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The Oxford Handbook of the Use of Force in International Law edited by Weller, Marc (1st January 2015)

Part VI Emerging Areas?, Ch.49 The Use of Force Against Pirates

Douglas Guilfoyle

From: The Oxford Handbook of the Use of Force in International Law

Edited By: Marc Weller

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 19 June 2019

Subject(s):
Piracy — Conspiracy — Exclusive economic zone — Flag state — UNCLOS (UN Convention on the Law of the Sea) — High seas — Territorial sea — Self-defence — Armed forces — Armed conflict, non-international — Regional organizations — Terrorism — Terrorism, financing — Hostage taking — War crimes — Customary international law

(p. 1057) Chapter 49  The Use of Force Against Pirates

I.  Introduction

On 15 May 2012 it was reported that the EU Naval Force, Operation Atalanta, which is tasked with counter-piracy off the coast of Somalia, had for the first time attacked a suspected pirate base:

on the [Somali] mainland…[M]‌ultinational forces used helicopters in conjunction with two warships to leave five of the pirates’ fast attack craft ‘inoperable’ [on the shore].1

If this is the shape of things to come, it represents a considerable shift in the use of force under international law against pirates. The rapid growth in Somali hostage-taking piracy since 2008 has spawned a considerable literature.2 There is little merit here, however, in rehearsing the evolution of Somali piracy and the international response.3 It is (p. 1058) sufficient to note that Somali pirates are now active throughout the Indian Ocean in an area encompassing the exclusive economic zones of states as distant as the Seychelles and India. Multinational naval forces involved in patrolling this vast ocean space include ‘EU operation Atalanta, North Atlantic Treaty Organization operations Allied Protector and Ocean Shield, Combined Maritime Forces’ Combined Task Force 151 [an offshoot of operations in Afghanistan]’ as well as vessels from ‘other States acting in a national capacity’ including India, China, and Russia.4 The counter-piracy activities of these forces to date have, with rare exceptions, occurred principally at sea.5 As discussed later, these have been conducted under the applicable public international law of the sea and as law enforcement operations. Slightly different questions are raised by the use of force by private merchant vessels in self-defence, including through the use of privately contracted armed security personnel. The opening up of land operations against Somali pirates by multinational military forces raises further and different issues about the applicable law and its scope. It is appropriate to begin with a review of the relevant Security Council resolutions before turning to the legal regime applicable at sea and ashore within Somalia itself.

II.  The Security Council and Somali Pirates

Since 2008 the Security Council has, remarkably, passed more resolutions concerning Somali piracy than terrorism.6 At least eight such resolutions are (p. 1059) relevant for present purposes.7 Their numerousness prevents detailed chronological discussion. The following analysis proceeds by identifying their common features usually by reference to the most recent at time of writing, Resolution 2020 (2011). In the nature of such things, it tends to restate much of the drafting of earlier resolutions.

A.  The Role of the International Law of the Sea (and the ‘Savings Clause’)

First the relevant Security Council resolutions call upon:

States and regional organizations that have the capacity to do so, to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with this resolution and relevant international law, by deploying naval vessels and military aircraft…8

Thus, while calling for the use of military assets, there is no use of the phrase ‘all necessary means’, widely accepted as the standard Security Council language used to authorize the use of force under Chapter VII.9 What, then, is the ‘relevant international law’ governing the fight against piracy? The preambles to the relevant resolutions reaffirm:

that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 …[UNCLOS], sets out the legal framework applicable to combating piracy and armed robbery at sea.10

This appears an unequivocal assertion that UNCLOS codifies the relevant customary international law. Despite some academic assertions to the contrary,11 there is now clearly ‘widespread agreement’ that this is the case.12 However, in each resolution (p. 1060) the Security Council also, curiously, affirms that the further authorizations granted in these resolutions (discussed later):

apply only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations, under…[UNCLOS], with respect to any other situation, and underscores in particular that this resolution shall not be considered as establishing customary international law.13

This was clearly intended to meet the concerns of states, such as Indonesia, which desired ‘ample safeguards’ to avoid any implication that these resolutions involved any ‘modification, rewriting or redefining’ of UNCLOS.14 In part this reflects a not uncommon view among some states that UNCLOS represents an exhaustively negotiated and finely balanced package deal and as a consequence any adjustment to it risks undermining the balance of the whole.15 It may also echo the hostility some South East Asian coastal states have previously expressed to the idea that major naval powers might conduct counter-piracy operations within their regional waters.16 The Security Council direction that these resolutions ‘shall not be considered as establishing customary international law’ is both an intriguing and question-begging proposition that cannot be further explored here.

The reference to the resolutions not applying to any other situation also echoes the Security Council’s earlier determination(s) that:

the incidents of piracy and armed robbery at sea off the coast of Somalia exacerbate the situation in Somalia, which continues to constitute a threat to international peace and security in the region.17

That is, as South Africa has stressed, it is:

the [underlying] situation in Somalia that constitute[s]‌ a threat to international peace and security, and not piracy in itself. Piracy is [only] a symptom of the situation in Somalia.18

The wording thus signals that piracy per se, wherever it may occur, is not to be considered a matter justifying Security Council intervention. In any event, the total effect of the savings clauses is to emphasize the primacy of UNCLOS as an authoritative statement of the applicable law.(p. 1061)

2.2 ‘All necessary means’ or ‘all necessary measures’ and authorisation to conduct operations in Somalia’s territorial waters and on Somalia’s territory.

Notwithstanding the preamble, there remains the possibility that the chain of relevant Chapter VII Security Council resolutions have widened the scope of legal force against piracy suspects in two cases. First, this may result from Resolution 1816, and its successors’, repeated authorization of states to use ‘all necessary means to repress acts of piracy and armed robbery’ within Somalia’s territorial sea. That is, states ‘cooperating’ with the Transitional Federal Government of Somali (TFG) ‘in the fight against piracy and armed robbery at sea’, where that cooperating status has been notified in advance ‘by the TFG to the Secretary-General’, may enter the territorial waters of Somalia and therein:

Use…, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery.19

This grant of authority (initially time-limited but frequently renewed)20 is clearly subject to two limitations. First, there is the procedural requirement of being granted the status of a cooperating state by the TFG. This is curious: if coastal state authorization is granted, Chapter VII authorization by the Security Council is superfluous. It may obviously serve to ‘pay homage to state sovereignty’ and be intended to strengthen the TFG.21 It has also been suggested that it avoids any conflict between patrolling states and Somalia over the validity of its claimed 200-nautical mile territorial sea.22 It is not, however, generally doubted that that claim is invalid.23 The more obvious explanation is that:

Not every member of the Security Council recognizes the TFG…For those members that recognize the TFG, such a condition is understandable. However, for those…that do not…, the authority to conduct counterpiracy operations in the Somali territorial sea is found in the…[Chapter VII] resolutions.24

On the latter view, the TFG derives its authority to permit such interventions from the resolutions.

The second limitation is that the Resolution requires that action in the territorial sea be taken ‘in a manner consistent with [counter-piracy] action permitted (p. 1062) on the high seas’ by international law. This clearly restrains the grant of authority to use ‘all necessary means’ to a scope of action no wider than that allowed on the high seas. As a result, and despite the difference in wording, the ‘territorial sea’ provisions of these resolutions go no further than those dealing with the high seas.

The second situation covered is intervention within Somalia. Commencing with Resolution 1851, successive Chapter VII resolutions have authorized states and regional organizations cooperating with the TFG (as notified to the Secretary- General) to:

undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea, pursuant to the request of the TFG, provided, however, that any measures undertaken…shall be…consistent with applicable international humanitarian and human rights law.25

This authorization to use force is, again, subject to two limitations: such measures must be expressly requested by the TFG and states must comply with ‘applicable international humanitarian and human rights law’. Both limitations are somewhat ambiguous. On the first requirement, this does not contemplate the kind of comprehensive permission in advance to conduct operations envisaged in the territorial sea provisions. While the TFG could obviously confer such blanket authority, the wording appears more consistent with case-by-case authorization of operations. As to the second limitation, the application of ‘applicable’ human rights law is unobjectionable (although the question of the extraterritorial effect of human rights treaties for states intervening in Somalia may be complex).26 The reference to international humanitarian law (IHL) is regrettably confusing. Some have interpreted it to suggest that the Resolution per se makes all of IHL applicable to counter-piracy operations in Somalia’s land territory.27 This is clearly wrong: the Resolution only refers to ‘applicable’ IHL; that is, law that would apply irrespective of the Resolution. The use of military force does not necessarily implicate IHL, which is applicable only in an international or non-international armed conflict. The point is taken up further later, after a discussion of the general public international law applicable to the use of force against pirates on the high seas.

(p. 1063) III.  The Applicable Legal Framework at Sea

A.  General Considerations of Public International Law

It is clear that both UNCLOS and the earlier Geneva High Seas Convention,28 and customary international law, provide police powers to suppress piracy.29 On the high seas (for present purposes, being all waters outside any state’s territorial sea),30 any government vessel may board a vessel suspected of piracy as an exception to the principle of exclusive flag state jurisdiction.31 Where evidence of piracy is discovered, the state vessel may seize the suspect vessel, arrest persons on board, and subject them to the jurisdiction of that state’s courts,32 although in the Somali case interdicting navies have often transferred suspects to regional states for trial under universal jurisdiction laws.33 These powers apply only on the high seas and do not permit pursuing pirates into foreign territorial waters.34 Where such acts of boarding, inspection, or seizure under UNCLOS are resisted then questions regarding the use of force obviously arise.

Simply because an operation is being carried out by naval forces does not mean the applicable law must be that of the laws of war either under the UN Charter (jus ad bello) or IHL (jus in bello). ‘[I]‌t is the mission, not the uniform worn by the actor, that determines how the force should be classified and which doctrine controls that use of force.’35 While this proposition may seem self-evident it is seldom fully explained by commentators. On one view, the proposition can be deduced from the text of UNCLOS, which stipulates that warships may, under limited circumstances, (p. 1064) board and search foreign flag vessels.36 Such an operation, permitted by UNCLOS, cannot be held to be contrary to other provisions of UNCLOS reserving the high seas ‘for peaceful purposes’ or which re-enact the UN Charter’s Article 2(4) prohibition on ‘any threat or use of force against the territorial integrity or political independence of any State’.37 Thus, the conclusion can be drawn that a maritime ‘police operation’ permitted by UNCLOS is something different from a military ‘use of force’ prohibited by the UN Charter.38 This line of reasoning is at least partially convincing and appears to have been implicitly adopted in Guyana v. Suriname.39

Other analyses are, however, possible. In particular, ILC Special Rapporteur François writing in 1950 commenced from the proposition that in times of peace customary international law knew only one general police power on the high seas, the right of reconnaissance and/or approach (essentially, drawing near a vessel to determine its nationality).40 Otherwise, all ‘specific’ powers of interference with foreign flagged vessels derived from treaty law, with the sole exception of piracy.41 François’ approach emphasizes two useful points. First, one need not make an a priori determination that certain acts are inherently not contrary to the prohibition on the use of force or not governed by the laws of war. As regards IHL, the jus in bello can only apply (to use an old-fashioned phrase) in times of war. The question is one of the objective existence of an armed conflict, a point returned to later. As regards the UN Charter prohibition on the threat or use of force, uses of force are not unlawful where they are consented to.

This brings us to François’ second point: interferences with foreign flag vessels on the high seas which might otherwise have historically been considered a causus belli or (in modern terms) an act giving rise to a right of self-defence42 may be permitted by treaty or long-established customary right. Acts of ‘policing’ interference with foreign vessels are not prohibited uses of force because they are somehow not force (or involve the wrong type or quantum of force) but because they are expressly permitted by international law.43 However, irrespective of whether one holds that (p. 1065) maritime interdiction operations permitted by UNCLOS are inherently of a kind not governed by the UN Charter prohibition on the use of force or that such acts are not wrongful because they are expressly permitted, the conclusion is the same: a policing paradigm governing the use of force applies.44

The difficulty, of course, is determining the content of that paradigm. The UNCLOS provisions on piracy are silent regarding the use of force. One must therefore turn to general public international law governing the use of force in maritime law enforcement operations. The critical case is M/V Saiga (No 2), where the International Tribunal for the Law of the Sea (ITLOS) found that in cases of ‘boarding, stopping and arresting’ a vessel international law:

requires that the use of force must be avoided as far as possible and, where…unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply…The normal practice…is first to give an auditory or visual signal to stop,…[then to take other actions], including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning must be issued…and all efforts should be made to ensure that life is not endangered.45

On the question of the use of force by government agents once aboard a suspect vessel, ITLOS endorsed the view, codified in Article 22(1)(f) of the UN Fish Stocks Agreement (FSA),46 that such agents must:

avoid the use of force except when and to the degree necessary to ensure the[ir] safety…and where…obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances.47

In reaching these conclusions, ITLOS had little to draw on. It could cite only two cases: Red Crusader and I’m Alone.48 The I’m Alone case concerned the deliberate sinking of a vessel to prevent its escape, while in Red Crusader 40 mm solid shot was fired into a fleeing fishing vessel. The M/V Saiga case itself involved the deliberate firing of large-calibre live rounds without warning shots into a slow-moving vessel suspected only of customs offences. Precisely because these cases involved such clearly disproportionate uses of force, neither leaves us with detailed guidance on the use of force in maritime law enforcement.

(p. 1066) A further possible point of reference is Article 9 of the United Nations Basic Principles for the Use of Force and Firearms by Law Enforcement Officials49 (UN Basic Principles) which provides that firearms shall only be used ‘in self-defense or defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime…and only when less extreme means are insufficient’ and that ‘intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.’ While this provision was not referred to by ITLOS in M/V Saiga, there is no doubt as to its general applicability to law enforcement operations and it has influenced a number of later instruments discussed later in the chapter.

In maritime police actions, then, the use of force is a last resort—to be avoided where possible and in all cases it must be strictly limited to what is reasonable and necessary. While an ‘appropriate warning must be issued’ in the case of attempting to board a vessel, no such warning need necessarily be given, for example when there is an imminent and serious danger to human life (as in the Maersk Alabama hostage-rescue incident).50 These standards are, however, far from providing a detailed code on the use of force. They might fairly be considered as having more to say about the outer limits at which the use of force becomes impermissible rather than providing clear guidance as to when force is permitted.51 They may also be misleading, given their focus on the use of firearms and lethal force, when considering the position of private actors as discussed in the following section.

B.  The Use of Force by Private Actors Against Pirates

In most cases, however, it will not be naval vessels that defend ships attacked by pirates but the crew of that vessel itself. This implicates the law of self-defence applicable to private actors. The issue becomes potentially controversial when Privately Contracted Armed Security Personnel (PCASP) are retained to protect a vessel (PCASP are to be contrasted with the use of marines deployed aboard a merchant vessel by its flag state, or another state, as a so-called Vessel Protection Detachment (VPD). Such state agents are clearly governed by the standards set out previously52). (p. 1067) The extent to which PCASP are regulated by international ‘hard’ or ‘soft’ law will be returned to later.

The starting point is that flag state law will be the principal law binding both crew and PCASP. A ship on the high seas is subject to the exclusive jurisdiction of its flag state53 and each flag state must ‘effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’.54 PCASP will thus operate under flag state law, within any limits established by international law. The International Maritime Organization (IMO) has issued interim guidance (only) on the use of PCASP to states, shipowners, and port states.55 The IMO guidance to states is brief, essentially suggesting that flag states should have a policy on PCASP and should consider whether PCASP would be permitted under present national legislation, how to establish an appropriate regulatory framework and minimum licensing criteria, and provide information on such matters to the IMO for circulation.56 The IMO guidance to shipowners is discussed later.

As to the applicable law, some flag states will permit the use of lethal or deadly force by private persons in self-defence in response to an imminent danger of death or serious bodily harm. It is commonly said that many legal systems will not allow the use of deadly force to defend property,57 but in the UK at least that may not be strictly accurate. In the UK a person may use force in self-defence (subject to common law requirements that their act is reasonable, necessary, and proportionate) or may use reasonable force to prevent a crime (including acting to defend an innocent third party).58 In particular, in the UK ‘[a]‌ witness to violent crime [involving] a continuing threat of violence may well be justified in using extreme force to remove a threat of further violence’.59 In defence of property in particular a person may use (p. 1068) reasonable force to prevent the destruction or taking of goods, and where a trespasser uses force a person defending property ‘may oppose force to force’.60 This suggests that the legal assessment of the use of force in defence of property remains a contextual assessment rather than being subject to an absolute prohibition on the use of lethal force. Nonetheless, where confronted with Somali pirates firing rocket-propelled grenades or machine guns, an individual clearly need not ‘weigh to a nicety the exact measure of [violence used in] any necessary action’.61

It will be a matter for flag states whether they subject the general law of individual self-defence to more stringent requirements in the case of PCASP. The UK, for example, has issued ‘Interim Guidance’ advising that PCASP should use the ‘minimum force necessary’ to prevent the illegal boarding of a vessel and to protect the lives of those on board and that PCASP rules on the use of force should allow a ‘graduated response, each stage of which is considered to be reasonable and proportionate to the force being used by the attackers’.62 The ‘minimum force necessary’ standard appears more restrictive than the ordinary law of self-defence and may reflect a view that those trained in using violence should be held to higher standards. No statutory scheme in the UK, however, makes such a distinction and it remains to be seen if a court would differentiate in its application of the ‘reasonable force’ standard between ‘ordinary’ seafarers and trained security personnel.

It has been widely noted that ultimate authority for the use of force aboard a merchant vessel must rest with the master.63 Regulation 8(a) of Chapter XI-2 of the SOLAS Convention relevantly provides:64

The master shall not be constrained by the Company, the charterer or any other person from taking or executing any decision which, in the professional judgement of the master, is necessary to maintain the safety and security of the ship.

The UK Interim Guidance, however, notes that an individual’s inherent right of self-defence means that if a person perceives an imminent threat to human life (including their own) that ‘Neither the Master nor the security team leader can command him or her…to not use lethal force’ against that person’s own judgement.65

(p. 1069) Obviously, a breach of flag state law on the use of force in self-defence or to prevent serious crime may result in liability under flag state law. In addition, the use of force without adequate legal justification by PCASP against another vessel or persons on board could itself violate either:

  • •  Article 3(1)(b) of the SUA Convention66 (‘Any person commits an offence if that person unlawfully and intentionally: …performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship’); or

  • •  the law of piracy (covering ‘any illegal acts of violence…committed for private ends by the crew…of a private ship…against another ship [on the high seas]…, or against persons or property on board’).67

Further, as the requirements of self-defence vary between national legal systems, a PCASP member acting in mistaken self-defence may find themselves charged with national or international law offences in a foreign jurisdiction such as that of a victim’s state of nationality.68 This has already occurred, although admittedly in the case of a state-authorized VPD rather than PCASP. In the 2012 Enrica Lexie affair two Italian marines allegedly wrongfully shot dead Indian fishermen, having mistaken them for pirates.69 Curiously, Italy does not appear to have invoked state immunity in this case,70 but sought to rely on Article 97(1) of UNCLOS to exclude Indian jurisdiction. Article 97(1) provides:

In the event of a collision or any other incident of navigation…on the high seas, involving the…responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted…except before the…authorities either of the flag State or of the [person’s state of nationality].

This provision was famously first introduced in treaty law to overturn the result of the Lotus case.71 While it seems unlikely it was ever intended to cover fatal shootings as ‘incidents of navigation’, some suggest the provision should be construed broadly (p. 1070) to include all ‘maritime casualties’ (being any ‘other occurrence on board a vessel or external to it resulting in material damage…to a vessel or cargo’).72 Whether even such a broad approach could cover fatal shootings remains untested.

Finally, one should consider whether a growing body of international soft law dealing with private military contractors applies to private military and security companies (PMSCs). The first text to consider is the Montreux Document (discussed further in Chapter 53 of this volume).73 The Montreux Document is a soft law instrument dealing with the relationship between states and PMSCs, based on the principle that ‘Contracting States retain their obligations under international law, even if they contract PMSCs to perform certain activities.’74 To this end, it outlines principles of good practice applicable to contracting states (which retain PMSCs), territorial states (where PMSCs operate), and home states (where PMSCs are incorporated, or the states of nationality of PMSC employees). It is thus not prima facie applicable to PCASP retained by shipowners. Nonetheless, it is replete with reference to the use of force, firearms, and weapons—largely in the context of providing appropriate training and internal regulations.75 Although these standards do not apply to PCASP, when compared with ITLOS case law (discussed in Section III.A) and IMO guidance (discussed later in this section) they suggest a degree of consensus that both PMSCs or PCASP should use ‘force and firearms only when necessary in self-defence or defence of third persons’.76

Of more relevance is the International Code of Conduct (ICoC) which builds upon the Montreux Document and contains guidance on the use of force.77 The ICoC is only open for signature to private security companies, although it was developed in discussion with a range of governments and non-government organizations. As at 13 June 2012 it had 404 corporate signatories. It is sometimes questioned whether the ICoC addresses maritime security. There is a good case that it does. The ICoC applies to Complex Environments, including

any areas experiencing…unrest or instability,…where the rule of law has been substantially undermined, and in which the [state’s] capacity…to handle the situation is diminished, limited, or non-existent.78

(p. 1071) Arguably, the maritime environment off Somalia is an area ‘experiencing…instability’ where state authority is diminished or limited. Further, the Code itself suggests that the marine environment might require ‘additional’ principles, not that those it currently contains are inappropriate or inapplicable.79

Space precludes detailed discussion of the basic ICoC rules on the use of force (found in paras 30–2) beyond noting that these refer to using only such force as is ‘strictly necessary, and…proportionate to the threat and appropriate to the situation’, in cases such as ‘self-defence or defence of others against the imminent threat of death or serious injury, or to prevent the perpetration of a particularly serious crime involving grave threat to life’. The concepts used thus closely follow the standards applicable to state agents discussed earlier, especially those found in the UN Basic Principles.

To conclude, the only international standards directly addressing PCASP are those in the ICoC. As noted, these may require supplementary or additional principles as regards the maritime domain, but there is little to suggest the existing standards are not applicable. Indeed, the IMO guidance to shipowners appears to track the relevant ICoC paragraphs closely in advising:

PMSC should require their personnel to take all reasonable steps to avoid the use of force. If force is used, it should be in a manner consistent with applicable law. In no case should the use of force exceed what is strictly necessary, and in all cases should be proportionate to the threat and appropriate to the situation.

PMSC should require that their personnel not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, or to prevent the perpetration of a particularly serious crime involving grave threat to life.80

The IMO and the Code thus both appear to have derived this guidance, at least in part, from the UN Basic Principles. This adoption and replication of common standards between instruments strongly suggests an emerging international consensus that the framework for permissible use of force by PCASP is governed by the principles of necessity and proportionality, and that use of firearms is generally accepted ‘in self-defence or defence of others against the imminent threat of death or serious injury’.

(p. 1072) IV.  The Applicable Legal Framework in Somali Territory

The use of force against suspected Somali pirates within the territory of Somalia may occur in one of two cases: in the territorial sea, or on Somali soil. As discussed in Section II.A, in the first case states ‘cooperating’ with the TFG may enter Somalia’s territorial sea and therein use all necessary means to repress piracy ‘in a manner consistent with action permitted on the high seas’.81 As regards the law on the latter, the Security Council has repeatedly stressed that the applicable legal framework is that of UNCLOS. As a consequence, measures taken in the Somali territorial sea cannot go beyond that allowed on the high seas under UNCLOS.

The more contentious point is the grant of authority initially given in Resolution 1851, as subsequently renewed, to states and regional organizations cooperating with the TFG to ‘undertake all necessary measures…in Somalia’ to repress piracy provided that any measures undertaken are ‘consistent with applicable international humanitarian and human rights law’.82 Further to the previous discussion, the critical point is the reference to IHL. As already noted, the use of military force does not necessarily implicate IHL,83 which is ‘applicable’ only in an international or non-international armed conflict. As I have put it elsewhere:

Somali pirates are at best several different groups acting without state sanction who have mounted a series of individual attacks against vessels of varying nationalities. These attacks are, on occasion, seen off by foreign naval vessels with (on fewer occasions still) shots being exchanged and pirates killed as a result. The actors involved are disparate private parties of Somali nationality on the one side and disparate military forces of varying nationality on the other. When pirate–naval encounters take place they are sporadic, brief and usually involve only small-scale fire.84

The first question then, a question of fact, is the existence of an international armed conflict (IAC) or a non-international armed conflict (NIAC) arising from these circumstances. The accepted formula was set out by the International Criminal Tribunal for the former Yugoslavia (ICTY) in Tadić:(p. 1073)

an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.85

Thus an armed conflict exists whenever there is either: (1) recourse to violence between states (an IAC); or (2) a conflict involving ‘organized armed groups’ and protracted armed violence (a NIAC). As Somali pirates are not state agents, the only possibility to consider is whether the present facts may constitute a NIAC involving an ‘armed group’. Somali pirates do not satisfy any of the relevant definitions of such armed groups: they are not organized on the basis of responsible military command, they control no territory,86 they conduct no hostilities within Somalia,87 and their attacks are directed principally against private merchant vessels and not against other armed bands or government forces.88 Pirates’ sporadic and relatively brief attacks on private craft also do not rise to the level of ‘protracted armed violence’, nor do their occasional and limited exchanges of fire with naval vessels.89 Pirate activity thus seems closest to ‘situations…such as riots, [and] isolated and sporadic acts of violence’90 falling below the threshold for the existence of any armed conflict. On the basis of ordinary IHL principles, therefore, there are no grounds to conclude that IHL applies in the use of force against pirates.

As a parenthesis, a separate question is whether the existence of armed conflict(s) in Somalia may affect the characterization of Somali pirates’ crimes. Certainly, civilians or non-combatants may commit war crimes, including that of hostage taking,91 where that crime is sufficiently closely connected to the conflict. As to that contextual or nexus requirement, it was observed in Kunarac: ‘the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit [the crime], his decision to commit it, the manner in which it was committed or the purpose for which it was committed.’92 On this broad approach, one might think Somali pirates’ activities may arguably constitute war crimes, to the (p. 1074) extent that conflict in Somalia enables their activities. However, post-Second World War case law would suggest that some close connection between the crime and one of the parties to hostilities is also required for offences in wartime to constitute war crimes.93

If this analysis is wrong and the decision was taken that IHL was applicable in counter-piracy, the fundamental principles of distinction and proportionality would become applicable.94 Distinction allows persons to be targeted based on their status as a combatant or a direct participant in hostilities. As noted earlier, Somali pirates are not participants in hostilities in any IHL sense. They would therefore remain protected civilians. It would be hard to conclude that Somali pirates were targetable as direct participants in hostilities, as there is no relevant NIAC between pirates as an organized armed group and each individually affected flag state. Under IHL, however, force may be used by combatants against civilians consistent with a law enforcement paradigm in certain cases: for example, during an IAC occupying troops may use force against rioting civilians to fulfil their duty to maintain order in occupied territory.95 However, if this analogy is correct, applying IHL would not grant any greater powers than those ordinarily applying in law enforcement operations.

Even if this conclusion is incorrect and IHL was applicable to pirates and they could be targeted directly in combat operations, the use of military force would remain governed by the principle of proportionality. This holds that:

Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.96

I note in this context that pirates increasingly hold hostages both aboard mother ships and in their land bases. This fact would certainly have to be taken into account in assessing the proportionality (and therefore legality) of any attack on such targets.

In conclusion, IHL does not apply in the context of counter-piracy operations ashore in Somali territory. The question that follows is what standards do apply? Such operations can only be regarded as law enforcement actions conducted with the consent (indeed, as all relevant resolutions provide, at the invitation of) the TFG. The applicable international standards would obviously include those discussed (p. 1075) earlier, especially the UN Basic Principles. However, this leads us to a curious question in relation to the incident with which this chapter commenced—the destruction of attack boats. It is not ordinary law enforcement practice to summarily destroy property suspected of being intended for use in future crimes. Indeed, one might question the consistency of such action with human rights law.97 Where is the lawful basis for such a deprivation of property to be found? Paragraph 2 of Resolution 1851 (as renewed) authorizes states to take action to suppress Somali piracy:

consistent with this resolution,…and international law, by deploying naval vessels and military aircraft and through seizure and disposition of boats, vessels, arms and other related equipment used in the commission of piracy…, or for which there are reasonable grounds for suspecting such use.

The ambit of this paragraph is not limited to actions on the high seas, as it refers to actions ‘consistent with this resolution’. This must include actions on land authorized by the Resolution. The paragraph also appears to create, through Chapter VII, a novel and summary power to dispose of property suspected of pirate use.

V.  Conclusions

While authority to conduct counter-piracy operations at sea is found in treaty and customary law, and while authority to conduct such operations within Somalia’s territorial jurisdiction (including territorial waters) is found in Security Council resolutions and the consent of the TFG, such sources have little to say directly about the applicable law on the use of force. The universally accepted position is that in either case a policing paradigm of lawful force applies. As the commander of the EU Naval Force has put it: ‘we are engaged in a constabulary task, and that is the fundamental guiding principle that constrains what we can do.’98 In such law enforcement operations:

The principle is the use of reasonable force,…being the minimum necessary to impose your rights…to board, search, seize, arrest, [and] detain [suspect vessels]…Lethal force is available where there is a threat to life…99

(p. 1076) The position of private actors acting in self-defence against pirate attack on the high seas is somewhat different. Principally, such actions will be governed by the law of self-defence of the flag state which will usually apply a more generous test than ‘minimum necessary’ force (eg the common law standard of reasonable, necessary, and proportionate force). There are signs of an emerging consensus, however, that PCASP should be subjected to a stricter standard based on necessity and proportionality. In all cases it is generally accepted that the use of firearms is permissible against the imminent threat of death or serious injury either in self-defence or defence of others, but in any event it should be a last resort.

Footnotes:

‘Somali piracy: EU forces in first mainland raid’, BBC News, 15 May 2012, available at <http://www.bbc.co.uk/news/world-africa-18069685>.

Pirates typically held 15 or more ships and several hundred crew at any time for ransom: ‘Somali piracy’, BBC News; House of Commons Foreign Affairs Committee, ‘Piracy off the coast of Somalia’ (HC 2010–12, 1318), 39, available at <http://www.parliament.uk/business/committees/committees-a-z/commons-select/foreign-affairs-committee/publications/>. The numbers are now much lower.

Better book-length treatments include: Bibi van Ginkel and Frans-Paul van der Putten (eds), The International Response to Somali Piracy: Challenges and Opportunities (Leiden: Martinus Nijhoff, 2010); Robin Geiss and Anna Petrig, The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (Oxford: Oxford University Press, 2011). For a concise overview, see Milena Sterio et al, ‘Transnational Piracy: To Pay or to Prosecute?’ (2011) 105 Proceedings of the Annual Meeting of the American Society of International Law 543. A rich factual account is provided in relevant reports of the UN Secretary-General and his special adviser: S/2010/394 (2010), S/2011/30 (2011), S/2011/360 (2011), and S/2012/50 (2012).

SC Res 2020 (2011), Preamble.

In 2008, prior to any Security Council authorization to intervene in Somalia, French forces captured ashore in Somalia those suspected of hijacking the French vessel Le Ponant, and removed them for trial in Paris. See generally Douglas Guilfoyle, ‘Counter-Piracy Law Enforcement and Human Rights’ (2010) 59 International and Comparative Law Quarterly 141, 156; Anaïd Panossian, ‘L’Affaire du Ponant et le renouveau de la lute internationale contre la piraterie’ (2008) 112 Revue Générale de Droit International Public 661; and Tullio Treves, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ (2009) 20 European Journal of International Law 399, 404 fn 11. Their trial commenced only in 2012.

The relevant terrorism-related resolutions are: SC Res 1805 (2008), 1822 (2008), 1904 (2009), 1963 (2010), 1988 (2011), 1989 (2011).

SC Res 1816 (2008), 1838 (2008), 1846 (2008), 1851 (2008), 1897 (2009), 1950 (2010), 1976 (2011) and 2020 (2011). See now also SC Res 2077 (2012) and SC Res 2125 (2013). One could also note SC Res 1816 (2008) dealing with the protection of humanitarian food deliveries into Somalia and various resolutions linking piracy and the political situation in Somalia including SC Res 2036 (2012).

SC Res 1846 (2008), para 9.

Christine Gray, ‘The Use of Force and the International Legal Order’ in Malcolm D. Evans (ed), International Law (3rd edn, Oxford: Oxford University Press, 2010), 363.

10  SC Res 2020 (2011) and compare SC Res 1846 and 1851 (2008), 1897 (2009), 1950 (2010) and 1976 (2011); see also SC Res 1838 (2008), para 3.

11  Alfred Rubin, The Law of Piracy (2nd edn., Newport, RI: US Naval War College, 1998), 331–72 and 373–96.

12  Geiss and Petrig, The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden, 41; Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009), 30–1 and Guilfoyle, ‘Counter-Piracy Law Enforcement and Human Rights’, 143; Djamchad Momtaz, ‘The High Sea’ in René-Jean Dupuy and Daniel Vignes (eds), A Handbook on the New Law of the Sea (Dordrecht: Martinus Nijhoff, 1991), vol 1, 417.

13  SC Res 1816 (2008), para 9; SC Res 1846 (2008), para 11; SC Res 1851 (2008), para 10; SC Res 1897 (2009), para 8; SC Res 1950 (2010), para 8; and SC Res 2020 (2011), para 10.

14  S/PV.5902 (2 June 2008), 2–3.

15  S/PV.5902, 4; contrast Alan Boyle, ‘Further Development of the 1982 Law of the Sea Convention: Mechanisms for Change’ (2005) 54 International and Comparative Law Quarterly 563.

16  On the reactions of Indonesia and Malaysia to the widely misreported US Maritime Regional Security Initiative of 2004, see Guilfoyle, Shipping Interdiction and the Law of the Sea, 55.

17  See the preambles to: SC Res 1816 (2008), 1838 (2008), 1846 (2008), 1851 (2008), 1897 (2009), 1950 (2010), 1976 (2011), and 2020 (2011).

18  S/PV.5902 (2 June 2008), 2–3 (emphasis added).

19  SC Res 1816 (2008), para 7(b).

20  SC Res 1816, para 7; as renewed in: SC Res 1846, para 10; SC Res 1897, para 7; SC Res 1950, para 7; SC Res 2020, para 9.

21  Treves, ‘Piracy, Law of the Sea, and Use of Force’, 407.

22  Treves, ‘Piracy, Law of the Sea, and Use of Force’, 407–8.

23  For the argument it may be reinterpreted as a (valid) exclusive economic zone, see Thilo Neumann and Tim René Salomon, ‘Fishing in Troubled Waters—Somalia’s Maritime Zones and the Case for Reinterpretation’ (2012) 16 American Society of International Law Insights, available at <http://www.asil.org/pdfs/insights/insight120315.pdf>.

24  Ashley Roach, ‘Countering Piracy off Somalia: International Law and International Institutions’ (2010) 104 American Journal of International Law 397, 401.

25  SC Res 1851, para 6 (emphasis added). Renewed in: SC Res 1897, para 7; SC Res 1950, para 7; SC Res 2020, para 9.

26  See generally: Guilfoyle, ‘Counter-Piracy Law Enforcement and Human Rights’, 152–69; Geiss and Petrig, The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden, 101–30.

27  Eugene Kontorovich, ‘International Legal Responses to Piracy off the Coast of Somalia’ (2009) 13 American Society of International Law Insights, available at <http://www.asil.org/insights090206.cfm>; contra Michael Passman, ‘Protections Afforded to Captured Pirates Under the Law of War and International Law’ (2008) 33 Tulane Maritime Law Journal 1, 16 ff (noting that the scope for any such application is limited).

28  United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 Dec 1982, 1833 UNTS 397); Convention on the High Seas (HSC) (Geneva, 29 Apr 1958, 450 UNTS 82). Presently 6 states and the Holy See are parties to the HSC but not to UNCLOS (Afghanistan, Cambodia, the Holy See, Iran, Israel, US, Venezuela). A further 21 states are parties to neither (Andorra, Azerbaijan, Bhutan, Burundi, Democratic People’s Republic of Korea, El Salvador, Eritrea, Ethiopia, Kazakhstan, Kyrgyzstan, Libyan Arab Jamahiriya, Liechtenstein, Peru, Rwanda, San Marino, Syrian Arab Republic, Tajikistan, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan).

29  See eg the first report of ILC Special Rapporteur JPA François on the high seas regime: Yearbook of the International Law Commission, 1950, vol ii, 36, 41 (using the concept of ‘Police en haute mer’).

30  UNCLOS, Art 58(2).

31  UNCLOS, Arts 92(1) and 110.

32  UNCLOS, Art 105.

33  A useful selection of cases is available via the United Nations Interregional Crime and Justice Research Institute at <http://unicri.it/maritime_piracy/db.php>. See also ‘Cygnus’ case (Somali Pirates), Rotterdam District Court (2010) 145 ILR 491; and US v. Dire (US Ct of Apps (4th Cir), 23 May 2012), at <http://pacer.ca4.uscourts.gov/opinion.pdf/114310.P.pdf>.

34  Laurent Lucchini and Michel Voelckel, Droit de la mer, Book 2, vol 2 (Pedone: Paris, 1996), 165; Craig H. Allen, Maritime Counterproliferation Operations and the Rule of Law (Westport, CT: Praeger, 2007), 168.

35  Craig H. Allen, ‘Limits on the Use of Force in Maritime Operations in Support of WMD Counter-Proliferation Initiatives’ (2006) 81 International Law Studies 77, 82.

36  UNCLOS, Art 110.

37  UNCLOS, Arts 88 and 301.

38  Allen, ‘Limits on the Use of Force in Maritime Operations in Support of WMD Counter-Proliferation Initiatives’, 89; Rosemary Rayfuse, ‘Countermeasures and High Seas Fisheries Enforcement’ (2004) 51 Netherlands International Law Review 41, 74.

39  Guyana v. Suriname (2008) 47 ILM 164, para 445 (accepting a distinction between a prohibited ‘threat of military action’ and the permissible use ‘unavoidable, reasonable and necessary’ force in ‘law enforcement activities’, without explaining the basis of the distinction).

40  Yearbook of the International Law Commission, 1950, vol ii, 36, 41.

41  Yearbook of the International Law Commission, 1950, vol ii, 36, 41.

42  Allen, ‘Limits on the Use of Force in Maritime Operations in Support of WMD Counter-Proliferation Initiatives’, 89; Case Concerning Oil Platforms ( Iran v. US), Judgment, ICJ Rep 2003, 161, para 64 (noting obiter that ‘the Texaco Caribbean…was not flying a United States flag, so that an attack on the vessel is not in itself to be equated with an attack on that State’; suggesting a contrario that an attack on a merchant vessel can be equated with an attack on the state).

43  For a longer version of this argument see: Guilfoyle, Shipping Interdiction and the Law of the Sea, 272–7.

44  For a discussion of when such a paradigm might apply to maritime interdiction operations in times of armed conflict, see Douglas Guilfoyle, ‘The Mavi Marmara Incident and Blockade in Armed Conflict’ (2011) 81 British Yearbook of International Law 171, 209–10.

45  M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v. Guinea), ITLOS Case No 2; (1999) 38 ILM 1323, para 155.

46  The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995, opened for signature 4 Aug 1995, 2167 UNTS 88 (entered into force 11 Dec 2001).

47  M/V ‘Saiga’ (No 2), para 156.

48  (1935) 3 RIAA 1609 and (1962) 35 ILR 485 respectively.

49  The UN Basic Principles are a soft law instrument adopted by consensus by 127 states at the Eighth UN Congress on the Prevention of Crime and Treatment of Offenders in 1990. See A/CONF.144/28/Rev.1 (7 Sept 1990), or <http://www2.ohchr.org/english/law/firearms.htm>. On their status, see the conference report: A/CONF.144/28/Rev.1, at 269 (the Basic Principles were adopted in plenary under agenda Item 7 as part of ‘Sect. B, resolutions 2 and 3’) and at 201 and 207 (on participating states).

50  See ‘In Rescue of Captain, Navy Kills 3 Pirates’, New York Times, 12 Apr 2009, available at <http://www.nytimes.com/2009/04/13/world/africa/13pirates.html>.

51  On this point, see further Guilfoyle, Shipping Interdiction and the Law of the Sea, 272 (a US IMO delegation once suggested that, ‘Simply put, there is almost no specific guidance regarding the use of force while conducting a boarding pursuant to treaty or customary international law’).

52  That said, a VPD would likely not be able to avail itself of the powers to actively inspect suspect pirate vessels and arrest those aboard found in UNCLOS, Arts 105 and 110. Such powers may only be exercised by warships or ‘other duly authorized ships or aircraft clearly marked and identifiable as being on government service’: UNCLOS, Arts 107 and 110(5).

53  UNCLOS, Art 97(1); HSC, Art 6(1).

54  UNCLOS, Art 94(1); HSC, Art 5(1).

55  IMO, ‘Revised Interim Guidance to Shipowners, Ship Operators, and Shipmasters on the Use of Privately Contracted Armed Security Personnel on board Ships in the High Risk Area’, IMO Doc MSC.1/Circ.1405/Rev.2 (2012) (‘IMO Shipowner Guidance (2012)’); ‘Revised interim recommendations for flag States regarding the use of privately contracted armed security personnel on board ships in the High Risk Area’, IMO Doc MSC.1/Circ.1406/Rev.1 (2011) (‘IMO Flag State Guidance (2011)’); and ‘Interim recommendations for port and coastal States regarding the use of privately contracted armed security personnel on board ships in the High Risk Area’, IMO Doc MSC.1/Circ.1408/Rev.1 (2012).

56  IMO Flag State Guidance (2011).

57  Self-defence under the Statute of the International Criminal Court (ICC) can extend ‘in the case of war crimes, [to] property which is essential for…survival…[or] for accomplishing a military mission’: ICC Statute, Art 31(1)(c).

58  Crown Prosecution Service, ‘Legal Guidance on Self-Defence and the Prevention of Crime’, available at <http://www.cps.gov.uk/legal/s_to_u/self_defence/>; section 76 of the UK Criminal Justice and Immigration Act 2008 (which effectively codifies the common law requirements outlined in Palmer v. R [1971] AC 814 at 831–2, per Lord Morris) on self-defence; and section 3 of Criminal Law Act 1967 on prevention of crime. See further paras 19–41 ff.

59  Crown Prosecution Service, ‘Legal Guidance on Self-Defence and the Prevention of Crime’, available at <http://www.cps.gov.uk/legal/s_to_u/self_defence/>.

60  James Richardson (ed), Archbold: Criminal Pleading Evidence & Practice (60th edn, London: Sweet & Maxwell, 2012), para 19-187. On ejecting unwanted passengers from vehicles, see R v. Burns [2010] EWCA Crim 1023, para 14.

61  Section 76(7)(a) of the Criminal Justice and Immigration Act 2008; Palmer v. R [1971] AC 814 at 831–2.

62  Department for Transport, ‘Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances’, Dec 2011, paras 8.3 and 8.5, available at <http://www.dft.gov.uk/publications/use-of-armed-guards-to-defend-against-piracy/>.

63  See eg IMO Shipowner Guidance (2012), Annex, 6.

64  International Convention for the Safety of Life at Sea (SOLAS) (London, 1 Nov 1974, 1184 UNTS 2).

65  Department for Transport, ‘Interim Guidance to UK Flagged Shipping on the Use of Armed Guards to Defend Against the Threat of Piracy in Exceptional Circumstances’, Dec 2011, para 5.6.

66  Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (Rome, 10 Mar 1988, 1678 UNTS 221).

67  UNCLOS, Art 101; HSC, Art 15(1).

68  UK guidance on this point is apt: ‘In some jurisdictions killing a national may have unforeseen consequences even for a person who believes that they have acted in self-defence’. See UK Maritime and Coast Guard Agency, ‘Measures to Counter Piracy, Armed Robbery and other Acts of Violence against Merchant Shipping’, Marine Guidance Note MGN 298 (M), 2005, para 6.15.1, available at <http://www.dft.gov.uk/mca/298-2.pdf>.

69  ‘India charges Italian marines with murder of fishermen’, BBC News, 18 May 2012, available at <http://www.bbc.co.uk/news/world-asia-india-18118790>.

70  Guilfoyle, Shipping Interdiction and the Law of the Sea, ch 11 and esp at 302–4.

71  The SS Lotus (France v. Turkey), Judgment of 7 Sept 1927, PCIJ, Ser A, No 10, 4. On the history of subsequent treaty law, see Robin R. Churchill and Vaughan Lowe, The Law of the Sea (3rd edn, Manchester: Manchester University Press, 1999), 208; International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in matters of Collisions and Other Incidents of Navigation (Brussels, 10 May 1952, 439 UNTS 233), Arts 1 and 2; and HSC, Art 11(1).

72  Satya N. Nandan and Shabtai Rosenne (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, vol III (The Hague: Martinus Nijhoff, 1995), 168, referring to the UNCLOS, Art 221(2) definition.

73  Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict (Montreux, 17 Sept 2008), available at <http://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf> or as annexed to IMO Doc MSC 89/INF.20 (8 Mar 2011); see also Ian M. Ralby, ‘Private Military Companies and the Jus ad Bellum’, Chapter 53 in this volume.

74  The Montreux Document, para 1.

75  The Montreux Document, Part II, paras 10, 12, 18, 35, 37, 43, 63 (on force and firearms), and Part II, paras 6, 9, 11, 14, 32, 34, 35, 36, 44, 55, 60, 62, 64 (on weapons).

76  The Montreux Document, Part II, para 18.

78  International Code of Conduct for Private Security Service Providers (as annexed to IMO Doc MSC 89/INF.21 (8 Mar 2011)), para 13, and see the definitions at Section B.

79  International Code of Conduct for Private Security Service Providers, para 7. See further Wilton Park, ‘Countering piracy: what are the rights and obligations of states and private security providers?’ (WP1150), 29 Mar 2012, paras 12–13, available at <http://www.wiltonpark.org.uk/resources/en/pdf/22290903/2012/wp1150-report>.

80  IMO Shipowner Guidance (2012), Annex, 7.

81  SC Res 1816 (2008), para 7(b).

82  SC Res 1851, para 6 (emphasis added). Renewed in: SC Res 1897, para 7; SC Res 1950, para 7; SC Res 2020, para 9.

83  Contra Kontorovich, ‘International Legal Responses to Piracy off the Coast of Somalia’.

84  Douglas Guilfoyle, ‘The Laws of War and the Fight against Somali Piracy: Combatants or Criminals’ (2010) 11 Melbourne Journal of International Law 141, 144 (footnotes omitted).

85  ICTY, Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 Oct 1995, Appeals Chamber, IT-94-1-AR72, para 70.

86  See Art 1(1), Additional Protocol to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 Dec 1978). This requirement is not replicated in the ICC Statute.

87  Art 1(1), Additional Protocol to the Geneva Conventions of 12 Aug 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

88  Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction; Art 8(2)(f), ICC Statute, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

89  On the test for ‘protracted armed violence’ see ICTY, Prosecutor v. Haradinaj, Judgment of 3 Apr 2008, Trial Chamber I, IT-04-84-T, para 49 (the question may be one of intensity more so than duration).

90  Additional Protocol II, Art 1(2); compare ICC Statute, Art 8(2)(d) and (f).

91  ICC Statute, Arts 8(2)(a)(viii) and 8(2)(c)(iii).

92  ICTY, Prosecutor v. Kunarac, Judgment of 12 June 2002, Appeal Chamber, IT-96-23 and IT-96-23/1-A, para 57.

93  See eg the discussion of Röchling et al and other cases in Antonio Cassese et al, International Criminal Law: Cases and Commentary (Oxford: Oxford University Press, 2011), 122–32.

94  David Turns, ‘The Law of Armed Conflict (International Humanitarian Law)’ in Evans, International Law, (3rd edn, Oxford: Oxford University Press, 2010), 814, 830–2.

95  Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009), 89–94; The University Centre for International Humanitarian Law, Geneva (UCIHL), ‘Expert Meeting on the Right to Life in Armed Conflicts and Situations of Occupation’ (Meeting Record 1–2 Sept 2005), available at <http://www.adh-geneva.ch/docs/expert-meetings/2005/3rapport_droit_vie.pdf>, 26.

96  Jean-Marie Henckaerts et al, Customary International Humanitarian Law, Vol I: Rules (Cambridge: International Committee of the Red Cross, 2005), 46.

97  eg Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (Paris, 20 Mar 1952, 213 UNTS 262), Art 1.

98  UK House of Commons Foreign Affairs Committee, ‘Piracy off the coast of Somalia’ (HC 2010–12, 1318), 5 Jan 2012, Evidence Annex, 14 (Major General Buster Howes, Operation Commander of EU Naval Force operation Atalanta), available at <http://www.parliament.uk/business/committees/committees-a-z/commons-select/foreign-affairs-committee/publications/>.

99  UK House of Lords European Union Committee, ‘Combating Somali Piracy: the EU’s Naval Operation Atalanta’ (HL 2009–10, 103), 14 Apr 2010, Evidence Annex, 29 (Commander Clive Dow, Royal Navy).