The Duck of Minerva

An Alternative to Gibbeting

29 November 2008

In a Reuters op-ed yesterday, Bernd Debusmann makes “the business case for high seas piracy”:

As far as illicit businesses with low risk and high rewards go, it doesn’t get much better than piracy on the high seas. The profit margins can easily surpass those of the cocaine trade. The risks? “There is no reason not to be a pirate,” according to U.S. Vice Admiral William Gortney, who commands the U.S. navy’s Fifth Fleet. “The vessel I’m trying to pirate, they won’t shoot at me. I’m going to get my money.” Even pirates who are intercepted have little to fear. “They won’t arrest me because there’s no place to try me.”

Well, how might that be changed? Duncan Hollis reviews recent suggestions at Opinio Juris. They range from “create an entirely new international organization” to “hang ’em.”

Here’s another modest proposal: try them at the International Criminal Court.

But no, you say, the crime of piracy is not under the court’s jurisdiction. How true – and how ironic, considering that the idea of the court was originally put forward by Trinidad and Tobago in an attempt to deal precisely with transnational criminals (drug traffickers and the like) engaged in similar activities. But these crimes, as well as terrorism, didn’t make it into the Rome Statutethe only crimes under the court’s jurisdiction today are war crimes, crimes against humanity and genocide and (when it’s defined) aggression.

However. This is all up for reconsideration in 2010 at the Review Conference of the International Criminal Court – an event at which the terms and procedures in the original ICC treaty can be reconsidered, amended or addended by States Parties. According to the website of the Coalition for the International Criminal Court:

“Although, there is yet no clear agenda for the Conference, it is foreseeable that considering the adoption of the Crime of Aggression will constitute one of the main issues on the agenda. Also, the Rome Statute provides for the revision of Article 124, an optional protocol which allows States to not subject their nationals to the jurisdiction of the Court for seven years with regards to war crimes; and the Rome Conference recommended in 1998 the possible consideration of terrorism and drug crimes. “

So, why not piracy as well? It is analogous to all of the above in that it is a crime of universal jurisdiction – meaning a crime that no one state was able to stamp out alone, but all states, as members of the civilized order, had a responsibility and right to prosecute. In fact, it is the very oldest crime under universal jurisdiction: in its heyday, it was seen as analogous to the contemporary scourge of genocide or torture. And thanks to recent events, it is as salient today as genocide was in 1998. (OK, maybe that’s an exaggeration, but it’s plenty salient. Any issue that can get my in-laws talking about Somalia instead of US electoral politics over Thanksgiving dinner is a candidate for some serious global policy-making.)

As a court of last resort, of course, the ICC would not be equipped to deal with an immediate backlog of cases as pirates are captured and extradited by nations such as Germany, India, France and the UK. But how much trouble would it be to change this? The maritime nations of the world (and those relying on maritime shipping) have a good incentive to put these folks behind bars: the ICC offers a legal avenue, and what is most needed is a prison in which to house suspects while they await trial. Why not fork over the resources, take care of capturing them where you can (not that this solves all the logistical problems there, just the legal ones), and let those who go on trial and end up in prison for life serve as at least a partial deterrent for others?

Just a hairbrained idea at twenty-six minutes to midnight with some rum in me. Thoughts?