A set of Rules for the Use of Force (RUF) under which armed guards will respond to violent acts against ships is currently under development – they will hopefully provide some legal reassurance to Masters and shipowners too…The contentious subject was the topic of debate at an international legal conference onboard the “HQS Wellington” in London which was arranged to provide industry with an open forum to discuss RUF. The event was organised by SAMI in concert with 9 Bedford Row International Chambers, and gave the team behind the rules the opportunity to dispel any myths and misconceptions around the feasibility of the rules and of the universal right to self-defence.
The conference provided feedback from leading lawyers and academics, and afforded key members of the shipping and maritime security industries a chance to openly exchange views and experiences.
Lawyers, working with industry stakeholders, including shipping organisations, flag states, and the private maritime security industry in the form of SAMI, have created key rules, in a document called the “100 Series Rules”.
The aim of these rules has been to provide some clarity and certainty as to when and what force can be used by armed guards when pirates attack. There have long been concerns, uncertainty and serious questions of liability over the arming of vessels and it has been consistently stressed that no maritime security action is justified in exceeding the use of minimum force – but the concept was not fully formed or codified.
This is one of the most pivotal issues facing the maritime security industry, and could ultimately affect the ability of shipping to use armed guards to defend their people and assets. When armed guards engage with attackers and defend a vessel it is increasingly likely that they will be interviewed post event by law enforcement agencies. Without a formalised set of rules it is difficult for operatives to say they did the “right thing”, and there is a danger that without an industry wide agreement then operatives could be imprisoned, Masters could be dragged into legal disputes, and shipowners could be liable and their insurance cover affected.
Without a clear, united vision of what could be considered acceptable, private maritime security companies (PMSCs) are required a detailed, graduated response plan to a pirate attack as part of its team’s operational procedures. This has led to concerns that as to how a specific flag State may assess their acceptability, and of how they may be interpreted in a court of law if something does go wrong.
Much of the RUF work rests on the concept that if an individual believes their life is under immediate threat they should be reassured that if they have to squeeze the trigger they can do so within an established set of rules. The most basic premise of the rules is that they do not provide any form of immunity from prosecution – but they provide some form of defence of actions taken if things do go wrong.
The author of the 100 Series Rules, Barrister-at-Law David Hammond of 9 Bedford Row International Chambers, claims that despite lots of good guidance available on using force, the lack of rules is hugely significant. Where there are no rules we can perhaps expect uncertainty, and there is clearly no place for doubt, ambiguity and indecision when lives are at risk – whether they be seafarers, guards or pirates.
The Rules have passed through rigorous legal scrutiny, and Steven Kay QC, of 9 Bedford Row has been involved in assessing the objectivity of the “reasonable and necessary” test for use of force in lawful self-defence. According to Kay, international law clearly provides an objective test as to the use of force, it has to be reasonable, necessary and proportionate – the most common theme that runs through all of the international examples, and something which is at the heart of the development of the 100 Series RUF.
Another extremely serious issue facing shipping has been the concept of “Joint Criminal Enterprise” – many a Master and shipowner has been concerned about this concept, whereby they can be implicated in cases where armed security has acted excessively. Kay stressed that parties will only be jointly commonly liable if there has been a joint criminal enterprise, and so the Master must have intentions to act wrongly, however the guards exceed the rules without the compliance of the Master that is an element of defence and formal RUF should provide Officers with reassurance that they can look to the rules to help keep them on the right side of the law.
This could indeed be reassuring to the Master and owner, and clearly suggest that any lack of rules could result in Master being more vulnerable to prosecution – “were they in it together?” could be a question asked, and the answers could perhaps be ambiguous.
Responsibility does not however solely rest on the Master alone. Liability can also extend outwards across an organisation in the guise of the UK Corporate Manslaughter and Corporate Homicide Act 2008. Without some form of RUF it would almost be impossible for senior management to be sure that armed guarding activities are intended to be performed to their satisfaction and with due regard for the relative duty of care by the corporate body.
It remains clear that there are yet no clear answers, but whether from a legal, operational or academic perspective there was a strong impression that having RUF helps all stakeholders to stay within the law, but of course there are no guarantees.
The move towards standard RUF has been based on strong industry consensus prompted by what Stephen Askins, of the law firm Ince & Co sees as a “gentle militarisation of shipping over past 2 years”. The work to ensure that all partners are satisfied is still ongoing. This is of course a highly complex and contentious issue – as such, moving the shipping and security industries together in one united view was never going to be straightforward.
To date, there is no legal precedence to qualify the effectiveness of model RUF. There have not yet been any test cases or incidents that have been related back to the use of a model set of RUF. In this respect, the 100 Series rules is a first for the industry. It is aimed at safeguarding both the seafarer and the business for which they work and unless an attempt to deliver a workable set of rules to the industry is followed through, those who have engaged will remain complicit in failing to raise standards. It will also otherwise play into the hands of those who wish to destabilise such a project for their own commercial advantages and gains.
The work towards producing the 100 Series Rules is progressing and more details can be found at the dedicated RUF resource, http://goo.gl/y3I8Z