The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel on Board

This article focuses on a specific issue that emerged in the Arbitral Award on the Enrica Lexie case delivered in May 2020. The dispute involved Italy and India in relation to the killings of Indian fishermen by Italian marines in the waters outside India. The incident raised several legal issues concerning the application of the law of the sea, the legal determination of anti-piracy actions by States and jurisdictional immunities. The purpose of this article is to focus on one specific issue that emerges from this case: the uncertain legal status of security personnel deployed on private vessels in relation to anti-piracy protection. The first part of the article shall consider the status of military personnel deployed on merchant ships for anti-piracy protection. The problem is central to the matter because, depending on the definition of their status, limitations on the exercise of jurisdiction by other States may emerge. The second part of this article discusses more broadly the status of military and private security personnel in actions that could be defined as ‘international policing or security’ activities, which should be better clarified through better international cooperation, exchange of information and clear rules. A more defined legal setting for anti-piracy activities would prevent possible future disputes in similar cases. Furthermore, it would be useful to have clearer rules that could be applied also to face other types of crimes that occur on the sea.

Keeping Camouflage Out of the Classroom: The Safe Schools Declaration and the Guidelines for Protecting Schools and Universities from Military Use During Armed Conflict

This article discusses the ‘Safe Schools Declaration’ and the ‘Guidelines for Protecting Schools and Universities from Military use during Armed Conflict’. The latter are set of non-binding guidelines that aim to improve the protection of schools and universities during armed conflict. The former is a political declaration through which States can endorse the Guidelines. The article looks at the drafting process of the two documents, which involved non-governmental organizations (NGOs), international organizations and States. The article argues that the involvement of NGOs can be seen as reflective of a trend in which NGOs are increasingly involved in normative International Humanitarian Law (IHL) development. The role of international organizations was less pronounced, but nevertheless notable because international organizations traditionally do not have an active role in the field of IHL. The article contains an analysis of the Declaration and Guidelines, against the background of the applicable legal framework to the protection of schools and universities during armed conflict. It concludes that the principal focus of the Guidelines is the prevention of the use of schools and universities by armed forces in support of the military effort. IHL does not contain a rule prohibiting such use, but it can have far-reaching negative consequences for education. Other guidelines relate to, inter alia (limitations to), destroying or attacking schools and universities. These guidelines, while sometimes using phraseology from provisions of IHL treaty law, also largely go beyond existing obligations under IHL.