Report into piracy finds too many legal issues arising from hiring of private guards
To arm, or not to arm – that is the question currently at the centre of a great deal of debate in today’s shipping industry. Should shipowners be allowed to employ armed guards on board their vessels to protect themselves against the threat of attack by pirates? Who should be responsible for making such decisions? Who should pay for the cost of employing such guards? These, and other questions, are in need of urgent resolution as piracy continues to threaten the safety of merchant shipping in certain parts of the world.
And the debate continues. The International Maritime Organization has recently issued a number of recommendations for owners, operators and masters, and port and coastal states near Somalia have been urged to facilitate the provision of armed security guards onboard ships transiting at-risk areas. The ITF, which represents seafarers, who should, after all, be the primary concern in this whole matter, has talked about the entitlement of crew to refuse employment onboard vessels sailing in high-risk areas. Flag states have discussed the issue at length, and some have issued appropriate guidelines. Insurers, ship managers, classification societies, P&I clubs and others have all contributed to the debate, which continues to rumble on within the terms of a general recognition that it is the responsibility of the shipping industry, of flag states, and of governments worldwide to eliminate the scourge of piracy, and to establish international guidelines to deal with the issue of armed guards onboard merchant vessels.
Most recently, the government in the Netherlands has commissioned a report designed to assess the desirability and possibility of deploying private sector armed security to help protect Dutch ships from the threat of attack by pirates, most of whom are Somali. The so-called De Wijkerslooth Committee has now submitted a report which recommends that the Dutch government moves towards a higher level of protection of its merchant fleet including, “if necessary”, the use of armed private security guards. The report, however, cautions that security guards should only be hired by the government, and should only perform their security duties as soldiers under the full authority of the Ministry of Defence. The authors of the report add that, under the current circumstances, it is not desirable that shipowners privately hire armed private security guards, an option that should only be considered “in case of special conditions”.
The committee urges the government to arrange for sufficient constitutional guarantees when allowing forms of armed self-protection. It adds that, in the meantime, it is obliged to arrange for a sufficient level of protection against piracy. This is currently effected by navy patrols and escorts around the Horn of Africa and by allowing onboard armed military personnel to accompany “very vulnerable transports”. This should be expanded, says the committee, so that all transports that qualify are provided with such protection by the Ministry of Defence. It adds that, if necessary, the required capacity could be created – with financial aid from shipowners – by engaging reservists or by hiring personnel from high-quality private companies, which should be deployed by the Ministry of Defence under a temporary military status.
The committee argues that, if the government uses its own resources, or engages reservists or hires armed private security guards who will temporarily be given military status, this will not constitute privatisation of security duties. By creating additional defence capacity in this way, no amendment of legislation and regulations will be required. “It is however necessary,” adds the committee, “to carefully select and contract security guards and their employers in accordance with requirements as set out by the Ministry of Defence.”
It is envisaged that the recommendations of the committee could lead, in principle, and relatively quickly and smoothly, to providing the level of protection against piracy considered necessary for merchant vessels. The alternative – whereby shipowners themselves hire private security guards (an approach endorsed by the Royal Association of Netherlands Shipowners) – entails “several problems”, according to the committee, and would require drastic amendment of Dutch legislation and regulations, which under normal circumstances could take “several years”.
The recommendations of the committee do not exclude the hiring of private armed security guards as a matter of principle. The government’s monopoly on the use of force does not mean that only the government is allowed to use force, but rather that the government decides who is authorised to do so and under what conditions. The committee says the issue of whether nor not to engage armed security should only be considered if the Ministry of Defence proves to be incapable of providing the required level of protection against piracy to vulnerable transports. If the government fails in its duty of care, this triggers the implementation of alternatives, even if those are complicated in their structure and effects. The committee also notes that relevant international developments have to be taken into account, and that continuing discussions in other European countries, and by international bodies, may see increasing numbers of countries opting for private security guards. “Joining such countries should then be considered,” advises the committee, “especially if basic regulatory conditions can be met at international level.”
The committee feels that its recommendations “do justice to the legitimate desire of citizens to be sufficiently protected by the government from serious violation of their person and property, as well as to the need for guarantees, so that force is only used when necessary and with due care. By offering sufficient protection, the government prevents its citizens from resorting to the use of weapons or to individuals or companies which are able to offer the required protection”, thereby leading to a possible escalation of violence and absence of democratic checks on the use of weapons.
Clearly, it is the duty of government to do its utmost to protect the merchant fleet from attacks by pirates. In the event that the government is not able to fulfil its duties, for whatever reason, it will have to employ outside help. It is not desirable that privately owned companies hire armed protection to perform the duties that are the responsibility of government, which should retain its monopoly of force. Furthermore, the cost of providing protection against piracy should be borne by the state. Shipowners should only be allowed to hire private armed guards in special situations, in the event that the government is not able to fulfil its duties.
In the event that Dutch shipowners do hire armed personnel, or provide weapons to those onboard, those directly involved, as well as shore-based personnel, including the ultimate management of the company, could face criminal prosecution. Furthermore, shipowners could be faced with local legislation covering the import and export of weapons in the event that the vessel has weapons on board and enters the jurisdiction of another country.
Jan Kromhout
Partner at AKD’s Rotterdam law offices
This article appeared in Lloyd’s List on 28 Seprember 2011.For more information visit www.lloydslist.com
