The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation

by: Eugene Kontorovich

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Assistant Professor, George Mason University School of Law.

Volume 45, Number 1 (Winter 2004)

In recent years, courts around the world have relied on universal jurisdiction with increasing frequency to justify proceedings against alleged perpetrators of human rights offenses in foreign countries. The doctrine of universal jurisdiction holds that a nation can prosecute offenses to which it has no connection at all—the jurisdiction is based solely on the extraordinary heinousness of the alleged conduct. According to the doctrine, any nation can prosecute universal offenses, even over the objection of the defendants’ and victims’ home states. Examples of universal jurisdiction include Belgium’s indictment of Israeli Prime Minister Ariel Sharon for alleged responsibility for war crimes committed by Christian Arabs against Muslim Arabs in Lebanon and the conviction by German and Swiss courts of Serbian officials who committed war crimes against Bosnian Muslims.

Universal jurisdiction can have dangerous consequences, especially in the absence of generally accepted limitations on its scope. Unlike all other forms of international jurisdiction, the universal kind is not premised on notions of sovereignty or state consent. Rather, it is intended to override them. An assertion of universal jurisdiction can create conflict and possibly hostilities among countries because it can be construed as an encroachment on the sovereign authority of the country that has traditional jurisdiction over the offense. For hundreds of years, universal jurisdiction only applied to the crime of piracy. In recent decades, however, universal jurisdiction has been asserted over many human rights offenses. The expansion in universal jurisdiction’s scope has been accompanied by an increase in states’ willingness to use it.

Advocates of “new universal jurisdiction,” or “NUJ” as it will be called in this Article, have sought to establish its legitimacy by invoking piracy as a precedent, justification, and inspiration. This Article will use the phrase “piracy analogy” to refer to the argument that NUJ is based on principles implicit in the earlier, piracy-only universal jurisdiction. According to the piracy analogy, international law treated piracy as universally cognizable because of its extraordinary heinousness. Universal jurisdiction was never about piracy per se, the argument goes, but about allowing any nation to punish the world’s worst and most heinous crimes. Thus universal jurisdiction over human rights violations is simply an application of the well-settled principle that the most heinous offenses are universally cognizable and not, as critics contend, a radical and dangerous encroachment on nations’ sovereignty.

The piracy analogy underpins NUJ. It is “crucial to the origins of universal jurisdiction,” according to the Princeton Principles on Universal Jurisdiction, a sort of “Restatement” of NUJ doctrine. The seminal cases that helped expand universal jurisdiction to new offenses—the decisions of the Nazi war crimes tribunals, Eichmann, Filartiga, and the Yugoslavian war crimes tribunal created by the United Nations—have all used the piracy analogy. The piracy analogy has also won general acceptance among international law scholars. Even those who criticize NUJ on other grounds do not dispute that it is a logical application of the policies that made piracy universally cognizable. Given that NUJ is one of the most important developments in international law in recent decades, it is surprising that its piracy origins has not received closer scrutiny.

This Article challenges the generally accepted view that piracy was universally cognizable because of its heinousness. The Article shows that the rationale for piracy’s unique jurisdictional status had nothing to do with the heinousness or severity of the offense. Indeed, piracy was not regarded in earlier centuries as being an egregiously heinous crime, at least not in the way that most human rights offenses are heinous. Thus piracy could not have become universally cognizable as a result of its perceived heinousness.

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