The Kerala incident shows the need to streamline rules for deploying armed guards on merchant ships.

The killing of two innocent Indian fishermen allegedly by Italian marines has triggered a debate on the efficacy of allowing private maritime security companies on merchant vessels in the battle against piracy on the high seas.

According to estimates, 35 per cent of ships that transit through the Gulf of Aden and the Arabian Sea deploy armed guards. There have been no reports of hijacking of such ships.

In August last year the Government of India approved guidelines permitting the deployment of armed security guards on merchant vessels, three months after the International Maritime Organisation (IMO) circulated its own draft guidelines on the subject.

Both in the IMO, and in the meetings of the Contact Group on Piracy off the Coast of Somalia — countries that have voluntarily come together pursuant to the U.N. Security Council Resolution 1851 on piracy — several countries agreed to deploy armed guards, but flagged some issues as areas of concern that remained to be sorted out.

According to a background note prepared by the government to its guidelines, these included deploying military personnel as against private security guards and the possible “infiltration” by terrorists or other unlawful elements; the possibilities of escalation of violence at sea; issues of liabilities for injuries or deaths of innocent fishermen and seafarers; transit of merchant ships with armed security guards through territorial waters of a coastal state using right of “innocent passage” granted under the provisions of United Nations Convention on the Laws of the Seas (UNCLOS); the facilitation that would be required from coastal states for the embarking or disembarking of security guards from merchant ships; and questions over chain of command — the Master of the ship has over-riding authority, as mandated by the International Convention for Safety of Life at Sea (SOLAS) — that may arise by deploying military personnel on board.

Guidelines

The Ministry of Shipping of the Government of India has not endorsed the use of armed guards on merchant ships. But given the threat to shipping from pirates it has allowed the Indian ship owners to deploy armed security guards, and prepared guidelines for this after consulting different agencies and the Indian Navy. It has also made clear that it is the ship owners who must make the risk assessment.

Among the guidelines suggested was that before ship owners finalise contracts with a private maritime security company, they should do due diligence on the company structure, its ownership, insurance and seek other documentation including police records, and run a check on its employment history.

The guidelines are also clear that when ship owners enter into a contract with a private maritime security company, they should ensure that the command and control structure remains with the Master/ship's officer and that the role of the armed guards' team is both clearly defined and documented.

Role of the Master

The Chief of the Southern Naval Command, Vice-Admiral K.N. Sushil, told The Hindu recently that at all times the responsibility of the armed guards should rest with the Master of the ship.

This empowerment would not only ensure a clear command structure but also make the Master accountable, and more diligent about first ascertaining the bonafides of an approaching vessel.

Before arriving at a conclusion that an approaching boat or a skiff had pirates, he said, a Master must ascertain its intention.

The Master could order the vessel to undertake evasive manoeuvres — that is change the ship's course — to establish whether the approaching boat was on its own course or if it was chasing his vessel. In case it continued to approach the vessel, the Master could order the guards to take necessary action by firing to deter the pirates from boarding the ship.

The guidelines issued by India are categorical that the armed guards on board a vessel should remember that their primary function is to prevent boarding by pirates by using minimal force, and undertake all responsible steps to avoid the use of force.

The guidelines also state that the private guards should not use firearms against persons except in self defence or defence of others against the imminent threat of death or serious injury to prevent the preparation of a serious crime involving grave threat to life.

In the wake of the tragic incident off the Kerala coast, India has starting issuing navigational warnings sensitising transiting merchant vessels about fishing activities in the area. The International Maritime Bureau Piracy Reporting Centre based at Kuala Lumpur has also issued an advisory.

As the Indian Navy does not want to take on the job of providing security to merchant vessels, there is a move to involve the Central Industrial Security Force and the modalities of this are being worked out.

It is for the IMO and countries affected by piracy to draw the right lessons from the incident off the Kerala coast and decide on how to streamline the different sets of existing guidelines in various countries into a comprehensive internationally accepted law.

prasadkv@thehindu.co.in

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