Rules of engagement and legal frameworks for multinational counter-piracy operations.

AuthorBlank, Laurie R.
PositionEnd Game: An International Conference on Combating Maritime Piracy

Three multinational counter-piracy task forces operate in the Gulf of Aden to protect shipping in this vital transit corridor and respond to pirate attacks. These task forces and units from different states play a critical role in combating piracy, but also present challenges with regard to the legal and operational frameworks and coordination necessary to keep those operations running smoothly. The law applicable to counter-piracy operations governs the use of force against pirates, the treatment of captured pirates, and the prosecution of pirates, among other key issues. The relevant legal frameworks and rules of engagement create a complicated interrelationship that can pose challenges in the context of multinational operations. After analyzing the legal frameworks that could and do apply to counter-piracy operations by military forces, this article then builds on those frameworks with a discussion of rules of engagement and the specific challenges multinational operations face in coordinating and implementing effective rules of engagement in counter-piracy operations.

CONTENTS I. INTRODUCTION II. LEGAL FRAMEWORKS III. RULES OF ENGAGEMENT IV. MULTINATIONAL COORDINATION AND CHALLENGES I. INTRODUCTION

In response to the upsurge in piracy in the Gulf of Aden, the international community has established three multinational counter-piracy task forces to protect shipping in this vital transit corridor and respond to pirate attacks. Beginning in August 2009, NATO vessels and aircraft have patrolled the waters off the Horn of Africa as part of NATO Operation Ocean Shield. The overall mission is "to contribute to international efforts to counter maritime piracy while participating in capacity building efforts with regional governments." (1) Operation Atalanta, a European Union naval force, has a mandate to "deter, prevent and repress acts of piracy and armed robbery off the Somali coast ... to protect [] vessels of the World Food Programme (WFP) delivering aid to displaced persons in Somalia and ... African Union Mission on Somalia (AMISOM) shipping." (2) Last, Combined Maritime Force Task Force 151 was established in January 2009, with a specific piracy mission-based mandate, in order to build on the then existing maritime security mission of Task Force 150. Task Force 151's mission is "to disrupt piracy and armed robbery at sea and to engage with regional and other partners to build capacity and improve relevant capabilities in order to protect global maritime commerce and secure freedom of navigation." (3) The three task forces--each of which involves vessels and manpower from many different states--coordinate regularly on both training and operations.

The multitude of task forces and units from different states are playing a critical role in combating piracy and protecting shipping, but the legal and operational frameworks and coordination necessary to keep those operations running smoothly also present substantial challenges and complexities. This article explores how the legal frameworks and the rules of engagement applicable to counter-piracy operations create a complicated interrelationship that can pose challenges in the context of multinational operations. Part II analyzes the legal frameworks that could and do apply to counter-piracy operations by military forces. Parts III and IV then build on those frameworks with a discussion of rules of engagement and the specific challenges multinational operations face in coordinating and implementing effective rules of engagement in counter-piracy operations.

  1. LEGAL FRAMEWORKS

    The law applicable to counter-piracy operations governs how a state or multinational force uses force against pirates, how pirates are treated if captured, the crimes for which pirates can be prosecuted, and the mechanisms that can be used in such prosecutions. The U.N. Convention on the Law of the Sea (UNCLOS) is the primary law applicable to piracy, but it is also important to analyze any other relevant legal frameworks, particularly given the extensive involvement of national, regional, and international forces with the authority to use force in the process of deterring pirates and responding to pirate attacks. Under UNCLOS, force can be used to combat and apprehend pirates in accordance with minimum international law requirements of necessity and proportionality. For example, Article 8 of the 2005 Protocol to the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation declares, "[a]ny use of force pursuant to this article shall not exceed the minimum degree of force which is necessary and reasonable in the circumstances." (4) The U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states:

    Law enforcement officials shall 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 perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. (5) Few cases directly address how UNCLOS applies to the use of military force to combat piracy. In the M/V Saiga (No. 2) Case, the International Tribunal on the Law of the Sea determined that, in the absence of instructive provisions on the use of force in UNCLOS, general international law requires that "the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances." (6)

    The use of military force and military units and vessels from many different states may suggest to some that the law of armed conflict must govern any engagements between such military forces and any pirates. As one Member of the British Parliament noted at a House of Lords European Union Committee meeting, "[y]ou say that it is not a war; it looks quite like one to many of us serving on the side." (7) The law of armed conflict (LOAC)--otherwise known as international humanitarian law or the law of war (8)--applies only during an armed conflict. Accordingly, determining whether violence between states, between a state and a non-state actor, or between two or more non-state actors rises to the level of an armed conflict is a foundational analytical step. The 1949 Geneva Conventions set forth two primary and comprehensive categories of armed conflict that trigger the application of LOAC: international armed conflict and non-international armed conflict. Determining the existence of an armed conflict does not turn on a formal declaration of war--or even on how the participants characterize the hostilities--but rather on the facts of a given situation. (9) It is important to remember that this objective paradigm applies regardless of whether a state is reluctant to characterize a situation as an armed conflict or a state is perhaps over eager to apply the armed conflict label (such as the rhetorical tool of a "war against piracy"). In either...

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