Working Paper No. 03-10:
The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation

Author(s):

Eugene Kontorovich

Date Posted: 2003

Availability:
Abstract (below) | Full text (most recent) on SSRN

Abstract:

The past decade has seen an enormous expansion of the doctrine of universal jurisdiction. Universal jurisdiction is an exception to traditional rules of international jurisdiction; it allows any nation, even one with no connection to the offense, to try people suspected of extraordinarily heinous crimes. High-profile examples of universal jurisdiction include the Belgian proceedings against Israeli Prime Minister Ariel Sharon, the international tribunals for war crimes in Rwanda and Yugoslavia, and the growing docket of human rights litigation in U.S. federal courts. Courts that have joined in this expansion of universal jurisdiction, and the scholars who support them, rely on one key precedent - the law of piracy - to legitimize departing from the traditional jurisdictional requirements.

For hundreds of years, piracy was the only offense that was considered universally cognizable. The new universal jurisdiction ("NUJ") uses piracy as its precedential and conceptual foundation. Piracy, the argument goes, merely illustrates the broader principle that whatever offenses most shock the conscience of a given era can be prosecuted by any nation. Exercises of universal jurisdiction can have dangerous consequences because they can be seen as encroachments on another nation's sovereign prerogatives. The "piracy analogy" maintains that at least for heinous crimes, this concern is unfounded: the jurisdictional treatment of piracy proves that nations do not mind ceding jurisdiction over people suspected of egregiously vile offenses.

This Article refutes the generally-accepted view that piracy became a universally cognizable offense because of its heinousness, and by extension, the notion that piracy law can provide a valid precedent or model for the NUJ. The Article shows that piracy existed side-by-side with privateering, a form of state-licensed piracy that was entirely legal under the law of nations. That piracy was considered acceptable when committed with sovereign authorization shows that piratical conduct was not viewed as innately heinous in the sense that NUJ crimes are. Furthermore, the Article explains that piracy is simply a species of robbery, and was never regarded as significantly more heinous than robbery is regarded today.

The fallacy of the piracy analogy casts into doubt the soundness of many cases that use the analogy to justify their expansion of universal jurisdiction. It also has cautionary implications for international tribunals that might seek to exercise universal jurisdiction, such as the International Criminal Court.