Old Piracy Laws Created Universal Jurisdiction
Modern International Criminal Law Learned from Ancient Problem
For some jurists and political analysts, the use of the principle of universal jurisdiction in modern international criminal law goes against concepts of state sovereignty and traditional international law. Jurists and political analysts on the other side of the discussion contend that the principle of universal jurisdiction evolved out of a need for all states to regulate certain behavior and address crimes that affected all states. For them, this evolution began with piracy and progressed until it entered the arena of war crimes, genocide, and crimes against humanity.
Universal Jurisdiction
Antonio Cassese, a leading jurist, asserted that the concept of universal jurisdiction is legally admissible. He further went on to explain that the crimes over which such jurisdiction may be exercised are of such gravity and magnitude that they warrant universal prosecution and repression. Although international law concerns itself with criminal jurisdiction, outside the sphere of international tribunals, it does not prescribe rules requiring the exercise of jurisdiction; rather it concerns itself mainly with the propriety of the exercises of state jurisdiction.
On this point, the 1934 analysis of “In Piracy Jure Gentium” states that: “With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country”. Piracy is then thought to be the basis of universal jurisdiction for what are termed “Jus Cogens” crimes. "Jus Cogens" is a Latin term that means a “compelling law”; and this fundamental law must be followed by all countries. The 1986 Vienna Convention on the Law of Treaties affirmed “Jus Cogens” as an accepted doctrine in international law.
Piracy Laws
Piracy, as a criminal act, appeared in Roman literature, notably in the writings of Cicero, who referred to pirates as “Pirata” and “Praedones” (land- based predators). Cicero is also credited with the concept that pirates are “Hostis Humani Generis”, or enemies of all humanity. Hugo Grotius (one of the first notable theorists of modern international law), relying on Aristotle and Cicero, elaborated on the theory of “Hostis Humani Generis” and its application in a time of war, which was the context in which piracy was viewed at that time.
One of the most important early cases, as regards piracy and the question of universal jurisdiction, was the trial of Thomas Green before the High Court of Admiralty in Scotland in 1705. In the absence of any criminal connection with Scotland or Scots Law the jurisdiction of the court came into question. Although the accused was not Scottish nor was his ship, nor any act committed in Scotland, nor jurisdiction based on the Scottish nationality of the victims; the case proceeded.
The prosecutor in this case justified the application of universal jurisdiction as follows: “That though the competency of the judge in criminals be ordinarily said, to be found either in loco delicti [the place where crime was committed] or in loco domicilii [place of habitation of the delinquents] or in loco originis [the place of their birth] yet there is a superior consideration, and that is the locus deprehensionis [place where they were taken] where the criminal is found and deprehended, which doth so over-rule this matter, that neither the locus domicilii…nor the locus originis…doth found the judge competency, nis ibi reus deprehendatur [except the criminal be apprehended here]. And so it is that here the panels [defendants] were and are deprehended, which happening in the cause of piracy, a crime against the law of nations, and which all mankind have an interest to pursue, wherever the pirates can be found; the Procurator Fiscal’s [Prosecutor’s] interest to pursue is thereby manifest, and the panels being here deprehended, cannot decline the admiral’s jurisdiction as incompetent.”
The prosecution won the argument and the case was prosecuted successfully. Piracy laws, in this instance, were used to establish a modern application of universal jurisdiction and a precedent that had not yet been concretely established. It is here that an early formulation and confirmation of universal jurisdiction for certain crimes or acts that are the concern of all states and their legal systems can be seen.
Modern Application
The principle of universal jurisdiction was subsequently, through time, applied to other crimes by many jurists, political analysts, and the international community. In modern times, and in practical terms; although legal obligations exist, many states have experienced a lack of enabling legislation, legislation contrary to international law, a lack of resources, or a complete break-down of their judicial system. Finding a solution for these problems is one of the main ideas behind the current uses of universal jurisdiction in modern international criminal law, and the establishment of the International Criminal Court.
Roman Trireme Mosaic in Tunisia
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