Mercenaries in the Strait of Malacca

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.