If you have been paying any attention at all this year to the piracy situation off Somalia you may remember that the number of pirate attacks against commercial shipping is down. And while the exact causes have yet to be established with certainty, just about everyone who follows this believes, without question, that the presence of private maritime security teams is certainly a contributing factor.
So this is unquestionably a good thing for the private security industry -- indisputable proof of their contribution to maritime security, in a manner similar to when Blackwater protected State Department personnel in Iraq, i.e., never having lost a client to an attack.
So people should have less qualms about the use of PSC at sea, correct? Well, not quite, according to the article "Private Security and Armed Military Guards: Minimising State Liability in the Fight Against Maritime Piracy" by R Graham Caldwell published this month in the RUSI Journal. RUSI is the Royal United Services Institute in the United Kingdom.
This is because it is the difference between operating in a combat zone on the one hand and a lawless environment on the other. One big difference between the land and sea environments is:
"When used in armed conflict, companies acting on behalf of the state enjoy certain immunities from liability, although they are still required to adhere to the minimum standard of humanitarian rights. Conversely, the maritime security sector's domain is not considered to be 'armed conflict' but rather 'law enforcement' and accordingly does not attract the same protection from civil and criminal prosecution."
In short, "armed guards aboard merchant vessels, providing law-enforcement functions, are liable 'at large' for criminal or negligent injury or death of civilians." So, unlike the years when foreign PSC operated in Iraq there won't be any immunity for maritime armed guards if they kill civilians, even if they are pirates.
And it is not just private shipping companies who have to worry about legal liability. According to Caldwell:
"where a state uses its own military forces aboard merchant vessels, or contracts PSCs to act on its behalf, that state will be unable to avoid liability to those injured, or the families of those killed, as a result of criminal, or indeed negligent, acts or omissions of the armed personnel."
But, ironically and somewhat perilously, what is bad news for PSC is also good news for PSC. To understand why, you need to look back at the case of the Enrica Lexie. The Lexie was an Italian bulk carrier sailing off the coast of Kerala, India on Feb. 15 when an unidentified vessel approached. The Italian Marines serving as guards aboard the Lexie presumably considered the second vessel to be a potential threat, and although accounts differ, in the end two Indian fishermen (named as Valentine and Ajesh Pink) were shot and killed.
According to Caldwell:
"Since the incident, the Italian government has paid compensation reported to be 10 million rupees ($184,553 USD) to the families of the two dead seafarers."
The reason for this is that the owner of the Italian merchant vessel used serving Italian marines, as opposed to PSCs. As stated above, the use of military personnel in this role at sea will not invoke any immunity ... thereby leaving the Italian taxpayer to foot the bill."
"This is therefore a good example of the pitfalls of governments using their own military personnel. In most such cases, not only will there likely be a very embarrassing criminal trial, but expensive civil liabilities to pay, and diplomatic incidents to be avoided. The use of PSCs can, therefore, where properly provided for and regulated, offer a degree of separation that protects taxpayers from financial liability, and governments from unpleasant incidents with other states.
This is not to suggest that governments should engage in exercises that simply 'let them off the hook' with litigants and cases of criminal wrongdoing or negligence. Nonetheless, if properly managed, a system that allows PSCs to protect seafarers and assets in piracy hotspots whilst protecting the public purse need be neither unachievable nor morally bankrupt."
This is why many states are now taking the first steps toward regulating the use of armed guards.
Caldwell recognizes that since the Geneva Convention recognizes the need to take reasonable
steps to protect non-combatants, and nobody can guarantee that loss of innocent life can be completely avoided if the use of maritime private security guards becomes a widespread, standard industry practice some system of compensation may be needed. He recognized the difficulties that PSC face if attacked but that must be balanced "with robust remedies against negligent providers."
From the PSC point of view Caldwell's argument may seem an invitation to be the perpetual fall guy. But, if we face up to the reality of past experience in Iraq and Afghanistan, that's nothing new. One can only hope that the quality and training of future maritime PSC is up to the challenge.