On February 15, 2012 in the wee hours of the evening, about 30 miles off the India coastal town of Kerala[1], 6 active duty Italian Navy personnel shot and killed two Indian fisherman while the Navy detachment was embarked on the Enrica Lexie (IMO # 9489297) and registered in Italy.  Italy has since apologized for the mistaken identity and subsequent killings, but as of this reporting, the details may be even closer to the Indian coast line from reports ranging from 8-14 miles from the coast line.[2]

 

According to The Hindu, "The [fishing] boat was riddled with a shower of bullets... The firing lasted for about two minutes."[3]

 

IBN Live reports "[the] Enrica didn't report the shooting incident to maritime authorities for almost three hours. Sources say that the Incident happened at 5 pm on Wednesday but Enrica told the Coast Guard only around 7 pm. Sources add that Enrica continued for 70 kms on its voyage to Egypt without reporting incident."[4]

 

As the facts are still being sorted out, let's examine what we know and what the implications may be. 

 

Since January 2012, there have been 5 vessels reportedly fired on by Somali pirates: the Free Goddes, hijacked on Feb 7, 2012 about 300 miles off the coast of Oman; On Jan 12 the Happy Bird and Valdarno, both were fired upon in roughly the same location and on Jan 12 off the coast of Mogadishu, the vessel Patino was fired upon; and prior to these, on Jan 4, 2012 the bulk carrier Delfa was fired upon in the Gulf of Aden International Transit Corridor (ITC).  That's not a lot of activity from the pirates, and really pretty centralized around the Socotra Island and 300 or so miles off the coast of Salalah, Oman.

 

The last report of pirate activity near the Indian EEZ[5] occurred May 5, 2011 when the cargo ship Full City was boarded by pirates approximately 415NM west of Goa, India.

 

Certainly the waters in the Indian Ocean are riddled dangerous with pirates - but 30 miles from the Indian coastline?  To put this in perspective, Hyannis (A), Massachusetts on Cape Cod is about 30 miles from Nantucket (B), this is akin to a fisherman leaving the port of Hyannis and by the time he got to Nantucket, being riddled with bullets from a non-US flag ship with active duty Naval forces doing the shooting.  Some may go so far as to call that an act of war...

 

 

 

Casus belli?

 

In the world of international armed militaries working close to or with other sovereign nations, almost always a treaty or "Status of Forces Agreement" (SOFA) is in place to govern how, when and where foreign militaries will act in a sovereign nation.  They also draft up what will happen if an incident occurs or they may grant certain immunity to the troops.  As far as we can tell, India has no SOFA with Italy[6] nor any Visiting Forces Agreement (VFA) and therefore no immunity can be extended to the military persons responsible for the deaths, which are being treated in India as possible murders.

 

Where does this leave the Italian Navy?  Not too far from the Blackwater private contractors responsible for the deaths of 14 Iraqi nationals at Nisour Square September 2007.[7]  The Italian Navy personnel are claiming self-defense whereby their warning shots were ignored by the fishing vessel and as such, their response was to fire on the fishing vessel.

 

Italian Ambassador to India Giacomo Sanfelice di Monteforte was quoted as saying 'The Italian navy followed the international protocol as it was approached by a vessel which did not stop when warning flares were fired.'[8]

But what is the international protocol he is referring to?  With no SOFA or VFA in place, Amb. Monteforte must referencing the inherent right to self defense as his "international protocol," as there are no international protocols for ship defense.

 

Inherent Right to Self Defense -"retreat to the wall"

 

The right to self-preservation is an inherent right embraced by all nations.  Most countries define rules of law which allow for the defense of sovereignty of body.  Most laws require an individual to do all they can to avoid confrontation, and adopt a "retreat to the wall" doctrine, which basically means a person must attempt to distance themselves from the probable attacker until the person has withdrawn so far as their back is now against the wall and can no longer retreat.  Once against the wall, a person who feels threatened may utilize that force which will stop the attacker from threatening or harming the victim. 

 

Many of these laws adopt lower thresholds for a victim to retreat when the victim is in a home, often referred to as the "Castle Doctrine."

 

These self-defense laws also take into account the utilization of proper amount of force.  Suffice to say, you cannot "bring a gun to a pillow fight."   Only slightly more force than the attacker is using may be used to cease the from the attack. 

 

In 2009 Nexus counsel authored a paper on the use of force on the high-seas.  With the significant rise of piracy in the Horn of Africa and Gulf of Aden (GOA), we looked at existing laws on self-defense and use of force polices and models.  The paper noted that a mariner does not give up any rights to self-preservation while on the high-seas and further that the vessel is both a "castle" as well as the "wall" which allows no further room for retreat. 

 

With that, there is a right for individuals on the high-seas who maintain innocent passage to be afforded the rights of self-preservation and self-defense.  The exercising of the right of self-defense must be within the scope of the totality of the circumstances of the events which caused the individual to exert self-defense.  This is usually referred to as "use of force."

 

Use of Force v. Rules of Engagement

 

Military forces are governed by Rules of Engagement (ROE's) which outline what force may be used in certain situations.  They usually define enemy combatants and allow for great leeway for engaging threats in a combat environment.  Civilian law enforcement is usually governance by Use of Force (UOF) which takes into account greater notions pertaining to the allowing for retreat and de-escalation of force.  ROE's may be something like "if any of the enemy breach the perimeter fence line, open fire."  The soldier need not ascertain if the person breaching the perimeter fence is actually an "enemy," merely the breach itself is enough for the solider to engage.  These perimeters are usually established at the maxim effective range of the defensive forces.

 

Use of force is a concept which is dynamic and changes with each piece of information the applier of the force must process.  Use of force also closes the distance from maximum range to positive identification (PID) range.  Basically, when not in a combat zone, one must be able to positively identify that a threat is in fact a threat. 

 

The UOF model has a spectrum or levels of force which can be applied and generally it is adopted that there are 5 levels:

 

1.  Physical Presence

2.  Verbal Warnings

3.  Physical Confrontation

4.  Non-Lethal Force

5.  Deadly Force

 

In the United States, in order to use the highest level of force, Deadly Force, a victim must positively identify that a threat has the intent, capability and range to cause death or serious bodily harm to the victim or community. 

 

In our current operations of anti-piracy in the GOA and Indian Ocean, this means my teams must see that the pirate has a weapon, that weapon must be pointed at the ship and that pirate must be in the range of the weapon.  If the pirate levels an RPG on his shoulder 1500 meters from our ship and makes it known his intent to shoot it at our ship, maybe with a taunt vie VHF radio, our teams still cannot engage in deadly force because that RPG has a maxim range of 927m before it self-destructs.

 

Moreover, a pirate skiff with 10 Somali pirates in their skiff, 100m from our ship with a boat full of RPG's and AK-47s but no one holding these weapons or pointing them at the ships also CANNOT BE ENGAGED with deadly force.  That there are weapons present, within range of their effectiveness does not matter because there is no intent to use these weapons to cause death or serious bodily harm (i.e., itf the weapons aren't in the pirates hands, the weapons are inert per se, and our teams can not qualify the pirates' intent to use weapons they do not hold).  Those weapons would have to be held or aimed at our ship or team to use deadly force.

 

Now we may use all lesser means, including flares, horns, even warning shots to deter the pirates from coming closer, but we can't justify using deadly force on the pirates 100m from our ship when they possess weapons, but do no exhibit the desire to use them.  This is the crux for identifying a highly trained security operator from a basic military troop. 

 

There is the potential for a security team to be able to articulate that the threat they perceived was that of a maritime terrorist, and that the vessel and crew exhibited the profile of a Waterborne Improvised Explosive Device (WBIED), much like the explosive laden skiff used against the USS Cole in Yemen and most probably used against the M. Star in the Straits of Hormuz.  This clearly isn't the justification the Italians used for shooting the Indian fishermen.[9]

 

Security teams don't have blanket rules which allow our teams to shoot anyone who gets too close, which many military forces do when they are operating within the scope of a SOFA.  Our teams of private citizens have to Positively Identify (PID) a threat which is within range and intends to do serious bodily harm before they may utilize deadly force.

 

The US Coast Guard has a great breakdown on the guidance of the use of force call Port Security Advisory 03-09 and can be found here (http://www.marad.dot.gov/documents/Port_Security_Advisory_3-09_Self_Defense.pdf).

 

Checks and Balance for PCASP

 

In the United States, when a military team is embarked on a civilian vessel carrying military cargo, the team does not fall under the command of the ship Master, nor are the actions of the military team attributable to the Master.  The Master or shipping company will not receive resumes or certificates of completion for any of the military persons embarked, rather the shipping company is told the team will embark and the company wanting to transit the cargo complies.  The responsibility is on the military to ensure that the persons embarking are of sound mind, properly trained and capable of making life and death decisions.

 

For a PCASP to embarked on a US, Marshal Islands or a number of other flag-state ships, that PCASP must be legally registered, posses legal rights or licenses to obtain firearms, they must be able to export those firearms to the area of operations, they must ensure that those who utilize those firearms are properly trained and vetted to posses firearms, and they must meet the recent BIMCO and P&I Club standards for the employment of PCASP on commercial vessels.

 

In additional to being able to embark the vetted team with weapons, and posse the proper insurances to satisfy the BIMCO and P&I standards, the security firm is responsible to ensure anywhere those weapons and security persons transit are within the scope of the legal authorities from the territorial waters they may be in.

 

There are a number of layers a properly vetted security firm must satisfy to perform PCASP roles on commercial vessels.  Certainly there are those firms which do not comply, and certainly those shipping lines who will gladly hire these unvetted firms at lower rates, but the 20 or so security firms performing anti-piracy operations for the major shipping lines are well vetted, insured and trained to be able to perform at the highest standards needed for these operations.  But what if a security firm gets into a "bad shoot?"

 

We PCASPs are legally responsible to every port-state control (any country our teams may be in at the time of an incident), we are legally responsible to the flag-state of the ship we are on, we are also legally responsible to the country of our origin. 

 

We PCASPs are also covered by some very high limits from our underwriters.  Most well vetted PCASPs carry millions in liability coverage.  These insurance limits extend to actions taken by the PCASPs. 

 

Implications

 

When I started this paper a on February 16, I was sure that India was going to charge Latorre Massimiliano and Salvatore Girone with murder[10], however it looks now like the old diplomatic tool of "reciprocity" will prevent this from happening. 

 

Under the law of the sea (UNCLOS), specifically article 73 " Enforcement of laws and regulations of the coastal State[11]" the right of India to arrest and charge the Italian marines for actions within the EEZ are within India's right.  Further UNCLOS defines criminal jurisdiction on a foreign ship in Article 27[12] noting that:

Criminal jurisdiction on board a foreign ship

1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:

(a) if the consequences of the crime extend to the coastal State;

(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;

What I thought would be a section on the regulation focusing on the lack of regulation and authorization of military personal embarked on commercial vessels most likely will turn into a diplomatic bargaining chip which India sees to valuable pass over.  

 

In India's defense, India has really taken a full-court press approach against the Somali pirates.  In early 2011, India arrested about 120 pirates, and in March 2011 arrested 61 pirates in one incident after the Somali pirates fired upon an India patrol vessel from their mother-ship in the Indian Ocean.[13]  These arrests lead the Somali pirates to keep Indian mariners after the ransom for the ship they were on, the Asphalt Venture, was paid.[14]

 

What I thought would be a decisive and harsh example for the world pertaining to at the very least, excessive force with more likely manslaughter or even murder charges, may go the way of the diplomatic channels of reciprocity where India will be give great leeway in future diplomatic interactions with Italy.

 

What I do think we will see from this incident is greater pressure placed on counties with military teams embarked on civilian merchant ships to give concessions if not outright SOFA with countries located in "high-risk waters."  These concessions will most likely be too high for many countries to make and as such, fewer military teams will be cleared to embark on civilian ships. 

 

Just as incidents like the arrest of 5 western security members in Mozambique in September 2011[15],[16] led to sweeping reform in the private maritime security sector from new insurance standards to BIMCO standardization of maritime security contracts and selection[17], so too will the Enrica Lexie incident lead to greater enforcement of unauthorized military personnel used in territorial waters.

 

Conclusion

 

With the increased focus on the level of vetting required of a properly insured and qualified PCASP to perform armed security functions on civilian merchant vessels, the fact that PCASP will always fall under a Masters authority while on ship, and that a properly vetted PCASP will allow the shipping firm to see the qualification and training of any PCASP member placed on the shipping firms ships, a private, civilian, commercial shipping company will have greater control in the selection, vetting and employment of an PCASP operating on their vessels.

 

A properly vetted PCASP will be well versed in use of force models, understand escalation and de-escalation of force, and understand the all the laws governing the employment of armed security services in territorial and international waters.

 

PCASP's will carry significantly insurance coverage's to both protect and indemnify the shipping firm from any damages caused by the PCASP's actions. 

 

Though an embarked military detachment may be free-of-charge in some cases and though on the surface may seem to afford greater coverage to the shipping firm, as Status of Forces Agreements will now come to light pertaining to these military detachments, shipping firms are going to find it much easier to maintain commercial operations without deviations or detainments by using properly vetted and insuraed PCASP's.

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