With the 100 Series Rules for the Use of Force attracting considerable attention from the key stakeholders in the industry.
Adam Swierczewski, Corporate and Legal Affairs Manager of the leading Maritime Security Company, Ambrey Risk, has made observations from the Industry perspective.
The 100 Series is said to be designed to ‘alleviate uncertainty’* and provide ‘clear legal basis for acts of self-defense’*. At the moment individual Private Maritime Security Companies (PMSCs) submit their Rules for the Use of Force (RUF) to flag states as a part of the flag state approval process. BIMCO has already produced one set of guidelines on the RUF, outlining the main concepts and measures that should be implemented by PMSCs. The question is whether a universal set of RUF can be produced in view of international and national laws; and to what extent would it bring practical benefit.
International and National Laws of Self-Defence
The modern international concept of an individual’s right of self-defence is a result of cross-jurisdictional effort that has evolved over the centuries* and is now internationally recognized and present in the legal systems of most civilised nations. One of the major concerns of many parties involved in the industry and affected by the 100 Series Rules (which the authors of the document rightly recognise themselves) is the fact that the right of self-defence may be interpreted differently by individual jurisdictions. Moreover, in the event of an incident countries could be also involved in arguments over jurisdiction, what has been exemplified by the Enrica Lexie case.
At a core level, ramifications of the right of self-defense are universally agreed and implemented into national laws in a similar way, often reflecting the wording of the European Convention on Human Rights. By way of example, constitutions of Bahamas and Antigua & Barbuda provide nearly identical references to what degree of force should be used in self-defence and in what circumstances. A degree of correlation can be found in the legal systems of Cyprus and United Kingdom. Even where similarities in the wording used are not as obvious, as is the case with Panama, the underlying foundations remain the same.
Article 16 of the Bahamas Constitution provides that lethal force will not be regarded as contravening the law if such force was ‘reasonably justifiable for the defence of any person from violence or for the defence of property’.
Antigua & Barbuda*
Nearly identical wording is included in Antigua & Barbuda’s law stating that ‘such force is reasonably justifiable for the defence of any person from violence or for the defence of property’. In addition, force can also be used in self-defense in order to lawfully prevent the commission by a person of a criminal offence.
Under the Constitution of Cyprus, lethal force can only be used ‘in defense of person or property against the infliction of a proportionate and otherwise unavoidable and irreparable evil’ and must be ‘no more than absolutely necessary’.
The UK does not have a codified constitution and as such the right of self-defense stems from the common law*, some codified primary sources of legislation* and the ECHR . The basic position is that a person may use such force as is reasonably necessary in the circumstances*. What is ‘reasonably necessary’ is to be decided in view of particular circumstances but in any event the concept incorporates necessity and proportionality of defensive response.
Article 32 of the Penal Code states that a person does not commit an offence if such person acts in self-defense of ‘oneself, his rights or a third person or property, if circumstances so require’. The circumstances include ‘existence of an unjust aggression, actual or imminent’. The force must however be used rationally and not in excess of what is necessary to repel the attack.
The above demonstrates that self-defense is generally implemented in accordance with the same core principle – the evil caused shall be lesser than the evil sought to be avoided*. This approach is closely related to necessity and proportionality of one’s actions and reflected in the Series 100. Nevertheless, despite clear agreement on the existence of international principles governing the concept of self-defence, seamless and universal application cannot be guaranteed by the states in the military context, let alone in relation to utilisation of citizen’s constitutional right of self-defense in commercial security.
The problem can be exemplified by a debate at an international level in 2003, when the US invaded Iraq. Some countries believed that US intervention was entirely pre-emptive in nature and therefore could not be justified as self-defense due to the lack of ‘imminent threat’. The other group of countries argued that although, reliance on pre-emptive actions has historically been avoided (i.e. the Cold War), the use and interpretation of ‘anticipatory defence’ or broader pre-emptive action should be changed in the post 9/11 era of global terrorism.
100 SERIES RUF
It has been argued that in order to achieve a success the 100 Series needs to be openly endorsed by the states. Whether this would bring a significant change is debatable; in view of the fact that at least some of the states have already taken steps to monitor PMSCs by implementing accreditation processes and thereby reviewing not only the RUF but other relevant documentation, including the Standard Operating Procedures. In any event flag state approval will not be issued without prior submission of the RUF. Most of the well-established companies operate under RUF drafted by reputable lawyers, often established in many of the most common flag states.
Therefore, it comes as a no surprise that many RUF are already remarkably similar, being based on the same sources. Currently utilised RUF would have by now been in use on many transits and seen by most of the ‘popular’ maritime authorities. Thus, in the view of many, the nuanced status quo may be more attractive than chasing an unattainable nirvana.
Finally, no state will guarantee that following a set of universal industry agreed RUF will provide amnesty against prosecution. Cases of this nature are fact dependent and will always be assessed in view of the applicable law. It is for this reason that the 100 Series cannot provide ‘clear legal basis for acts of self-defence’* as such basis is already present in the applicable law and subject to exclusive judicial interpretation. Any set of RUF, unless legislated on, will be only a set of guidelines that help to mitigate the risk of excessive use of force and any associated damage. No certainty can be safely assumed. This is the inherent risk of operating with commercially generated armed security operating under self-regulated framework.
*1 Liz McMahon, ‘Legal fears delay release of 100 Series Rules on use of lethal force’, Lloyd’s List 31 October 2012.
*2 Liz McMahon, ‘Draft rules give ‘legal certainty’ to self-defence’, Lloyd’s List, 06 November 2012.
*3 Some of the earliest references date back to the Hammurabi’s Code of Laws dated circa 1772 BC.
*4 Article 16 of the Bahamas Constitution.
*5 Article 4 of the Antigua and Barbuda Constitutional Order 1981.
*6 Article 7 of the Constitution of the Republic of Cyprus.
*7 Palmer v R  AC 814.
*8 Section 3 of the Criminal Law Act 1967.
*9 As implemented by the Human Rights Act 1998
*10 Palmer v R  AC 814.
*11 Article 32 of the Penal Code of the Republic of Panama (adopted by Law No. 14 of May 18, 2007, with amendments and additions introduced by Law No 26 of 2008)
*12 Necessity creates the law, it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal.’ – Sir William Scott, the Gratitudine (18 December 1801).
*13 Liz McMahon, ‘Draft rules give ‘legal certainty’ to self-defence’, Lloyd’s List, 06 November 2012.