13 FEBRUARY Framework for the Use of Force

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1 OPERATION SOVEREIGN BORDERS: CHARTING THE LEGAL ISSUES CENTRE FOR MILITARY AND SECURITY LAW PUBLIC SEMINAR Comments by Associate Professor David Letts Co-Director, Centre for Military and Security Law ANU College of Law 13 FEBRUARY 2014 Framework for the Use of Force My role this afternoon is to speak about the legal issues that are involved in the use of force in the maritime environment. However, before I commence addressing that topic, in the interest of transparency I would like to mention that I did serve for nearly 32 years in the RAN, including significant periods where I performed duties as a legal officer. I held the position of Fleet Legal Officer in 2001 when some of you may recall that a vessel named MV Tampa picked up over 400 persons - rescuees as North J called them at first instance in the case that eventually became known as Ruddock v Vadarlis (2001) 183 ALR 1 after it ended in the Full Federal Court. In my role as Fleet Legal Officer I was involved in providing legal advice to both the Maritime Commander and to the Commanding Officers of vessels directly involved in border protection activities in However, I have had no involvement at all in any aspect of OSB and my remarks are therefore based on information that is in the public domain and my understanding of relevant legal principles. It is apparent that the government has employed a deliberate strategy of not discussing which TTPs (tactics, techniques and procedures) are being used in OP SB and while some who are directly involved may understand this strategy from an operational security perspective it does permit speculation regarding many aspects of the operation, including the level of force that is being used. Some of that speculation is being addressed this afternoon in so far as possible. The use of force at sea is not a new concept. There are two primary areas where force might be legitimately used at sea; the first is during a period when the laws of armed conflict apply and where the law of naval warfare is the relevant lex specialis and the second is in a security or law enforcement environment where the relevant legal authority might be, for example, a UNSC Resolution or coastal state domestic law that is firmly based on a state s international legal rights and obligations. In relation to the first area just mentioned, OSB is clearly an operation where these laws do not apply. There is no armed conflict, there is no enemy and it worries me when terminology regarding a war against people smugglers or asylum seekers is used as I consider it to be decidedly unhelpful in terms of creating an

2 appropriate mindset at sea or ashore among those involved in the activity and the wider public discourse. An internet search on the phrase war against asylum seekers will provide a range of opinions on this issue including this quote attributed to Prime Minister Abbott in early January when he stated: If we were at war we wouldn't be giving out information that is of use to the enemy just because we might have an idle curiosity about it ourselves. Another example is the article that was printed in The Canberra Times on 15 Jan with the headline Navy sailors now on war footing to turn back boats. This article was actually referring to a declaration that the CDF had made under sub-section 12D(2) of the Work Health and Safety Act 2011 and suggesting that this declaration effectively puts the sailors on a similar footing to military personnel fighting in battle. The article was quickly followed by a statement from the Acting CDF which was publicly released but the point I wish to make is that the language being used in the press in this instance creates an environment that tends to inflame the situation. So, the second area that I have identified, security and law enforcement, is the appropriate lens through which questions regarding the use of force should be framed. A starting point is to consider if it is credible to assume that ADF and Customs personnel at sea are following legitimate government direction in terms of the manner in which force is being used in OP SB. Certainly, public statements from the government, as well as Defence and Border Protection officials, all indicate that this is the case and I will consider what this direction may entail in a few minutes. I would also like to make some remarks regarding who, or what, force might be used against. In the maritime context there seems to be a number of factors at play including the use of force against the vessel itself (ie trying to stop the vessel from proceeding in a certain direction or carrying out a certain activity) that is somewhat remote from consideration of the status of persons onboard the vessel. The 1982 United Nations Convention on the Law of the Sea (LOSC) reflects this division in Article 110 (Right of Visit) which has been mentioned earlier and Article 111 (Hot Pursuit) as action in both cases is directed against a ship. This type of force would typically be exerted without actually boarding a vessel, and could be typified by an escalation of measures that are designed to compel those navigating the vessel to comply with the direction of those intercepting the vessel. Measures could include, in a graduated scale, request by voice/radio, signalling intention to get the vessel to act in a certain way, manoeuvring the intercepting vessel in a manner that is designed to initiate compliance, sending a boarding party to a vessel to deliver instructions or apprehend the vessel, use of a device to interfere with the vessel s propeller or steering the firing of warning shots near a vessel or actually firing at the vessel to compel compliance.

3 In relation to individuals that are onboard a vessel, there will usually be at least two distinct categories in each boat. The first are those that have already been talked about, people that are seeking to enter Australia for the purpose of seeking asylum. The second category is those who comprise the vessel s crew and are transporting the first category to Australia. The question arises as to how, in the first instance, it might be possible to identify on any vessel who is actually in each category, and if this can be done whether there is, or should be, any difference in the level of force that is used in relation to dealing with either group while at sea. Alternatively, should the vessel and all of those onboard be considered as breaching Australian domestic law once they reach either the CZ or TS and whatever force is reasonable and necessary to make an apprehension that conforms to Australian law be permitted? On this point, I think there is little argument that Australia has a right (and responsibility) to regulate entry into, and exit from, Australian territory. Further, the potential need for force to be used when dealing with people who are seeking to enter Australia in an unauthorised manner should not be surprising, regardless of whether or not such persons seek to make a claim for asylum. For example, if a person arrives at an Australian airport and makes a claim for asylum, there is no automatic right for that person to ignore the legitimate direction of authorised officials regarding where that person is to be taken while that claim is assessed. If the person decides they do not want to comply with that direction, perhaps preferring an evening at the picture theatre or pub instead, there are forceful measures that can be used to ensure compliance occurs. So, what are these measures and what does international law and Australian domestic law inform us about the limits that exist. The first point I should mention is that there is a clear entitlement to use reasonable and necessary force in self-defence. In some circumstances this could include the use of lethal force for example if being attacked with a weapon but the details will depend on the precise circumstances that are encountered. Second, I do not think there is anything contentious about force being used against individuals in a law enforcement scenario. Again, the standard of reasonable and necessary is relevant and authority may derive from either the common law, statute or a mixture of both. Earlier I mentioned the right of hot pursuit that exists under LOSC Article 111. Although it is unlikely that a vessel carrying people to Australia would attempt to flee back to its port or country of origin, the requirements for hot pursuit are relevant as they provide some legal limitations on Australian vessels pursuing foreign flagged vessels in certain maritime zones. In broad terms, hot pursuit can be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has

4 violated the laws and regulations of that State. In the context that we are considering, the only applicable zones would be those on the landward side of the outer edge of the contiguous zone (ie from 24nm inwards toward land). This means, as far as I can ascertain, that hot pursuit of a vessel that is beyond 24nm for reasons that relate to a potential breach of Australian immigration laws, would not be permissible. There are other requirements for a valid hot pursuit that are identified in LOSC Article 111 but time does not permit further elaboration at this stage. I indicated earlier that firing a weapon to compel a vessel to comply with the legitimate direction of an intercepting vessel may be permissible under international law. However, the LOSC does not directly address the level of force that can be used, instead referring to terms such as necessary steps (LOSC Article 25) or control necessary (LOSC Article 33). LOSC Article 224 (Exercise of powers of enforcement) and Article 225 (Duty to avoid consequences in the exercise of powers of enforcement) are the only provisions of LOSC that directly deal with use of force. These provisions only relate to who/what can exercise these powers and provide that States shall not endanger safety of navigation or otherwise create a hazard to a vessel or bring it to an unsafe port or anchorage In order to understand what level of force may be permissible, it is necessary to turn to customary international law and there are three oft-cited cases that deal with this issue: The I m Alone (3 UNRIAA at 1609); The Red Crusader (35 ILR at 485); and MV Saiga (No. 2) (St. Vincent & The Grenadines v Guinea) (ITLOS 1999) In the interests of time I shall not recount the details of each case other than to note they all involve the firing of weapons of varying calibre during what may collectively be described as law enforcement operations. As the Saiga decision is the most recent, it provides a summary of issues that were dealt with in the earlier cases regarding the use of force: 1. LOSC should be interpreted in the context of the applicable rules of international law 2. International law requires that use of force must be avoided as far as possible and where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. 3. Considerations of humanity apply in the law of the sea a) Excessive force used; endangered human life before/after boarding

5 4. Describes the normal practice as: a) Auditory or visual signals b) Firing of shots across the bows of the ship c) Use of force as a last resort In terms of Australian domestic legislation, it seems to me that Migration Act 1958 Sections 245B and C are most pertinent they deal with the power that is provided to the commander of a Commonwealth ship or aircraft to board and, if necessary chase, a foreign ship. Comment has already been provided regarding where such action can take place, but in terms of the level of force that is authorised it is noted that the commander: may use any reasonable means consistent with international law to enable boarding of the chased ship including: (a) using necessary and reasonable force; and (b) where necessary and after firing a gun as a signal, firing at or into the chased ship to disable it or compel it to be brought to for boarding. For completeness, I should also mention there is a power to board and search ships, and people onboard those ships, under Section 245F and Section 245FA, Again, the standard that is provided in the legislation (ss incl.) is reasonable and necessary and the limitation applied relates to doing anything that is likely to cause the person grievous bodily harm. The final points that I wish to make relate to what level of force might be acceptable from the government s point of view and how this will be communicated to those directly involved in OP SB. The usual manner for providing such direction is through Rules of Engagement (ROE) which are inevitably classified and therefore not publicly available. Nevertheless, the concepts that are typically provided for in ROE can be found in publicly available documents such as the 2009 San Remo ROE Handbook which discloses that ROE are issued by competent authorities and assist in the delineation of the circumstances and limitations within which military forces may be employed to achieve their objectives. In effect, ROE will provide authorisations from higher command to all levels involved in OP SB regarding, among other things, how and in what circumstances force is to be used. There will be clear limits in the use of force and the usual practice is for a range of government departments to be involved in

6 ROE drafting/clearance. ROE must, of course, be lawful so they should be drafted in a manner that is consistent with both international and domestic law. Summary Use of force, including firing of weapons, is permissible within the boundaries imposed by international law when apprehending a vessel Use of force, up to and including lethal force, is permissible when acting in self-defence Use of necessary and reasonable force is permitted under Australian domestic legislation to chase and board a foreign ship that is suspected of breaching a provision of the Migration Act Use of necessary and reasonable force, within limits, is permitted in terms of searching, arresting or detaining an individual onboard a vessel