Erga Omnes

Universal jurisdiction traces its roots historically to piracy on the high seas and slavery, the earliest “crimes against humanity” in international law.  Today, it’s pretty common for observers to draw links between terrorism and piracy–to assume these are analogous crimes.  Reasoning by analogy is of course common in the law, but are we certain these crimes are sufficiently similar to warrant universal jurisdiction?  What exactly should trigger universal jurisdiction in today’s world:  a gap in authority or a violation of basic human rights?  If it’s the latter, then continuing to treat piracy today as a crime against humanity is open to serious question.

Here is an excerpt from a piece I co-authored with Andrew Flibbert in May 2009 about modern-day piracy and how conceptions of humanness shape our perception of today’s pirates.  The full essay can be accessed at CounterPunch.

While it is true that terrorism and piracy are both crimes against humanity in international law, differences in historical context reveal a crucial distinction. Years ago, piracy was labeled the first crime against humanity only because it occurred on the high seas, where no governing body ruled. Its extra-territoriality, not the odious nature of the crime, gave jurisdiction to all countries….

Legal options are available. In principle, national trials in the detaining state are feasible, just as the creation of a special international tribunal for piracy is an option. But the political will for either is altogether absent and the measures taken so far reveal a good-enough-for-the-enemy attitude. While countries like the United Kingdom, the United States, France, and the Netherlands are trying pirates in their home legal systems, the U.S. and U.K. have also transferred captured pirates to Kenya, a country with which they have entered into special agreements. Kenya’s legal system is ill-prepared, and already there are signs of mistreatment and abuse. This is precisely why the Law of the Sea Treaty, to which the United States is not a party, stipulates that pirates should be tried by the country that detains them; universal jurisdiction applies only to apprehension. States have been reluctant to prosecute pirates themselves, fearful of not meeting the high evidentiary standards of their own legal systems and unwilling to deal with asylum requests by pirates facing persecution back home.