Tag Archive | "maritime security"

Pirate or FIsherman?

On Pirates, PMSCs, and Signature Strikes

The media’s coverage of maritime piracy has changed markedly as of late. In 2010, stories characterized piracy as a ballooning problem with pirates’ changing tactics outpacing those of international navies. The result was a marked increase in attacks and hijackings. Today, however, stories are more likely to focus on diminished profits in the insurance industry, languishing pirate villages, or out-of work prostitutes. This change is not unwarranted. Reported incidents of piracy have seen a steady decline from 2010 to 2012, with only 70 incidents attributed to Somalia this year, less than half the number reported during the same period in 2011.

Though industry best management practices and steady international naval support have undoubtedly played a role in piracy’s reported decline, the phenomenon is best explained through the increased use of private maritime security companies (PMSCs) aboard merchant vessels transiting pirate infested waters. These guards are used on anywhere between 30% and 60% of all ships, and over half of 2012’s attempted attacks were carried out on ships with private armed guards. To date, not one pirate attack has been successfully conducted on a ship with armed guards on board.

Yet the picture is not all rosy. These guards operate in a legal grey area where incident reporting is considered to be a matter between the private security company and the shipping company who hired it. Neither of these entities have an incentive to report attacks, as reporting increases potential legal liability and insurance costs. Accordingly, those who believe that all incidents of piracy get reported are few and far between.

From all this, a central themes emerges. It is clear that these guards have had a real impact on piracy, but the full extent and nature of that impact remains obscure. The secrecy inherent in a purely private security scheme devoid of outside political pressure has left the public in the dark as to the true extent of piracy in the Indian Ocean, not to mention the extent to which innocent fishermen are caught in the crossfire.

Considering the identifying characteristics, tactics, and interests of the parties involved suggests some similarities between the way private armed guards report piracy attacks and the way the United States government reports signature drone strikes.

Pirate or Fisherman?

The first thing to know is that it is extremely difficult to distinguish coastal fishermen from pirates. This is true for several discrete and mutually reinforcing reasons. Chief among them is the simple fact that pirates steal fishermen’s boats to use them as pirate skiffs, making the two crafts literally impossible to distinguish. Moreover, Somalia is a country with 870,000 guns, only 1.6% of which are registered. In Somalia, possession of an AK-47 alone does not make someone a pirate. It would not be unusual to find such a weapon aboard a bona fide fishing vessel. Finally, local fishermen have been known to approach large shipping vessels either to catch the fish that are stirred up in the larger vessel’s wake or to protect their nets from being destroyed by the large ships travelling increasingly close to the coastline. Between the similarities in appearance and tactics among pirates and fishermen, distinguishing the two is no small feat.

This possibility of confusion does not change the laws of physics that put the AK-47’s operational range at 300-350 meters. Nor does it change the laws of economics that have led to the AK-47’s ubiquity in the region. These operational realities have led to the reported practice of warning shots being fired when an unidentified skiff is over 500m away from the tanker and more direct fire as the skiff approaches the 300 meter mark.

Taken together, the apparent similarities between fishermen and pirates and the range at which PMSCs engage an approaching skiff creates a significant (but currently un-knowable) possibility of false positives. False positives that look something like this: private armed guards fire at a skiff belonging to fishermen, assuming those fishermen to be pirates. The fishermen then decide that the net they are trying to save or the fish they are trying to catch is not worth risking their lives. The fishermen leave the vicinity of the tanker before a positive identification can be made, and the PMSC either reports the encounter as a pirate attack or does not report it at all.

In this way, PMSC reporting practice resembles that applied to the now infamous “signature drone strikes.” As reported in the New York Times, the Obama administration has taken to “count[ing] all military-age males in a strike zone as combatants . . .  unless there is explicit intelligence posthumously proving them innocent. Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good.”

This dubious reporting practice has led to wild discrepancies in the reported number of civilians killed by drones. Officially, the number of civilians killed in Pakistan is either “in the single digits” or around 30 in a yearlong stretch, depending on which official you ask. Unofficially, the New America Foundation thinks that the number could be as low as 152 and Pakistanbodycount.org says that it could be as high as 2,412.

As with civilians killed by drone strikes, the proportion of incidents attributable to pirates as opposed to fishermen is anyone’s guess. This is because in both areas, the security provider agrees on a tactic and then interprets the outcome in the light most favorable to the provider in the absence of effective outside pressure to use a more rigorous method.

This is not to say that the percentage of false positives is necessarily high – either in the case of pirate attacks or signature strikes. It is just to say that nobody knows what the real numbers are, be they high or low. It is presently impossible to make a credible assumption either way.

Chances are high, however, that the number of times PMSCs have fired upon fishermen in the last two years is more than zero, which is the officially reported statistic. Unless some accountability is brought to bear on the reporting process, it is a safe bet that “probably up to no good” is the standard to which pirates, fishermen, terrorists, and civilians alike will be held.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy Project just outside Denver, CO. All the views expressed are his own. You can follow him on Twitter.

Posted in DJILP Online, Featured Articles, Jon BellishComments (3)

Private Security Guards for Hire
(Int'l Bodyguard Service)

An Interesting Role Reversal in the United Nations

Private Security Guards for Hire
(Int’l Bodyguard Service)

There are several forces that deserve credit for the recently reported worldwide decline in pirate attacks – including international naval patrols, industry best practices, and the monsoon season – but no single force has done more to repel pirates that the use of privately contracted armed security personnel (PCASP). With no successful pirate attacks on PCASP-protected vessels reported to date, the use of these private armed guards is sure to continue, if not increase.

Yet as the use of PCASP at sea has proliferated, the international community has failed to keep pace with the trend and ensure that the industry is held accountable for its actions.

Even some in the industry admit that there is much room for improvement. John Dalby, CEO of Marine Risk Management, Ltd., identifies two basic types of maritime security firms. He characterizes the first as the “Reputables,” consisting of well-trained professionals operating in accordance with national and international law.

The other group, which Dalby calls the “So-calleds,” are characterized as being “ill-disciplined,” “poorly trained,” and having “little or no maritime experience.”  If his description of these troublesome firms is accurate, the moniker he chose is dubious.  These companies are more than merely “so-called” companies; they are actual companies actually patrolling the Indian Ocean.

As for the industry as a whole, Dalby’s feelings are best expressed in the title of his commentary: “The Shambles That Is Maritime Security In 2012.”

The sheer existence of Dalby’s piece sheds a great deal of light on the state of PCASP regulation at sea – a world where private security companies actually want to be regulated, but the international community seems either unable or unwilling to abide.

This role reversal, in which the would-be regulated entity welcomes guidance and the would-be regulator resists, is playing out in the United Nations International Maritime Organization’s (IMO’s) treatment of the International Code of Conduct for Private Security Providers (ICoC).

Signatories of the International Code of Conduct for Private Security Service Providers

ICoC is a mostly private regulatory structure consisting of a set of aspirational principles coupled with an external oversight mechanism, the latter still in the drafting phase and expected in early 2013.

At the heart of ICoC is the notion that norms must be externally enforced and that failure to adhere to agreed-upon norms must be met with some sort of coercive punishment. To that end, the Draft Charter for the external oversight mechanism provides for independent auditing of operations, third party grievance mechanisms, and the possibility of suspension or expulsion from the organization in the case of non-compliance.

Although ICoC was initially created with terrestrial firms in mind, there has been encouraging and impressive uptake from the maritime security sector. Of the 464 signatory companies to ICoC, 285 of them identify as maritime security companies. This almost certainly represents the vast majority of all firms providing private security in the maritime environment.

According to these maritime security firms, ICoC is highly and directly relevant to the provision of maritime security services.

The International Maritime Organization of the United Nations begs to differ. In IMO MSC.1 Circular 1443 published earlier this year, that organization characterized ICoC as “not directly relevant to the situation of piracy and armed robbery in the maritime domain.”  In support of this assertion, the IMO states that ICoC is mere self-regulation and that it was written “only for land-based security companies.”

This first justification is disingenuous and the second is plainly false.

While it is true that no government will assert legislative jurisdiction under ICoC, to call the scheme self-regulation is to give it short shrift.  For starters, the initiative was initially conceived by the Swiss government and has the imprimatur of several states, NGOs and industry. Moreover, as already explained, the ICoC contains an external governance mechanism consisting of independent auditors, third party grievance mechanisms, and measurable standards.

The term “self-regulation” evokes images of lip service to the international community coupled with little change in corporate action. Any fair reading of ICoC and the governing mechanism suggests that this is not likely to be the result of ICoC’s ultimate implementation.

More glaringly, the notion that ICoC was developed “only for land-based security companies” is demonstrably false. The preamble of ICoC says that after developing measurable standards and an external enforcement mechanism, the organization would “consider the development of additional principles and standards for…the provision of maritime security services.” In fact, the Draft Charter specifically provides for the provision of maritime security standards in its description of the Board’s responsibilities.

In short, ICoC was drafted with maritime security in mind, it provides for maritime standards in its governing mechanism, and 61.4% of ICoC’s signatory companies provide maritime services. It boggles the mind to think that, in light of these facts, the IMO could conclude that ICoC was written to the exclusion of maritime security companies.

Criticizing the United Nations in this way feels strange. It is strikingly dissonant to see an organization so frequently criticized (at least in the U.S.) for international regulatory overreach openly reject what appears to be an extremely promising  step toward a workable regulatory framework for PCASP operating in a legal vacuum.

What accounts for this role reversal? Why does the United Nations seem to be standing in the way of an industry that seems genuinely committed to cleaning up its act? I am afraid that looking into this episode has left me with more questions than answers.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project outside Denver, Colorado (though all of his views are his own). He has experience in United States piracy trials and just got on Twitter.

Posted in DJILP Online, Featured Articles, Jon BellishComments (3)

University of Denver Sturm College of Law