Universal jurisdiction over pirates as ‘the enemy of all mankind’

Pirates are “hostes humani generis” or latin for “the enemy of all mankind”. Piracy is a crime not against any particular state but against all mankind.

Thus, declared Supreme Court Associate Justice George Malcom in the case of People vs Lol-Lo, (GR No. 17958, February 27, 1922) which was decided more than a century ago on the issue of piracy involving two Moros and 12 Dutch subjects.

“The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain Kidd and Bartholomew Roberts gripped the imagination, when grotesque brutes like Blackbeard flourished, seem far away in the pages of history and romance. Nevertheless, the record before us tells a tale of twentieth century piracy in the south seas, but stripped of all touches of chivalry or of generosity, so as to present a horrible case of rapine and near murder”, Justice Malcom said.

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On June 30, 1920, six vintas intercepted two Dutch boats which were on its way in the midst of the islands of Buang and Bukid in the Dutch East Indies. The six vintas were manned by 24 armed Moros. The said Dutch boats were carrying Dutch men, women and children. At first, the Moros asked for food. But when they got on the Dutch boats, they seized  all the vessel’s cargo, attacked nearly all of the men and brutally violated two of the women by methods too tremendous to be described.

All of the persons on the Dutch boat, except the two young women, were again placed on it and holes were made for it to submerge.

The Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauders were Lol-lo, who also raped one of the women, and Saraw. At Maruro, the two women were able to escape. Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu. They were arrested there and were charged in a  Sulu court with the crime of piracy.

The Court stressed that piracy is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits.

The Court ruled that the elements of piracy were present: It is robbery or forcible depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and intention of universal hostility.

Both were found guilty of the crime of piracy. Saraw was meted with a life sentence while Lol-lo was sentenced to be hung until dead.

Justice Malcom used  the latin term “hostis humani generis” in the 1922 Lol-lo case, six decades before the United Nations Convention on the Law of the Sea (UNCLOS) was signed in 1982 that espouses universal jurisdiction over piracy on the high seas. As of May 2023, 168 countries and the European Union are parties.

The key facets of piracy as per UNCLOS, Article 101 are (i) committed for private ends, (ii) takes place on the high seas and (iii) done by one ship on another ship.

UNCLOS allows, and indeed encourages, states-parties to arrest individuals participating in piracy on the high seas out of the jurisdiction of any state. Pirate ships lose all nationality and pirates are denied protection of the flag state. All states have the right to seize a pirate ship on the high seas and to prosecute in national courts.

Article 105 empowers the courts of the capturing state to decide the penalty to be imposed and determine what is to be done with the captured ship and property onboard.

Piracy as a criminal act often employs the use of other common law crimes such as larceny, robbery, and murder.

Nautical piracies are prevalent in the seas of East and Southeast Asia and eastern Africa, where acts of piracy were committed by or in cooperation with criminal organizations involved in smuggling. Throughout history, the crime of pirate predation on trade ships has plagued local and international maritime trade  that is considered an international issue.

Acts of piracy threaten maritime security by endangering, in particular, the welfare of seafarers and the security of navigation and commerce.

These criminal acts may result in the loss of life, physical harm or hostage-taking of seafarers, significant disruptions to commerce and navigation, financial losses to shipowners, increased insurance premiums and security costs, increased costs to consumers and producers, and damage to the marine environment.

International Maritime Organization (IMO) Secretary-General Arsenio Dominguez said in a statement on the  Day of the Seafarer: “Let us remember those who have lost their lives while simply doing their jobs, serving on these ships.

Their dedication and sacrifice must not be overlooked. Attacks on the innocent can never be justified, and I will continue to advocate incessantly for the safety and well-being of seafarers.”

(Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email [email protected], or call 09175025808 or 09088665786)