It was around 4.30pm on 15 February 2012 when the Italian-flagged oil tanker MV Enrica Lexie identified an imminent piracy threat in the shape of an approaching skiff. Some 20 nautical miles off the coast of Kerala, southern India, two Italian marines putatively opened fire on the target, believing the vessel to contain roving Somali pirates from across the Arabian Sea.

But it didn’t. The suspected assailants were, in fact, two unarmed Indian fishermen. Both were killed instantly. What has ensued since has been a diplomatic impasse between Italy and India. The two marines are currently being held in Kerala on murder charges, with both nations contesting various legal jurisdictions – Italian authorities are adamant that the perpetrators cannot be charged under Indian law as the incident took place in international waters; the Indian Supreme Court refutes this, citing territorial prerogatives.

"According to recent figures, there were 151 attacks in Somali waters in 2011, compared with 127 in 2010."

The naval patrol had been deployed by the Enrica Lexie to reinforce its onboard security against the prevalent threat of piracy, stretching from the Gulf of Aden into the Indian Ocean. As a result of the incident, the theme of armed security personnel on the high seas has been thrust into the spotlight for all the wrong reasons.

IMO piracy conference

Unsurprisingly, the tragedy was a focal point at the International Maritime Organisation’s (IMO) Conference entitled ‘Capacity Building to Counter Piracy off the Coast of Somalia’. Held at the IMO’s London headquarters in May 2012, representatives of the UN-affiliated agency’s 170 member states gathered for what was reported to be a heated discussion on the appropriate use of force in tackling piracy.

"There’s no getting around it; the arms onboard issue is highly contentious," says Chris Trelawny, deputy director of the IMO’s maritime safety division. "When member states met in May, the first thing we had to look at was, ‘Does the IMO have a role in this all?’ There are a diverse range of views across member states, with some fully supportive of the idea of armed personnel, and others completely against it."

Escalating piracy threat

The shipping lanes of the Gulf of Aden, off the coast of Somalia, still pose the most severe threat to ships, including oil tankers. According to figures released by the European Union Naval Force Somalia, there were 151 attacks in Somali waters in 2011, compared with 127 in 2010.

"Private maritime security companies can exercise a lawless code of vigilantism on the high seas as a result of scant regulations."

In light of this escalation, existing naval patrols provided by the likes of NATO and the EU have been deemed relatively ineffectual, giving rise to the deployment of private maritime security companies (PMSCs) as an alternative course of action. Despite PMSCs symbolising a nebulous area of debate, there are approximately 150 maritime security companies operating in high-risk territories. As well as serving as a deterrent to hijackers, naval patrols, represent a cheaper option for many carriers, eschewing the need to fork out on the extra fuel required to avoid pirate hotspots.

Only a week before the IMO conference, a video recorded by armed security personnel aboard a bulk carrier ship, the Avocet, depicting guards opening fire on a pirate skiff off the Somali coast, was leaked online. As was the case with the Enrica Lexie incident, the video has highlighted concerns that PMSCs can exercise a lawless code of vigilantism on the high seas as a result of scant regulations. In response to the release of the video, Thomas Rothrauff, president of Virginia-based Trident Group, which provided the security crew of ex-US Navy SEALs, admitted that the occupants of the suspected pirate boats had been probably injured or killed.

"We’re not in the business of counting injuries," he said. Many within the industry are calling for an inquiry. "Ultimately, it is a matter for the flag state," says Trelawny. "So without endorsing or condemning the practice, it has been decided that the IMO’s role in all of this is to develop some basic guidance for private maritime companies, as well as guidance for flag states and coastal states."

The use of private armed security

Yet, while the IMO is set to play a greater role in assisting PMSCs through sets of new maritime safety circulars, it has gone to great lengths to clarify that this should not be taken as an official endorsement of arms onboard vessels.

"The carriage of firearms is strongly discouraged," he explains. "We see the use of private armed security as an exceptional measure only to be used in exceptional circumstances in high-risk areas such as the western Indian Ocean. It should not become institutionalised in any shape or form. That would be very dangerous."

In terms of the legal ramifications of deploying private security, as mentioned by Trelawny, it is a matter for the flag state – under the laws of the country where the vessel is registered or licensed. Industry self-regulation has also been promulgated by the likes of the Security Association for the Maritime Industry (SAMI), although this is another issue that has split opinion among IMO member states.

"Some of the member states are not too keen on the industry regulating itself," Trelawny says. "Instead, they would prefer a transparent system or minimum standard, to be checked by neutrally accredited auditors such as the ISO [International Organisation for Standardisation].

"Where it gets really complicated is the embarkation and disembarkation of weapons, because when the ship is on the high seas, it is subject to the flag state law, but when it goes into a state’s territorial waters, it raises a set of legal questions. That’s a major stumbling block as a lot of private security companies are still unclear as to what the various national regulations actually are."

The root causes of piracy

With a manifest air of reluctance across the UN regarding the overuse of PMSCs, it is looking to implement other initiatives that tackle the root causes of piracy; in Somalia’s case, it has been fomented inland as a result of economic and political troubles. In addition to the 2009 Djibouti Code of Conduct, set out by the IMO to repress piracy and armed robbery against ships in the Indian Ocean and the Gulf of Aden, it has continued to engage in joint efforts with organisations such as the UN Political Office for Somalia (UNPOS) and the UN Office on Drugs and Crime (UNODC).

"When the ship is on the high seas, it is subject to the flag state law, but when it goes into a state’s territorial waters, it raises a set of legal questions."

"The basic logic the IMO has adopted is that we are never going to entirely solve the problem at sea," says Trelawny. "Therefore, the solution is to help Somalia. For instance, we are working with local bodies in the likes of Puntland and Somaliland to develop the country’s maritime sector in order to develop alternative livelihoods to piracy. While the IMO doesn’t have a mandate on fishing, we do have the ability to assist and support seafarer training."

As the Djibouti Code of Conduct looks to promote change in the Horn of Africa, piracy has also escalated off the coastline of West Africa in the Gulf of Guinea. According to the International Maritime Bureau (IMB), there have been 17 hijackings in Nigerian waters this year alone. Notably, a Greek oil tanker was also seized off the coast of Togo in August with pirates making off with approximately 3,100t of gas oil from its cargo.

Anti-piracy training and initiatives

Piracy in West Africa is also primarily concerned with oil theft rather than kidnapping and ransoming of the crew, which is a more common practice in the Gulf of Aden.

"We have a regional initiative in West Africa, which is actually more far-reaching than the Djibouti Code of Conduct," says Trelawny. "As well as trying to build maritime law enforcement capabilities in the widest sense, we are also working with the Oil Companies International Marine Forum (OCIMF) to establish a maritime transport sharing centre in Accra, Ghana, where suspicious activities can be reported."

"The basic logic the IMO has adopted is that we are never going to entirely solve the problem. Therefore, the solution is to help Somalia."

Consequently, in recent months, the US military has deployed a taskforce in the Gulf of Guinea in concert with the US Africa Command (AFRICOM), while France is purportedly set to offer anti-piracy training in Benin and Togo in 2013.

"There are a lot of initiatives going on at the moment," says Trelawny. "And while it is important to ensure that there is the right amount of collaboration between the coastal states so as to avoid duplication, I really feel it’s heading in the right direction."

In spite of such efforts gathering momentum, the likelihood is that ship owners will continue to employ the services of private security firms for a little while yet. The IMO will advocate their use solely as a defensive measure rather than a case of fighting fire with fire. Otherwise, there is the genuine risk of a repeat of the events that took place in the waters off the Kerala seaboard on that fateful afternoon in February.