A/HRC/30/47
measures were undertaken not within the realm of the law of armed conflict, but under
international law of law enforcement, which combined international human rights law and
general principles of domestic criminal law with international criminal justice standards.
54.
The use of armed private security providers to protect commercial shipping had
increased in recent years, and had been an important factor in reducing the number of
successful acts of piracy and armed robbery at sea. Bringing weapons on board a vessel had
its own risks, in terms of physical security to crew members and respect for a State’s
obligations under international law on the transfer of conventional weapons and in terms of
the risk of reckless and excessive use of force, including lethal force, by personnel in an
environment where effective monitoring and oversight were exceptionally hard to ensure.
55.
Mr. Casey-Maslen noted that, in carrying out their duties, State law enforcement
officials were required to use force only when necessary and to employ only such force as
was necessary in the circumstances and proportionate to the threat. 12 Lawful use of force by
private maritime security service providers was limited to acts carried out in defence of any
person from unlawful violence. That might encompass lawful acts involving use of force
when under imminent threat of attack, either in self-defence or in defence of others. The
determination of whether any particular use of force in the maritime environment met the
legal criteria might be contentious given the lack of detailed guidance at the domestic level
on what was and was not lawful; materially differing domestic criminal law thresholds for
justified use of force in self-defence; and a lack of consensus as to which national law
should determine legality.
56.
Mr. Casey-Maslen undertook a review of selected national jurisdictions and
standards, including the 2012 interim guidance of the International Maritime Organization
(IMO).13 He also referred to the case before an Indian court in which two Italian marines
had allegedly opened fire on a vessel, killing two Indian fishermen on board; the trial of the
two marines had recently been postponed to July 2015.
57.
Mr. Casey-Maslen noted that a detailed code on use of force in the maritime
environment was lacking and that that lacuna could not be filled in the proposed
international regulatory framework. He also referred to the guidelines elaborated by the
Geneva Academy of International Humanitarian Law and Human Rights in 2012.14
58.
He noted that the core law enforcement function of arrest, and a concomitant power
to use force in order to effect a lawful arrest involving use of force, were functions inherent
to the State. He added that, to some extent, those powers were delegated in the maritime
environment. Whether or not private security service providers had been granted those
powers, they might need to use them, leading to concerns about treatment of suspected
pirates in detention and respect for the fundamental right to habeas corpus.
59.
Finally, as recognized by the Security Council in its resolution 2184 (2014), the
solution to the problem of piracy lay on land rather than at sea. Mr. Casey-Maslen
concluded that, in the meantime, use of armed private security service providers looked
likely to continue, with all the risks that that entailed.
60.
One delegation noted that it was essential to acknowledge the work undertaken by
IMO and that the Human Rights Council should not duplicate the work done by IMO.
Another delegation underlined the primary role of IMO in the context of sea-based
12
13
14
See principle 9 of the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials, available from
www.ohchr.org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx.
See www.imo.org/OurWork/Security/SecDocs/Documents/Piracy/MSC.1-Circ.1443.pdf.
Available from www.geneva-academy.ch/docs/projets/Counterpiracy.pdf.
15
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