The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Cambridge University Press has just published a new collected volume on maritime piracy, Prosecuting Maritime Piracy: Domestic Solutions to International Crimes, edited by Michael P. Scharf, Michael A. Newton and Milena Sterio. The book contains an essay by me, entitled "The problems of pirate punishment."
The chapter examines the sentencing of Somali pirates in international law prosecutions in national courts around the world. The chapter finds massive variances in sentences for similar crimes committed by similarly-situated actors of comparable levels of command responsibility. The variance in sentences in these universal jurisdiction prosecutions shows that an international consensus on the criminality of conduct does not necessarily translate into a consensus on the appropriate punishment. This seems to vary depending with the overall penological approach of the jurisdiction—not surprisingly, European jurisdictions are on the lenient end, and the U.S. is an outlier in severity.
The case of piracy is typical in that international criminal law always specifies prohibited conduct, without providing any penalties. One general implication of the piracy data is that apparently lenient sentences by national jurisdictions cannot, as some have suggested, be taken by the International Criminal Court as indicating a failure of complementarity, because there is no international baseline by which to assess sentence severity. The variance for a fairly clear-cut crime like piracy (the standard deviation in sentences is roughly equivalent to the mean sentence) suggests that variance may be even higher for more contextual and subjective international crimes, like excessive use of force by otherwise privileged combatants. Certainly the piracy evidence suggests that an international consensus sentence or range for particular crimes cannot be assumed without further evidence.
A slightly different, and earlier version of the paper, "The Penalties for Piracy: An Empirical Study of National Prosecution for International Crime," can be found on SSRN.