Sunday, February 7, 2010

Using Military Forces for Vessel Escorts

Escalating the Issue: Military Forces and Ship Escorts;

Risk management involves balancing the efforts associated with protecting an organization against loss with the potential for those losses to occur, if left untreated. What needs to be understood, however, is that security risk is only one kind of risk faced by a shipping company—we cannot forget operational, legal and other kinds of risks. The contracting of military forces changes this balance significantly.

When we look at the use of military forces being paid by private interests to provide these kinds of services, we are entering a minefield of issues. Before we explore some of those, it should be clear there may well be cases where the military, its government and the private sector have come to legitimate arrangements regarding cost sharing. What also needs to be clear is that, like many other risk management activities, companies should be exercising their due diligence before falling prey to the hype and pictures of flashy patrol vessels.
The first question that should be asked is whether or not this approach is actually legal. This has three parts. First, does this ship’s flag state condone this sort of arrangement? If not, then you run risks associated with being identified less favorably for targeting purposes, increased inspections and how the flag state generally views your company. The second element involves the nation involved. Does the government of the military involved have knowledge of and endorse the activity, or are you dealing with a situation where a senior official is using his or her influence to use government resources for personal gain? The third aspect is whether or not the use of an armed escort vessel is significantly different (from a legal perspective) than having the armed personnel on your ship. If your company cannot put armed personnel on board because the flag state does not agree with the concept of armed defense, will it view the hiring of a warship as an attempt to bypass its own controls and ability to administer its laws on your vessel? This will be a question for legal departments and, for the unfortunate, the courts to decide.

The second element is more pertinent to military forces on board vessels and near conflict zones. Remember, pirates are in it for the money. When you bring military forces on board, the question is not just whether or not you are a target for pirates but whether or not those forces are a target for their own various adversaries—be they terrorists or other militaries. This means that you have a new range of threats and vulnerabilities to consider, including how you treat approaching smaller vessels and so forth. For example, in the case of a potential suicide attack against a vessel, do you want your crew buried in the bowels of the ship or nearer to avenues where they can get to the deck and other areas to begin fire fighting or escape a burning vessel? This kind of scenario calls into question whether or not your security is truly risk based from an all-hazards approach or simply addressing current issues.

These kinds of questions are the kinds of questions that need to be going through the Company Security Officer’s mind when looking at these kinds of issues. It is not that it is likely, but security has to look at the broad range of possibilities and probabilities to ensure that management is well served.

Finally, you need to wonder about the priorities of the military. What happens if the military forces are recalled by their nation in order to defend it? Will the forces remain on board the vessel or will you be diverted in order to drop them off? If they are on another vessel, can they be re-tasked in order to deal with search and rescue, enforcement or other activities? These kinds of issues should also be clarified in any discussions and should be clearly documented both in terms of what assurances the company has and who is responsible for any costs associated with that action, up to an including the vessel being taken by pirates when the defenders leave.

Another issue, particularly with vessels operating outside of their territorial waters, is whether or not the vessel (and its crew) can be treated the same way as a warship or an coast guard vessel. It is, after all, now a government vessel being operated for commercial purposes—opening a whole ream of legal grey zones that the company would do well to have clarified.

All things being equal, there should be a level of effort made by the company to ensure that it is well protected legally when entering into these kinds of arrangements. While there are reputable companies providing security services (and potentially even these kinds of arrangements), there are others that will simply latch onto any opportunity to make a dollar.

This does not even begin to address the challenges associated with the issue of sovereignty or rights of innocent passage (including the restrictions). If the warship remains within its own territorial waters, we have more than enough indication to show that the pirates know how to shift locations to where the escorting vessels do not operate. At the same time, if they exit territorial waters and enter the waters of another nation, there could be issues (depending upon the international agreements with the neighbors and the levels of tensions between them) with a warship or patrol craft suddenly entering into that nation’s sovereign territory. If the forces are on board the vessel, then the matter is even worse. On one hand, the flag state may have issues with allowing foreign military personnel on board the vessel. At the other end of the spectrum, the vessel may be expelled from the waters under certain conditions for violating the conditions associated with innocent passage or may be subject to a range of enforcement activities.
None of these are conducive to conducting business when your business involves moving persons or goods from one location to another efficiently.

In short, know what you are getting into and ensure that you have verified any claims being made regarding the appropriateness of the service with the governments involved.

Guest Post by; Allan McDougall
Evolutionary Security Management

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