LEGAL ASPECTS OF THE USE OF PRIVATE ARMED GUARDS Hellenic Mediterranean Panel 29 th March 2012

1. LEGAL ASPECTS OF THE USE OF PRIVATE ARMED GUARDSHellenic Mediterranean Panel 29th March 2012 Michele White General Counsel, INTERTANKO

2. Overview Armed guards a commercial necessity or slippery slope? • - 2009 – 117 attacks ; 46 successful hijacks – 39% • - 2011 – 151 attacks ; 25 successful hijacks – 17% • - 2012 – attacks up; success rate down again • - BMP and military intervention insufficient • - Wider use of private armed guards • - No ship with PAGs successfully hijacked • - Financial cost – in 2011 - USD 500 million? • - Who do you trust? Standards? - --Regulation/Accreditation? • - Standard contracts – GUARDCON?

3. Use of Armed Guards • Who are the PMSCs? • Private companies • Private individuals – ex military (Royal Marines; US Navy Seals; Yemeni coastguard?) • Governed by national not international laws • Not military • Not police • BUT – they may use lethal force

4. Do you need Armed Guards? • Risk Assessment • Current threat levels (MSCHOA, UKMTO, IMB, INTERTANKO Security Alerts) • Ship’s proposed route • Ship’s vulnerability – size, freeboard, manoeuvrability, BMP measures • Ship’s cargo • Risk of use of armed guards – misuse firearms, liability, escalation, compliance with national and international laws

5. What to look for? • Checklist • General • PMSC Background Information • Selection and Vetting of individuals • Training the team • Insurance cover for the PMSC • Size, Composition of the PCASP Team and their Equipment • Command and Control of Onboard Security Team • Management of Firearms and Ammunition from Embarkation to Disembarkation • Rules on the Use of Force • Reporting and Record Keeping • Familiarisation for Master and the crew

6. Use of Force • Are PMSC’s allowed : • To carry weapons? • To repel a piracy attack • To seize, arrest, detain and handover • To actively interdict pirates • Duty to render assistance • Relationship with the Master • Jurisdiction?

7. Carriage of Firearms • Mainly National/Domestic Laws • Law of the Flag of the ship • Port/coastal state • Types of solution • Regulations on embarkation/disembarkation • Licensing individuals or particular type of weapon • Export/end user licences • Soft law • IMO Guidelines • National guidelines • Industry guidelines

8. Repelling an attack? • Private armed guards can use force to: • Defend from an attack • Includes right to self defence/defence of others • May include use of lethal force in extreme • Private armed guards may not: • Delay, disrupt or seize a pirate ship • Governed by: • Domestic criminal law • Soft laws on PMSCs

9. Seize, arrest, detain, interdict? • Seizure on account of piracy • Warships/government ships only • Arrest, detain, handover? • SUA Convention • Interdict pirates • Warships/government ships only

10. Duty to Render Assistance? • Treaty obligations including: • International Convention on Search and Rescue • International Convention on Safety of life at Sea (SOLAS) • Duty of ships with PMSCS to render assistance to: • Other merchant vessels in distress • Alleged pirates in distress • BUT • not absolute obligation • assess danger to ship, crew and passengers

11. The Master and the PMSC • Who decides on use of force? • The master? • PMSC? • Considerations • Master ultimate responsibility for safety • Individual’s right to self defence • Expertise of PMSC • Contractual clauses

12. Jurisdiction - What if….? • Greek Flag Vessel • UK PSC and armed guards • Exchange of fire • Somali pirate killed • Ukrainian crew injured • Pollution incident • High seas? Territorial Waters? • Who decides?

13. Thank you