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

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.