP

measures– Ship’s cargo– Risk of use of armed guards – misuse firearms, liability,

escalation, compliance with national and international laws

Leading the way; making a difference

What to look for?• Checklist

– General– PMSC Background Information – Selection and Vetting of individuals– Training the team– Insurance cover for the PMSC– Size, Composition of the PCASP Team and their Equipment– Command and Control of Onboard Security Team – Management of Firearms and Ammunition from Embarkation to

Disembarkation – Rules on the Use of Force– Reporting and Record Keeping– Familiarisation for Master and the crew

Leading the way; making a difference

Use of Force• Are PMSC’s allowed :

– To carry weapons?– To repel a piracy attack– To seize, arrest, detain and handover– To actively interdict pirates

• Duty to render assistance

• Relationship with the Master

• Jurisdiction?

Leading the way; making a difference

Carriage of Firearms • Mainly National/Domestic Laws

Law of the Flag of the ship Port/coastal state

• Types of solution Regulations on embarkation/disembarkation Licensing individuals or particular type of weapon Export/end user licences

• Soft law IMO Guidelines National guidelines Industry guidelines

Leading the way; making a difference

Repelling an attack? • Private armed guards can use force to:

– Defend from an attack– Includes right to self defence/defence of others– May include use of lethal force in extreme

• Private armed guards may not:– Delay, disrupt or seize a pirate ship

• Governed by:– Domestic criminal law– Soft laws on PMSCs

Leading the way; making a difference

Seize, arrest, detain, interdict?

• Seizure on account of piracy– Warships/government ships only

• Arrest, detain, handover?– SUA Convention

• Interdict pirates– Warships/government ships only

Leading the way; making a difference

Duty to Render Assistance?• Treaty obligations including:

• International Convention on Search and Rescue• International Convention on Safety of life at Sea (SOLAS)

• Duty of ships with PMSCS to render assistance to:• Other merchant vessels in distress• Alleged pirates in distress

• BUT• not absolute obligation• assess danger to ship, crew and passengers

Leading the way; making a difference

The Master and the PMSC • Who decides on use of force?

– The master?– PMSC?

• Considerations– Master ultimate responsibility for safety– Individual’s right to self defence– Expertise of PMSC– Contractual clauses

Leading the way; making a difference

Jurisdiction - What if….?• Greek Flag Vessel• UK PSC and armed guards• Exchange of fire• Somali pirate killed• Ukrainian crew injured • Pollution incident• High seas? Territorial Waters?• Who decides?

Leading the way; making a difference

Thank you