Corsairs in the Crosshairs: A Strategic Plan To Eliminate Modern Day Piracy, By Alexandra Schwartz
Monday, November 8, 2010
Letter Of Marque: A Review Of Corsairs In the Crosshairs
This note proposes that the solution to the rapidly escalating problem of piracy is for the U.S. government to issue the license equivalent of historical letters of marque to private actors, thereby granting them increased legal immunity and political approval to use force to protect private vessels against piracy. Letters of marque were legal commissions granted by Congress to private citizens granting them cover to engage enemies of the country. At the same time, it is important for the U.S. to regulate the forces that they sanction and this note will discuss the current state of such regulation. The legal background of authority to address pirates, emanating from customary, international, and municipal law demonstrates that, despite some potential hurdles, this proposed solution is a legally valid and efficient option. -Alexandra Schwartz from Corsairs in the Crosshairs
David Isenberg was the one that found this gem of a paper and a big hat tip to him. As you can see in the post above, I have also downloaded a copy into Scribd so you can read the whole thing. This post will be dedicated to some of the highlights of the paper that jumped out at me.
Specifically, I really liked the various legal mechanisms that Alexandra dug up and I learned some new stuff. If you are interested in the legal side of privatized anti-piracy operations, then this paper is for you.
There are a few areas that I wanted to put up for the reader to check out and note. One is the 1819 US Law titled ‘Resistance of Pirates by Merchant Vessels’. Like with the Letter of Marque, this little guy exists in the books as a vigorous means of defense that even involves capture if need be. Here it is:
The commander and crew of any merchant vessel of the United States, owned wholly, or in part, by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States. -33 U.S.C. § 383 (2000)
The next area was in regards to the Declaration of Paris. Alexandra only confirms exactly what I have been repeating here. That the US did not sign the DoP, and that we even signed laws at that time that further enforced our right as a nation to issue LoM’s. She mentioned this law, and I had never heard of it before. Check it out:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all domestic and foreign wars the President of the United States is authorized to issue to private armed vessels of the United States, commissions, or letters of marque and general reprisal in such forms as he shall think proper, and under the seal of the United States, and make all needful rules and regulations for the government and conduct thereof, and for the adjudication That the authority conferred by this act shall cease and terminatethree years from the passage of this act. -An Act concerning Letters of Marque Prizes, and Prize Goods, ch. LXXXV, 12 Stat. 758 (1863) (This act was passed on Mar. 3, 1863, and provided that the authority it conferred would “cease and terminate” three years after its passage).
Alexandra also covers some of the particulars of a modern version of a Letter of Marque, and draws from a certain publication written by Robert P. DeWitte called ‘Let Privateers Marque Terrorism: A Proposal for a Reawakening’. So I will have to further research what he has to offer and get that up on blog as well. Check it out and let me know what you think. –Matt
Link to Scribd Publication here.
Edit: 11/09/2010- I wanted to add this one little piece for everyone to check out as well. The author here claimed the Spain and Britain both did not abide by the Declaration of Paris. I had never heard of Britain’s use of Prize Courts and paying prize money to folks to attack the enemy during WW 2. I am definitely trying to find out more about this.
Quote from Corsairs in the Crosshairs:
Moreover, even if one were to argue that the Declaration of Paris has become customary law, it is important to observe that many countries that signed it have continued the practice of issuing letters of marque in the modern era.
See Jacob W.F. Sundberg, Piracy: Air and Sea, 20 DEPAUL L. REV. 337, 353 (1971) (“Even after Spain, in 1908, had acceded to the Declaration of Paris of 1856 which outlawed privateering in naval war between parties to the treaty, the opinion was advanced that it is perfectly possible under general international law to issue letters of marque.”). The British navy utilized prize money to reward those who fought for them in World War II, with the British Prize Court in London awarding about $40 million dollars. Id. at 354.
Wednesday, October 27, 2010
Industry Talk: Afghan Ban On Security Firms Delayed By 2 Months
That’s a start. Although I wonder how much we had to pay Crazy Karzai for this two month extension? lol Lately I have been reading all the latest articles about this circus, and it is just dumb. It is obvious that Karzai is playing games. I mean this guy is talking with the Taliban, getting money from Iran, and at the same time jerking us around about PSCs in Afghanistan. He is using the ban on PSCs as a means of extortion and it is just dumb. It’s almost as if some agent was able to penetrate his brain and plant this idea, ‘Inception‘ style.
Because lets be real on this one. Karzai’s life was dependent upon private security during many of the years of his presidency. His family operated private security companies who made millions of dollars from contracts over the years. And all of these recent incidents involving kidnapping, attacks on facilities, and attacks on convoys all highlight how important security is. If there are not enough troops to do the job, then of course private security is the next step, and yet Karzai wants to ban them?
Also, if Karzai has an issue with companies, then instead of throwing the baby out with bath water, he could instead ‘fairly’ issue licenses (which they do, yet does not regulate or manage well ) and require them to be bonded. A bond could make it extremely expensive for companies that screw up, and give the offices an incentive to watch the industry. That would be one way for him to control and regulate companies.
The alternative is that he kicks out all of these companies, to include expat companies, and all of the programs they were tasked with securing will falter. Billions of dollars in aid designed to rebuild and infuse money into the local economies, will now be shut off because these programs do not have security. Not to mention investors will now have second thoughts about doing anything in Afghanistan, all because they are not allowed to use private security.
The logical way to reduce the numbers of contractors is through success in the war. As security increases, attacks and threats decrease, and the requirement for security will decrease. Actually this would be a great metric on how the war is going, and if security contractor use naturally decreases because of that classic market force called ‘a lack of demand’, then this would be an excellent indicator that things are getting better.
It is a lot like the timeline issue that I have talked about in the past. The enemy loves timelines, because it is a date for victory. Troops or contractors should leave not based on timelines but based on progress and success. –Matt
Press Release From The Office Of The President (Afghanistan)
October 27, 2010
Arg, Kabul – For a rapid implementation of Presidential Decree 62 on the dissolution of private security companies, President Hamid Karzai has ordered the establishment of a committee led by the Minister of Interior and participated by representatives from NATO-ISAF and major international donors.
The Committee will develop plans for the disbandment of the PCSs that provide security for development projects and report on progress to the President.
The phasing out of illegal PCSs and road convoy security companies continues on a priority basis as laid out in the Decree.
Recognizing the importance of maintaining the continuous delivery of critical development projects and programs funded by the international community, the Committee will prepare a timetable for the disbandment of the PCSs that secure development projects and submit it to the President on November 15th, 2010.
Comments Off on Industry Talk: Afghan Ban On Security Firms Delayed By 2 Months
Tuesday, October 26, 2010
Industry Talk: International Stability Operations Association–IPOA’s New Name
Interesting change here. Also, ISOA has some exciting stuff coming up in the near future in regards to the Code of Conduct. But like the UN Global Compact, what will be the legal mechanisms or disciplinary mechanisms that will insure it has teeth and everyone abides by it? How does it interact with SOFAs, and the various constitutions and legal mechanisms throughout the world?
The proof of concept to me is what would happen to a contract guard or even employee of a company, if they committed a crime in a war zone of another country? How that code of conduct addresses this type of circumstance, as well as the other complex circumstances we have come up over the last nine or so years, is what I am interested in.
It is also important to address what the disciplinary measures will be when companies–both contracted and sub-contracted, do ‘bad things’ under that contract? These are the kinds of things that must be addressed if we want others to respect the effort. That respect could also translate into increased legitimacy and even increased business throughout the world, just because those who contract our services would know that there is such a process of control, legal accountability and regulation. –Matt
International Stability Operations Association: IPOA’s New Name
Oct. 25 , 2010
The association that represents the stability operations industry, formerly called IPOA, is now the International Stability Operations Association (ISOA). The new name and logo are designed to better reflect the broad industry that provides vital services and support to the international community in conflict, post-conflict and disaster relief operations.
“From the beginning, our goal has been to make international stability operations more successful by increasing accountability, ethics and standards within the industry,” said ISOA’s President, Doug Brooks. “For almost ten years we have grown as the ethical core of a unique and valuable international resource. Our new name reflects that evolution as an association and as an industry, and positions us for the future.”
Industry Talk: UN Working Group Is Strangely Silent About The UN’s Use Of PSCs In Afghanistan
I wanted to do a quick criticism of the UNWG’s latest press release about US PSC’s in Afghanistan. Why would they criticize US oversight of PSC’s, and yet not take a critical look or even mention the UN’s use of PSC’s in Afghanistan?
UN experts call for stronger oversight of US private security contractors in Afghanistan and I would like to hear what the UN has as a means of accountability over a PSC like IDG Security? What if one of those guards committed a criminal act–what would the UN do with that individual? How about the vetting? Do they know that every guard is former Gurkha or has a clean background? How about the other contracted and sub-contracted companies the UN uses?
The other thing I was curious about is what happens to a contracted company the UN uses that violates their ‘code of conduct’ called the UN Global Compact? Do they prosecute the individuals in a UN tribunal, or do they just fire them and ‘hope’ that the home country is able to do something with them? Pfffft. Where’s the ‘teeth’, as they say?
It would seem to me that the UN is doing the exact same things as the US in terms of using PSC’s, but continues to only point fingers at others. I would classify that as ‘hypocritical’, don’t you think? By the way, if UNWG is curious at all, they should contact UN staff in Afghanistan and ask them about the ‘other’ companies they are using. Just so they can have all the information they need to make a report about the ‘UN’s use of PSC’s in war zones’.-Matt
————————————————————–
GENEVA (19 October 2010) – The UN Working Group on the use of mercenaries welcomed as “a step in the right direction” a recent report by the US Senate Committee on Armed Services into the role and oversight of US private security contractors in Afghanistan. “However, more should be done to address the problems raised in that inquiry,” said the Chairperson of the expert body, Alexander Nikitin. “In particular, there should be stronger oversight of US private security contractors in Afghanistan and elsewhere.”
“The findings of the US Senate report are consistent with those of the Working Group following its visit to Afghanistan* in April 2009,” said Mr. Nikitin, noting that the study shows the many problems raised by the absence of adequate oversight over the private military and security companies contracted by the US Government in Afghanistan.
“Because of the lack of effective vetting procedures, in particular, some of these companies employed individuals who may have been involved in human rights abuses in the past and continued to be involved in human rights violations while employed by these companies,” he said.
The Working Group noted during its visit to Afghanistan that former armed elements, whether considered to be warlords or anti-Government elements, were not effectively prevented from registering as employees of officially licensed private security companies.
Given the lack of systematic and effective vetting and training procedures, and the absence of adequate sanctions in case of violations, the UN expert body had recommended that Governments contracting private security companies in Afghanistan establish adequate oversight and accountability mechanisms.
Later that year, during the Group’s visit to the United States in July, it also recommended that the US Government establish a more vigorous vetting procedure before awarding contracts. “The problems faced in Afghanistan illustrate once again the importance of and the pressing need for a strong system of regulation and oversight of private military and security companies.” said Mr. Nikitin.
“The matters discussed in the US Senate report are too important to be left to self-regulation of companies,” the Group’s Chairperson stressed. “While voluntary codes of conduct for private contractors are welcome, they are not sufficient to ensure that States regulate and monitor the activities of the companies they contract to carry out State functions, and establish accountability mechanisms to address human rights violations.”
A draft text for a new convention on the regulation of private military and security companies was presented by the expert body to the Human Rights Council last month.The Council decided to establish an open-ended intergovernmental working group to consider the possibility of elaborating an international framework on the regulation, monitoring and oversight of the activities of private military and security companies, taking into account the principles and provisions for a new legally binding instrument proposed by the Working Group on mercenaries.
“The self-regulatory codes of conduct of the security industry have failed in the past ten years to establish effective accountability,” said Mr. Nikitin. “In this regard, we hope that all States, including the United States where many private military and security companies are established, will seriously consider participating in the process initiated by the Human Rights Council aimed at setting up an international regulatory framework for private military and security companies.”
The Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination was established in 2005 by the Commission on Human Rights. It is composed of five independent experts serving in their personal capacities:, Mr. Alexander Nikitin (Chairperson-Rapporteur – Russian Federation), Ms. Amada Benavides de Pérez (Colombia), Mr. José Luis Gómez del Prado (Spain), Ms. Najat al-Hajjaji (Libyan Arab Jamahiriya) and Ms. Faiza Patel (Pakistan).
Link to press release here.
——————————————————————
Participant Information
IDG Security Pte Ltd.
• Participant since 2008/03/06
• Status Active
• Country Singapore
• Organization Type SME
• Ownership Private Company
• Sector General Industrials
• Letter of Commitment UN_Global_compact_Feb_08.pdf
• Website http://www.idg-security.com
Next Communication on Progress
IDG Security Pte Ltd. is required to communicate on progress by 2011/03/06.
Link to UN Global Compact website here.
Comments Off on Industry Talk: UN Working Group Is Strangely Silent About The UN’s Use Of PSCs In Afghanistan