SOLAS v RUFs – Maritime Security’s ‘Kobayashi Maru’?

Spirit SecurityThere is a natural nervousness among shipping companies regarding the use of armed guards on their commercial vessels. With the ongoing threat of piracy in the Indian Ocean, and the continued rise of attacks off the coast of W. Africa the need to protect such vessels is, unfortunately, ever more apparent.

When selecting your PMSC it is important that they appreciate the legal implications of placing their guards on board, as well as the need to ensure the quality & capability of the personnel that they provide.

The recently-issued GUARDCON contract rightly places emphasis on the need for clear Rules for the Use of Force (RUFs). It also highlights the requirement for there to be a clear signal from the Team Leader of the security team on board to notify the captain when there is the intention to invoke the RUFs in response to a pirate attack (see 1. below).

The decision to use lethal force against a pirate can only be justified in the context of self-defence (see 2. below).

However, under the International Convention for the Safety of Life at Sea (SOLAS) the ship’s Master has ultimate discretion on what action should be taken on board a ship to maintain the safety of the crew and vessel (See 3. below).

Consider the following:

A pirate attack is in progress and has reached the unfortunate point whereby fire is being exchanged between the pirates and the security team. The captain decides that the team should withdraw from the engagement and issues the order to cease-fire.

At the same time a member of the security team, in the knowledge that the pirates will not necessarily cease-fire, identifies an imminent threat to the life of one of his team or a crew member.

Under the principle of self-defence he can use lethal force to preserve the life of another not just his own.

What should the operative do?

I do not propose an answer to this scenario in this Blog. This is the kind of dilemma that can occupy legal minds for some time and stimulate legal debate.

However, when selecting your PMSC it is important to know that they are at least aware of such a scenario and its legal implications, and that their teams are briefed in their Standard Operating Procedures (SOPs) and RUFs each and every time they deploy. Just as frequent flyers are urged to still watch the safety bulletin in case anything is different so the team must be aware if any changes are made in the SOPs/RUFs.

The most worrying response from your PMSC is ‘don’t worry such an extreme scenario can’t/won’t happen’.

For those readers who are not au fait with the finer details of ‘Star Trek’ the ‘Kobayashi Maru’ is an infamous no-win scenario that Capt. Kirk only beats by changing the rules.

Unfortunately, on a commercial vessel in the middle of the Indian Ocean, for example, you can’t change the rules?

Alan Taylor,
Commercial Director,
Spirit Security Services Ltd,
apt@spiritsecurityservices.com

1. GUARDCON, Section 4, para. 8(b)
2. Rome Statute of the International Criminal Court,  Art. 31(c)
3. SOLAS, Chapter XI-2, Reg. 8 

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