Piracy & Jurisdiction: A Post by Eugene Kontorovich (NW Law)

I've been writing for several years about piracy, using it as a case study to better understand universal jurisdiction, which originated with piracy and has been extended now to other crimes. The current piracy epidemic in the Gulf of Aden has made all this quite relevant. Recently, I've blogged about this at the Volokh Conspiracy and Opinio Juris, and will now continue to do so here.

Everyone, I discuss this with says something about eye patches and bottles of rum. So we'll get it over with right now: these are not those kind of pirates, though they do include some interesting characters.

 

One striking aspect of the ever-worsening Somali piracy crisis is the complete failure of nations to exercise universal jurisdiction. Dozens of warships are patrolling the Gulf of Aden and catching pirates. Under international law, any country that captures pirates can prosecute them. Yet none of the patrolling countries have exercised this option. Hundreds of pirates have been caught, the only ones that have been brought back to Western nations for trial are the few that happened to attack the vessels of the capturing the nation.

In an essay in the current issue of the National Law Journal I discuss the complete failure to use universal jurisdiction. Piracy is the oldest and most widely agreed on universal jurisdiction offense. The failure to use this tool is particularly notable given that it comes at a time when universal jurisdiction and international justice are supposedly ascendant. To add to the irony, the very nations that claim prosecuting Somali pirates in domestic courts would be too difficult are pursuing complex and politically fraught cases against senior American and Israeli officials.

As I write in the article:

 

The failure to use a venerable international law principle against a serious international crisis suggests that international law has in some ways lost ground in recent decades.  . . When countries abdicate enforcing international law with respect to nonpolitical crimes like piracy that truly endanger international safety, it makes it harder to believe that they are motivated by an unswerving dedication to international law when they go out of their way to selectively judge the participants on one side of a far-off foreign war.

Some developments that occurred while the piece was in publication highlight this point. A few days ago Spain captured a group of nine pirates after responding to a distress call from a Panamanian vessel. In a remarkable development, there were reports that Spanish authorities would bring the Somalis back to Spain for prosecution. Amongst other attacks, they were suspected in the foiled hijacking of an Italian cruise liner with 1500 passengers, which would've been perhaps the most spectacular pirate seizure so far. (Perhaps I’ll say a few words on this fascinating incident in a subsequent post.)

However, Spanish authorities have instead ordered the prisoners to be released. Despite the fact that countries have an international legal duty to suppress piracy, and pirates are labeled enemies of all mankind, the Spanish judge thought that prosecuting a crime that happened thousands of miles away would be “a bit disproportionate.”

Of course, just the previous week, Spain launched a judicial investigation into an Israeli strike on a Hamas leader in Gaza in 2002. Unlike piracy, over which all nations clearly have universal jurisdiction, the basis for Spanish jurisdiction is far from clear. And of course the merits are much harder, as are the practicalities of trying to figure out what happened years ago in an ongoing conflict between Israel and the Palestinians, a situation in which, unlike with piracy, some of the alleged victims are certainly not free from blame. In other words, Spanish courts are inserting themselves into a temporally distance, politically fraught, factually obscure geopolitical conflict. Moreover, unlike with the piracy,Spain has not been involved in keeping Gaza safe; its judicial interest is unlinked to an enforcement activities. With the pirates, the decision to not proceed means that this band will be released and within days or weeks will likely be shooting up other civilian vessels.

It seems a bit disproportionate.

 

This is not to single out the Spanish Gaza case from other exercises of universal jurisdiction by European nations. But the juxtaposition between Spain’s abdication of its international legal duty in the relatively easy piracy context with its acting as a one-sided global policeman in the Gaza case highlights the problematic nature of universal jurisdiction as it is being used today, and perhaps as Ken Anderson has suggested that perhaps, some broader problems in international law.

This is not to say that there is not a role for international justice in dealing with alleged crimes against humanity. There is also a place in the world for driving cars at 200 miles an hour. And while that's what every teenager wants to do, they are told they must learn ordinary driving before they go to the races, where one can easily crash into the stands.