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05 October 2011
As the debate over the rights and wrongs of arming ships against the threat to life and property posed by pirate attacks continues, an independent committee has advised the Dutch government to move towards a higher level of protection for its merchant fleet including, "if necessary", the use of armed private security guards.
The government commissioned the report from the De Wijckerslooth Committee to help it to assess the possibility of deploying armed private security personnel to protect Dutch ships from the threat of attack by pirates, mainly (but not necessarily limited to) those from Somalia. The report cautions that security guards should be hired only by the government and should perform their security duties only as soldiers under the full authority of the Ministry of Defence. It adds that, in the current circumstances, it is undesirable for shipowners to hire armed security guards privately.
The committee urges the government to arrange for sufficient constitutional guarantees when allowing forms of armed self-protection. It adds that, in the meantime, it is obliged to arrange for a sufficient level of protection against piracy. At present, this is handled by navy patrols and escorts around the Horn of Africa, and includes onboard armed military personnel being allowed to accompany "very vulnerable transports". The committee says that this should be expanded so that all qualifying transports are provided with such protection by the Ministry of Defence. The report adds that, if necessary, the required capacity could be created, with financial aid from shipowners, by engaging reservists or by hiring personnel from high-quality private companies, which should be deployed by the Ministry of Defence under a temporary military status.
The committee argues that by creating additional defence capacity in this way, no amendment of legislation and regulations will be required, although it will be necessary to select and contract security guards and their employers carefully in accordance with Ministry of Defence requirements.
If adopted, it is anticipated that the committee's recommendations could lead quickly to the provision of a level of protection against piracy which is considered necessary for merchant vessels. The alternative – whereby shipowners themselves hire private security guards – entails "several problems", according to the committee, and would require drastic amendment of Dutch legislation and regulations, which could take some time.
The committee notes that the issue of whether to engage armed security should be considered, in the first instance, if the Ministry of Defence proves to be unable to provide the required level of protection to vulnerable transports. If the government fails in its duty of care, this triggers the implementation of alternatives, even if those are complicated in their structure and effects. The committee also notes that relevant developments elsewhere must be taken into account, and that ongoing discussions in Europe and internationally may see increasing numbers of countries opting for private security guards – in which case, such an option should be considered by the Netherlands, especially if basic regulatory conditions are met at international level.
It is the government's duty to try to protect its merchant fleet from attacks by pirates. If the government is unable to do so, it must employ outside help. Privately owned companies should not hire armed protection. Furthermore, the cost of providing protection against piracy should be borne by the state. Shipowners should be allowed to hire private armed guards only in the event that the government is unable to fulfil its duties. In the event that Dutch shipowners hire armed personnel or provide weapons to those on board, those directly involved, including the ultimate management of the company, could face criminal prosecution.
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