No one seems to have much of a problem applying universal jurisdiction to piracy. Last month’s ruling by Kenya’s Court of Appeals confirmed this, effectively reversing a 2010 judgment by the country’s High Court. Whereas the earlier decision emphasized crimes occurring in the national territory, the appellate court championed the principle of universal jurisdiction. Most significant was the economic rationale:
the offence of piracy… is of great concern to the international community as it has affected the economic activities and thus the economic well-being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.
Piracy, of course, is historically linked to universal jurisdiction, which itself broadened under twentieth-century notions of human rights. The locus of universal jurisdiction gradually shifted, over the course of centuries, from crimes occurring in a common physical space “owned” by none —the high seas—to a metaphorical and moral space transcending the attachment to territory: egregious human rights abuses.
The evolving view now retains the transnational dimension but makes it all about economics. Those accused of piracy on the open seas can be tried by any country’s courts, not because of where the crime occurs or the analogy to grave human rights violations. Since piracy hurts transnational economic interests, the argument goes, universal jurisdiction is a real option.
In a changing world, it may well make sense to broaden the scope of universal jurisdiction. But this must be debated carefully, attentive to the implications for human rights accountability. How far, if at all, should the term be stretched conceptually? Once an economic rationale for universal jurisdiction is accepted, appeals to our shared humanity are likely to lose out.