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Published online by Cambridge University Press: 17 July 2020
1 See, among the many that could be quoted, SC Res 2020 (2011).
2 Incidentally, Chadwick hints at the view that Kidd was more a privateer than a pirate and was executed in 1701 by the British mainly as a scapegoat to show a different attitude with regard to robberies in the Caribbean.
3 “Est autem ius etiam bellicum fidesque iuris iurandi saepe cum hoste servanda. Quod enim ita iuratum est, ut mens conciperet fieri oportere, id servandum est; quod aliter, id si non fecerit, nullum est periurium. Ut, si praedonibus pactum pro capite pretium non attuleris, nulla fraus sit, ne si iuratus quidem id non feceris; nam pirata non est ex perduellium numero definitus, sed communis hostis omnium; cum hoc nec fides debet nec ius iurandum esse commune.” [“Furthermore, we have laws regulating warfare, and fidelity to an oath must often be observed in dealings with an enemy: for an oath sworn with the clear understanding in one's own mind that it should be performed must be kept; but if there is no such understanding, it does not count as perjury if one does not perform the vow. For example, suppose that one does not deliver the amount agreed upon with pirates as the price of one's life, that would be accounted no deception—not even if one should fail to deliver the ransom after having sworn to do so; for a pirate is not included in the number of lawful enemies, but is the common foe of all the world; and with him there ought not to be any pledged word nor any oath mutually binding.”] Book III, para. 107 (English translation by Walter Miller).
4 Why agreements with my personal enemy should be binding for me and those with everybody's enemy should not? The number of enemies appears to be an incongruous factor. It should be replaced by the much more relevant assumption that agreements with pirates are concluded under threat. Roman jurists at a certain stage of their elaboration reached the conclusion that there are a number of situations that lead to the invalidity of (what today we would call) contracts, including threat. However, this stage probably was achieved after the first century B.C. and, in any case, De officiis is a moral and not a legal dissertation.
5 That is the title of Chapter III of Book I.
6 That is the title of Chapter IV of Book I.
7 “Piratae omnium mortalium hostes sunt communes. Et itaque negat Cicero, posse cum istis intercedere jura belli.” [“Pirates are the common enemies of all mortals. For this reason Cicero excludes that the law of war applies to them.”] Alberico Gentili, De jure belli libri tres [Three Books on the Law of War], book I, ch. III (1598).
8 Hopefully nobody in Delft will notice the “Leiden-born Hugo Grotius” that can be read at page 85 (a venial sin, as the two Dutch cities are located very closely).
9 “De talibus enim barbaris, & feris magis, quam hominibus, dice recte potest quod … .” [“About such barbarians, who are more beasts than men, we can rightly say that … .”] Hugo Grotius, De jure belli ac pacis libri tres [On the Law of War and Peace], book II, ch. XX, para. XL, subpara. 3 (1625).
10 Id., book III, ch. XIX, para. II, subpara. 1.
11 “[Q]ui atrociter malefici sunt, neque pars sunt ullius civitatis, hi a quovis homine puniri possunt … .” [“Those who are atrociously evil and do not belong to any city, they can be punished by everybody … .”] Id., para. III, subpara. 1).
12 “C'est ainsi que les pirates sont envoyés à la potence par les premiers entre les mains de qui ils tombent.” [“This is how pirates are sent to the gallows by the first in whose hands they fall.”] Emmerich de Vattel, Le droit des gens ou principes de la loi naturelle [The Law of the Peoples or Principles of Natural Law], book I, ch. XX, para. 233 (1758). Vattel must be thanked for having spared us any of Cicero's quotations.
13 Only in 1864 was the manuscript of the De jure praedae commentarius [Commentary on the Law of Prize and Booty] accidentally found. However, Chapter XII of this treatise had already been printed anonymously in 1609 under the title Mare liberum sive de jure, quod Batavis competit ad Indicana commercia, dissertatio [The Free Sea: A Dissertation Upon the Right that the Dutch Have to Trade with the Indies]. It is still one of the most celebrated and quoted works in international law.
14 “Cum igitur his genus homines, ut in omne humanum genus injuriosos, cunctorum communem odium mereri antiquitas semper judicari; ne nunc quidem sint, nisi forte paucissimi, qui Lusitanos istius criminis absolvant, quid est quod ex illorum paenis timeat aliquis sustinere invidiam?” [“Since in ancient times it was always thought that this kind of men who are harmful for all humankind they deserve the common hatred by everybody, and since there are only very few people who would acquit the Portuguese of this crime, who could fear to be blamed for having punished them?”] Hugo Grotius, Jure praedae commentarius [Commentary on the Law of Prize and Booty], ch. XIV, 308 (H. G. Hamaker ed., 1868).
15 See, e.g., Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World 22 (2017).
16 See, e.g., Liss, Ryan, Crimes Against the Sovereign Order: Rethinking International Criminal Justice, 113 AJIL 727 (2019)CrossRefGoogle Scholar.
17 Such situation has been stressed several times by the United Nations Security Council. For example, in Resolution 2020 (2011) of 22 November 2011 it reiterated “its concern over a large number of persons suspected of piracy having to be released without facing justice” (fifth preambular paragraph).
18 Text in Official Journal of the European Union No. L 79 of 25 March 2009. Listing all the human rights that must be granted to the accused, this treaty is notable also as a sort of European Convention of Human Rights (of pirates) in a nutshell.
19 The text is available on the website of the International Maritime Organization.
20 Text in 57 United Nations, Law of the Sea, Bulletin 117 (2005).
21 Attorney General of the Government of Israel v. Eichmann, 36 Int'l L. Rep. 277, 300 (Isr. Sup. Ct. 1968).
22 As stated in the District Court judgment (id. at 26) and confirmed by the Supreme Court judgment (id. at 287).
23 Tullio Scovazzi, The Evolution of International Law of the Sea: New Issues, New Challenges, 286 Recueil des Cours 39, 224–27 (2001).
24 Text (in Italian) in 75 Rivista di Diritto Internazionale 1081 (1992).
25 “Da es nun mit der unter den Völkern der Erde einmal durchgängig überhand genommenen (engeren oder weiteren) Gemeinschaft so weit gekommen ist, daß die Rechtsverletzung an einem Platz der Erde an allen gefühlt wird … .” [“As the community (narrower or wider) between the peoples of the world that has finally prevailed everywhere has gone so far that the breach of a right in one place of the Earth is felt in all the others . . . . ”] Immanuel Kant, Zum ewigen Frieden [Perpetual Peace], comment to Art. III (1795). This quotation is recalled by Chadwick (p. 205).
26 It is not the case to enter here into the question of whether universal jurisdiction, which can be exercised by the courts of every state, can be logically paralleled to the jurisdiction of the International Criminal Court, which is exercised by an international court.