The Piracy Analogy and Modern Universal Jurisdiction
April 10, 2010
The tenability of the piracy analogy
As one critic argued, “piracy was never an international crime but strictly grounds for extraordinary jurisdiction.” However, the rationale behind this kind of criticism is clearly mistaken if not an outright attempt at revisionist history of the evolution of universal jurisdiction in international law and legal scholarship. As we have seen above the idea of piracy as a crime against the community of nations goes back to the earliest origins of international law in Gentili, Grotius and Vattel. In the time of the Enlightenment, perhaps ius cogens among the nations was more concerned with issues of international trade, but this does not alter the ancient principle that ius cogens cannot be violated legitimately by any sovereign.
As society has progressed, the normative principles that form the body of ius cogens have matured along the way, and in the modern era ius cogens has grown to encompass human rights, which are generally recognized as inviolable and protected under the law of nations. As one commentator observed with regard to the assertion of universal jurisdiction over terrorists:
“[H]ostile infliction of biological agents is outside the limits of civilized behavior, and therefore must be a jus cogens crime against humanity . . . . [and] should also serve to establish universal jurisdiction. The analogy here is piracy, and, as in piracy law, any state that can apprehend bioterrorists or investigate their activities should be legally obligated to do so and should have legal authority to prosecute them.”
Standard among the critics is the attempt to divorce universal jurisdiction from its application to heinous crimes in order to undermine the jurisdictional analogue between crimes against humanity and the crime piracy. According to this argument, piracy is no more heinous than the related crime of robbery, and universal jurisdiction was only applied to piracy because it occurred upon terra nullius, namely on the high seas, which is outside of territorial borders of any sovereign. So, because universal jurisdiction was only applied to the non-heinous crime of piracy, the critics conclude, there is no historical precedent for the application of universal jurisdiction to heinous crimes committed within the borders of a national sovereign.
Henry Kissinger and other critics, however, are attacking a straw man insofar as they assume that the appeal to the heinousness of war crimes represents a fundamental flaw in the precedential foundation of the piracy analogy as a basis for modern theories of universal jurisdiction. While it is true that universal jurisdiction over war crimes specifically stems in part from the heinousness of the crime (and this is arguably true about piracy as well), it is not the heinousness itself nor any other intrinsic element of the crime, that renders the alleged war criminal or pirate susceptible to universal jurisdiction. Rather an offense must rise to a level that constitutes an affront to all nations that creates universal cognizability in a crime.
Heinousness is a necessary element (although not in and of itself sufficient) for a crime to fall within the ambit of universal jurisdiction, i.e. an incident of petty vandalism on the high seas will not rise to the level of piracy nor the threshold of offense to all nations that allows universal jurisdiction to operate upon it. Thus heinousness of an offense serves as a useful yardstick against which to determine whether a crime committed within national borders has risen to the level of a violation of ius cogens. It is not heinousness in and of itself that makes a crime universally cognizable, but that the heinousness of crimes such as war crimes and human violations causes these crimes to offend the international community.
It has been argued that terra nullius is a requirement of universal jurisdiction, and that when sovereign power has been voluntarily ceded by treaty to grant universal jurisdiction that “[i]n effect, the state becomes analogous to terra nullius for purposes of criminal jurisdiction.” However, this analogy to terra nullius does not somehow transmute the territory of a state into terra nullius, not even by legal fiction. It is merely an analogy of convenience, and the analogy itself serves to undermine the very notion that terra nullius is requisite to assert universal jurisdiction over piracy, namely because ius cogens offense are not limited only to those crimes ceded to it by sovereign nations.
By its very definition, not to mention based on long and distinguished historical precedent, universal jurisdiction applies equally to all alleged criminals under the purview of ius cogens. This applies equally whether the criminals are nationals of sovereign nations that are party to international treaties acknowledging ius cogens as such, nations not party to any such treaty, or criminals operating within the jurisdiction of no nation at all.
As regards the application of universal jurisdiction, the doctrine has not changed since its foundations. A violation of the ius cogens remains central, rendering the criminal a hostis humani generis and subject to universal jurisdiction. What has changed with the modern era, rather, is the substance of ius cogens.
Defining ius cogens
The argument has also been advanced that the rationale for the extension of universal jurisdiction to piracy is not because piracy is a crime against international law, but rather falls within the normal ambit of state criminal jurisdiction. The argument for this is something along the lines of, well it is against the law in every nation so might as well extend jurisdiction even to nations who would have had no territorial or personal jurisdictional interest otherwise. As evidence of this, critics point to differing definitions of the crime of piracy in different nations:
“Prior to the codification of the definition of piracy by the 1958 Convention on the High Seas, scholars even argued that the evidence of numerous definitions of piracy under various municipal statutes (and conversely the lack of a single established international definition of the crime of piracy under international law) meant that piracy was not actually a crime under the law of nations, as it is often referred to, but simply a ‘special ground of state jurisdiction’ which may or may not be exercised by the custodial state depending on its own municipal definition of piracy.”
Indeed it is true that the extension of universal jurisdiction to piracy, according to Professor Dunoff, “had little to do with human dignity at all; rather, states sought to punish pirates as individuals because they were not (by definition) the agents of any states.” But it is incorrect to assume that this absence of an offense against human dignity implies an absence of any precedential analogy between the exercise of universal jurisdiction over piracy and over human rights violations. The analogy is, however, one degree farther attenuated, than the critics seem to recognize. Perhaps a better analogue can be a found in that of a privateer, whose operations are sanctioned under a letter of marque granted by a sovereign state and thus what would otherwise be a pirate ship is rendered a legitimate agent of the sovereign, and thus engage in legal warfare which is not in violation of the law of nations.
However, the authority of the Westphalian sovereign to grant letters of marque is (at least de iure if not de facto) limited by the law of nations/ius cogens, and the privateer who has overstepped the boundaries of legal warfare would thereby become considered a pirate. The privateer in our example has thus committed a crime against the law of nations/ ius cogens and has become a hostis humani generis, forfeiting any claims to immunity granted him by the sovereign by way of letter of marque. In the same way, when an official acting in a capacity sanctioned by a sovereign nation commits a war crime or some other offense against human dignity has violated the ius cogens, beyond the legitimate power of any sovereign, and forfeited any claim to sovereign immunity. Thus those who commit such crimes, even acting under the pretense of sovereignty, are rightfully subject to universal jurisdiction.
In order to effectively protect against such violations of ius cogens it is necessary for universal jurisdiction to be able to usurp the role of the sovereign, both in cases where the sovereign itself has specifically consented and in cases where no such concession has been made by the sovereign state. For surely it is necessary to the application of universal jurisdiction that the offense be of such a nature, as noted above, that it warrants jurisdiction being applied by any court before which the defendant may be found.
Any crime falling within the purview of universal jurisdiction is a crime in which all nations have been equally affronted and thus, all else being equal, any nation will operate as a just and appropriate forum. It would be unfortunate for this ancient and well-founded means of jurisdiction to be effectively castrated by shoehorning a self-serving revisionist history of a national consent requirement, applying universal jurisdiction narrowly to crimes of piracy.
 Kraytman at 99.
 Barry Kellman, An International Criminal Law Approach to Bioterrorism, 25 Harv. J.L. & Pub. Pol’y 721, 730–31 (2001).
 Kissinger, work cited. As Henry Kissinger opined: in his famous essay: “The doctrine of universal jurisdiction asserts that some crimes are so heinous that their perpetrators should not escape justice by invoking… sovereign immunity[.]” emphasis added.
 Kontorovich, supra note 4, at 190. Viz.: “Under the heinousness argument, it was the substantive nature of pirates’ acts—not the pirates’ status as private actors or the location of their crimes—that made them susceptible to universal jurisdiction.” The mistaken assumption here is the “substantive nature” of the crime which renders pirates susceptible to universal jurisdiction, when it is in fact the condemnation of the community of nations for violationof ius cogens. Although the violation of ius cogens may stem from the underlying heinousness of a crime, it is not the heinousness itself but the offense to ius cogens which invokes universal jurisdiction.
 Anthony Sammons, The “Under-Theorization” of Universal Jurisdiction: Implication for the Legitimacy of Trials of War Criminals by National Courts, Berkley Law Review at 114.
 Kraytman at 97-99.
 Kraytman at 103.
 Jeffrey L. Dunoff, Steven R. Ratner & David Wippman, International Law: Norms, Actors, Process 561 (2002).
 For an fascinating discussion of the history and eventual demise of the practice of privateering, see: Alexander Tabarrok, The Rise, Fall, and Rise Again of Privateers, The Independent Review, v. XI, n. 4, Spring 2007, pg. 565-577.