Piracy off Aden and Somalia: an overview of legal issue Pt 1 'Are armed guards legal?'

April 24, 2009 - PRLog -- Piracy - an overview of the legal issues

At the time of writing, some 300 crew members on 16-odd ships remain hijacked off the coast of Somalia. Most appear to be near to the now booming town of Eyl with others, including The Faina, further south off Haradhere. The Faina, loaded as it seems to be with tanks and munitions (bound for Kenya or Sudan depending on who you believe), has brought things to a head.

The EU has set up a naval cell and committed warships to provide protection to commercial shipping off Somalia. The Russians and even the Indian Navy are scrabbling to get involved and there are mutterings about military options that can hardly be of any comfort to the crews and their families.

Significantly perhaps, the UN have issued Resolution 1838 giving authority for military assets to be operated in Somalian territorial seas and to use “the means necessary” to repress any act of piracy. The shipowning community can be forgiven a certain sense of frustration on the basis that a similar response six months ago might have nipped this in the bud before it reached the serious proportions of today. 22,000 ships travel through the Gulf of Aden each year and keeping that water way free of pirates is vital. The cost of the additional 15 days for an Asia–Europe voyage, even at today’s lower freight rates, will add to the cost of all products at a time when the world can least afford it.

The purpose of this article is to look at and identify some of the legal issues raised by the hijackings and the questions we are being asked to look at. Most are very much live, which means that it would not be appropriate to give definitive answers in some of the more contentious areas.

Are armed guards legal?

Admiral Gortney, the US commander of the Combined Maritime Forces, recently suggested that “shipping companies must take measures to defend their vessels and their crews”. He did not go on to say how. There is undoubtedly a debate to be had on the pros and cons of armed guards, with the more rational in the security world concluding firmly that the answer to that should be “no”. Much better to have unarmed teams giving training and support to the crew so they have the ability and confidence to avoid or thwart an attack by non lethal means. There have been many examples of crew doing just that. Further, the pirates have gone some way to show that they do not want to harm the crew. That resolve would be sorely tested if members of their gang were killed during a hijack.

Ultimately it is the law of the flag state that governs the use of force, which for most boils down to the use of reasonable force, but in circumstances where the rules of engagement would be extremely difficult to formulate and of course, police. The EU’s laws are dominated by Human Rights considerations, but in general terms for a self defence type argument to succeed, the Courts are looking for evidence of an imminent attack and a proportional response.

In recent announcements by someone purporting to be the pirates’ spokesman, they have conveniently tried to make it clear that they have no affiliation with religious or political groups and that this is all about money. Given the proximity of US naval warships that view may not be entirely objective.

However, it is at least arguable that this is about extortion and not terrorism. In terms of POCA the ransom in the hands of the pirates can be regarded as a “proceed of a crime”. However the money laundering legislation is not there to punish the payers of a ransom demand in these circumstances and paying does not constitute a breach of the law.


Our experience of some of the high-profile piracy cases in Somalia, the Niger Delta and the Malacca Straits means are well-placed to give advice to all interests. For further information or advice on piracy issues, please contact Stephen Askins or your usual Ince contact.

The Ince & Co response to the piracy phenomenon has been coordinated by Shipping partner, Steve Askins - Steve.Askins@incelaw.com.

The Insurance Group response is being been coordinated by Simon Todd - Simon.Todd@incelaw.com and Joe O’Keeffe - Joe-OKeeffe@incelaw.com, drawing on their prior experience of such incidents, with input from fellow partner and Special Counsel Alan Weir - Alan.Weir@incelaw.com.

stephen.askins@incelaw.com

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Ince & Co is an international law firm with 85 partners. As well as Dubai, the Ince network includes offices in Hamburg, Hong Kong, Le Havre, London, Paris, Piraeus, Shanghai and Singapore.