To read Part I of this article please click here
In part one I discussed how piracy has affected the maritime industry and BIMCO's newly published GUARDCON (Standard Contract for the Employment of Security Guards on Vessels). The previous article served to raise awareness of the difficulties that could be encountered when a claim of self-defence is made following use of force by Privately Contracted Armed Security Personnel (PCASP) or crew onboard Maltese registered vessels in the event of an attack of piracy or armed robbery against ships.
Jurisdiction
The situation is further convoluted when taking into consideration jurisdictional issues. Article 92 of UNCLOS states that as a rule ships sail under the flag of one State and shall be subject to its exclusive jurisdiction on the high seas. Furthermore, the Maltese Criminal Code states that the Maltese Courts shall have jurisdiction for any offences carried out under the article concerning piracy whenever it is committed by:
- Any citizen of Malta or permanent resident in Malta;
- Any person while on board any ship, vessel or aircraft belonging to Malta;
- By any person against any ship, vessel or aircraft belonging to Malta or against the person or property of any citizen of Malta or permanent resident in Malta.
On the other hand, in accordance with Article 6 of The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988) a State shall take such measures as may be necessary to establish its jurisdiction over the offences outlined in the convention, when the offence is committed:
- Against or on board a ship flying the flag of the State at the time the offence is committed; or
- In the territory of that State, including its territorial sea; or
- By a national of that State.
This clause leaves the claim to jurisdiction open to three States at any given time. If we had to refer to the 1927 Lotus opinion by the Permanent Court of International Justice (PCIJ), which centred around the collision between a French and a Turkish ship on the high seas resulting in the death of eight Turkish sailors, the court stated that absent a relevant provision to the contrary, Turkish courts could exercise criminal jurisdiction over the French captain because the incident took place on the high seas and had a substantial effect on Turkey.
The outcome of the recent Enrica Lexie incident which resulted in the deaths of two Indian fishermen in Indian waters, allegedly at the hands of the Italian Vessel Protection Detachment (VPD) on board an Italian flagged vessel, will help shed some light on how international legislation will be applied and interpreted in these situations. The fact that the security guards were Italian VPD, does change the dynamics of the incident as it can be argued that the personnel are considered part of the Italian State and thus immune to the jurisdiction of foreign States. Furthermore, the incident did occur in Indian territorial waters.
It is also worth bearing in mind that the Rules of Engagement (RoE) of the PMSC offer the basis on which the security personnel are to act and will undoubtedly have to be in line with the laws of the Flag State. Therefore, it could be argued that if the security personnel are acting in accordance with Flag State approved RoE, should an incident occur, the applicable law should be that of the Flag State.
Legal Conundrum
The Master's lack of expertise to lead a team of armed guards does place him between a rock and a hard place. Whilst retaining ultimate authority, he must rely on the expertise of the security personnel to protect him and his crew. However, by no stretch of the imagination, a situation could easily arise where in a master could be deemed an accomplice for giving instructions to proceed with opening fire. As is clearly stated in the Criminal Code, "a person shall be deemed to be an accomplice in a crime if he ... commands another to commit the crime". Whilst the UK Crown Prosecution Services (CPS) have not yet issued guidelines with respect to such situation under UK law, they have strongly cautioned against allowing the master of a vessel to be involved in such a decision making process and it is likely that a similar stance would be adopted in Malta.
Whilst the Rules of Engagement are the basis on which the security personnel are to act, in reality what is stated in the RoE and what actually happens in a hostile situation are more often than not worlds apart. However, based on the premise that the RoE are abided by, a flag administration would be content to see that procedures include that a PMSC must take all reasonable precautions not to injure any person(s) onboard a hostile target's vessel(s) and that at no time should a person be deliberately targeted. Rather the engines and the hull should be targeted to disable the approaching boat and reasonable force must be used. Ultimately, the frame of mind must be to prevent and subdue an attack (in that order) in a reasonable and proportionate manner above all else, by show of force rather than actual use of force.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
