MSCs a viable alternative?

 

By: Walter P. Verstrepen *

“U.S. Admiral Mark Fitzgerald says commercial ships in the Gulf of Aden and Indian Ocean should carry armed guards to help defend against Somali pirates.

“Commercial ships traversing the Gulf of Aden and the Indian Ocean should be armed to defend themselves against marauding Somali pirates because international warships can’t do the whole job and won’t be there forever.”

“The area is enormous and we just do not have enough assets to cover every place in the Indian Ocean,” said Fitzgerald, who commands U.S. Naval Forces in Europe and Africa.

While trying to open a corridor through the Gulf of Aden, some of the pirates have been forced into the Indian Ocean as far away as the Seychelles.

…

Those security detachments that are on some of the large commercial ships have been very effective.” ¹

The United States of America started to use Vessel Protection Detachments ² again during the Iraq War subsequent to the attack of the DDG 67 USS Cole by sending their Mobile Security Detachments or Embarked Security Teams to protect oil platforms and Military Sealift Command (MSC) ships as from March 2003.³

Piracy and armed robbery in and around the Gulf of Aden and the Indian Ocean also fueled the need for having VPDs on board of vulnerable ships like e.g. ships carrying goods for the World Food Program (WFP)⁴ and African Union Mission in Somalia (AMISOM),⁵ fishing vessels or predominantly vessels with a low speed and / or freeboard.⁶ The European Union is conducting since December 8, 2008 a military operation to protect WFP shipping and other vulnerable shipping and to deter, prevent and repress acts of piracy and armed robbery off the Somali coast.⁷ This military operation, named European Union Naval Force Somalia – Operation ATALANTA,⁸ was launched in support of Resolutions 1814, 1816, 1838 and 1846, which were adopted in 2008 by the United Nations Security Council (UNSC).⁹

UNSC Resolution 1838 (2008) commended in particular “the contribution made by some States since November 2007 to protect the … (“WFP”) maritime convoys, and, the establishment by the European Union of a coordination unit with the task of supporting the surveillance and protection activities carried out by some member States of the European Union off the coast of Somalia, …”.¹⁰ The European Council referred to the initiatives of some EU Member States, which provide protection to the WFP vessels¹¹ and which was reconfirmed by UNSC Resolution 1846 (2008).¹²

The European Council determined EUNAVFOR’s mission “in order to contribute to: — the protection of vessels of the WFP delivering food aid to displaced persons in Somalia, in accordance with the mandate laid down in UNSC Resolution 1814 (2008), — the protection of vulnerable vessels cruising off the Somali coast, and the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, in accordance with the mandate laid down in UNSC Resolution 1816 (2008)”.¹³

The Mandate of EUNAVFOR – Operation Atalanta also determined the legal basis for the use of VPDs on board of commercial vessels and expressly provided that “Atalanta shall, as far as available capabilities allow:(a) provide protection to vessels chartered by the WFP, including by means of the presence on board those vessels of armed units of Atalanta, in particular when cruising in Somali territorial waters; (b) provide protection, based on a case-by-case evaluation of needs, to merchant vessels cruising in the areas where it is deployed; …”.¹⁴

The use of military VPDs was confirmed and accepted in the Agreements between the European Union and the Somali Republic ¹⁵ and the European Union and the Republic of Djibouti.¹⁶

The UNSC and the European Council support the use of military VPDs on board of commercial vessels.

The International Maritime Organization¹⁷ has however a neutral opinion versus the use of military VPDs on board of commercial vessels and leaves it up to the Flag State and the ship owners, managers or operators to make use hereof.¹⁸ Nevertheless the IMO underlines the need for clarity to be rendered by the Flag States regarding the use of such VPDs on board of the vessels flying their flag. The IMO draws indeed the attention to e.g. the lack of legislation on the use of VPDs on board of commercial vessels, the presence and use of arms on board by the VPDs, the circumstances according to which the use of VPDs is permitted, the use of force by the VPDs, command authority on board and some other issues which would be better regulated by law instead of contractually agreed between the Flag State and the ship owners, managers or operators. Flag States as well as International Authorities like the European Union should provide here legal clarity, certainty and transparency for the benefit of all concerned parties in the maritime industry, as it is in many Flag States and Coastal States forbidden to have and use arms on board let alone to have several assault rifles and heavy caliber rifles and machine guns on board.

Although the United Nations Convention on the law of the sea of December 10, 1982 endeavors the peaceful use of the seas aggressions at sea will continue to take place against warships and commercial vessels and their crews and / or passengers. ¹⁹

Arming a crew is for obvious various legal and safety reasons not a sound option to consider for the interests of the crew, ship, cargo and environment. Seafarers are in principal not trained let alone hired and meant to use firearms against potential aggressors. Also the IMO takes a very clear position in respect hereof and does urge Flag States to discourage the carrying and use of firearms by the crew on board.²⁰ A similar point of view is defended by the International Transport Workers’ Federation (ITF).²¹

Peculiar in the argumentation of the IMO and ITF as well as some other international organizations and Flag States is however that the mere presence and use of arms or firearms will provoke an escalation of violence. This argument is somewhat conflicting with the insofar invaluable and successful use of military VPDs, supported by the UNSC and European Council. It is true that any use of firearms by military VPDs or private security personnel can provoke a possible escalation of violence and other risks. However it is the manner how those firearms are used, which will determine this risk of escalation.

The presence and use of arms or firearms on board of commercial vessels need undoubtedly to be regulated let alone controlled by Flag States. But by discouraging the presence and use thereof by properly trained VPDs one could actually wonder whether the increased risk of eventually paying of ransoms would always be a far better solution.

However one may not forget that this money will obviously also allow the pirates to purchase better weaponry and vessels and to be better equipped and prepared to attack commercial vessels in their ever spreading area of operations. The spiral of escalating force is therefore also stimulated by the increasing financial resources of the pirate groups, as the latter have a growing interest in protecting their highly lucrative trade.

Paying ransom should therefore be regarded as the last resort to safeguard predominantly the interests of the crew.

Flag States as well as the maritime industry should therefore reach together a pragmatical solution in order to resolve the existing dilemma between the use of proportional force to repel a pirate attack and the surrendering and paying ransom.

Various major international maritime organizations stress the value and the need to implement the recommendations of the industry Best Management Practices (BMP) together with all relevant Self Protective Measures, (SPM), utilization of all reporting requirements either voluntary or mandatory, as well as the need to register with the Maritime Security Centre (Horn of Africa) (MSCHOA), the coordination centre run by EUNAVFOR.

Notwithstanding those recommendations and reminders from the maritime industry and Flag States to the ship owners, managers, operators and masters about 20% of the maritime traffic in that region does not register with MSCHOA or report to U.K. Maritime Trade Operations (UKMTO) – Dubai. Predominantly the unregistered and unreported vessels are according to MSCHOA the majority of the successfully attacked and hijacked vessels. Among those 20% of the shadow vessels are presumably also commercial vessels with secretly armed security personnel on board.

The majority of Flag States and major international organizations like e.g. the IMO,²² Intertanko, BIMCO,²³ Oil Companies International Marine Forum (OCIMF)²⁴ and ITF²⁵ are for obvious reasons not in favor of private security companies or Maritime Security Companies.

Certain Private Security Companies mortgaged the reputation of their particular industry and counterparts during their deployment in Iraq and Afghanistan.

The use of MSCs is a matter which has to be addressed and resolved between the Flag State and ship owners, operators and companies. Flag , Port and Coastal States should not only properly legislate the business of MSCs, the certification criteria for MSCs’ service and equipment providers, the vetting, selection and training of personnel, mandatory liability insurance, etc. But it should also, as equally for the VPDs, provide proper legislation on e.g. the use of MSCs on board of commercial vessels, the presence and use of arms on board by the MSCs, the circumstances according to which the use of MSCs is permitted, the use and rules of force by the MSCs, command authority on board, accountability for the use of force, full transparency with the authorities of the Flag State and the State of the MSC’s incorporation, the conditions under which subcontracting could be permissible, to impose operational legal support during the use of force.²⁶

Besides the required legal clarity of the national policy with respect to the carriage of armed security personnel the maritime industry needs also to be certain about the proper legal framework between Flag, Port and Coastal States on the presence and use of armed MSCs on board of commercial vessels in order to avoid the secretly operating MSCs.

The MSCs should for the protection of their own interests better set up an international professional body, which is self regulating and the sole and formally recognized spokesperson with all Flag, Port and Coastal States, Regional and International Authorities and the maritime industry.

Its members as well as their security personnel should be stringently, impartially and objectively vetted, preferably in full transparency and in cooperation with the competent authorities. This body should create a directory of MSCs around the globe to enable any members of the maritime industry or a Flag State to select reputable providers of maritime security and the services they can competently provide scrutinized by this body in full transparency with the competent authorities.

Provided the Flag, Port and Coastal States would put proper legislation in place for the use of MSCs and such an international professional body of the MSCs would be created, then the MSCs could become a viable alternative to assist and / or replace valuable naval assets in the current and future maritime theatres of operation.

The Council of Europe Parlementary Assembly encourages Council of Europe Member States to regulate the hiring of private security firms by shipping companies. ²⁷

Taking into account the budgetary difficulties of many States and their pressure to downsize the naval presence, some Flag States could make a better allocation of its reduced naval resources by putting the appropriate legislation in place for VPDs and MSCs and by creating a legal and operational structure to supervise the MSCs’ operations, given the protection of commercial vessels by highly trained Protection Detachments remains insofar the best solution to repel or defend against piracy attacks as long the roots of the piracy problem are not resolved on Somali territory.²⁸

When the Flag States and the maritime industry would join forces by creating (legal) clarity and obtaining an agreement about the use of VPDs and MSCs according to well specific conditions, not only the aforementioned parties but also any end consumer worldwide would win.