Mercenaries in the Strait of Malacca

Mark J. Valencia, Hawaii

In the wake of relentless attacks by sea robbers and frequent kidnappings of hapless crews for ransom, several private companies have begun offering armed escort services for vessels transiting the Malacca and Singapore Straits. And owners of large, high value, slow moving vessels anxious to avoid possible increases in insurance, or the alternative possible costs of ship hijacking and crew ransom have begun availing themselves of these services.

Although Singapore allows these companies to operate in and from its land and sea jurisdiction in the Singapore Strait, their activities raise difficult policy questions for the two nations with jurisdiction in the Malacca Strait: Indonesia and Malaysia.

The companies offering escort and security services all have offices in Singapore and include UK-based Hart Security, Glenn Defense Marine and Singapore-based Background Asia Risk Solutions. These companies hire out ex-police and military personnel to guard ships and their crew passing through the Malacca and Singapore Straits.

Some guards are placed on board the vessel to be protected while others man escort speed boats. These escort boats are clearly marked so that they can be recognized by local navies, coast guards and police -- as well as sea robbers. As Background Asia's Managing Director Alex Duperouzel says, "our whole strategy is based around the idea of deterrence. We are trying to tell people that we are armed and serious and there are easier targets elsewhere".

The 1982 UN Convention on the Law of the Sea which has been ratified by all three Straits states provides that a vessel, including a private security vessel, in transit in a strait used for international navigation can not be impeded. However, if the vessels were to engage with or pursue sea robbers in the territorial sea of a littoral state then it would be in innocent passage which could be suspended if it is prejudicial to the peace, good order and security of the littoral state.

Moreover the escort vessel would be subject to the jurisdiction and laws of the coastal state. If the escorts are fending off or pursuing sea robbers in Indonesian or Malaysian waters without permission , they would be usurping the state's law enforcement role and thus be akin to vigilantes.

In areas under both Malaysian and Indonesian jurisdiction, possession of firearms and even bullets by unlicensed private citizens is a serious offense. Therefore, the operation of these "guards" in these states' territorial or archipelagic waters in the Malacca Strait raises difficult questions of law, sovereignty and accountability.

Under existing domestic laws, Malaysia and Indonesia could license these private companies to allow their employees to carry firearms in their waters. But have they done so, or will they do so? And if not, will these companies be violating Malaysian or Indonesian law and thus be subject to arrest and prosecution for serious offenses?

The concept of sovereignty dictates that the state has a legitimate monopoly on the use of force in its territory (and territorial seas). However, the legitimacy of the extent of Malaysia's claim to territorial seas in the Malacca Strait has been challenged by others. If Malaysia does not enforce its laws there, is it sacrificing a portion of its normally sacrosanct sovereignty and thus weakening its claim?

Complicating the sovereignty issue is that some see Singapore's willingness to allow these companies to operate as another tactic in its attempt to get Malaysia and Indonesia to allow Singapore anti-sea robber and anti-terrorist patrols into their waters.

Moreover, if these security personnel operate only in Singapore's territorial waters, will the sea robbers concentrate on unguarded vessels in Malaysian and Indonesian waters because they do not allow such private armed escorts? And is the use of armed guards the beginning of an "arms race" which the sea- robbers will only escalate?

Then, what are the functions of these armed guards vis-`-vis those of the strait states' navy, coast guard and marine police? At the least, if Malaysia or Indonesia allow the operation of these private security forces in their waters, they are tacitly admitting that they do not have the will or the capability to ensure security in the strait.

Perhaps more disturbing, what if these mercenaries make a mistake, i.e., kill or wound innocent fishermen and crew, damage property, or interfere with the actions of state law enforcement agencies? Who is responsible -- the individual, the security company, or the state that gave them permission to use firearms in the first place? This in turn raises the question of the quality of personnel and their regulation in the use of firearms -- if they are allowed to use them.

Anticipating these concerns, the armed escort companies are attempting to regulate themselves. However the primacy of concern for the safety of the seafarer has led both the International Maritime Organization, which facilitates international law making in this sphere, and the International Maritime Bureau -- a leading international authority on countering sea robbery -- to oppose the use of armed guards to protect commercial vessels.

A better multi-pronged approach may be for owners to hire well-trained, security-vetted crew; improve their incident- reporting systems; notify immediately the appropriate enforcement agencies in the straits states of any suspicious activity or incident; order their captains to stay in the main traffic lanes and avoid short cuts or "quieter routes"; and invest in non- lethal counter- and deterrence measures onboard like stun grenades, pepper spray, slippery foam, gun-dispensed glue, smoke or water curtains and electric fences.

The private security companies are subject to market forces. As the straits countries step up their own enforcement efforts, incidents of sea robbery and thus the demand for private security services will recede on their own.

But in the meantime, Malaysia and Indonesia should either issue a firm warning that waters under their jurisdiction are "off-limits" to "private armed escorts" or explain to the public and international community why they are allowed, and their specific role.

At the least, if Malaysia or Indonesia is going to allow these companies to operate in their waters, they need to develop a licensing and regulatory system to manage these mercenaries and their use of firearms, and ensure they do not conflict with the role of their law enforcement agencies, or endanger their citizens.

The writers is a maritime policy analyst.