Towards the prosecution of maritime piracy before the International Criminal Court

Resumo

Piracy has been a serious threat to the international community throughout history. Considering freedom of navigation as a common human issue, piracy was denounced by customary international law prior to its official codification. Thus, it was acknowledged as an international maritime crime and an infringement upon the principles of international law, as stated in Article 101 of the 1982 United Nations Convention on the Law of the Sea. Indeed, the judicial complexities encountered by criminal justice in punishing the offenders of these crimes despite the establishment of universal jurisdiction make it difficult for international courts to make judicial decisions regarding their perpetrators. Given the absence of a dedicated international court for piracy, prosecutions often take place at the national level, which creates many legal and procedural issues, ultimately hindering the effective punishment of these offenders. Furthermore, the involvement of pirate leaders and the recruitment of young pirates and children present additional legal complexities that could be considered grave infringements of human rights as outlined in international humanitarian law that warrant the jurisdiction of the International Criminal Court (ICC). Since the enactment of the Rome Statute, piracy has increased notably, especially in recent years, which represents the "golden age of piracy". Logistical and judicial challenges have limited criminal accountability for piracy. This study examines the possibility of prosecuting individuals responsible for such crimes by the ICC by reviewing the justifications for resorting to it, how maritime piracy aligns with the jurisdiction of the ICC, and whether piracy ought to be classified as an independent offense under the Rome Statute or designated as a crime against humanity based on its elements, method of commission, and the critical breaches of international humanitarian law associated with it. Additionally, it addresses the problems of national prosecutions and the shortcomings of the concept of piracy in international agreements, which not only obstruct the attainment of criminal justice but also complicate efforts to establish the ICC’s jurisdictions.