Enrica Lexie in Kochi, India

UPDATE (Mar. 21): Italian Marines Agree to Return to India to Stand Trial, Diffuse Diplomatic Row

By John A.C. Cartner, Special to Piracy Daily

Amidst all the head-wagging and hand-gesticulating marking the anti-pirate controversy between the Indian and Italian governments and the laws, we should step back and look at both the shorter and longer implications of the matter.

Above all laws there is the Law of Unintended Consequences, LUC, — which is alive and well. LUC, pronounced as it is spelled, has been formulated in many ways. It says generally that from a complex system it is impossible to predict all future states of that system. That means that we do not know enough about how the system works to make it fully determinative. Hence law, a complex system, is not fully determinative and is subject to the LUC.

We have worked out a rough and ready system to deal with these consequences in our courts. However, courts are not seers and the consequences continue to occur. Viva la difference!

So it is with the Italo-Indian dispute. There is a framework within which this dispute principally falls. It is the United Nations Convention on the Law of the Sea 1982, also awkwardly called UNCLOS 1982. It has one of the few definitions of piracy to which most agree. It also pretty well says what laws apply in the seas adjacent to a state and what laws apply aboard a ship and why.

So in the short-term, what’s the problem? Sorting the mess out. Could UNCLOS 1982 have predicted such a situation? While we are sorting we can say that it does so not very well.

Here is the problem: The UNCLOS 1982 is quite clear that coastal state law prevails within the waters defined by the Convention except International Water which is water under no State’s jurisdiction. By implication it says what criminal laws prevail on a vessel transiting jurisdictional waters innocently by relating the passage to the crime as to those of the coastal state.

If that is the case, then coastal state laws apply. It also defines innocent passage and says that ‘any exercise or practice with weapons of any kind’ by a foreign ship within jurisdictional waters shall be considered to be ‘prejudicial to the peace, good order or security of the coastal State’ and the vessel making the passage is therefore not innocent permiting the coastal state to act.

Refreshing the facts in the Indo-Italian dispute, Italian Ministry of Defense troops, privately contracted out, fired upon and killed fishermen thought to be pirates on waters wherein Indian criminal laws prevailed. LUC has now taken over. There is no mention in the Convention as to whether or not those who appear to be pirates may be defended against. The piracy definitions require an act of piracy, carefully worded as to place and kind, before piracy can be concluded.

The Indian position: no act, no piracy. The Italian position: so what? Piracy and all that surrounds it is a universal crime and Italian sovereign immunity prevails and you Indians may try but you may not convict unless we agree and, even if you do, we do not have to return our people to you for your juridical acts.

So where lies the fault? Indians? No. Italians? No? Convention? Yes. It failed to foresee what might happen. LUC has prevailed. The Indians read the Convention for what it says – to a point. However, the Indians do not make any extensions of the language leading to reasonable expectations of piracy and reactions to it. The Italians rely on the ancient principles established by the Treaties of Münster and Osnabrück of 1648, ending the European religious wars. These treaties are the bedrocks of sovereignty.

In the longer term, however, we must revisit the implications of arming vessels. Article 19 of UNCLOS 1982 defines innocent passage wherein ‘any exercise or practice with weapons of any kind’ by a vessel not of jurisdictional registry is ‘prejudicial to the peace, good order or security of the coastal State.’ Therefore such passage is not innocent. If the passage is not innocent the coastal state may exercise its lawful powers of defense.

But what is arming a vessel? Are small arms naval weapons? Probably not under most states’ prevailing laws. Further, under those self-same laws there is no universal definition of small arms. Is naval artillery, then, arming a vessel? Most probably, however, the definitions of the old naval treaties describing gunnery are not apposite to the modern age of much more powerful and intelligent weapons which blur the distinction between small arms in size and naval weapons in power.

Curiously, each of the above questions is relatable to letters of marque and reprisal about which I have written in this journal. Privateering, wherein a person holds a license from a sovereign, allows the arming of persons, assumedly with small arms, and vessels, assumedly with naval artillery, all to do the sovereign’s bidding. A letter of marque is issued to a vessel, not to a person, and implies that vessel arming is allowed but not necessarily expressly saying personal arming is allowed. It would seem that after nearly a millennium of this law we could craft a solution.

I do not see it coming any closer except by precisely defining the energy transmitted to the target of a weapon and drawing a bright line as to what comprises small arms and what comprises naval artillery. After all, we carefully describe navigation lights in highly technical annexes to the collision rules. We can do the same with weaponry. We probably ought to devise some new terms while we are at it to make the definitions more nearly precise. And while we are defining we can also try to come up with something that deals with reasonable expectations of imminent piracy.

Perhaps, too, the disputants can look ahead and see that the Italian marines are culpable under the laws of tort/delict and wherein there may be Italian criminal negligence. After all, most states have laws supervening sovereignty in some cases so that some criminal laws may be exercised or civil action may be taken for damages against a government.

About the Author

John A C Cartner is an unrestricted master mariner (US) and maritime lawyer practicing in Washington, DC and practising in London and is the principal author of The International Law of the Shipmaster (2009). He can be reached at jacc@cflaw.net. © 2013 John A C Cartner, all rights reserved.

File photo of an armed guard.

By Michelle Wiese Bockmann

(Bloomberg) — Some merchant ships are using illegal armed guards to deter pirates off West Africa, prompting at least one country to suspend use of legitimate guards, said North of England P&I Association Ltd.

Regional laws require ships to use guards provided by the security forces of local nations, the Newcastle-Upon-Tyne, England-based vessel insurer said in a Feb. 5 notice on its website. Some of the local agencies that provide guards hired off-duty security forces to save money, the statement showed.

“This has led to further problems, such as suspension of legitimate armed-guard services by a coast state in the region,” the insurer said. “Operators should seek to ensure that the agency they use is employing local security forces that are on duty.”

Pirates hijacked 10 vessels and attacked 58 ships in the Gulf of Guinea last year, said North of England P&I, citing figures from the London-based International Maritime Bureau. The association provides protection and indemnity insurance to ships with total capacity of 170 million gross tons, according to its website.

North England P&I Statement: Guidance on Employing Armed Guards in West Africa

Copyright 2013 Bloomberg.

The new contract has been developed following the industries unfortunate need to provide ship owners and private maritime security companies (PMSC) with a clearly worded and comprehensive standard contract that governs the employment and use of security guards, with or without firearms, on board merchant vessels.

“In response to ship owners’ increasing demand for security services, an ever growing number of private maritime security companies have entered the market to meet that demand,” said BIMCO’s Chief Legal Officer, Grant Hunter.

While BIMCO recognizes that it would not like to see the use of armed security guards on ships become institutionalized, it does recognize that while the industry awaits a more permanent long term solution, armed guards on ships are an effective, and arguably the best, deterrent for vessel hijackings and attacks.

Hunter adds, “In the absence of a standard contract for these services, ship owners and their P&I Clubs are currently faced with the difficult and time consuming task of assessing large numbers of contracts from these security companies, all with varying terms and conditions. GUARDCON’s objective is to create a contractual benchmark for the employment of security services so that minimum levels of insurance cover for PMSCs are established and that adequate safeguards are put in place to ensure that liabilities and responsibilities are properly addressed and that all necessary permits and licenses are obtained.”

The GUARDCON contract is nothing to sneeze at either.  It was drafted over the course of three months by industry experts ranging from shipowners to lawyers with first-hand knowledge of both the shipping industry and private security contracts.

“GUARDCON has been drafted in just a little over three months by a small group of experts drawn from ship owners, underwriters, P&I Clubs and lawyers with first-hand experience of working with contracts for security services, said BIMCO Deputy Secretary General, Søren Larsen. “The speed at which GUARDCON has been drafted is a considerable credit to the drafting group whose members devoted many long hours free of charge to the project.”

In addition to the GUARDCON contract, BIMCO has also published Guidance on the Rules for the Use of Force (RUF), which is expected to be of great assistance to owners and private maritime security companies when drawing up and agreeing to the rules of engagement for their own purposes.

Sample copies of the GUARDCON contract, with detailed Explanatory Notes, and the Guidance on the Rules of the Use of Force can be found at the BIMCO website, HERE.

The M/V Enrica Lexie

Tensions are escalating between Italy and India over who exactly holds jurisdiction over last weeks incident involving the killing of two Indian fisherman by Italian guards onboard the M/V Enrica Lexie.  The two Italian guards, identified as Latore Massimiliano and Salvatore Girone from Italy’s San Marco Regiment, were arrested Sunday in Kochi after four days of negotiations between Indian and Italian diplomats and could be facing murder charges.  The incident is the first involving the death of innocent civilians at the hands of armed security personnel onboard ships.

Just check out the reports below. The first is a report by India’s NDTV.  As you can see India is standing firm, already claiming that the mens arrest was a diplomatic win for India.  The second are statements posted by Italy’s Navy and Ministry of Foreign Affairs, both claiming the incident occurred within international and the men acted in accordance with proper procedures.

India’s Stance

This video provides pretty good insight into the stance India has taken on the issue.

Click here to view the embedded video.

Italy’s Stance

The following is a translation of a statement posted directly to the Italian Navy’s website and accompanied with a large picture of the Enrica Lexie (above):

The two riflemen of the San Marco Regiment, men trained to think before they act, have occurred only in accordance with the procedures and within the framework of measures that concern the fight against piracy. They fired warning shots into the air and in water (warning shots) to protect “their” territory, responding fully to the existing rules. Namely, to protect the safety of maritime traffic from criminal activity that endangers the personal and economic freedoms of the high seas.

The action of the men of the Navy, aboard the Enrica Lexie as a core military security, has occurred in international waters in compliance with UN resolutions and the law n.130 of August 2, 2011, and has developed against a vessel to be defined “vessel suspected of piracy.” The San Marco Regiment of Fusiliers have occurred last Wednesday, at 12.30 Italian, Enrica Lexie while sailing off the coast of Southwest Indian Peninsula, and after having sighted a boat with five armed men on approach. Despite the optical signals and the identification procedure carried out by gunmen, the boat continued its course. At that point, the men of the Navy exploded three series of shots into the sea (20 in all) for deterrence and did not hit the hull of the “vessel suspected of piracy.” After the last set, the boat drifted away from the Italian ship.

Meanwhile, here’s the statement from Italy’s Ministry of Foreign Affairs released on Monday:

Following up on a telephone call from Foreign Minister [Giulio Terzi] to his Indian colleague [S.M Krishna], a delegation of representatives from three Italian ministries arrived in New Delhi this morning. The delegation, accompanied by the Ambassador of Italy, has already met with Indian officials to discuss all the aspects of the case, which the Italian government considers as within its jurisdiction since the incident took place in international waters on a ship waving the Italian flag. Italy has also underscored that the military presence aboard Italian mercantile ships is regulated by a specific Italian law that also corresponds with the needs of UN counter-piracy resolutions. It was pointed out in this context that the military is an organ of the Italian Republic and therefore enjoys immunity from prosecution by foreign governments.

The meeting did not lead to consensus. Contacts and collaboration between the two governments are considered essential to ascertaining the actual facts, in order to counter any unilateral actions undertaken by the police.

The Consul General of Italy in Mumbai is ensuring assistance and protection to the Italian nationals involved, and is in constant contact with the foreign ministry’s Crisis Unit and the experts of the three ministries, and is monitoring all the actions undertaken by the local authorities.

Tuesday Update:

Foreign Minister Giulio Terzi has decided to send Under-Secretary Staffan De Mistura to India in relation to the case involving the Italian ship, the Enrica Lexie.

The Under-Secretary leaves for India today. Minister Terzi has instructed him to continue, at the political level, the work already carried out by the delegation of Italian experts from the Foreign, Defence and Justice Ministries. Under-Secretary De Mistura will have contacts at the highest level with the state and federal authorities in, respectively, Kochi and in New Delhi, which Minister Terzi will be visiting in person on Tuesday 29 February.

I guess we have to ask…

]]> http://gcaptain.com/italy-india-standoff-enrica-lexie/feed/ 0 http://gcaptain.com/volvo-ocean-race-reveals-anti-piracy/ http://gcaptain.com/volvo-ocean-race-reveals-anti-piracy/#comments Thu, 08 Dec 2011 19:29:23 +0000 gCaptain Staff http://gcaptain.com/?p=35081

PAUL TODD/Volvo Ocean Race

The Volvo Ocean Race has revealed its anti-piracy plan, which will see the fleet transported by armed heavy lift ship from an undisclosed Safe Haven Port in the Indian Ocean and resume racing from a set-down point along the Sharjah coastline in the northern Emirates, within a day’s sailing of the Leg 2 finish in Abu Dhabi.

Race organisers announced in August that the route for Legs 2 and 3 would be re-drawn because of the increased threat of piracy in the Indian Ocean. With the fleet set to depart Cape Town for the start of Leg 2 on Sunday, Race Director Jack Lloyd has made parts of the plan public for the first time.

The six boats will leave Cape Town as scheduled on Sunday, December 11 and continue to be tracked as normal until they reach a point in the Indian Ocean. From there, details about the boats’ location will be switched off to the public as they sail on to a Safe Haven Port. At that port, the boats will be loaded on to a ship protected by armed guards and featuring other security measures and transported to the northern Emirates.

“This solution means we still have the exciting race finish into Abu Dhabi as always planned, while steering clear of the most dangerous waters off the Eastern African corridor” – Knut Frostad

Once unloaded, Race Management will decide where exactly to re-start the race for a short competitive sprint into Abu Dhabi, which is hosting the event from December 31 to January 14. The sailors will not be on board the ship.

The scoring system has been modified, so that 80 per cent of the points of Leg 2 are based on the race between Cape Town and Safe Haven 1 and 20 percent for the short sprint into Abu Dhabi. For Leg 3, the operation will be reversed, with a short sprint from Abu Dhabi at the start of the leg. The boats will go back on a ship and be transported again to a Safe Haven Port. From there, they will sail on as normal to the Leg 3 finish in Sanya, China.

Race Director Jack Lloyd said: “It is unfortunate that we have to take these measures but we have followed professional advice every step of the way. It is still very much a race around the world and we believe we have found a fair points system that will help make it an exciting sprint into Abu Dhabi.

“The teams all understand the situation and have given us their full support.”

Lloyd and Knut Frostad, the CEO of the race, have worked closely with Dryad Maritime Intelligence plus government agencies including European Union Naval Force Somalia (EUNAVFOR), UK Maritime Trade Operations (UKMTO) and the Maritime Security Centre, Horn of Africa (MSCHOA) as well as the sport’s governing body, the International Sailing Federation (ISAF).

Frostad said safety had always been the highest priority in getting the teams through the areas worst affected by piracy.

“Piracy is a threat to the entire race and the measures we are taking are designed to keep the sailors, the shore crew and the boats as safe as possible, while preserving the competitive nature of the race,” Frostad said.

“This solution means we still have the exciting race finish into Abu Dhabi as always planned, while steering clear of the most dangerous waters off the Eastern African corridor.”

Piracy is a well-organised and highly lucrative business and it has expanded into a vast area off the coast of Somalia. According to figures from Dryad Maritime Intelligence,1,181 seafarers were kidnapped by pirates in 2010.

Dryad’s Graeme Gibbon Brooks said pirate operations in the eastern part of the Indian Ocean had been significantly restricted.

“This factor as well as very careful planning has reduced the probability of an encounter to as low as reasonably possible,” he said. “But while the probability is small, the impact of an attack when it happens is extremely high.”

Like Abu Dhabi, Sanya is hosting the race for the first time. The Chinese tourist city in Hainan Province will open its Race Village from February 4-19.

(c) Volvo Ocean Race and re-published with permission

BIMCO says the new contract, which will be drafted by a team of experts of shipowners, lawyers and underwriters, and with the assistance of the International Group of P&I Clubs, will require private security firms offering armed guards to follow the IMO Guidelines for owners on the used privately contracted armed security personnel on board ships (MSC Circular 1405).  BIMCO says that while much of the new contract will deal with the operational aspects of employing armed security guards, issues of liability and responsibility will be of prime importance.

BIMCO stress’ the importance that this new sector needs to be regulated and that harmonised terms need to be developed and agreed upon. The standard contract is going to be published as soon as possible, most likely within the next two months.

BIMCO is the largest of the international shipping associations representing ship-owners controlling around 65 percent of the world’s tonnage.

By Robert Young Pelton, Somalia Report

Somalia Report leaked the internal memo from Hillary Clinton directing all regional embassies to pitch the use of armed contractors on board ships. This is in line with and expands upon the UK’s approval of private security companies on just their ships. This is akin to legalizing band aids without actually curing the wounds that require them.

What also makes the U.S. stance unusual is that Clinton has reversed her aggressive election-era stance against the use of private security and become a behind-the-scenes supporter.

A November news conference in DC confirms that the United States is now officially supporting the use of private security companies aboard commercial vessels. Andrew J. Shapiro, Assistant Secretary, Bureau of Political-Military Affairs was assigned the task of communicating this reversal while addressing the Defense Trade Advisory Group (DTAG).

The simple approval of the use of deadly force and non-state actors has a number of implications. Foremost would be how do deal with the general agreement and public statements by large shipping companies that they view the responsibility of maritime security to be rooted in the flag carrier, navies and legitimate purveyors of deadly force, not the maritime industry. The industry and mariners do not see themselves as the law of the sea and only view the use of armed guards as a last resort.

The recent piracy trend in Somalia actually began in 2000 when UK trained armed Somali guards decided to hijack ships they were hired to protect. The most memorable incident was when Canadian company SomCan’s first contract in Puntland ended in 2005, when three of its own employees were arrested for hijacking a Thai fishing trawler and demanding $800,000 ransom. The current State Department may be a little short on historical briefings when it comes to Somalia.

Nations with naval power like the US and the UK only flag a tiny almost insignificant percentage of the world’s commercial fleets, making their stance more posturing than productive. The international nature of the maritime business where the largest number of mariners typically come from the poorest countries and flags of convenience being chosen more for their regulation loopholes than their military might are the de facto standard.

Pirates have been using western coast guard skills and criminal zeal to mine the insurance gap for almost a decade now. It might be the only $100M plus a year maritime business here millions of dollars are regularly paid tax free to men wearing flip flops and rusty AKs. If a hijack scenario was played out inside any western nation, a much different approach would be used. It is the insurance companies that demand the use of armed security guards on ships, not the maritime industry. And the new support of this industry based on “no armed ship grabbed by pirates” mantra does not excuse nations from defending their citizens and business interests overseas.

This direct endorsement of for-profit companies to do what navies were created to do is a seismic shift. All that is needed now is a letter of marque and a decent bounty on pirates to complete the scene. Something that mariners in the region might not be greatly opposed to but Somali fisherman might be opposed to.

There is also much work to do internationally to allow the unimpeded flow of vessels with weapons on board. Certain regions like the Suez controlled by Egypt specifically banned the presence of weapons and armed guards. Now they request a detailed list of weapons and personnel on board. Armed guards are confined to deploying from countries like Yemen or Oman who have a working relationship with security companies. But landing a ship in Mogadishu and offloading an armed crew would be violating the UN Arms Embargo. The world of user permits, arms control, general distrust of private security companies and concerns about the use of deadly force have led to like escort ships that keep the weapons off the ship but allow an armed presence.

Most legislation or industry rules are designed for land based security within a single country, making the transit of international waters and port hopping problematic for armed guards. This led to the white lie of security companies telling the customs brokers that they threw their weapons overboard when they docked with a client ship. The reality is they were kept in international waters.

The use of hired guns to fight pirates actually has historical roots in history but the political correctness of the times is sure to inflate the simple logical concept of trained ex-military quietly doing their job to the more cinematic treatment given security companies in Iraq. It should be the responsibility of the flag nation to defend the lives, hull and cargo of their ships complete with national assets providing the security but in a world of pragmatic choices it appears that hired guns will be riding shotgun on the world’s commercial fleets.

Andrew J. Shapiro remarks to the Defense Trade Advisory Group November 9, 2011

“Finally, I want to provide a brief update on our efforts to counter piracy off the Horn of Africa. This is another area where we are working very closely with industry.

Commercial shipping vessels transiting off the coast of Somalia are frequent targets for pirates. The lives of innocent seafarers have been lost and crews are often held hostage for many months in appalling conditions. The monetary total of ransoms demanded runs into hundreds of millions of dollars a year, with the total cost of piracy to the global economy estimated to be in the billions. With so much water to patrol it is difficult for international naval forces in the region to protect every commercial vessel. Working with industry, we recently established a national policy encouraging countries to allow commercial ships transiting high-risk waters to have armed security teams on board.

The reason for this is simple: to date no ship with an armed security team aboard has been successfully pirated. We believe that the expanded use of armed security teams by commercial vessels is a major reason why we have seen a decline in the number of successful pirate attacks this year. Therefore, we have recently demarched countries to permit the use of privately contracted armed security personnel on commercial vessels. And we are also working with industry and transit countries to make it less onerous for privately contracted security personnel to transit foreign ports with weapons intended for the self-defense of ships.

We have also shifted our efforts to focus on the pirate leaders and organizers ashore. The focus ashore is essential, as piracy has evolved into an organized transnational criminal enterprise conducted for profit. It is increasingly clear that the arrest and prosecution of pirates captured at sea – often the low-level operatives involved in piracy – is insufficient, on its own, to meet our longer term counter-piracy goals. To maintain the momentum and space for action gained by naval operations, we have begun an effort to identify ways to disrupt these criminal networks and to determine the means to dismantle their financial networks.” Via U.S. Dept. of State

There are some serious flaws in the thought process behind the State Department’s thinking. There is not a single mention of the impact of the thousands of mariners who have been held hostage, abused, beaten and killed. The State Dept seems to have made this decision based on financial rationale.

The U.S. also uses financial fiction to mask its decision. Piracy does not cost the shipping industry billions, the shipping industry makes millions from piracy by passing on the increased surcharges passed on to consumers. The insurance and security industry also makes money from mitigating the threat of piracy. There is nothing amoral about providing these necessary services but the ability of pirates to make millions from piracy is a direct result of the international nations doing little to nothing about ending piracy. Piracy is rooted in a handful of remote windblown ports and seaborne “action groups” monitored daily by the navies in the area. The regional governments of Puntland and Somalialand (along the other nations) have fat dossiers on the names, locations, cel phone numbers and associates of the pirates.

U.S. and UK support of the private security industry is simply a long delayed appointment with reality but still an abrogation of moral duty to protect mariners by ending piracy, not just frustrating it for profit.

© Somalia Report 2011. All rights reserved