Private Anti-Piracy Navies: How Warships for Hire are Changing Maritime Security

This is an article in our first “Non Navies” Series.

By Emil Maine

I recently sat down with John-Clark Levin, coauthor of Private Anti-Piracy Navies: How Warships for Hire are Changing Maritime Security. For those of you interested in the subject of private maritime security, Levin’s book “is intended to provide a contextualized understanding of the historical origins, current state, and future prospects of this fast-changing sector.” Rather than simply rehash Joseph Hammond’s earlier interview of Levin, I decided to take the discussion in a slightly different direction.

EM: Some experts have argued that pirates off West Africa benefit from stable governments that provide easy access to corrupt officials and a steady stream of valuable targets. How does this complicate or undermine the effectiveness of private security contractors?

JCL: This undermines the effectiveness of private security contractors, because West African governments are generally quite hostile to foreign maritime security companies. Armed guards or escort vessels are prohibited from entering territorial waters, which introduces unnecessary hassle and danger. Merchant ships carrying armed security must stop at the twelve-mile limit and either lighter the guards off onto another vessel, or dispose of their arms. This has often forced shipping companies to hire local paramilitary groups for protection in territorial waters. This is a very bad thing, because it takes security out of the hands forces that are internationally accountable, and entrusts it to shadowy and unregulated entities. But because the arrangement is lining the pockets of a corrupt few, there’s political incentive to keep it going.

EM: Do you think that with the increasing number of prisons in Somalia, i.e. Puntland, housing together both convicted al-Shabaab militants and Somali pirates will create an even more complex system integrating terrorism and maritime piracy once they are released?

JCL: To my knowledge, that’s not something that analysts have considered much. Any time groups are housed together in prison, there is potential for links to form, and carry over outside the prison walls. But it doesn’t seem that that risk is acute enough to warrant alternative prison arrangements, given the difficulty in finding places to house pirates in the first place.

EM: Until recently one of the main prisons for pirates was in Somaliland, a relatively stable, semi-autonomous area in northern Somalia, the U.N. is now building facilities in Somalia proper because Seychelles no longer wants to imprison Somalis, how secure do you think these facilities are?  Are the proposed sites secure and stable enough to survive a jailbreak attack?

JCL: I know that there’s a facility in the works in Garowe, Puntland, but I have not seen any plans for it, so can’t comment on security. In order to weather a major jailbreak attack, it would certainly have to be strongly fortified, and have a large and well-armed guard force. But I’d be more worried about pirates escaping by bribery than by a frontal assault.  

EM: A single piracy case will often affect several nations. How does this complicate some of the legal issues private security contractors must face?

 JCL: Whenever pirates attack a vessel, several countries can potentially claim jurisdiction over them—the flag state of the victim ship, the shipowner’s country of origin, and the home states of the crew. If there are private security personnel aboard, that may add more states to the mix, and if there is a private escort vessel, that layers on an additional flag state and shipowner country. If any of those nations cannot protect the human rights of prisoners, that could arguably give the other nations an obligation to prevent the suspected pirates from falling into that country’s hands. In practice, though, the problem has almost always been the reverse: countries trying to avoid responsibility for prosecution. Prosecuting and imprisoning pirates is an inconvenient and expensive undertaking that can last decades. The burden naturally falls on a single country, but all nations share in the benefits. It has taken years to develop agreements within which stakeholder states can share the burdens fairly.

This unruly tangle of jurisdictions can also complicate private anti-piracy operations themselves. Although there are now international licensing and accreditation standards for private maritime security companies, none of those are legally binding. Rather, countries’ domestic law takes precedence. Similarly, although there are now widely accepted rules for the use of force by private security, domestic doctrines of self-defense prevail. Thus, private security companies must take great care to ensure that they are not breaking the laws of anyone who might prosecute them if something goes wrong.

For example, if personnel aboard a private escort vessel believe themselves to be under attack and shoot civilian fishermen in error, both the flag state of the escort and the flag state of the client merchant ship may apply their own laws on self-defense and come to opposite conclusions about whether the shooters acted criminally. Because there have been very few test cases in this area, it remains unclear how such an incident would be resolved.

Emil Maine is a National Security Research Assistant at the Heritage Foundation, where he conducts independent research on U.S. defense posture. The views and opinions expressed in this article are his own.

8 thoughts on “Private Anti-Piracy Navies: How Warships for Hire are Changing Maritime Security”

  1. Slight different direction? Seems to be a full on mix of every topic relating to piracy at sea, including jumping from one African risk area to another within two questions. The armed guard/escort situation in West Africa is quickly glossed over to get to the matter in East Africa. Not a mention of the larger problem of organised crime oil theft, or even IUU fishing. Maritime security is not one topic, i.e. piracy.
    The attempt to mash Somali militants and pirates into one convenient category through the subject of being in the same prisons is misguided. A prison break has already occurred this year, and shortened sentences have been known. Seychelles has a prison that is filled to near capacity with convicted and awaiting trial suspected pirates. Laudably, Seychelles repatriates convicted pirates to Somalia so that SFG, Puntland and Somaliland may assume responsibility for their people, and families may see their relatives. UNODC supports the judicial and prison structures in the Somali states, but it is a long and difficult process to achieve standards that are seen as common in US and European states. As has been publicised, one such prison was close to failing due to the inability to pay for its electricity supply.
    As for the jurisdiction in a piracy case, the first call will be the flag state and the country of the shipowner, not so much that of individual crew nationalities. They are more likely to work towards the flag state/owner state to have jurisdiction in the first instance. However, adding PMSC guards into the equation is also misleading, as they have no powers to act in arresting any suspected pirates. Rules for the Use of Force are one thing, but any arrest authority resides solely with the international naval forces operating in the region. And the ‘capture and release’ policy seen a while ago caused some concern that pirates were freed as the jurisdiction, prosecution and even potential asylum claims were a consideration in the detention of suspect pirates.
    The matter of mistaking fishermen for pirates and shooting them in error. This is most likely to be within the territorial waters of a regional state, or at the least within their EEZ. The matter would be one that is addressed by the regional state whose waters the incident took place, as well as consideration of the laws of the flag state and shipowner state. There is a case, though not directly connected to private security, but mostly has bearing, is that of the two Italian marines who were part of a vessel protection detachment on board an Italian-flagged vessel, but were accused of killing fishermen in India’s territorial waters. Despite the Italians argument that they were in international waters, the matter of jurisdiction as a result, remains a complex issue which has not been resolve 2 years after the incident. It is possible to also bear in mind the accusation against the AdvanFort anti-piracy guard ship, Seaman Guard Ohio, entering India’s TTW for what was eventually seen as innocent passage, but the crew and guards were detained in an Indian prison for a number of months before a ruling came about.
    International law for piracy at sea is broad in terms of actions to take, hence the national laws have priority, however, these national laws are greatly varied across the states whether directly adjacent to an area of high risk or not. Some national laws barely recognise the instance of piracy which leads to extended detention before a court case may come to be held. If one reviews the vast differences in sentences handed to convicted pirates in the various states, then it is simple to draw the conclusion that piracy cases are not the same all over, even if the attacks may be very similar in operation.
    Of course, no mention is made of the consequence of tracking down the actual hijackers of a ship, nor the pirate kingpin, nor the backers of the hijack, and neither in the tracing of the ransom money that has been paid for the release of the crew. No one has been convicted of torturing or killing a captured seafarer to date. Then consider the same for West Africa.
    A bit more research needed?

    1. Glen – this was a brief Q&A with JCL, if you’re looking for something more holistic I would encourage you to read his book. This is not a research piece, as is mentioned upfront.

  2. Emil, understanding that it is not a research piece, and is not an holistic view of ‘private anti-piracy navies’, it nonetheless reads as somewhat disjointed, IMHO.
    Granted it is not a simple subject to address in such a short medium of a Q&A, however, the opportunity to discuss PMSCs in W Africa was missed and the omission of which is only covered by the comment “this is a very bad thing”. I’m not so sure there are ‘warships for hire’, except the possibility in W African waters.
    Furthermore, the title, and indeed the book – without having read it, of course – lead one to expect a Q&A on the applicability of private maritime security, and not necessarily deviating to jurisdiction, prosecution and prisons, all of which are not impacted by private maritime security.
    The Rules for the Use of Force, licensing, standards and regulation of the PMSCs may have been more relevant to the more casual reader. With the recent failings of some fairly high profile PMSCs, the potential changes in the shipping industry assessment of the Somali piracy threat will ultimately impact PMSC engagement. The naval forces have already adapted their operations in light of the reduction in pirate activity, but no one has assessed the future use of armed guards as a whole.
    Despite the US Framework for Combating Piracy and Enhancing Maritime Security in the Gulf of Guinea under the latest “Counter Piracy and Maritime Security Action Plan”, the restrictions on PCASP is acknowledged, stating, “Although GOG States prohibit, to varying degrees, the use of PCASP…” Perhaps this something on which to focus as most appear to have considered the newer loci of piracy.
    IMHO, of course.

  3. The answer to piracy is the same as it has always been: Fear. If the crews of the small vessels don’t support the leadership, no problemo. Piracy is for profit. If the cost (death) is greater than the return, the method for gain will disappear. History instructs.
    Pirates have to base somewhere. If the government of their base allows their operations, it is culpable. Governments incapable of policing their waters can ask for assistance. No plea, they’re culpable.
    As always, communication is essential to any effort to eradicate any social aberration. In whatever language: “You be pirate, motherfucker you be dead.”

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