Page 14: of Maritime Logistics Professional Magazine (Q1 2012)

On 5 January, the Foreign Affairs Committee (?FAC?) published a wide-ranging report into piracy off Somalia with its conclusions re ß ecting the international and commercial issues that arise. It remains to be seen how the UK government will respond, although they have already agreed to allow armed guards on UK- ß agged vessels and have issued guidelines setting on the certi Þ cation process that maritime security companies must follow. In this article, we consider the likely impact of the recommendations made. In terms of the overall problem the FAC recognises that the ability of the international community to build a stable Somalia state is extremely limited. Although peace and stability are clearly important goals, Somalia is experiencing widespread famine and, despite the international and domestic efforts over the past decade, it is a still a miserably corrupt and divided country. The FAC report promotes continued support of the Transitional Federal Government and one can only hope that the richer nations ?enhance the sensible diplomacy and the kind of patient engagement that might help Somalia achieve peace? (?The Price of Failure? by J. Norris and B. Bruton January 30 2012). A key aspiration is a greater willingness to prosecute those engaged in piracy and to avoid falling back on the ?catch and release? policy which sees would-be pirates sent back to Somalia. The FAC noted that the key challenge lay in obtaining the necessary evidence. Relying on the process of local courts is one thing but there is the real challenge in getting crew members to appear in Court. Even if crew members are willing, the timetabling and last minute adjournments of hearings make it impossible for a crew member who may well be at sea for another owner to commit to the process. Imaginative solutions ? such as the use of video links to give evidence ? need to be explored, if this is to work. The UK must be prepared to prosecute pirates in the UK where other local courts cannot or will not take them. The FAC?s recommendations also go to a number of speci Þ c commercial issues and, in particular, to the use of armed guards and the payment of ransoms.Armed guardsThe issue of armed guards still divides opinion, but their acceptanceis now more widespread and the UK?s change to a cautious acceptance is supported by the FAC. Indeed guidelines have already been provided by the Home Of Þ ce (?HO?). However, the HO?s attempt to clarify the situation may give rise to real practical dif Þ culties for UK-registered ship-owners who want to make use of armed guards, especially where they seek to do so at short notice. All private security companies (?PSCs?) who wish to put teams of armed guards on UK-ß agged ships must apply for a section 5 certi Þ cate under the Fire Arms Act 1968. As part of this process, the ship owner must also submit a counter-piracy plan and a signed statement that the detailed guidance issued by the Department for Transport (?DfT?) on the use of armed guards has been complied with. The details of each guard will also have to be submitted to the HO, and if the guard ceases to be ?employed? during the validity of the section 5 certi Þ cate, then the HO must be informed again. In practical terms, it is likely that any such applications by a PSC could take up to three months, which is likely to put UK- ß agged vessels in a short-term quandary whilst the certiÞ cation process catches up with their on-going operating schedule.It should also be noted that the guidelines only apply to the high-risk areas associated with Somali pirates and, signiÞ cantly, do not apply in the areas such as off the Gulf of Guinea where similar problems are emerging. Having weapons on board must also mean that more guidance is needed on the use of lethal force and self-defence in a hijacking situation. It is a strange position that the UK probably has more regulation and accountability for the use of armed police than for civilian armed guards in what is a law enforcement role. The FAC recognises that key questions arise over the issue of self-defence and the use of lethal force in the context of the protection of a vessel and crew from a hijacking.Master?s Authority and Self-Defense The DfT Guidance stipulates that any contract for the use ofarmed guards must include a ?clearly de Þ ned command and control structure?. The interim guidelines suggest that the ?minimum force necessary? should be used to prevent the illegal boarding of a vessel and to protect the lives on-board. The guidelines also state that the Rules for the use of Force (?RUF?) should provide for a ?graduated response, each stage of which is considered to be reasonable and proportionate to the force being used by the attackers?. In relation to the need for individual security guards to make decisions, the guidelines continue that ?neither the Master nor the security team leader can command a member of security team against that person?s own judgment to use lethal force or not to use legal force?. This is signi Þ cant and appears at Þ rst reading to cut across %\6WHSKHQ$VNLQV8.3HUVSHFWLYHRQ 3LUDF\RII6RPDOLD Insights14 I Maritime Professional I1Q 2012