The pre-history of piracy as a crime & its definitional odyssey.

AuthorKelly, Michael J.
PositionEnd Game: An International Conference on Combating Maritime Piracy

The legal definition of piracy has fluctuated throughout the centuries to account for both the methods of the perpetrators and the power of the state. The heinous nature of the act usually meant pirates were subject to universal jurisdiction, but what constitutes the act itself has ranged from straightforward robbery at sea to, recently, violence at sea that includes engaging in acts of political protest. The modern trend of employing an expansive "violent attacks at sea" definition is appealing because of its ability to account for a wide variety of conduct in a wide variety of contexts. But the consequences of such an approach include a risk of returning to past experiences where political expediency was prioritized over due process. States should instead consider ways to implement a uniform and appropriate approach to this scourge, and the U.N. Convention on the Law of the Sea provides one way to do so.

CONTENTS I. INTRODUCTION II. THE EVOLVING DEFINITION OF PIRACY III. CONCLUSION I. INTRODUCTION

"There is none of you but will hang me, I know, whenever you can clinch me within your power."

--The Pirate Bartholomew Roberts, a.k.a. Black Bart (1)

How is it that a Somali national engaged in piracy against a Saudi vessel on the high seas off the Horn of Africa can be seized by a French warship and taken to a national court in Nairobi, Kenya to stand trial? (3) Because he's a pirate! This same logic applies in other instances: How is it that a German national implicated in the Holocaust could be seized by Israeli agents outside Buenos Aires, Argentina and spirited back to Jerusalem to stand trial? (4) Because he's a Nazi! Slave traders, genocidaires, war criminals, torturers and others are treated similarly. (5)

At first blush, the implication is that criminal jurisdiction stems from who one is--but the more accurate description is that jurisdiction stems from what one has done. "Application of universal jurisdiction is predicated largely on the notion that some crimes are so heinous that they offend the interest of all humanity, and, indeed, imperil civilization itself," (6) and piracy has long been considered the grandfather of universal crimes. (7) As such, any state, anywhere in the world, can prosecute a pirate even if that state has no connection whatsoever to the underlying acts the defendant has committed. (8)

All pirates know this, as reflected in the eighteenth century admission of Black Bart. Although it should be noted that the basis for universal jurisdiction over the crime of piracy has shifted through the ages. The original rationale for universal jurisdiction over pirates sprang from the locus of the crime--the high seas. No state had jurisdiction extending from its coastal waters into the common area of the high seas, and so every state was granted jurisdiction over pirates if it could catch them. (9) Now, as piracy is recognized as a jus cogens peremptory norm, the universal jurisdiction rationale springs from the conduct itself. Universal jurisdiction over jus cogens conduct is drawn from the heinous nature of the act. (10) This theoretical shift from the geographic location of the crime to the nature of the crime as the basis for universal jurisdiction over the crime questions the efficacy of continuing to insist that piracy can only occur on the high seas.

But what qualifies as piracy, and how did it come to be the first scourge of mankind enshrined as the oldest international crime amenable to universal jurisdiction? This article looks astern, back to the pre-history of piracy, to discover the criminalization and evolving definition of the act. It then provides a case study of the definition's transformation over a span of 222 years in the United States. Many interesting jurisdictional issues are discussed by other authors in this symposium volume, so questions of jurisdiction are not addressed in depth here.

Piracy, at bottom, is nothing more than robbery. However, when robbery occurs on land, it is fairly evident which governmental power can punish it. When robbery occurs at sea or in the air, where people are more vulnerable, the act is considered more heinous and, as such, the actor is subject to any government's power to punish him. Thus, jurisdictional dilemmas are neatly resolved. However, different national jurisdictions may not all use an accepted international definition of piracy. Indeed, they may have wildly divergent definitions on their books, and this variance can change--and ultimately determine--the fate of an alleged pirate.

So let's start at the beginning.

  1. THE EVOLVING DEFINITION OF PIRACY

Piracy has been with us since men first set sail. (11) Or, as one judge from the International Tribunal for the Law of the Sea put it, "[t]he very first time something valuable was known to be leaving a beach on a raft the first pirate was around to steal it." (12) Historically, as maritime commerce grew, so did incidents of piracy. A state's ability to escort merchant shipping with warships to ward off pirates was necessarily limited during times of peace and especially so during times of war. Consequently, harsh and quite rigid rules against piracy were developed as an additional deterrent.

The Rhodian Sea Laws were the first attempt at codifying maritime law, which consisted of the customs that long outdated this effort by the Greeks between 800 and 900 B.C. (13) As Arab and Slavic piracy increased, the Sea Laws not only extended universal jurisdiction over brigands (14) but also regulated losses and "served as a form of insurance, dividing the cost of the losses between the ship owner, the owners of the cargo, and the passengers." (15) Later adopted and extended by the Romans and Byzantines, these provisions were still in place in some form; for instance, when Julius Caesar was captured by pirates as a boy in 78 B.C. and later ransomed. (16) Even the Catholic Church condemned piracy in the Third Lateran Council in 1179 and placed pirates "under penalty of excommunication, but, characteristically enough, only if it was committed against Christians." (17)

Although most of the ancient sea codes are lost to the mists of time, later efforts to regulate maritime law in the Middle Ages included the extension of universal jurisdiction over pirates at sea, hearkening back to Cicero's admonition in the late Roman Republic era that pirates were:

"[E]nemies" of all societies (hostes humani generis), implying that these law-breakers were in a constant state of war with civilization as a whole. Conferring this unique legal status upon robbers (praedones) at sea indicates how seriously the problem of piracy was taken by Rome, as also by the Chinese Empire.... The notion that piracy was subject to "universal" jurisdiction ... is reflected in numerous international laws compiled in the West in ancient times. These laws included: the ... Rhodian Sea Law ... Rolls of Oleron [12th Century]; the North European ordinances associated with the Hanseatic League, which grew out of the Sea Laws of Wisby in the 13th Century; and the subsequent Consolato del Mare [11th to 13th Centuries].... ... Gentili [1552-1608] was the first of the early modern jurists to argue that piracy was forbidden under the law of nations: that is, under public international law. His argument was that all takings at sea were illegal under the law of nations unless authorized by a sovereign ruler [thereby leaving room for privateers].... Grotius [1583-1645], however, took a narrower ... view of the matter, arguing that the term "pirates" should be limited to those groups that have banded together solely for wrongdoing. Perhaps Grotius could not accept such groups as "natural" communities, but saw them falling rather under the category of ... "organized crime." (18) Interestingly, this seventeenth century disagreement between Gentili and Grotius over a broader or narrower definition of piracy is mirrored in twenty-first century American case law; two federal courts in the Eastern District of Virginia similarly split. (19) In August 2010, U.S. District Judge Raymond Jackson dismissed a case against six Somali pirates who had attacked the warship USS Ashland. (20) In so doing, Judge Jackson applied the definition of piracy as "robbery at sea," which was crafted by the U.S. Supreme Court in 1820 in United States v. Smith--the last time the United States had tried a formal piracy case. (21) Ultimately, Judge Jackson found that the Somali defendants had neither successfully boarded nor robbed the Ashland (22) Conversely, in October 2010, Judge Mark Davis determined that neither the boarding nor robbing requirements were relevant because the Ashland court had applied the wrong definition of piracy. (23) In finding five Somali pirates guilty of committing piracy by attacking the warship USS Nicholas, Judge Davis instead applied the modern U.N. definition of piracy, codified in the U.N. Convention on the Law of the Sea (UNCLOS):

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of the facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). (24)

Judge...

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