Shooting fishermen mistaken for pirates: jurisdiction, immunity and State responsibility

Author: Douglas Guilfoyle
Filed under: EJIL Analysis

Friday
Mar 2,2012

Francesco Messineo referred below to the incident in which Italian marines, embarked aboard an oil tanker to protect it, appear to have killed two Indian fishermen mistaking them for pirates.

There has been a lively debate about how best to manage armed security for vessels transiting the high-risk piracy area off Somalia. The two options usually advocated are: embarking military forces to act as a Vessel Protection Detachment (VPD); and private armed security guards (PASGs). The usual issues for discussion are questions of jurisdiction, immunity and state responsibility.

What follows is a preliminary sketch of the issues as I see them.

Vessel Protection Detachments

In any such fatal shooting episode the first question is which State has jurisdiction: Italy or India? The answer is, of course, both States do.

As Francesco pointed out, if this episode occurred on the high seas (as it appears to have done), it is governed by the Lotus Case. In Lotus the PCIJ found, unremarkably and by analogy with crimes that cross land borders, that an offence commenced on a vessel of flag State A which has fatal consequences aboard the vessel of flag State B can be subject to the criminal law of both A and B. A treaty law exception was later created for the masters of vessels in respect of crimes resulting from collision and incidents of navigation. In such cases a master can only be prosecuted by his state of nationality or license-issuing authority (UNCLOS, Art. 97). Otherwise the general principle stands. In this sense the principle of the “exclusive jurisdiction” on the flag State can mislead those unfamiliar with the law of the sea. It is not an absolute prohibition on concurrent jurisdiction.

As Indian courts have jurisdiction, the next question is immunity. The easy thing to assume about VPDs is that they will enjoy State immunity for their official actions. While this is true, it falls for other States’ courts to respect it in practice – and there will always be pressure to look for exceptions where the death of a national is involved.

I have surveyed the relevant State practice elsewhere. I will confine myself to observing that that comparable cases are usually resolved in favour of State immunity, but often not swiftly. The issue is complicated by the fact that the modern law is dominated by Status of Forces Agreements – treaties concluded in advance which (broadly) settle the questions of immunity for forces stationed abroad from local criminal jurisdiction. This is a situation where no such treaty applies so the applicable law is customary international law, and the relevant cases tend to be old. Nonetheless, my reading of them suggests State immunity is not lost in fatal injury cases even where a defendant’s conduct was: careless, reckless, involved excessive force, or was contrary to instructions (in the narrow sense of carrying out an authorised act in an unauthorised manner). Immunity is unlikely to be upheld where a State agent has abused their authority out of malice or for personal gain (though in such cases State responsibility will still apply e.g. Mallen). Otherwise, especially in cases of genuine mistake, immunity should generally be upheld.

Obviously, the State remains responsible for the official acts of its agents irrespective of the determination regarding immunity. The question therefore arises as to whether Italy is obliged to compensate the victims or their families. Prima facie, in a wrongful death case one might expect the answer to be ‘yes’. Italy has, however, suggested the fishing vessel manoeuvred aggressively and ignored warning shots. In such a case Italy could argue that where a vessel has ‘committed any act justifying’ suspicion it was a pirate vessel it and its crew are not ordinarily entitled to compensation (UNCLOS, Art. 110(3)).

In sum, however, VPDs are not going to solve all the potential problems surrounding armed vessel security.

Private Armed Security Guards

Whether one likes the idea or not, PASGs are set to become a feature of counter-piracy. There is not the spare naval capacity in the world to secure the Indian Ocean, so securing individual vessels is clearly the way forward. This does not have to involve PASGs, but the policy decision has been taken in many States that it should be an available option. Indeed, in the context of Somali piracy, even the IMO has softened its traditional stance against firearms aboard merchant vessels.

The jurisdictional issues remain as described above. Kill or injure a foreign national aboard a foreign vessel in mistaken self-defence and you are potentially subject to the jurisdiction of:

the flag state of the vessel from which you fired,
the flag State of the vessel into which you fired, and
and the State of nationality of the person you killed or injured.

The question of who prosecutes such a case is settled by the practical question of which State gets its hands on you first and whether it is prepared to prosecute or extradite you.

Clearly, PASGs will not attract State immunity, unless perhaps recruited by the State and incorporated into the military in some fashion.

It has sometimes been suggested to me that if a State licenses people to carry guns they become de facto State agents and the licensing State is responsible for their conduct. I find this implausible. Some States license private individuals to carry guns, some don’t. Some allow private security guards to carry guns, some don’t. It would not ordinarily be suggested that an armed private security guard in the US who shot a foreign citizen thereby incurred the responsibility of the United States. There is nothing magical about the marine environment requiring a different result.

However, there are two further possibilities. First, States clearly have a duty of due diligence to take measures to minimise the risks to foreign nationals and States of dangerous circumstances or activities within their jurisdiction (e.g. Corfu Channel, Asian Agricultural Products). One could construe from this a duty upon States that allow PASGs to have an adequate regulatory framework in place. This is a long way short, though, of strict vicarious liability.

Second, there is also the possibility discussed by Bodini that under European Court of Human rights case law that the ‘acquiescence or connivance’ by a State in the violation of Convention rights by individuals may incur State responsibility (Cyprus v Turkey). I doubt licensing armed guards to use force in self-defence or defence of others constitutes connivance in unlawful uses of force. Turning a blind eye to potentially wrongful killings through a failure to investigate or issuing rules on the use of force by PASGs that were tantamount to a license to kill, however, clearly could.

12 Responses for "Shooting fishermen mistaken for pirates: jurisdiction, immunity and State responsibility"

Mihai Martoiu Ticu March 2nd, 2012 at 14:22
What about the U.N. Draft International Convention on the Regulation, Oversight and Monitoring Of Private Military and Security Companies? If it is adopted in the current form, would that not solve our problem?

First, it declares that respect for human rights is an obligation erga omnes. This solves the question of extraterritorial applicability of HR treaties, or questions about jurisdiction on ships.

The Draft Convention provides that States bear responsibility for the military and security activities of private entities registered or operating in their jurisdiction, whether or not these entities are contracted by the State (Article 4(2)). Because states have jurisdiction on the ships flying their flags, this article engages state responsibility even if the PMS’s are hired by private merchant companies.

The States shall ensure that PMSC’s are liable for serious crimes (Article 28.), respect humanitarian and human rights law (Article 5(1)), that individual violators are held accountable, prosecuted and punished for violations of such norms and of the Draft Convention (Article 7(1); Article 13(5)).

Moreover, the Draft Convention solves the problem that individuals are generally not obligated to respect human rights, by obligating PMSC’s and PMS’s directly to respect those norms, regardless of existing national law (Article 7(2)). Article 10 expressly prohibits PMS’s from using force in general and in particular from ‘assaults on the life, or security of civilian persons.’
Akis Papastavridis March 2nd, 2012 at 15:25
Great analysis, Douglas
I would like to make a couple of comments on the question of flag State responsibility for acts or ommissions of PASGs. First, the only basis for attribution of such acts to the flag State seems to be article 5 of ILC Articles on State Responsibilty, namely the conduct of persons or entities exercising elements of governmental authority. This would depend upon each State’s domestic legislation authorising the use of PASGs. However, it appears difficult to find legislation, which would explicitly empowering such persons with governmental authority.
Second, I am very reluctant to buy the argument that there is a strict liability regime under article 94, for example, of UNCLOS, which could entail the responsibility of the flag State for even licensing armed guards to use force in self-defence. On this I fully agree with Douglas.
Douglas Guilfoyle March 2nd, 2012 at 15:37
Thank you for the comment, if the Draft Convention were adopted it would certainly change the landscape. My focus here is the law as it presently stands.

However, if anything the Draft Convention reinforces my point. Absent such a treaty commitment there appears a limited basis for assuming States have any direct responsibility for such actors.

Further, even if the Convention came into force, would all the major flag States and licensing States be signatories?

As regards the duty to punish serious crimes: (a) one would hope this would happen anyway; and (b) it is at least arguably required by UNCLOS Art 94(1) and (2)(a) (the duties upon flag States to exercise jurisdiction over their vessels).

In the short term, the emphasis appears to be on adopting an equivalent to the Montreux Document covering activities at sea.
dubito March 6th, 2012 at 7:06
I have just a brief comment on the fact that Messineo mentions Lotus as applicable to the issue. The decision in the Lotus case should be read rather than quoted when not material. Lotus doesn’t govern the situation as Lotus doesn’t provide any applicable principle. Lotus simply says (apart from how Lotus is read in other decisions of the ICJ) that if a State established ist jurisdiction in order to punish an offence whose event toke place on a ship flying its flag … it is not in breach of international law … unless the contrary is proved. So the Lotus rationale brings the issue back … to Indian Law. Please don’t abuse the Lotus rationale!
Douglas Guilfoyle March 6th, 2012 at 9:31
Dubito, that was precisely my point. Lotus does govern the case as it does,if one reads the case in full, stand for the principle that both States in such a situation can claim jurisdiction. I am in agreement with you that more people should read Lotus rather than simply refer to it as the general understanding of the case on many issues is wrong.
Francesco Messineo March 6th, 2012 at 17:09
Dubito,

my post was on a separate matter, hence the only very brief reference to the Lotus case, on the meaning of which (and its current perhaps more broad interpretation by the ICJ to which you correctly allude) many things could indeed be said.

Douglas has kindly explained what I meant, so I will not reiterate it here at length, except to mention that, as I see it, the Lotus case indeed constitutes authority against the proposition that Italy had exclusive jurisdiction in this case (as the Italian Minister suggested, in my view wholly implausibly). See the Lotus case at pages 18-19, where the question of the territorial jurisdiction of Turkey is discussed at length. The point I was making was merely that India has jurisdiction to enforce its laws in its own territory – hardly a contentious point in international law, and one which indeed has its historical basis in Lotus…

So, if two Italian marines find themselves in Indian territory (where they perhaps inadvisedly ended up after the shooting in the high seas), there is no doubt, on the basis of Lotus, that India can arrest them and try them for *whatever reason* under Indian law. A separate question is whether India and Italy also have concurrent jurisdiction to *prescribe* over the killing by Italian soldiers of Indian citizens; general international law (rather than Lotus) gives us a positve answer in that regard too. Third, there is the question of immunity, well discussed by Douglas above, which is the only one which may give Italian authorities some ammunition.

Interested readers may wish to consult O’Keefe, Roger, ‘Universal Jurisdiction: Clarifying the Basic Concept’, 2 J. Int’l Crim. Just. (2004) 735-760; Akehurst, Michael, ‘Jurisdiction in International Law’, 46 Brit. Y.B. Int’l L. (1972-73) 145-258; and Mann, Frederick Alexander, ‘The Doctrine of Jurisdiction in International Law’, 111 Rec. des Cours (1964) 1-162 (as well as the 1984 update thereof) for much more authoritative discussions as to what ‘jurisdiction’ means than can be provided here…
jpaust March 6th, 2012 at 22:42
We would recognize Indian jurisdiction under the objective territorial principle of customary international law concerning jurisdiction using these aspects of context: (1) there was an intent to produce effects on board the Indian vessel (which, under international law, is the equivalent of Indian territory), (2) there were effects on board the Indian vessel, and (3) by fiction, there was a continuing act that took place also on the Indian vessel (as the bullets fired continued onto the equivalent of Indian territory). We would say that all that is required is 2 out of 3 elements (act within (or by fiction under the agency rationale or, as in this case, the continuing act rationale), intent (or foreseability as a substitute for intent), effect). In United States v. Davis, 25 F. Cas. 786, 787 (C.C.D. Mass. 1837) (No. 14,932), it was recognized that where a shot was fired from one ship to have it injurious effect on another that that other ship’s flag (country) had jurisdiction as well as the flag from which the shot was fired. In Simpson v. Georgia, 92 Ga. 41, 17 S.E. 984 (1893), it was recognized that the sovereign state of Georgia had jursdiction to prescribe over an accused who had been standing in South Carolina and had fired a shot across the state line and injured a person in Georgia.
see 23 Virginia Journal of International Law 191, 201-13 (1983), reproduced in part in our Paust, Bassiouni, et al., International Criminal Law 178-82 (3 ed. 2007). We also have an extract from Regina v. Anerson, 11 Coc Crime. Cas. 198 (U.K. Court of Criminal Appeals) (1868).
jpaust March 7th, 2012 at 20:11
And, by the way, our Supreme Court in Ford v. United States, 273 U.S. 593 (1927) quoted Judge John Basset Moore of the P.C.I.J. concerning the continuing act fiction (“wilfully puts in motion a forece to take effect”).
The Enrica Lexie Incident – Private Security Counterpoint « Communis Hostis Omnium March 8th, 2012 at 23:44
[...] to India (as the flag ship of the victims) and Italy (as the flag ship of the defendants). He notes, however, As Indian courts have jurisdiction, the next question is immunity. The easy thing to [...]
Douglas Guilfoyle March 9th, 2012 at 17:17
Perhaps to deal with (spurious) Italian claims about jurisdiction, India has apparently invoked the SUA Convention in its prosecution:

http://www.asianage.com/india/italian-ship-violated-maritime-law-075.

As I recall this was successfully invoked in US v Shi in an “ordinary” criminal case, despite arguments being made the Convention should be understood as restricted to “terrorist”, i.e. politically motivated, violence. (No such restriction appears in any operative provision of the Convention, though there are general references to terrorism in the preamble.)

Italy could perhaps argue for the broad construction of Art 2 (SUA does not apply to warships or vessels being used for certain public purposes).

This could be complicated by the fact – as I understand it – the vessel owners had to pay for the State provided VPD on a fee-for-service basis. In any event, placing government officials on a commercial vessel as it goes about commercial business seems unlikely to transform it into a “public” vessel.
dubito March 10th, 2012 at 18:46
Dear Francesco,
I may agree with you on the fact that India could claim jurisdiction under general international law … if it had under Indian domestic law, which is very far from being obvious at the current stage. Perhaps Lotus may e relevant, as the Cutting case as both are, for criminal lawyer leading cases on the locus commissi delicti. The issue is of international relevance but casting arguments are on Indian domestic law.
As to Douglas post on the commercial aspects of the protection provided by military VPDs, this would not be the first military operation funded by private industry. On the SUA … again, it seems to be a matter of implementation of SUA under the Indian 2002 Act which establish very narrow jurisdiction if compared with SUA. Will see …
Francesco Messineo March 12th, 2012 at 0:36
Just to add that the Italian Foreign Minister – prone, as these days sadly command, to share his thoughts with the entire world on Twitter – has apparently expressed the view that ‘the ship should never have gone into Indian territorial waters’ (http://www.corriere.it/esteri/12_marzo_11/terzi-twitter-maro_0bc076c8-6ba1-11e1-a02c-63a438fc3a4e.shtml).

Indeed, that is because the Foreign Minister (formerly a high ranking ambassador) must know that because of the ship’s entering territorial waters after the events, Indian authorities gained full enforcement jurisdiction over the two soldiers (as well as the legislative one they already would have had over the events because of the passive personality rule).

Of course dubito is right that Indian domestic law will determine the extent to which the permission India has to exercise its jurisdiction in this context will come tu fruition. But Italy remains in a very complex position – which will not be helped by ambiguously worded (and potentially ‘conceding’) Twitter posts.