Blackwater's new battlefield: toward a regulatory regime in the United States for privately armed contractors operating at sea.

• Author: Mahard, Sean Patrick

"[W]hen evil is the only solution, you do evil." (1) Shamun Indhabur, Somali Pirate Leader

ABSTRACT

Piracy has reemerged with a vengeance in the twenty-first century. Although it is confined primarily to the horn of Africa, piracy poses a significant problem to commercial shipping companies that need to traverse the Gulf of Aden for business. In response to modern-day piracy, shipowners have begun to employ privately armed contractors for protection. Countries and international organizations have recently developed regulations to address this growth in private maritime security. This Note analyzes both international and domestic regulatory regimes for privately armed contractors with a specific focus on the United States and Norway. This Note concludes that current U.S. regulations are inadequate and do not sufficiently restrain the use of force by private contractors when combating pirates at sea. Consequently, this Note recommends that the United States Coast Guard (USCG) use its administrative authority to publish binding rules of engagement for private contractors defending U.S.-flagged vessels.

TABLE OF CONTENTS I. INTRODUCTION II. THE REEMERGENCE OF PIRACY A. Modern-Day Piracy: Blackbeard's New Business Model B. Shipowners in a War Zone: The Costs of Piracy and the Benefits of PCASP III. AN ANALYSIS OF THE INTERNATIONAL AND DOMESTIC REGULATORY REGIMES FOR PCASP A. UNCLOS B. IMO's Guidance to PMSCs, Shipowners, and Flag States on PCASP 1. IMO's Interim Guidance to PMSCs 2. IMO's Interim Guidance for Shipowners, Ship Operators, and Shipmasters 3. IMO's Interim Recommendations for Flag States C. U.S. Regulations for PCASP 1. 33U.S.C. [section] 383 2. PSA 3-09: Guidance on Self-defense or Defense of Others by U.S.-Flagged Commercial Vessels Operating in High Risk Waters 3. PSA 2-09: MARSEC Directive 104-06 and PSA 9-09--Expected Courses of Action Following Attacks by Pirates in the Horn of Africa Region 4. PSA 5-09: Minimum Guidelines for Contracted Security Services in High Risk Waters and PSA 6-09--Procedures for Obtaining a Name-Based Terrorism Check for Security Personnel Operating in High Risk Waters D. Norwegian Regulations for PCASP IV. RESOLVING THE UNITED STATES' INADEQUATE REGULATION OF PCASP A. The Need for Binding RUF in the United States B. USCG Should Promulgate Binding RUF for PCASP C. Mandated Certification for PMSCs by an International Organization V. CONCLUSION I. INTRODUCTION

"I'll give you a weapons free when ready[,] just stand by," barks the private security commander to his comrade. (2) The two men are armed with assault rifles and standing guard aboard the Avocet, a merchant vessel traversing the Indian Ocean. (3) The Trident Group security commander has just spotted an approaching skiff, likely filled with pirates, and is preparing his team's attack. (4) "Go ahead warning shots," shouts the commander as he exits the bridge of the vessel and takes up a shooting position overlooking the water. (5) Immediately, the second guard begins firing his rifle in rapid succession at the pirates' small craft. (6) There is no delay between the "warning" shot and the suppressive fire. (7) The pirates have not fired a single shot, and, under a heavy volley of fire, they collide into the Avocet. (8) The contractors continue to engage the pirate's skiff from the advantageous position offered by the deck of the ship. (9) The pirate vessel falls behind the Avocet but is continually engaged by the team commander until it is out of sight. (10) Trident Group, the U.S.-based employer of both guards on the Avocet, later admitted that the firefight likely claimed the lives of some of the pirates. (11)

This clash between private contractors and pirates occurred on March 25, 2011, in the Indian Ocean, but it is not an isolated incident in this region of the world. (12) In fact, these types of confrontations have become much more frequent with the steady rise in piracy off the coast of Somalia. (13) In 2012 alone, Somali pirates attacked over seventy vessels. (14) In 2013, there were thirteen piracy-related incidents with two reported hijackings. (15) Although these numbers represent a significant decrease from recent years--such as 2009, when pirates conducted 217 attacks, captured 867 hostages, and hijacked 47 vessels--piracy is still a major threat in this part of the world. (16) In response to these attacks and hijackings, the shipping industry has begun employing private maritime security companies (PMSCs). (17) PMSCs provide privately contracted armed security personnel (PCASP) to defend merchant vessels traversing pirate-filled waters. (18) To date, no ship employing PCASP has been hijacked, providing considerable incentive for merchant vessels to utilize contractor services. (19)

The rise of PCASP operating aboard merchant vessels poses a number of unanswered legal questions. (20) There are currently no legally binding international regulations governing PCASP. (21) Additionally, PMSCs and PCASP are not required to report to any international organization. (22) PCASP do have to follow the laws of the state whose flag the ship flies while on board a vessel, but many nations have very limited regulations for them. (23) One of the major concerns is that PMSCs will operate in countries with the least restrictive laws in order to avoid the cost of compliance with stringent regulations. (24) This possibility is particularly disturbing since the number of pirates that private contractors have killed at sea is unknown. (25) Trident Group's disproportionate use of force against a small band of pirates supports this startling reality and indicates a need in the United States for legally binding use of force standards for private maritime contractors. (26)

Maritime officials agree that PCASP need to be regulated because there is a "glaring absence of regulation," domestically and internationally. (27) Commentators worry that governments are relying on self-regulation, goodwill, and luck to manage the explosive growth in the maritime security industry. (28) This indifference is especially distressing when only 26 percent of civilian ships traversing pirate-infested waters disclose the use of PCASP but estimates indicate that approximately 50 percent of ships utilize private security services. (29) Governments, the public, and the shipping industry have recognized that PCASP--as armed groups of privateers--need to be properly regulated. (30) The International Maritime Organization's (IMO) secretary-general, Koji Sekimizu, has challenged the international community to consider how to deal with the issue of PCASP. (31) Secretary-General Sekimizu notes that the maritime industry is a global industry, which means that domestic policies have international consequences. (32) As a result, individual nations--including the United States--must make a detailed and comprehensive domestic policy on PCASP a priority.

Part II of this Note discusses modern-day piracy and the methods pirates use to attack and hijack merchant vessels. It also describes the parts of the world where piracy thrives and the background of the men who resort to piracy to make a living. This Note then considers the international community's and shipowners' responses to the reemergence of piracy and concludes that the budgetary limits of Western navies will force shipowners to use private contractors for protection well into the future. Following this discussion, this Note briefly addresses the rise of private maritime security by examining the methods and backgrounds of PCASP.

Part III of this Note analyzes the United Nations Convention on the Law of the Sea (UNCLOS) and its applicability to PCASP combating piracy. Since UNCLOS is rather limited in addressing this issue, this Note then examines the implications of the IMO's guidance to PMSCs, shipowners, and flag states regarding the use of private contractors to protect ships from pirates. Part III then compares the relative strengths and weaknesses of the various rules for the use of force (RUF) guidelines promulgated by the United States and Norway. Ultimately, this Note concludes that Norway has the most comprehensive and stringent RUF for PCASP.

Part IV begins with an explanation of why the United States must revise its current RUF for PCASP. This Note recommends that the United States Coast Guard (USCG) publish legally binding RUF guidelines for U.S.-based PCASP modeled after Norway's regulations. These guidelines will restrict PCASP's use of force to what is strictly necessary. This Note also recommends that all PMSCs receive outside certification by an international organization. This certification will ensure that U.S.-flagged vessels only employ competent and professional PCASP. Norway's regulatory regime will serve as the primary framework for Part IV's proposal with an analysis of the advantages and disadvantages of this solution. Ultimately, the proposed regulatory framework ensures that U.S-based PCASP act with a respect for human rights and international law when protecting merchant vessels at sea.

2. THE REEMERGENCE OF PIRACY

   1. Modern-Day Piracy: Blackbeard's New Business Model

      UNCLOS defines piracy as "any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship ... on the high seas...." (33) This definition has near universal acceptance in the international community, even among nations that have not adopted UNCLOS. (34) For example, the United States is not a party to UNCLOS, but the Fourth Circuit, in United States v. Dire, held that UNCLOS properly defined piracy "as customary international law" and interpreted the United States' definition of piracy, in 18 U.S.C.A. [section] 1651, in accordance with UNCLOS's definition. (35) The court reasoned that Congress's intent was to ensure piracy was a universal jurisdiction crime that evolved with the law of nations. (36) Thus, UNCLOS--as...