This is meant to address piracy as a crime under international law, as well as the jurisdiction of the International Criminal Court (hereinafter “the ICC”), if any, over such a crime, in order to examine the possibility of prosecuting pirates before this permanent international judicial body. The ICC is empowered to prosecute crimes of concern to the international community as a whole, in accordance with its Statute - the Rome Statute of the International Criminal Court 1998.
There have been many attempts by jurists or international lawyers to define “international crimes”, but up till this moment, there is not any clear-cut definition of such crimes. The most acceptable ones might well be “those crimes that are of concern to every state because of their corrosive effect on international society or their particularly appalling nature”, or “those which are sufficiently heinous to be crimes against the entire community of nations and therefore their repression becomes a matter of international public policy”. Piracy falls under this category of crimes.
This crime is defined as follows: “any illegal act of violence or detention committed on the high seas for private ends by a private ship against another ship”. It is noteworthy that the scene of this crime is on the high seas - international waters - and not within the territorial waters of States.
The fact that the international community is highly concerned about combining efforts to combat piracy should by no means lead one to think that it is a new or modern crime under international law. Customary international law has always treated piracy as an international crime. As such, the international law recognizes the right of all States to arrest and prosecute pirates before their national courts.
The reason behind considering piracy as an international crime is that it hinders or interrupts international trade and shipping, which in turn entails high costs. Pirates tend to attack and hijack merchant vessels, in addition to their crew members, demanding large amounts of ransoms in return for their release. Not only that, they sometimes go even further by selling the shipped cargoes.
Furthermore, in an unprecedented attempt by the international community to regulate all aspects of the resources of the sea and uses of the ocean, and thus bring a stable order to mankind's very source of life, the United Nations Conference on the Law of the Sea, convened in New York, from 1973 to 1982, was culminated with the adoption of a multilateral convention, establishing a regime for navigation in, and exploitation of, the oceans in all aspects - the United Nations Convention on the Law of the Sea 1982, which entered into force in 1994.
According to Article 101 of the aforementioned Convention, piracy can be defined as follows:
“Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)”
To give more elaboration, the above-mentioned acts, in order to be considered as piratical, must only be carried out on international waters or airspace and for private ends or purposes. Otherwise, similar acts committed within the territorial sea or airspace of a given State - for example - do not constitute piracy according to international law. Likewise, carrying out such acts for political reasons or motives does not tantamount to piracy either. Therefore, once they are committed on international waters with the aim of achieving private ends, robbing a commercial vessel for instance, can be considered as piracy, and thus constitute an international crime.
It is worth mentioning that pirates are usually active in waters where States have little, if any, control. Nevertheless, the international law ensures the right of each State to intervene and suppress them.
Furthermore, the Convention regulates the question of apprehending and prosecuting pirates, whereas the crew of any warship may board any ship if there are reasonable grounds to suspect that it is engaged in piracy - the so-called right of visit - and, if that proves to be so, they may seize the ship and arrest pirates. They can be tried in the courts of the warship’s state (Articles 105, 107 and 110 of the Convention on the Law of the Sea).
Moreover, it is the duty of all States Parties to the Convention to fully cooperate with one another in suppressing pirates, in compliance with Article 100 of the Convention, on the one hand. On the other hand, even non-Parties are already bound by the provisions of the Convention - not as a treaty-law - but as most of those provisions derive from customary international law.
Turning to the “question of questions”, according to the Rome Statute, the International Criminal Court was established to prosecute the perpetrators of “the most serious crimes of concern to the international community as a whole” and “to put an end to impunity” as these crimes “threaten the peace, security and the well-being of the world”.
In accordance with Article 5(1) of the Rome Statute, the ICC has jurisdiction over the following international crimes:
a) The crime of genocide;
b) Crimes against humanity;
c) War crimes;
d) The crime of aggression.
As a matter of fact, the Rome Statute makes no mention of the crime of piracy. Therefore, the ICC cannot exercise jurisdiction over such a crime. Accordingly, pirates cannot be brought before this Court, in conformity with the principle of nullum crimen sine lege, as set forth in Article 22 of the Statute.
In addition to the fact that piracy is not criminalized and punished by the Rome Statute, and therefore the ICC cannot exercise jurisdiction over such a crime, it is “often committed in terra nullius, where no State could exercise territorial jurisdiction”. Terra nullius refers to the high seas - international waters - which are not subject to the sovereign jurisdiction of any State, and they therefore do not form part of States’ territories. This in turn also bars States, whether or not States Parties to the Rome Statute, from bringing the situation of piracy - on the high seas - before the ICC. The same applies to the nationality of pirates, for the aforesaid reason; piracy is not a crime under the Statute. Moreover, some may argue that “it is difficult to establish the nationality of the pirates”.
Regarding referral by the Security Council, it would have been only possible had piracy been criminalized by the Rome Statute of the ICC, and at its discretion, would determine whether it threatens or breaches the international peace and security, in accordance with Chapter VII of the Charter of the United Nations.
As a matter of fact, the Security Council did determine that piracy threatens international peace and security when, in 2008, it adopted 5 resolutions - under Chapter VII of the UN Charter - to combat Somali pirates in the Gulf of Aden, which is considered as international waters.
In that specific area, pirates launch their attacks against international commercial ships - passing through the narrow Gulf - and rapidly return to the Somali territorial waters where they find a secure haven, as a result of the collapsed Somali Government - which has been seen unable to exercise effective authority over the country since 1991. As a counter-measure, the Security Council authorized the use of military force against pirates on international waters, and went further by authorizing the use of military force against pirates even within the Somali territorial waters.
The Security Council might have considered its measures as insufficient. Consequently, it decided to expand the authorization. On December 16th, 2008, the Council passed an even broader resolution, drafted and promoted by the United States (in the last weeks of the Bush administration) extending the authorization of military force to land-based operations in Somalia mainland. For a one-year period, Resolution 1851 authorizes nations to “undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea”.
Given the importance and seriousness that the Security Council attached to piracy - namely determining that it threatens international peace and security - one may wonder: why hadn’t the crime of piracy been included in the Rome Statute, so as to give the ICC jurisdiction over this crime?
The answer may lay down in the wording of Article 5(1) of the Rome Statute, which states:
“The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes…”
A thorough examination of this paragraph leads one to conclude that the ICC does not enjoy a general jurisdiction, but is limited only to those crimes that are considered to be “the most serious crimes of concern to the international community as a whole”, which are enumerated in the Rome Statute. As such, the crime of piracy perhaps has not reached yet that level of seriousness and concern to the international community.
However, some may invoke the relatively low costs of the crime of piracy to many States in comparison with the high costs to States of war crimes, crimes against humanity and genocide - while others argue that piracy imposes high costs on other States. Some would suggest that “the benefits of contributing to an international community governed by law and order justify the high cost of pursuing justice through the ICC, even in light of the relatively low cost of piracy to most states”.
Nevertheless, since piracy was omitted from the Rome Statute, could it be adapted as another crime that falls within the jurisdiction of the ICC, the crime of aggression for example?
According to international law, ships are considered as an extension to a State’s territory. Therefore, a state can also apply its laws to ships flying its flag or aircraft registered with it, and persons on board. And as “the Statute the Rome Statute also considers the concept of territory to include crimes committed on board vessels or aircraft registered in the State Party. This is a rather common and widely accepted extension of the concept of territorial jurisdiction”.
Therefore, a pirates attack against a ship registered with a given State constitutes an aggression against its territory. In the hypothesis of an assault against a ship registered with a State Party to the Rome Statute, could that State refer this situation before the ICC as a crime of aggression?
In that case, that State would be confronted with Article 5(2) of the Statute, which states: “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations”. However, a definition of the crime of aggression and the conditions for the exercise of jurisdiction over this crime were adopted last year in June, but have not yet come into force. In any case, this issue needs a careful scrutiny.
On the other hand, others claim that “a person perpetrating an act of piracy could be charged with crimes against humanity, which are in the court’s jurisdiction”, as a channel to prosecute pirates before the ICC.
In the light of all the points raised above, one concludes that, notwithstanding the fact that piracy is considered as an international crime, the International Criminal Court is not explicitly empowered by the Rome Statute to prosecute the perpetrators of this crime, regardless of the different interpretations or adaptations that could be presented. For that reason, pirates cannot be tried before this Court, in conformity with the principle of nullum crimen sine lege.