2.2.1 The Law Enforcement Role of PMSCs
By providing the desired security service, PMSCs participate in the law enforcement
processes of combating piracy. Notably, PMSCs in contractual agreement to protect
potential victims engage in defence of the vessel rather than core law enforcement
activities as state agents.
130 PMSCs do not actively seek out maritime criminals but
only respond to attacks in the course of the voyage. However, the distinction
between engaging in defence of the vessel and law enforcement operations at sea
becomes less rigid and clear, considering that both instances require the use of force
to combat criminal activities.
Reservations continue to exist about PMSC activities employing force at sea on
the grounds that they challenge the traditional perception of the roles of both the flag
state and coastal state to control and account for the use violence.
131 The presence of
armed private security personnel at sea spells a potential increase of violence, which
is against the public interest.
132 Private armed guards may overreact to threat
situation in ways that transcend the threshold of the just employment of force for
defence of self, others or property. In an encounter between the MV Avocet and a
suspicious skiff in 2011, 4 PCASPs protecting the cargo vessel fired several to
dissuade the occurrence of an attack.
133 The shots described as ‘warning shots, were
fired continuously at the on coming boat. The skiff eventually crashed into the MV
Avocet because the driver of the skiff was either injured or killed.
134 The propensity
to overreact to a threat situation is not a function of whether or not an armed guard on
a vessel is a PCASP. Active duty military are not necessarily exempt from fatal
mistakes or lapses in judgement, as the Enrica Lexie case reveals.
135 The Italian
130 Msc.1/Circ.1405/Rev.2 (May 25, 2012).
131 Liss (2013), p. 201; Marin et al. (2017), p. 193.
132 Skaanild (2013), p. 28; Marin et al. (2017), p. 193.
133 Bockmann and Katz (2012) www.globalpolicy.org/pmscs/51600-shooting-to-kill-pirates-risksblackwater-moment.html. Accessed 22 December 2018; Lloyds List (2012)
ing-video> accessed 31 December, 2018.
134 Bockmann and Katz (2012) www.globalpolicy.org/pmscs/51600-shooting-to-kill-pirates-risksblackwater-moment.html. 22 December 2018. Conflicting statements exists as to whether the skiff,
reported to have AK 47s and RPGs on board actually returned fire in the course of the warning
shots. This makes it difficult to conclusively assess whether the actions of the armed guard exceeded
the force reasonably necessary in the circumstance. However, the incident goes to show how easily
the use of force may be abused.
135 Notably, Italy and India provide different accounts of the events leading up to the death of the
fishermen. See In the Dispute Concerning the ‘Enrica Lexie’ Incident (The Italian Republic v The
Republic of India), Notification Under Article 287 and Annex VII, Article 1 of UNCLOS and
Statement of Claim (26 June 2015) https://indianexpress.com/article/explained/simply-put-2-kill
ings-at-sea-an-international-legal-battle/; Dispute Concerning the ‘Enrica Lexie’ Incident (The
Italian Republic v The Republic of India), Written Observations of the Republic of India on the
Request of the Italian Republic for the Prescription of Provisional Measures Under Article 290, Paragraph 1, of the United Nations Convention on the Law of the Sea http://www.pcacases.com/
196
O. A. Eruaga
By providing the desired security service, PMSCs participate in the law enforcement
processes of combating piracy. Notably, PMSCs in contractual agreement to protect
potential victims engage in defence of the vessel rather than core law enforcement
activities as state agents.
130 PMSCs do not actively seek out maritime criminals but
only respond to attacks in the course of the voyage. However, the distinction
between engaging in defence of the vessel and law enforcement operations at sea
becomes less rigid and clear, considering that both instances require the use of force
to combat criminal activities.
Reservations continue to exist about PMSC activities employing force at sea on
the grounds that they challenge the traditional perception of the roles of both the flag
state and coastal state to control and account for the use violence.
131 The presence of
armed private security personnel at sea spells a potential increase of violence, which
is against the public interest.
132 Private armed guards may overreact to threat
situation in ways that transcend the threshold of the just employment of force for
defence of self, others or property. In an encounter between the MV Avocet and a
suspicious skiff in 2011, 4 PCASPs protecting the cargo vessel fired several to
dissuade the occurrence of an attack.
133 The shots described as ‘warning shots, were
fired continuously at the on coming boat. The skiff eventually crashed into the MV
Avocet because the driver of the skiff was either injured or killed.
134 The propensity
to overreact to a threat situation is not a function of whether or not an armed guard on
a vessel is a PCASP. Active duty military are not necessarily exempt from fatal
mistakes or lapses in judgement, as the Enrica Lexie case reveals.
135 The Italian
130 Msc.1/Circ.1405/Rev.2 (May 25, 2012).
131 Liss (2013), p. 201; Marin et al. (2017), p. 193.
132 Skaanild (2013), p. 28; Marin et al. (2017), p. 193.
133 Bockmann and Katz (2012) www.globalpolicy.org/pmscs/51600-shooting-to-kill-pirates-risksblackwater-moment.html. Accessed 22 December 2018; Lloyds List (2012)
ing-video> accessed 31 December, 2018.
134 Bockmann and Katz (2012) www.globalpolicy.org/pmscs/51600-shooting-to-kill-pirates-risksblackwater-moment.html. 22 December 2018. Conflicting statements exists as to whether the skiff,
reported to have AK 47s and RPGs on board actually returned fire in the course of the warning
shots. This makes it difficult to conclusively assess whether the actions of the armed guard exceeded
the force reasonably necessary in the circumstance. However, the incident goes to show how easily
the use of force may be abused.
135 Notably, Italy and India provide different accounts of the events leading up to the death of the
fishermen. See In the Dispute Concerning the ‘Enrica Lexie’ Incident (The Italian Republic v The
Republic of India), Notification Under Article 287 and Annex VII, Article 1 of UNCLOS and
Statement of Claim (26 June 2015) https://indianexpress.com/article/explained/simply-put-2-kill
ings-at-sea-an-international-legal-battle/; Dispute Concerning the ‘Enrica Lexie’ Incident (The
Italian Republic v The Republic of India), Written Observations of the Republic of India on the
Request of the Italian Republic for the Prescription of Provisional Measures Under Article 290, Paragraph 1, of the United Nations Convention on the Law of the Sea http://www.pcacases.com/
196
O. A. Eruaga