Kyle Best
Hostis humani generis: “enemy of humankind.” The immense weight behind this Latin phrase is well known to those fascinated by either the modern or historical world of piracy. Historically, the status of these universal enemies was well known. According to the masses, pirates had availed themselves of the benefits of society, reduced themselves to a savage “state of nature”, and declared war on all humankind. And so, in this same Hobbesian spirit, humankind responded by categorically declaring war against pirates. Thus, when these enemies would bear down upon a coastal town with rapacious savagery, the town would not stand idle and witness their own demise, but instead rally their troops and defend their livelihood with equal measures of violence. Indeed, because the pirates had been declared enemies of humankind, the town would not only have the right to self-defense, but they were further given the right to punish captured pirates in a brutal manner fitting of this “state of nature.”[1] And so, as if torn from the pages of Leviathan, the law of nature governed the fight against hostis humani generis.
This classical account of piracy paints a picture reminiscent of the so-called “Golden Age” of piracy, one that may be thought of as irrelevant to maritime crime in its modern form. However, a new study by Dr. Matt Garrod suggests that such an antiquated approach to piracy persists in international law. Garrod’s study focuses on the principle of universal jurisdiction. Used for over 400 years to combat piracy, universal jurisdiction gives all countries criminal jurisdiction over certain crimes regardless of normally relevant considerations such as location or nationality. Universal jurisdiction rests on the assumption that there are certain crimes so heinous that they are against the values of all humankind, and because all humankind is affected, all states are given the right to prosecute the criminal and protect international community values. In his study, Garrod researched archival materials and considered the application of universal jurisdiction to the crime of piracy from a historical perspective. He found that lawmakers were not protecting international community values, but instead pursuing their own interests:
“[T]he 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.”[2]
This study points towards a significant incongruity between the application of universal jurisdiction and its underlying rationale. However, can this criticism be applied to modern maritime crime? Garrod argues that it can, stating that there is no evidence to suggest that the fight against piracy in Somalia is a result of states attempting to protect international community values. This is a strong stance to take on the issue, and is likely to be challenged by organizations such as the UN, who describe the fight against piracy as a collective international responsibility.[3] Indeed, the applicability of universal jurisdiction to crimes like piracy and genocide has been a subject of debate before the UN General Assembly since 2009, and both sides are far from reaching an agreement on the matter. Regardless of one’s stance on this issue, Garrod’s research raises a legitimate question as to the underpinnings of universal jurisdiction, and continues to fuel the debate surrounding this 400-year-old law.