Tag Archive | "private armed guards"

Putting political convenience aside, pirates are simply not terrorists

While running through my piracy news roundup yesterday morning, I came across this piece by Robert Young Pelton of Somalia Report. In it, Pelton criticizes a report by Australia’s Lowy Institute that deals with the use of privately contracted armed security personnel (PCASP).

I took particular interest in a small tangent within Pelton’s piece that reflects an incorrect sentiment that I have seen repeated many times by non-attorneys (and even by some attorneys): that modern pirates should be considered terrorists.

As Pelton’s Somalia Report piece primarily concerns PCASP, the terrorism issue is only mentioned in a passing parenthetical:

“Pirates are criminals, (never terrorists because that would prevent the payment of ransoms) so it makes sense that a direct response by putting armed guards on ships was the most logical and so far, the most effective response to the pirate attacks.”

From this statement, I gather that Mr. Pelton is of the view that a key reason that the global anti-terrorism network has not been brought to bear against Somali pirates is that such an arrangement would force states to “negotiate with terrorists” once the pirates have seized the vessel and taken hostages. He appears to lament this fact. A similar view has been expressed by former U.S. Ambassador to the United Nations John Bolton and others who argue that relaxed rules concerning due process and state sovereignty as they are applied to terrorists would make the piracy fight a much easier one to win.

Are they terrorists? Certainly not.
(EUNAVFOR)

The oft-expressed desire to equate pirates with terrorists likely stems from several superficial similarities between the two groups. First, as Ambassador Bolton points out, “the same crippling evidentiary and procedural constraints” apply to both terrorists and pirates. Also, both groups consist of non-state actors operating in a truly international fashion to the detriment of the broader international community. Finally, both groups tend to base their operations in the Middle East/North Africa region.

Yet international law is clear as to the respective motives necessary to make one a terrorist or a pirate, and the facts on the ground suggest that, no matter how convenient it may be from a policy standpoint, pirates are not terrorists.

Judge Antonio Cassese, presiding over the Appeals Chamber at Special Tribunal for Lebanon, announced last year that a definition of terrorism has emerged under customary international law. Included in this definition is the requirement that the terrorist has “the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it.”

Conversely, it is well-documented that, although piratical intent is not limited to the desire to rob, for an act to be considered piratical, it must be committed for private ends. This requirement is explicitly laid out in UNCLOS art. 101, as well as its predecessor, 1958 Geneva Convention on the High Seas.

A terrorist’s intent must be to incite mass fear or coerce a government, both purely political motives; a pirate’s motive is strictly limited to making money.

In a smart piece on piracy-law.com couching this definitional issue in terms of a potential defense available to alleged pirates, Roger Phillips rightly notes that, although in theory it is possible to have both political and pecuniary motives, the political motive appears absent in Somali pirates, who choose not to attack well-protected ships or kill hostages simply because it would be less profitable to do so. It seems like a stretch to argue that the pirates’ modus operandi of attacking a privately-owned ship in the middle of the ocean is somehow carried out in order to coerce a government or frighten the public at large by placing them in danger.

Though Roger covered it thoroughly, this definitional point bears repeating because the terrorist theme has gained so much traction in non-legal commentary on the issue of maritime piracy. As tempting as it is to “talk tough” about pirates and the international community’s response to piracy by evoking the specter of terrorism, there is very little merit to the claim that the two terms can, at least presently, be used interchangeably to describe Somali pirates or their West African counterparts.

Respect for the rule of law – apart from being perennial advice given by developed countries to countries like Somalia – requires taking the law as it is written (or trying to change it through legitimate processes) rather than molding it to fit one’s immediate policy preferences. Unless evidence of pirates taking a less profitable course in favor of a strategy with large political payoff emerges – or the definitions of piracy and/or terrorism change – the “pirates as terrorists” slogan will continue to be just that – a slogan.

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

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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.

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Critical Analysis: Blackwater to Pay $7.5 Million Fine for Violations

Erik Prince, Founder of Blackwater/Academi
(Reuters)

Academi LLC, the private security contractor formerly known as Blackwater, has agreed to pay a $7.5M fine as part of a deferred prosecution agreement with the U.S. government, according to an FBI press release.  The company, which has earned billions of dollars in government security contracts in Iraq and Afghanistan, will pay the fine along with $42M for a settlement agreement with the U.S. State Department from two years ago for similar charges under the Arms Export Control Act and International Trafficking in Arms regulations.

As part of the agreement, Academi has acknowledged its responsibility for conduct ranging from illegal sales of equipment, body armor, and training to foreign governments in violation of the Foreign Corrupt Practices Act, to possession of illegal automatic weapons at its training facilities, to attempting to enter billions of dollars worth of oil and defense contracts in violation of a US embargo in Sudan. Academi will not face prosecution for seventeen violations under the deferred agreement as long as it complies with government auditing requirements and export restrictions.  The settlement concludes a five year investigation into Blackwater by the FBI, Justice Department, IRS, and others agencies.

In its press release, the FBI praised the settlement as sending a message that those who do business with the U.S. government will be accountable for their actions, no matter how powerful they are.  “For an extended period of time, Academi/Blackwater operated in a manner which demonstrated systemic disregard for U.S. government laws and regulations. Today’s announcement should serve as a warning to others that allegations of wrongdoing will be aggressively investigated,” said Special Agent Chris Briese of the FBI.  Added Special Agent John F. Khin, “This investigation showed that no contractor is above the law.”

Others outside the agencies are less enthusiastic about the settlement.  The agreement “merely forces the company to do what it should have years ago,” said David Isenberg, author of “Shadow Force: Private Security Contractors in Iraq.”  Critics have also noted that the company will be allowed to deduct $2.5M from its fine simply for complying with the agreement.  Furthermore, critics have pointed out that no company executives, including founder and former owner Erik Prince, are being held individually responsible for any wrongdoing.

Thomas Scott is a rising third year law student at the University of Denver and a Publishing Editor on The View From Above.

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Armed Maritime Security and the Enrica Lexie

A dramatic story of death at sea has recently ignited both the Indian and Italian press. The story has yet to reach the United States, but it has all the makings of a headline-maker. Two Italian military personnel, operating as armed guards aboard the merchant vessel Enrica Lexie, are being investigated for the murder of two Indian fishermen at sea. Like any good news story, this one starts with a conflicting version of the events.

The Enrica Lexie

According to the Italians, the incident occurred 33 nautical miles off of the Indian coast at around 2:30pm Indian time. Italian Naval personnel aboard the Enrica Lexie spotted a vessel heading its way and identified five armed men above deck. After attempting to radio the vessel and shooting flares, the Italian guards fired three sets of warning shots at 500m, 300m, and 100m. The final set of shots was fired “into the sea across the bows of the fishing boat, which was not hit and in fact changed direction and turned back.” The Italian report disclaimed the possibility of any casualties. This version of the events is incomplete at best, as it fails to account for the two Indian fishermen who perished at sea.

The Indians, on the other hand, claim that the shooting occurred only 14 nautical miles off the coast at 5:00pm Indian time. The fishing vessel was crewed by eleven men, nine of whom were below deck sleeping at the time of the incident. The only two men above deck were shot by the Italian guards in what is being described by the Indian press as “murder by a better-equipped party on high seas.” The implication is that the Italian guards used force hastily, perhaps even ethnically profiling the fishermen as pirates.

Despite these conflicting stories, two things remain certain: a pair of Indian fishermen, Ajesh Binki, age 25, and Jalastein, age 45, were killed at sea, and a pair of Italian marines, Latorre Massimiliano and Salvatore Girone, are being held in police custody in India. If charged with murder under section 302 of the Indian penal code, the crime for which they have been charged, the Italians could face the death penalty. This is not likely to happen.

Though capital punishment is not a likely outcome, as India has only executed one person in the last 17 years, a murder trial in India would be a miscarriage of justice and a clear violation of international law. According to UNCLOS art. 2, a state’s territorial waters extend 12 nautical miles from its coast. Art. 33 provides for an additional contiguous zone extending up to 24 nautical miles from the baselines used to measure the breadth of the territorial sea.

Thus even if India’s version of the events is to be believed in its entirety, the incident occurred 2 nautical miles outside of India’s territorial waters, in its contiguous zone. There, art. 33 only allows India to “prevent infringement of its customs, fiscal, immigration or sanitary laws.” This is not to say that India has no claim against Italy whatsoever, but Indian penal law simply cannot apply to a set of events taking place outside its jurisdiction.

Jurisdiction therefore falls to Italy as the flag state under art. 94 of UNCLOS, who should conduct a full, impartial investigation involving Indian authorities. Indeed under two of the three possible scenarios, the Italian marines may indeed be guilty of the unlawful killing, or even murder, of these two Indian fishermen.

There are therefore three potential scenarios to be considered.  Under the first scenario, the Italian Navy reported the events truthfully and to the best of their knowledge shortly/immediately after the incident’s occurrence. The Italian guards either believed they saw guns aboard the Indian vessel or actually saw guns, which were subsequently thrown overboard. Under this scenario, the Indian fishermen simply lied about the number of men that were above deck. Either way, the Indians ignored a radio call, flares, and two sets of warning shots, the third of which hit the wheelhouse and killed Binki and Jalastein. The Italians filed the report honestly, believing that nobody had been hurt. This would be an example of guards employing a proper, graduated use of force regime that resulted in the accidental death of careless fishermen. Frankly, the Italian’s report is difficult to square with the facts on the ground. Two men are dead from gunshot wounds, and more bullets were reportedly found on the deck of the Indian fishing vessel. This flatly contradicts the Italians’ report that, after firing over the bow, the fishing vessel turned and left the vicinity. A ballistics report must be done to confirm whether or not the bullets that killed the Indian fishermen and others found on their vessel were fired from the Enrica Lexie.

The second scenario is one where the Indian press has the facts largely correct, and the Italian guards improperly fired upon an innocent vessel. The Italian’s report would therefore be erroneous as it relates to the fishermen’s deaths. At best, the Italians fired a fourth set of shots at the wheelhouse, which it did not report. At worst, they assumed the fishermen were pirates and fired upon them without due warning. This version of the events is similarly problematic, as the Italian Navy is confirmed to have reported the event. It is difficult to imagine that the Italian military personnel, having knowingly killed two individuals at sea be they fishermen or pirates, would report the incident while simultaneously concealing the fact that two men had been killed by omitting it from their report. The truth is likely somewhere between these competing versions.

One compelling, though highly speculative, version occupying this middle ground is a simple case of mistaken identity. Here, both the Indians and the Italians are telling the truth, though the latter party is only telling half the truth. Under this scenario, we can assume there were two separate incidents. Armed would-be pirates carried out the first at 2:30pm, approximately 33 nautical miles at sea, and were repelled by the Italian guards’ show of force. Then, two-and-a-half hours later, 14 nautical miles off the Indian coast, a vessel full of nine fishermen had gotten quite close to the Enrica Lexie, as part of an apparently common practice where fishermen follow large crafts closely in hopes of catching fish stirred up in the larger ship’s wake. The Italian marines, still on alert from the previous attack, mistook the second vessel for the first and opened fire, killing two innocent men. If this scenario in fact took place, it is not only unacceptable, but it is also the specific reason that international law and practice has so strongly disfavored the presence of guns aboard merchant vessels.

Regardless of which scenario turns out to be most accurate, India has an obligation to release the Italian marines it is currently holding because they were not within the 12 nm territorial waters, and Italy has an equally powerful obligation to conduct a full and impartial investigation to learn the truth. The Italian guards should be held criminally responsible in Italy if they are found to have used unlawful force Hopefully this story will accelerate the international movement to regulate the use of private armed guards and mandate incident reporting. The international community cannot stand by as the Indian Ocean turns into a lawless frontier, potentially claiming innocent bystanders as victims.

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University of Denver Sturm College of Law

@View_From_Above

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