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Of Pirates and Nazis: Introducing the “Piracy Analogy”

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Of Pirates and Nazis: Introducing the “Piracy Analogy” Chapter 1 Of Pirates and Nazis: Introducing the “Piracy Analogy” [T]he substantive basis underlying the exercise of universal jurisdiction in respect of the crime of piracy also justifies its exercise in regard to the crimes with which we are dealing in this case.1 ∵ These words, proclaimed by the Supreme Court of Israel in the 1961 Eichmann case, mark a watershed moment in the history of international criminal jus- tice.2 Seeking to justify the controversial arrest and prosecution of Nazi logisti- cian Adolf Eichmann to a global audience, the Court redefined their suspect as a “pirate”, an “enemy of all mankind”3 against whose punishment none could object. It is a comparison that might not immediately seem appropriate. Adolf Eichmann – a lieutenant colonel in the Schutzstaffel (more commonly known by the abbreviation “SS”) and “an expert on the Jewish question”4 – had fa- cilitated The Holocaust by overseeing the transfer of six million Jews to Nazi concentration camps during the 1940s.5 Standing before a court room in 1 Supreme Court of Israel, Eichmann v. A-G Israel, 36 International Law Reports (1968) 227, para. 12. 2 This term is intended, broadly, to refer to the law and procedure and relating to the “core” international crimes within the jurisdiction of the International Criminal Court (icc) (i.e. genocide, crimes against humanity, war crimes and aggression), which are enforceable in in- ternational courts (such as the icc) or in State courts; definition taken from Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law (Oxford: oup, 2013), 3. 3 Supra no1, para 11, citing from Permanent Court of International Justice, The Case of the S.S. “Lotus” (France v Turkey), 7 September 1927, dissenting opinion of Judge Moore, 70. 4 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963) (New York: Penguin, 2006), 36. 5 The first instance District Court judgement held that Eichmann had “caused the deaths of millions of Jews” (A-G Israel v. Eichmann (1961), 36 International Law Reports (1968) 5, para. © koninklijke brill nv, leiden, ���9 | doi:�0.��63/978900439046�_00� <UN> 2 Chapter 1 Jerusalem after several years in hiding,6 Eichmann faced a fifteen-charge in- dictment “of unsurpassed gravity”7 derived from the 1950 Nazis and Nazi Col- laborators (Punishment) Law.8 The charge sheet encompassed four counts of “crimes against the Jewish people” (the formulation of which resembled the definition of genocide as set out in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide),9 seven counts of “crimes against hu- manity” (charges which covered the extermination of non-Jews, including eth- nic Poles, Slovenes and Gypsies), one count of a “war crime” and three counts of “membership of a hostile organisation”.10 Eichmann was found guilty on all counts.11 Even the most infamous of pirates (with whom Eichmann was seemingly being compared) could not compare to this level of depravity. Blackbeard, for instance, was a violent and fearful individual who held colonial Charleston to ransom,12 maimed crewmembers on a whim (lest they would “forget who he was”),13 and terrorised the shipping lanes of the Caribbean in the 1710s.14 They are actions that are certainly despicable (despite literary and celluloid celebra- tion) but that do not measure up to the atrocities of the Nazi regime. Neverthe- less, pirates have been bestowed the dubious title of “hostes humani generis, the enemies to all mankind”15 and described as “worse than ravenous beasts”.16 Piracy is an offence that, since ancient times, has attracted categorical hostil- ity, inviting all States to unite in its eradication and exercise a collective right 244). The figure of six million was conceded by Eichmann himself: para. 161. See also Lucy Dawidowicz, The War Against the Jews (New York: Bantam, 1986). 6 As documented in, e.g., Bettina Stangneth, Eichmann Before Jerusalem: The Unexamined Life of a Mass Murderer (Melbourme: Scribe, 2014). 7 Eichmann (District Court) supra no5, para. 1. 8 William Schabas, “The Contribution of the Eichmann Trial to International Law”, 26 Leiden Journal of International Law (2013) 667, 670. 9 Eichmann (Supreme Court), supra no1, para. 10. 10 Transcript of 11 April 1961. 11 Eichmann (District Court) supra no5, para. 243. Eichmann was acquitted of suspected offences where the conduct in question took place prior to 1941. 12 Captain Charles Johnson, A General History of the Robberies and Murders of the Most Noto- rious Pirates (1724) (with an introduction and commentary by David Cordingly) (London: Conway Maritime Press, 1998), 49. 13 Ibid., 59. 14 David Cordingly, Spanish Gold: Captain Woodes Rogers and the Pirates of the Caribbean (London: Bloomsbury, 2011), 167–178. 15 Kidd’s Trial, 14 Howell’s State Trials (1701) 123. 16 Tryal of Captain Thomas Green and his crew, 14 Howell’s State Trials (1705), 1199. <UN>.
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