It appears that a set of standardised rules for the use of force will soon be released, finally providing some clarity to the armed guards issue. According to the Security Association for the Maritime Industry (SAMI), the 100 Series rules for use of force will soon be published, providing an international framework for legal action and trial that offers all parties equal protection and scrutiny.
It appears that a set of standardised rules for the use of force will soon be released, finally providing some clarity to the armed guards issue. According to the Security Association for the Maritime Industry (SAMI), the 100 Series rules for use of force will soon be published, providing an international framework for legal action and trial that offers all parties equal protection and scrutiny.
Privately contracted armed security personnel who use lethal force currently have no legal structure to rely on if their conduct is called into question. Many have felt that this leaves them in a vulnerable position, especially as each security firm has its own rules for use of force, but although these may be sent to flag states they are not generally acknowledged. There is understood to be extensive variation between such rules, some being professionally developed others being obvious cut and paste job of the service rules of engagement that the guys in the PMSCs would have used during their service career,” he said.
According to Peter Cook of SAMI, “It is impossible to tell how effective any of these rules are, however, as none of them have been tested in a court of law.” Which has led to the development of these standard rules. The process has not run smoothly, There have been several delays to publishing the rules for use of force, due to the complexities that surround use of lethal force, including the issue of jurisdiction.
The 100 Series rules for use of force legal review was published ahead of the rules.
It states that a merchant vessel, owners, charterers and those on board are subject to the laws of several jurisdictions at any one time during a passage — those of the flag state, coastal state, port of state and, in certain circumstances, the laws of the nation state of an individual employee.
“If a crime is committed on board a ship, flag state laws apply, but if the crime is within the jurisdiction of the coastal state, the criminal jurisdiction of the coastal state may prevail,” said the legal review, written by 9 Bedford Row International Chambers’ Steven Kay QC and barrister Peter Glenser.
“If a pirate is killed in the territorial waters of a state or port, the perpetrator of the killing may become subject to the criminal laws of the coastal state.
“This emphasises the need to ensure all acts and conduct that fall within the scope of the rules for the use of force comply with the 100 Series Rules that have as their aim the objective to ensure at all times lawfulness.”
The 100 Series has attracted much attention from the key stakeholders in the industry, but not everyone appears to be enthusiastic. Ambrey Risk, argues that legal clarity does not seem to be the order of the day and while the 100 Series is said to be designed to ‘alleviate uncertainty’ and provide ‘clear legal basis for acts of self-defence” there does not seem to be universal acceptance.
According to Adam Swierczewski of Ambrey Risk currently individual PMSCs submit their RUF to flag states as a part of the flag state approval process. BIMCO has already produced one set of guidelines on the RUF, outlining the main concepts and measures that should be implemented by PMSCs. This note shall briefly comment on whether a universal set of RUF can be produced in view of international and national laws; and to what extent it would bring practical benefit.
The modern international concept of an individual’s right of self-defence is a result of cross-jurisdictional effort that has evolved over the centuries[3] and is now internationally recognised and present in the legal systems of most civilised nations. One of the major concerns of many parties involved in the industry and affected by the Series 100 (which the authors of the document rightly recognise themselves) is the fact that the right of self-defence may be interpreted differently by individual jurisdictions. Moreover, in the event of an incident countries could be also involved in arguments over jurisdiction, what has been exemplified by the Enrica Lexie case.
At a core level, ramifications of the right of self-defence are universally agreed and implemented into national laws in a similar way, often reflecting the wording of the European Convention on Human Rights. By way of example, constitutions of Bahamas and Antigua & Barbuda provide nearly identical references to what degree of force should be used in self-defence and in what circumstances. A degree of correlation can be found in the legal systems of Cyprus and United Kingdom. Even where similarities in the wording used are not as obvious, as is the case with Panama, the underlying foundations remain the same.
It has been argued that in order to achieve a success the 100 Series needs to be openly endorsed by the states. Whether this would bring a significant change is debatable in view of the fact that at least some of the states have already taken steps to monitor PMSCs by implementing accreditation processes and thereby reviewing not only the RUF but other relevant documentation, including the Standard Operating Procedures. In any event flag state approval will not be issued without prior submission of the RUF. Most of the well-established companies operate under RUF drafted by reputable lawyers, often established in many of the most common flag states. Therefore, it comes as no surprise that many RUF are already remarkably similar, being based on the same sources. Currently utilised RUF would have by now been in use on many transits and seen by most of the ‘popular’ maritime authorities. Thus, in the view of many, the nuanced status quo may be more attractive than chasing an unattainable nirvana.
Finally, no state will guarantee that following a set of universal industry agreed RUF will provide amnesty against prosecution. Cases of this nature are fact dependent and will always be assessed in view of the applicable law. It is for this reason that the 100 Series cannot provide ‘clear legal basis for acts of self-defence’[13] as such basis is already present in the applicable law and subject to exclusive judicial interpretation. Any set of RUF, unless legislated on, will be only a set of guidelines that help to mitigate the risk of excessive use of force and any associated damage. No certainty can be safely assumed. This is the inherent risk of operating with commercially generated armed security operating under self-regulated framework.
It would seem that even with rules in place the outcome of shooting at pirates is far from clear cut.
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