As the use of armed guards on ships has intensified, there has been one nagging little doubt…is shooting pirates really self-defence? It feels like it should be, but Courts can be contrary and there hasn’t really been much in the way of legal clarity until now. Finally a set of maritime Rules for the Use of Force (RUF) is set to be launched, and as it has been developed by some of the leading legal minds, it should hopefully provide a little piece of mind.
According to the author of the 100 Series Rules there is legal certainty underpinning the issue of self defence within the advanced draft of the “100 Series Rules for the use of force”, despite what others in the industry might fear.
Quadrant Chambers 3rd Six barrister David Hammond has said that he had submitted an agreed RUF framework document on behalf of representative industry stakeholders following a RUF Conference in London. This was undertaken with broad consensus and was subsequently accepted by the International Organization for Standardization (ISO) last month.
“I understand that the framework document has now been taken forward as a work item by ISO, though it will require further detailed and co-ordinated work across the industry to refine the Rules for eventual acceptance by the frontline users in close co-ordination with the comprehensive guidance provided within the likes of GUARDCON. There is, however, much which has been left unsaid in relation to the legal scrutiny that the draft 100 Series Rules went through and of which, industry commentators not involved in the most recent drafting, may not be aware,” he said.
In particular, legal review and due diligence was extensively applied, Mr Hammond explained.
“This comprised a criminal law review on the issue of self-defence at the international level by 9 Bedford Row International Chambers barristers Steven Kay QC and Peter Glenser. Further, experienced international criminal counsel, Gillian Higgins, attended the RUF conference held at Quadrant Chambers on 15th October and provided detailed advice of the law on self-defence as found internationally. There is legal certainty on this point and it has been deliberately reflected in the language used within the Rules, despite what others may say.”
While the RUF are yet to be published, Mr Hammond, with the permission of Steven Kay QC and Peter Glenser, sent Lloyd’s List their accompanying RUF legal advice which states: “Self-defence is a universal concept of law and an inherent right that permits a person to protect himself or to intervene to protect another.
“A person acts in lawful self-defence of himself or another when he has an honest belief that he or another person is under attack or imminently to be attacked so that it is necessary to defend himself or the other person by using no more force than is reasonably necessary to repel the attack or threatened attack.”
The advice said the use of force must be proportionate to the degree of danger faced.
“Once the attack or imminent threat of attack has been repelled, the use of force in self defence must cease,” the document said. “If a person exceeds the amount of force reasonably necessary to stop or prevent an attack they will be exposed to criminal responsibility for their conduct. Their superiors may also be at risk of being held criminally responsible for any failures in their supervision.”
The issue of use of force and jurisdiction has been a problematic one, not least shown in the legal wrangling following the shooting of two Indian fishermen by two Italian marines guarding the Enrica Lexie.
“If a crime is committed on board a ship, flag State laws apply but if the crime is within the jurisdiction of the coastal state the criminal jurisdiction of the coastal state may prevail,” the advice document explains.
“If a pirate is killed in the territorial waters of a state or port, the perpetrator of the killing may become subject to the criminal laws of the coastal state. This emphasises the need to ensure all acts and conduct that fall within the scope of the RUF comply with the 100 Series Rules that have as their aim the objective to ensure at all times, lawfulness.”
Mr Hammond welcomed full industry engagement in further development of his work for the eventual benefit of the wider maritime industry, though he acknowledged that “not all parties would necessarily agree with such an approach to codification of RUF”. However, Mr Hammond emphasised the responsibilities of the wider maritime community to embrace the use of RUF so as to safeguard their potential liabilities. To this end, an industry training conference is planned with the international criminal lawyers of 9 Bedford Row in conjunction with the Security Association for the Maritime Industry (SAMI), to ensure the correct standards in the discharge of security contracts through the correct use of RUF legal principles are made available to all.