Emerging Voices: Piracy vs. Core Crimes–Assessing the Consequences of the Juxtaposition between Transnational and International Crimes

[Marta Bo is a Ph.D. candidate at the University of Genova, Italy and a member of the Peace and Justice Initiative. She wrote this post while she was a Visiting Fellow at the British Institute of International and Comparative Law]

Over the past few years, several proposals have been made to put an end to the culture of impunity persisting among Somali pirates. The use of international adjudicative mechanisms – such as an international piracy court, or the International Criminal Court with an amendment to its ratione materiae jurisdiction – has been proposed (United Nations Secretary General Report of 26 July 2010) and, also, defended by several scholars. These instruments are typical expressions of a direct system of adjudication that has been conceived exclusively for the prosecution of international crimes stricto sensu (genocide, war crimes, crimes against humanity and aggression). Although these options seem now to be displaced by more practical avenues for prosecution, such as specialized piracy chambers within national jurisdictions of Regional states (ex plurimis, R. Geiß and A. Petrig, Piracy and Armed Robbery at Sea, 2011, 184), they nonetheless deserve consideration in light of the existing fundamental differences between piracy and international crimes stricto sensu, otherwise called core crimes.  A closer scrutiny of piracy and core crimes, may suggest that, not only practical matters, but also a different logic should underpin the legal discourse concerning possible judicial fora to prosecute piracy.

Piracy and core crimes are a good example of the juxtaposition of transnational crimes and international crimes. Piracy is often referred to as an international crime, and sometimes as the first international crime. However, this is misleading. Piracy is not directly criminalised under international law: customary law and the UNCLOS regime neither provide for individual criminal responsibility for piratical acts nor proscribe the piratical conduct. Article 101 of the UNCLOS merely defines the offence. Notwithstanding the fact that national courts may directly apply the UNCLOS definition when constitutional arrangements allow so, piracy generally needs to be criminalised domestically in order to be adjudicated upon by national courts. The UNCLOS primarily sets out an obligation for states to adopt the necessary national criminal law establishing individual criminal responsibility for the conduct. Therefore, the customary definition of piracy as mirrored in the UNCLOS provision (“This definition is generally, though not universally, accepted as having codified pre-existing customary international law”, see D. Guilfoyle, Piracy off Somalia: UN Security Council Resolution 1816 and IMO regional counter-piracy efforts, 57 I.C.L.Q. 690 (2008), 693) does not ordinarily constitute the basis for piracy prosecutions, but rather it is the municipal legislation which does.  The Harvard Draft Convention, which is the basis for the UNCLOS piracy provisions, lends support to this argument.  The theory behind the Draft Convention was that “piracy is not a crime by the law of nations” (Harvard Research Draft Convention on Piracy, 26 Am. J. Int’l L. Sup 739 1932, 760) and “pirates are not criminals by the law of nations” (Id., 756). The Harvard Researchers adopted the view that piracy constitutes a special ground of jurisdiction, “the basis of an extraordinary jurisdiction ” (Id., 760).

By contrast, core crimes are directly criminalised under international law. International norms directly prohibit these offences by virtue of norms directed at individuals. These norms create universal direct criminal responsibility for individuals under international law.

Crimes that international law directly criminalises and piracy, only indirectly criminalised under international law, differ, in particular, on the following points: i) state involvement as compared to de-nationalisation; and ii) an exceptional gravity that constitute a threat to the most important values of the international community (international element) as compared to a cross-border harm to interests common to all or a number of states (transnational element). From these different characterizations, it follows that the doctrinal basis for the criminalisation of these two types of offences differs – i.e., moral/principled as compared to geographical/technical/economical -, which I would argue should be taken into account when discussing judicial options for piracy prosecution.

Core crimes are historically the product of state policy or action. It falls beyond the scope of this post to engage in a closer scrutiny of the state policy element of core crimes but the author wishes nonetheless to point out that there are instances in which it does not hold true (for example for the responsibility of non-state armed groups for war crimes or broad interpretations of the state/organizational policy element of crimes against humanity so as to encompass actions of state-like actors). However, in line with what has been affirmed by leading authorities in the matter (ex plurimis, M.C. Bassiouni, International Crimes: The Ratione Materiae of International Criminal Law, in International Criminal Law (2008), 168; G. Werle, Principles of International Criminal Law, 29), it seems fair to assert that core crimes are generally committed through state support, abetment, or acquiescence. In contrast, piracy is the “de-nationalised” crime par excellence. Piracy is the product of an individual conduct and does not generally implicate a state policy (M.C. Bassiouni, International Crimes: The Ratione Materiae of International Criminal Law, in International Criminal Law, (2008), 138). Not only is piracy committed in the absence of state support or acquiescence but pirates and their ships are also believed to lose their nationality when they engage in such acts (R. Geiß and A. Petrig, Piracy and Armed Robbery at Sea, 2011, 146). Moreover, piracy under international law occurs on the high seas, by definition a “de-nationalised area” falling outside the territorial jurisdiction of any state.

From these features follows a divergence in the reasons allowing a culture of impunity to persist. Core crimes go unpunished because the very state in which they are committed is, for reasons of complicity, unwilling to prosecute them. By contrast, piratical acts escape prosecution because of the practical impossibility of grounding jurisdiction on the territorial, active personality or – although the UNCLOS is silent on this matter – flag state principle. Impunity stems from the locus comissi delicti of piracy as well as from the denationalisation of pirates and their ships.

The doctrinal basis for the international criminalisation of these conducts is therefore different. Core crimes are the most grave of all international crimes largo sensu “in terms of their impact on humankind”. They threaten the most fundamental values of the international community: international peace and security. They are typically expressions of states’ disregard for these values. The basis for the direct international criminalisation of these crimes is thus moral. The international criminal norms proscribing these conducts protect a set of fundamental values common to the international community as a whole. In order to respond to state authorities’ failure to hold the perpetrators accountable for these heinous crimes, the international community has in the last two decades empowered international or hybrid tribunals to directly exercise the jus puniendi over them.

On other hand, the basis for the indirect criminalization of piracy under international law is technical, geographical, and economical. Piracy is ‘only’ robbery at sea and cannot be deemed to shock the conscience of humankind to the same extent as core crimes. The cross-border effects of the crime together with the desire to protect some shared national interests have prompted states to join international treaties imposing international obligations on states to criminalise these conducts domestically (and, theoretically, harmoniously) and to enhance international cooperation for their prosecution (the “suppression conventions” scheme).

In a nutshell, core crimes are heinous offences that in light of both their gravity and the unfeasibility of judicial cooperation for their prosecution had required an exceptional centralisation of the jus puniendi. How can the ratio underpinning the establishment of a vertical, direct, and centralised system of adjudication of state criminality be transposed to other forms of private criminality, like piracy, that put in danger entirely different state interests? Should we really try to expand the domaine of international criminal justice to transnational crimes? One could be tempted to sustain a “core crimes analogy” in order to extend adjudicative measures conceived exclusively for core crimes to piracy (as opposed to the so-called “piracy analogy”, according to which i) the age-old universal jurisdiction rule over piracy hinges on the heinousness of the crime, and ii) piracy can thus serve as a precedent for the application of universal jurisdiction to a plethora of modern heinous offences). Yet, the ratio of international criminal justice is to primarily deal with state-sponsored crimes that states are unwilling to prosecute in light of their involvement. International criminal justice is an exceptional measure – derogating from the monopolistic exercise of jus puniendi by states  – that the international community has taken with regards to objectively heinous crimes expressing principally states’ (emphasis added) – and not private individual’s – betrayal of certain values of the international community. On the other hand, the entire system of transnational criminal law is principally predicated upon the rejection of supranational enforcement and the belief the states must retain their monopoly of the jus puniendi within a horizontal system of judicial cooperation.

I would argue that not only practical matters, such as the realistic unfeasibility of an international piracy court or the complex and time-consuming Rome Statute amendment process, should run against adjudicative avenues expressing a centralization of the jus puniendi. But also the fact that piracy i) is an expression of lower-scale individual criminality, and ii) affects shared national interests whose offence may prompt interstate cooperation, are factors that may deserve better consideration in the assessment of whether a direct system of enforcement could represent an option for piracy prosecutions. Not only pragmatism but also more fundamental considerations related to the nature of the crime and the reasons for its criminalization should therefore underpin this legal discourse and advocate for decentralized judicial avenues to prosecute Somali pirates.