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Maritime Interception and the Law of Naval Operations pp 227–250Cite as

Detention and Maritime Interception

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Abstract

Detention at sea during maritime interception operations differs somewhat with detention during military operation on land. Whereas generally the same legal regime for operational detention applies in both dimensions, there are some differences. On the on hand, certain legal grounds to detain do not apply at sea, which means that fewer grounds to detain individuals at sea exist. On the other hand, the legal regime for detention at sea has particular rules with regard to certain specific individuals, such as members of an enemy merchant fleet and passengers on board a captured vessel. Lastly, the maritime environment itself may have its effects on the manner in which way legal safeguards are implemented.

The practitioner should be cautioned that authority to intercept a vessel does not always equate to authority to detain the vessel, its contents or its crew.

—Winston G. McMillan, Major United States Marine Corps

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Notes

  1. 1.

    McMillan 2011.

  2. 2.

    This is, however, not to say that at sea in general there has never been any attention to human beings. Obviously, within the context of maritime law enforcement , such as drug- or human trafficking, there is clear attention to human beings at sea. But within the context of conducting naval operations , persons at sea played a secondary role of importance to vessels and cargo.

  3. 3.

    Kleffner 2010, p. 465.

  4. 4.

    Kleffner 2010, p. 465.

  5. 5.

    I am using the term legal ground as oppose to legal basis, to distinguish between the legal bases in general for maritime interception operations and the legal ground for detention in particular.

  6. 6.

    Doswald-Beck 2011, p. 254.

  7. 7.

    ECtHR Guide on Article 5 of the Convention Right to liberty and security (2014), para 8.

  8. 8.

    The alternative is to bring in a so-called prize crew, which is a military crew that will take over the vessel.

  9. 9.

    Articles 5–7 HC XI.

  10. 10.

    See Section 60 SRM.

  11. 11.

    Article 8 HC XI.

  12. 12.

    Tucker (1955, pp. 111–112) opines that the practice in the Second World War has led to the obsoleteness of releasing enemy merchant crews by written promise of not returning to operations of war. The practice during the Second World War, however, must be seen in the context that merchant vessels and crews were effectively integrated in the warfighting capacity of the belligerents and structurally constituted military objectives.

  13. 13.

    US Commander’s Handbook, para 7.10.2.

  14. 14.

    Heintschel von Heinegg 2014, p. 171.

  15. 15.

    Historical cases exist in which passengers on board neutral vessels were deemed to be combatants by the visiting belligerent forces, such as the Asama Maru case in 1940. In 1940 HMS Liverpool received the order to board a Japanese-flagged merchant vessel Asama Maru. The vessel was suspected of having German passengers on board the vessel, which they had. The Germans were taken as prisoners of war on the basis that these Germans were, although not in the military service, military aged men that could ultimately take service against England. Japan protested against this action. Later, it appeared that several of the captured men were ‘relatively unsuitable for military service’. See Dunham 1997; The Canberra Times, 8 February 1940, p. 4: ‘Settlement of Asama Maru controversy. Anglo-Japanese understanding. Britain offers release of nine men’.

  16. 16.

    Article 42 GC IV reads:

    The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

    If any person, acting through the representatives of the Protecting Power, voluntarily demands internment and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

  17. 17.

    Article 78 GC IV reads:

    If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.

    Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power.

    Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.

  18. 18.

    See on the discussion what ‘security’ could mean Pouw 2013, pp. 391–393.

  19. 19.

    Debuf 2009, p. 863.

  20. 20.

    See e.g. Aughey and Sari 2015a, b and the resulting debate on EJIL TALK! At: http://www.ejiltalk.org/ihl-does-authorize-detention-in-niac-a-rejoinder-to-rogier-bartels/; Rona 2015.

  21. 21.

    Aughey and Sari 2015a, pp. 103–104.

  22. 22.

    E.g. Doswald-Beck 2011, p. 263; Pouw 2013, pp. 370–371.

  23. 23.

    Doswald-Beck 2011, p. 263; Debuf 2009, p. 867.

  24. 24.

    Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.

  25. 25.

    Pouw 2013, p. 395.

  26. 26.

    S/2013/21, October 2013, para 43.

  27. 27.

    The so-called ‘hell ships’.

  28. 28.

    This thought is also articulated by the ICRC, including in Frederic de Mulinen’s Handbook on the law of war for armed forces, which states that: Prisoner of war camps shall be located on land except where clause there are better temporary conditions elsewhere (e.g. an advanced camp on heated ship rather than open tents on land unusually cold climate). De Mulinen 1987, no. 674.

  29. 29.

    Article 19 GC III reads:

    Prisoners of war shall be evacuated, as soon as possible after their capture , to camps situated in an area far enough from the combat zone for them to be out of danger.

    Only those prisoners of war who, owing to wounds or sickness, would run greater risks by being evacuated than by remaining where they are, may be temporarily kept back in a danger zone. Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone.

  30. 30.

    Noone 2004; Mordarai et al. 2013.

  31. 31.

    See: http://www.history.navy.mil/content/dam/nhhc/research/archives/command-operation-reports/ship-command-operation-reports/d/dubuque-lpd-8/pdfs/2003.pdf.

  32. 32.

    Pouw 2013, p. 381.

  33. 33.

    Pouw 2013, pp. 373–377.

  34. 34.

    In these cases persons where held for 16 (Rigopoulos) and 13 ( Medvedyev ) days on board the vessel.

  35. 35.

    Rigopoulos, in “The law”-section.

  36. 36.

    E.g. Hassan, para 97.

  37. 37.

    Bodini 2011, p. 833.

  38. 38.

    Hassan, para 104.

  39. 39.

    From 23 September to 25 September 2008.

  40. 40.

    Olson 2014, p. 189.

  41. 41.

    EU Council. Joint Action (CJA) 2008/851/CFSP.

  42. 42.

    See more elaborately on this case (in Dutch) Verkroost and Fink 2011.

  43. 43.

    SC Res. 1973 (2011), para 13.

  44. 44.

    See for example the practical ‘to do’-list of the boarding team in ATP 71, p. 5-15. (e) Place a security team member in position above the assembled crew/passengers to observe the entire group, if possible. Furthermore, the ATP 71 notes that one of the principles of crew control is to ‘keep the crew together’.

  45. 45.

    See e.g. Davidson and Gibson 2008.

  46. 46.

    High Court of Justice, Queen’s Bench Division, Serdar Mohammed v. Ministry of Defence, 2 May 2014.

  47. 47.

    Serdar Mohammed, para 218.

  48. 48.

    Medvedyev, para 80.

  49. 49.

    Petrig 2014 has studied the cases of Denmark and Germany, but also The Netherlands appears to have this view. See Verkroost and Fink 2011, pp. 21–22.

  50. 50.

    Petrig 2014.

  51. 51.

    See e.g. SC Res. 1846 (2008).

  52. 52.

    Petrig 2014, pp. 228–230.

  53. 53.

    Medvedyev , para 99. See also on this point Guilfoyle 2010b, pp. 437–442.

  54. 54.

    Pierini 2011, p. 8.

  55. 55.

    Hassan, para 69.

  56. 56.

    See also Guilfoyle 2010a, p. 152.

  57. 57.

    Lieblich 2014.

  58. 58.

    Another report was written by the Turkish national authorities.

  59. 59.

    A/HRC/51/21.

  60. 60.

    The Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel Commission ). The Turkel Commission in fact produced also a second report. This second report (Part II) relates to Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law (February 2013).

  61. 61.

    Report of the Secretary-General’s Panel of inquiry on the 31 May 2010 Flotilla incident (September 2011).

  62. 62.

    HRC, para 176. Turkel (para 164) mentions the same the number of persons.

  63. 63.

    HRC, paras 195–196.

  64. 64.

    S/PRST/2010/9.

  65. 65.

    Palmer, paras 135–145.

  66. 66.

    Palmer, conclusion para 69.

  67. 67.

    HRC, para 70.

  68. 68.

    HRC, paras 52–56. Interestingly, the HRC applies Section 102(b) of the San Remo Manual . While the HRC is satisfied that the blockade impacts in a disproportionate manner on the civilian population, the Turkel Report finds it hard to conclude whether or not this is actually the case, also in light of the land-crossings policy imposed on the Gaza . In fact it concludes that the blockade was in compliance with the proportionality requirement as it is set out in the San Remo Manual. Turkel, paras 62 and 97.

  69. 69.

    HRC, para 215.

  70. 70.

    Turkel, para 112.

  71. 71.

    Turkel, para 99.

  72. 72.

    Turkel, para 186.

  73. 73.

    Turkel, para 190.

  74. 74.

    Turkel, para 191.

  75. 75.

    Turkel, p. 177.

  76. 76.

    Turkel, para 144.

  77. 77.

    Turkel, p. 187.

  78. 78.

    Turkel, para 153.

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    Martin Fink

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Fink, M. (2018). Detention and Maritime Interception. In: Maritime Interception and the Law of Naval Operations. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-249-1_11

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