Although noncommendable as an activity, piracy relies on a time-honored background. Pirates were a source of major concern for ancient Romans and acts of maritime robbery were common in many epochs, the “golden age” of piracy having taken place between 1700 and 1730 in the Caribbean Sea. Almost one hundred years ago, when the League of Nations made an attempt to codify international law, the subject of piracy was not considered one of vital interest. Yet, in the last two decades, the United Nations Security Council has labeled piracy in certain waters as a threat against international peace and security, adopting a number of resolutions to urge for an international effort to deter it.Footnote ¹

Piracy and the Origins of Universal Jurisdiction: On Stranger Tides? by Mark Chadwick, lecturer at Nottingham Law School, does not aim at addressing in general the current regime of piracy, as set forth in the United Nations Convention on the Law of the Sea. It focuses on one of the most intellectually attractive aspects of the matter—the application of universal jurisdiction to the accused. This jurisdiction can be exercised by every state even without any element of connection with the crime, such as the place where it was committed or the nationality of the alleged perpetrator or the victim.

The book particularly addresses the question of the so-called piracy analogy, asking whether there is a relationship of continuity between the traditional exercise of universal jurisdiction over piracy and the present trend to extend such jurisdiction to other crimes of international concern, such as genocide or systemic torture. The historical analysis of this question confirms Chadwick's promise to follow an approach that assesses available evidence and pledges no allegiance to any particular preexisting theory (p. 22).

To take an initial example, is there any link between William KiddFootnote ² and Adolf Eichmann, who was in charge of organizing the notorious “final solution of the Jewish question” (die Endlösung der Judenfrage, in the Nazi terminology) and in 1962 was convicted in Israel and sentenced to death for crimes against the Jewish people and crimes against humanity? The link, if any, has been explained by scholars in two different ways, namely the heinous nature of the crimes in question (moralist position), and the absence or uncertainty of a specific jurisdiction (gap-filling position).

It appears that the remote origin of the piracy analogy is attributable to Cicero, even though his intention was another one. In a passage of De officiis (On Obligations), written in 44 B.C., he describes the pirate as the common enemy of all (communis hostis omnium).Footnote ³ When Cicero attached this pejorative qualification to pirates, he hardly had the concept of universal jurisdiction in mind. Instead, he was making the point that agreements concluded with the enemy are binding, while agreements concluded with pirates to give them a ransom in exchange for life are not. The sentence, which in itself seems more dubious than convincing,Footnote ⁴ is based on the assumption that pirates are placed below the level of legal protection that can be granted to enemies. In fact, the Romans did not need to wait for Cicero to get rid of pirates who infested the Mediterranean. As early as 67 B.C. Pompey, acting under the authority of special legislation (Lex Gabinia de piratis persequendis, that is the law proposed by Aulus Gabinius on the repression of pirates), engaged in a military campaign directed against pirates, in particular the Cilician pirates of the eastern Mediterranean, who had been pillaging the sea and coastal localities for eighty years. At the time, groups of pirates could be seen as maritime communities who sustained themselves by plunder and were a parasitical alter ego of communities based on maritime commerce (see p. 34). They were a serious obstacle for the political and commercial order that “trade-hungry” Rome wanted to establish in the sea. The eradication of such undesirable (for the Romans) communities was effected through the use of force. Captured pirates were in most cases summarily executed without any legal guarantee. A justification for what was currently done could be the notion of the pirate as common enemy of all, later put forward by Cicero. But this is far from contemporary universal jurisdiction and it is questionable whether Rome shaped our contemporary approach by identifying those who offend intrinsic values common to all states, as Chadwick seems to do (p. 39).

When the founding fathers of international law wrote their treatises, piracy was again a common practice and concern in the Mediterranean and in non-European seas as well. It was flanked by privateering, that is sea robbery against vessels flying the flag of a given state carried out by private mariners who were authorized to do so under letters of marque issued by another state. Although the actions by pirates and privateers were similar, if not identical, the former represented the statelessness and lawlessness of the sea, while the latter were somehow a manifestation of state authority by proxy. Alberico Gentili, in De jure belli libri tres (Three Books on the Law of War), published in 1598, stressed the distinction between states, which can make war (principes bellum gerunt Footnote ⁵), and robbers, who cannot make war (latrones bellum non gerunt Footnote ⁶). He drew the conclusion that the law of war cannot apply to pirates, as they are criminals subject to the jurisdiction of the state. Obviously, he quoted Cicero, among several other sources, in this regard.Footnote ⁷ Hugo Grotius,Footnote ⁸ in De jure belli ac pacis libri tres (Three Books on the Law of War and Peace), published in 1625, dehumanized pirates as barbarians, more similar to beasts than men.Footnote ⁹ After having quoted the well-known passage of Cicero on pirates,Footnote ¹⁰ Grotius stated that atrocious wrongdoers who do not belong to any state can be punished by every person.Footnote ¹¹ As Chadwick remarks, Grotius was instrumental in developing the idea of the pirate as a universally punishable outlaw (p. 107). This was confirmed by Emmerich de Vattel, who, writing in 1758, pointed out that pirates, as enemies of humankind, may be sent to the gibbet by the first into whose hands they fall.Footnote ¹²

However appealing the historical review presented in Chadwick's study, the reader is left with the impression that perhaps something more could be found under the dust covering old volumes and perhaps something more was said in what we today would consider rather mysterious Latin language that Cicero and Grotius have in common. For instance, Gentili was the lawyer of Spain in a number of maritime law cases discussed before the British Court of Admiralty, including some relating to privateering and piracy. His pleadings were printed posthumously in 1613 under the name of Hispanicae advocationes (Spanish Pleadings). Is there anything interesting in this collection, which reflects very concrete concerns? Grotius, as the lawyer of the Dutch East India Company, wrote an extensive treatise entitled De jure praedae commentarius (Commentary on the Law of Prize and Booty) to explain in 1604 to the Admiralty College of Amsterdam why the Portuguese vessel Catarina, captured by the Company in the strait of Singapore, was a good prize.Footnote ¹³ In a remarkable passage of this work, Grotius emphasized that the Portuguese, who at that time claimed sovereignty over vast parts of the oceans and thus prevented free navigation and trade by ships flying the flag of other states, acted as pirates, that is in the same way as those people who in ancient times were considered as harmful to mankind.Footnote ¹⁴ Was the strong position later taken by Grotius against pirates somehow influenced by his professional involvement in the Catarina case?Footnote ¹⁵ Chadwick's book does not provide elaboration on the two questions asked above.

In the meantime, communities of pirates and privateers (the distinction was not always a clear-cut one) flourished in the Caribbean area where they constituted “floating hydrarchies” who lived a counter-life, subverting the values of European civilization, such as discipline, order, and reason. After the 1670 treaty with Spain, Great Britain took the definite position that pirates were a threat to freedom of navigation and commerce, two of the main interests of the community of all (European) states. At that time, pirates’ fierceness was matched only by the ferocity of the state campaign to suppress them (p. 132). Under the 1698 British Act for the More Effectual Suppression of Piracy, special piracy courts were established and pirates were granted some procedural guarantees, however minimal. A series of British courts judgments, which are identified and described in Chadwick's book and which decided on the trials against notorious pirates (Cusack, Dawson, Kidd, Green, and Bonnet) marked the progression toward the notion of universal jurisdiction over pirates. Even though in most cases the assertion of universal jurisdiction was not strictly needed, as there was an actual jurisdictional connection between the accused and the state that tried him, it clearly became the British (and later American) view that piracy provided a special basis of jurisdiction to prosecute and punish everybody, including foreigners who had acted on the high seas. For example, in deciding in 1718 the case against Bonnet, Judge Trott assumed that England had “jurisdiction and power, in concurrence with other princes and States, for the punishment of all piracies and robberies at sea, in the most remote parts of the world” (however, such an assertion was not strictly required, as the convicted was a British subject) (p.126). In fact, the pirates had to defend themselves not only from the navies and courts of Great Britain and other states—what was evident to them—but also from the rhetorical invectives of Cicero and Grotius, who had depicted them as people responsible for the most heinous crimes, enemies of humankind and abhorrent beings standing midway between men and beasts—what was not evident to them, but was in the legal knowledge of judges and scholars.

As Chadwick explains, universal jurisdiction, which is firmly established in the present regime of piracy, is the result of different concurring circumstances, namely: piracy affects the agreed vital interests of the international community toward freedom of the sea and trade;Footnote ¹⁶ pirates target their victims indiscriminately, potentially endangering every state and the nationals of every state; pirates act on the high seas beyond national borders and should not take advantage from an alleged jurisdictional vacuum; and all states agree that universal jurisdiction shall be attached to the crime of piracy. As Chadwick also remarks, universal jurisdiction in piracy cases cannot by explained by the particularly heinous nature of crime. With all due respect for the suffering of the victims of piracy, the history of humankind shows that there are several crimes as serious as piracy—and even more serious—that are not subjected to universal jurisdiction. How could piracy have been deemed particularly heinous in the past, when states authorized privateers to engage in a substantively similar conduct? And how could piracy be deemed particularly heinous today, considering that it does not appear among the crimes against humanity listed in the 1998 Rome Statute of the International Criminal Court? It may be added that piracy is seen today as so heinous that … many Somali pirates have been simply released weaponless, but without any trial, by the states that had arrested themFootnote ¹⁷ (the reasons for such conduct have a practical nature: the cost of trial, including translations, and likely subsequent maintenance in national jails; the problems with obtaining evidence; and the possibility of accused claiming asylum). Rather than engaging themselves in a competition for submitting the suspected to trial, as the concept of concurring universal jurisdiction would suggest, interested states have devoted many efforts to find ways to get rid of pirates, as it is shown by the 2009 exchange of notes between the European Union and Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy.Footnote ¹⁸

All this makes piracy a unique instance in the field of international law. While piracy has always occurred, it shows different factual aspects that have called for different reactions and legal regimes in different times. Today, as a consequence of the threats posed by new instances of piracy, new legal approaches may be required. As Chadwick remarks, the ultimately successful response to Somali piracy reveals that universal jurisdiction is best realized in the form of a collaborative effort among states (p. 186). As an example of anti-piracy strategy coordinated at the international level, he quotes the 2009 Djibouti Code of Conduct concerning the Repression of Piracy and Armed Robbery at Sea in the Western Indian Ocean and the Gulf of Aden,Footnote ¹⁹ without however paying much attention to the 2004 Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia,Footnote ²⁰ which is also reported to have been quite effective in the fight against the Malacca Strait pirates.

Coming now to the main question addressed in the volume, Chadwick reaches the conclusion that universal jurisdiction's original function, as a means of suppressing piracy, has today given way to broader and more pressing concerns (p. 199), extending to a number of so-called core universal crimes, and that the piracy analogy provides a starting point, justification, and rationale for the expansion and further use of universal jurisdiction (p. 228). This does not seem fully convincing. The two Israeli judgments in the Eichmann trial—by the District Court of Jerusalem on December 12, 1961 and by the Israeli Supreme Court on May 29, 1962—may have marked a significant development for the exercise of universal jurisdiction against a crime other than piracy (p. 12). As stated by the Israeli Supreme Court, the “explanation of the substantive basis underlying the exercise of universal jurisdiction in respect of the crime of piracy also justifies its exercise in regard to the crimes with which we are dealing in this case.”Footnote ²¹ However, the right to exercise national jurisdiction was based on a dual foundation: not only the universal character of crimes of which Eichmann was accused, but also their specific character, as intended to exterminate the Jewish peopleFootnote ²² and as sanctioned by national legislation (the 1950 Israeli Law for the punishment of Nazis and Nazi collaborators). The crimes of which Eichmann was accused had been committed far beyond the Israeli territory and even at a time when Israel did not yet exist as a state. However, the case had a very special character, for there is a significant connection between the charge of having exterminated over six million Jews, only because they were Jews, and the state of Israel, identified in its 1948 Declaration of establishment as “the Jewish State.”

Another relevant instance, on which there is no elaboration in Chadwick's book, is massive drug trafficking. In 1986, naval units of the Italian finance police seized on the high seas the ship Fidelio, flying the flag of Honduras.Footnote ²³ It was found to carry 5,928 kg of resin of cannabis (so-called hashish), corresponding to 14,470,570 doses. Almost another ton of resin was thrown overboard by the crew before the seizure. Neither the captain nor any among the eleven members of the crew had Italian nationality. The prosecutor, Giovanni Falcone (who some years later was to be killed in the explosion of a bomb detonated by mafia members) made all his efforts to have the Italian jurisdiction over the accused affirmed. He put forward, inter alia, the argument that massive drug traffickers are more dangerous for human society than pirates and should consequently be submitted to universal jurisdiction. All was done in vain. The Tribunal of Palermo (judgment of November 7, 1988), the Court of Appeal of Palermo (judgment of June 1, 1992),Footnote ²⁴ and the Court of Cassation (judgment of February 1, 1993) held that Italian criminal legislation could not apply with respect to actions taking place beyond the territorial sea and declared the lack of jurisdiction of any Italian court on the matter. The three courts held that the seizure on the high seas was justifiable because of the suspicion that the Fidelio could have been a pirate ship. But, as the accused were not pirates, the courts also found that the rule of international law to be applied in the specific case was the general interdiction to interfere on board foreign ships on the high seas. The accused were released without conviction, even though it was clear that they had not sailed with more than six tons of drugs for their personal consumption.

If we move from the high seas to crimes that are committed everywhere, the piracy analogy holds even less true. The need to submit to trial people accused of “unimaginable atrocities that deeply shock the conscience of humanity” (preamble of the Statute of the International Criminal Court) can be seen as a manifestation of the moral wish expressed by Immanuel Kant that the violation of a right committed in one part of the world be felt in all its other parts.Footnote ²⁵ But this has little to do with the figure of the pirate, who is a criminal like many other criminals and can by chased by all states only as the consequence of a unique combination of circumstances that date back to Cicero's and Grotius's curses, but do not include the particularly heinous nature of the crime. In contrast to the conclusion reached by Chadwick, it seems that pirates and perpetrators of core universal crimes are so fundamentally different in terms of their motivations, political affiliations, and location in the international context that no substantive piracy analogy can be drawn between them.

An additional interesting remark, that Chadwick does not fail to make, is that, unlike the case of piracy, the state is often implicated in the perpetration of core universal crimes, which are mostly committed by state officials, including those acting at the highest level. It may happen that the states concerned object to what they qualify as an interference in their sovereign affairs and are ready to exert political pressure and even the threat of reprisals on states that would exercise the universal jurisdiction or on the International Criminal Court.Footnote ²⁶ This explains the curtailment of the Belgian and Spanish legislation on universal jurisdiction and justifies the position that only a “gradual evolution” is today taking place toward giving to states the right to punish foreign nationals for crimes against humanity (p. 217).

In short, this is a book that deserves to be read because it is the result of a serious research and offers thought-provoking considerations on a fascinating subject for both its historical background and its present legal and theoretical implications. Perhaps more elaboration on certain subjects would have been desirable and would have led to slightly different conclusions. But this is a subjective opinion that does not detract from the interest of the book.