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An international law used for 400 years to combat piracy on the high seas and, later, to convict Nazi and Japanese war criminals, is seriously flawed, a UK academic claims.
Dr Matt Garrod, a legal scholar specialising in international law at the University of Portsmouth’s School of Law, has found evidence that law-makers, including the United Nations, have unwittingly been blind-sided by a law built on little more than a myth. His research, published in the journal Diplomacy and Statecraft, argues that the laws of universal jurisdiction, which kings, countries and courts have relied upon for hundreds of years, are built on the hearsay of second-hand sources without close examination.
He said: “The laws against piracy at sea are built on a house of cards. They are based on a concept called universal criminal jurisdiction which stems from the idea that some crimes are so serious, so heinous, they are crimes against humanity and against the values of all mankind. But the original lawmakers were powerful sovereigns protecting their own interests, not least their sovereign right to freely navigate the high seas and develop colonial trade and settlements and ultimately grow their own empires uninhibited.
“They weren’t interested in protecting all mankind. Pirates were even sometimes described as ‘heinous’ because their activity was destructive of the colonial trade of sovereigns. Piracy is a serious crime but it is robbery at sea, not a crime against humanity. Universal criminal jurisdiction never existed. It is a hollow concept.”
Dr Garrod argues that this is important because universal criminal jurisdiction over piracy is not questioned by courts across the world and it is used to underpin new laws – including laws against war crimes, crimes against humanity and genocide – without ever itself coming under close examination.
“Law makers take it for granted as a starting point in international law. They rely on the fact it has existed for hundreds of years so it must be a safe basis for law, but until now nobody had studied it in any depth, they have relied upon secondary sources which are flawed and which don’t tell the whole story.
“Given that the legitimacy of universal jurisdiction, its very foundation, is the suppression of piracy, it is surprising that it hasn’t come under closer scrutiny.”
Dr Garrod examined hundreds of documents and artefacts as part of his research over two years including diplomatic correspondence, Admiralty records, letters sent between sovereigns, government officials and their colonial governors, letters of naval commanders, letters from the East India Company, first-hand accounts of incidents and pirate trials, and commentaries of jurists, including the so-called ‘founding fathers’ of international law.
The archival documents from Kew proved particularly challenging to read, he said, not least because of the style of 18th century handwriting and the yellow-aged paper: “The scorch marks and water damage on some of the naval documents make it appear as if they have survived battles at sea.”
Piracy is defined, broadly, by international law as violent attack at sea with personal gain in mind. The United Nations Convention on the Law of the Sea defines it as a universal crime and gives sovereign nations the right to seize and prosecute pirates. Its Legal Framework for the Repression of Piracy says: “States have an obligation to cooperate to the fullest possible extent in the repression of piracy and have universal jurisdiction on the high seas to seize pirate ships and aircraft.”
In practice, many smaller nations cannot afford to chase and catch pirates off their coasts so major maritime powers, including the UK and the US, do the work for them and deliver the pirates for justice to the smaller nations’ courts.
A 2011, a UN report on piracy in Nigeria claimed the fight against piracy was “a collective responsibility” and that same year the UN Security Council called on all states to criminalise piracy under their own domestic laws. The General Assembly has also repeatedly encouraged states to address piracy and armed robbery at sea.
Dr Garrod’s research draws parallels between the way in which piracy was suppressed in the 18th century and how the international community have responded to piracy more recently off Somalia.
He said: “There is no evidence to suggest that states fighting piracy in Somalia are seeking to protect international community values, whatever they may be, which is what would be required under universal jurisdiction.”
Equally important, he argues, is that since the 1990s, the idea has formed that universal jurisdiction over piracy can be expanded to encompass other ‘heinous’ crimes, such as war crimes, crimes against humanity and genocide. A number of states have attempted to prosecute people, particularly foreign officials, using universal criminal jurisdiction, but though such crimes may well be heinous, the law being used to prosecute them has, he says, no foundation.
He said: “As inconvenient this may be to received wisdom, that universal jurisdiction has no foundation in international law is precisely the reason why, after attempts made to expand it to cover crimes other than piracy, universal jurisdiction has, since 2009, been the subject of heated debate before the General Assembly and after nearly five years of debate states are still not closer to agreement.”