Pirate attacks in the Gulf of Aden remain one of the major issues in the maritime industry. The combined measures taken so far by states – both multilaterally and unilaterally – to mitigate the risk of ships being captured have succeded only to a limited extent,while at the same time the average ransom demands from pirates for the release of vessels are increasing. Hitherto, deploying private armed security teams has turned out to be the most effective way for shipowners to ensure that their vessel can safely traverse the dangerous seas along the coast of Somalia: to date, no case has been reported in Germany in which a guarded vessel has been captured by pirates. This update outlines the German government's position on the deployment of armed private security teams and considers the criminal risks involved.
The German government has long been reluctant with regard to armed private security personnel guarding vessels. However, since the Seventh National Maritime Conference in May 2011, and in particular, an anti-piracy summit in July 2011, the government has been reconsidering its position. The federal government coordinator for the maritime industry has announced that the government will carefully examine whether amendments to the legal framework are necessary in order to provide legal certainty for shipowners that deploy armed private security personnel.
The government is considering whether private security teams should be obliged to obtain a new state licence to perform their services. Under the existing legal framework, security companies may obtain the necessary authorisations to provide security for vessels – as was confirmed in an opinion of August 4 2011 rendered by the Research Services of the German Parliament(1) – but the authorisations would be based merely on general legal provisions in relation to security teams.
The approach of the German government is reasonable and in line with the recent concerns of the International Maritime Organisation Maritime Safety Committee.(2) A new global market has emerged for maritime security companies. It goes without saying that some of the new (and indeed, some of the more established) companies employ personnel who lack experience of maritime voyages or piracy in the Gulf of Aden. This makes it difficult for shipowners to choose the firms with which to entrust the safety of their vessels. A new certification system might be of assistance in this regard.
However, it is arguably the regulations relating to weapons which is the relevant factor with regard to the flag state. It is unclear whether supplementary changes will be made in relation to the laws on weapons, even though such changes have been supported by some members of the governing coalition.(3) Any potential changes to the law on weapons are sure to be the subject of intense debate, even within the coalition.
Criminal liability risks
Shipowners should be aware of the criminal risks involved in hiring armed private security teams. The aforementioned opinion of the Research Services of the German Parliament addresses criminal law issues that might be relevant when using armed private security teams. Some of these issue are outlined below.
Ultimately, all criminal liability is caused by specific acts or omissions which cannot be predicted in advance. Liability can be incurred only by natural persons, since corporations cannot be criminally liable under German law. Therefore, depending on the nature of the offence, those acting as directors or members of the board, or those acting as employees or agents might be at risk.
German criminal law is applicable aboard German-flagged vessels. Shipowners are generally allowed to hire armed private security teams to serve aboard their vessels under German law provided that all legal requirements are satisfied and all restrictions are adhered to. Although most of the legal provisions address security companies, shipowners are also at risk of being prosecuted. The most important of these provisions are as follows:
• Companies offering armed private security services require a particular certificate pursuant to Section 34(a) of the Industrial Code and a licence under the Weapons Act. A criminal penalty would be incurred, for example, for the possession of certain guns without a licence. Section 28 of the Weapons Act imposes further restrictions on security companies. For example, a gun may be carried only by security personnel while carrying out a specific contract. Guns and ammunition are not to be handed over to the security team until the competent authorities have consented. Violations of these restrictions can be considered as criminal acts.
• Private security teams are not allowed to carry or use weapons of war which are governed by the War Weapons Control Act. Such weapons may be carried and used only by military forces. In contrast to guns under the Weapons Act, no licence or permission can be obtained from the authorities which could provide an exemption from the legal prohibition to carry or use weapons of war.(4) Whether a gun is a weapon of war is determined in a list annexed to the War Weapons Control Act. German law is rather strict in this regard (eg, semi-automatic rifles are considered weapons of war, whereas they are not in certain other jurisdictions). Violating these regulations could lead to criminal penalties being imposed on both security companies and shipowners.
• The effects of any weapons licence are limited to German jurisdiction.(5) Thus, if a vessel calls at a port outside Germany carrying weapons, foreign export/import or weapons legislation might impose criminal penalties regardless of whether the vessel has a licence under the Weapons Act. Thus far, however, the enforcement of coastal state criminal law on vessels not entering the states' ports has been of rather minor importance.
• According to the opinion rendered by the Research Services of the German Parliament, the master, due to his or her overriding command (Section 106 of the Seafarer Act), is obliged actively to instruct the security personnel on board. Consequently, in the case of an incorrect analysis of a pirate attack resulting in an incident, the master could face criminal charges. This would seem to be too much of a burden on the master. Security teams are hired to fend off pirate attacks and are instructed accordingly before the voyage.(6) They may take measures as soon as they are entitled to use self-defence or to defend the vessel or the crew's life. The master is not entitled to delegate his or her overriding authority. Nevertheless, he or she may rely on the expertise of the security team to a certain extent and need not necessarily instruct the security team in performing its services, in particular in critical situations. It would seem that the master is expected to take action if criminal acts are being committed by the security personnel or if the security personnel refuse to act despite an evident ongoing attack.
Criminal liability risks (eg, for acquiring, possessing, carrying and using guns) and the admissibility of armed private security teams are generally determined by foreign flag and port/coastal state law. Licences granted to German security companies by Germany may not be accepted in foreign jurisdictions. The following issues might arise under German criminal law:
• Pursuant to Section 4(a) of the War Weapons Control Act, permission is required to enter into contracts relating to the handing over of weapons of war which are not located within Germany and which are not to be imported into (or transited through) Germany. It is unlikely that the courts will hold a security service contract to be a contract relating to the handing over of weapons of war. Permission will not be required if the service contract is entered into outside German territory where the act does not apply.
• German criminal law also applies to criminal acts committed outside German territory (eg, on board a foreign-flagged vessel) if an act is a criminal offence according to flag-state law and if the acting person was a German national at the time of the offence (Section 7 of the Penal Code). This might be of relevance for acts committed by German masters, although this provision has played an insignificant practical role in shipping matters to date.
National law applicable to the deployment of private security teams, in particular with regard to weapons, has become a new factor for shipowners to consider when choosing their vessel's flag state. Regulations relating to maritime security forces vary significantly from country to country. International maritime conventions do not address this issue. The question of whether the possible change of mind by the German government will result in sufficient legal certainty for German shipowners will soon be answered. Even so, the hiring private of security teams requires foresight, risk analysis and careful planning; adequate knowledge of the applicable legal framework is imperative.
Date: October 1, 2011 Source: International Law Office;hellenicshippingnews.com