Piracy in the Works of Alberico Gentili and Hugo Grotius

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Chapter 4 The Philosophical Foundations of Universal Jurisdiction: Piracy in the Works of Alberico Gentili and Hugo Grotius

The story of universal jurisdiction began with Cicero, inasmuch as his ide- ologies formed the foundation for a world order that placed “piracy” (an ad- mittedly vague concept in Cicero’s time) in opposition to civilised Roman Statehood.1 This is not to say that Rome actually adopted and endorsed the practice as a way of handling the threat of the Cilician peiratēs (or piratae). Indeed, the principle did not emerge as a fully realised concept until the late seventeenth century.2 Later assertions of universal jurisdiction owed a debt to the influential works of late sixteenth century Italian academic Alberico Gentili and early seventeenth century Dutch scholar Hugo Grotius. Both were central to the early development of international law which, drawing on Cicero’s doctrines, they based firmly around the conception of the sovereign State. In defining the State, the identity of the “pirate” was simultaneously neg- atively determined, so that the pirate’s fate was interminably linked with the definition and rise of Statehood, as expressed through the formative ideolo- gies of international law. This anti-Statist and extralegal designation of piracy would, in turn, influence the application of universal jurisdiction to univer- sally condemnable perpetrators of “core” international crimes.3 The rhetoric of excluding certain actors from the remit of international law had reappeared several times since Cicero’s lifetime. In the late twelfth century Italian jurist Azzo of Bologna distinguished “hostes” (recognised enemies) from extralegal “latrones” (“brigands”) and latrunculi (“robbers”),4 maintain- ing the Roman distinction of equal “enemies” and undeserving “others”.5 Four- teenth century Italian scholar of Roman law Bartolus of Saxoferrato confirmed that “enemies (hostes) are not to be compared to pirates (pyrates)” who were

1 2.2, supra. 2 5.2, infra, in conjunction with the historical background described at 3.2.2, supra. 3 Amedeo Policante, The Pirate Myth: Genealogies of an Imperial Concept (Abingdon, Ox: Rout- ledge, 2015), 169–172. Discussed further at 8.1, infra. 4 Azzo of Bologna, Summa Codicis (c. 1210) 1; discussed in Bruno Paradisi, “International Law and Social Structure in the Middle Ages”, 2 Indian Year Book of International Affairs (1964) 154–161. 5 As described in Justinian’s Digest, ed. Alan Watson (Philadelphia: University of Pennsylvania Press, 2011) (original Latin available online at thelatinlibrary.com), xlix.xv.xxiv.

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“hostes humani generis”.6 Several sixteenth century scholars elaborated on this general theme; French philosopher Jean Bodin, for instance, conceived a distinction between the “well-ordered government” and its antithesis, the “pirate state”.7 Pierino Belli, a military adviser to Spain and the Holy Roman Empire, claimed that “pirates (piratae) are wholly outside the pale of the law” so that “it should be permissible for anyone to attack them”.8 And Flemish scholar Balthasar de Ayala wrote that a band of pirates, being associated to- gether “with wrong-doing and dishonesty for its object, […] cannot proceed under the laws of war […]; but all the modes of stress known to the laws of war may be employed against them”.9 With subtle variation, the consensus regard- ing pirates was clear – they were “an especially abominable enemy with no rights whatsoever”.10 These scholars, though, added little to the debate about the identity of pirates and their treatment at the hands of States, acting instead as rigid conduits of Cicero. In contrast, Gentili and Grotius devoted large swathes of their influential theses – De Jure Belli Libri Tres (the Laws of War in Three Books, 1589)11 and De Jure Belli ac Pacis (The Laws of War and Peace, 1625)12 respectively – to the act of piracy, in turn crafting their own influential archetypes of the phenome- non in substantial detail. Both were deeply influenced by the political intrigues of their own time and their works are, in part, a response to contemporaneous events. Outbreaks of Mediterranean piracy coincided with an emerging debate about the jurisdictional space of the sea, a discussion driven by the expo- nential growth of maritime trade between European States and the scramble for empire.13 As the European powers expanded into the New World, “piracy

6 Bartolus of Saxoferrato, De Captivis et Postliminio Reversis Rubrica in Apostilla domini Bartoli de Saxoferato super secunda parte Digesti novi (Milan: Johanes Antoni de Donato, 1486); translated in Daniel Heller-Roazen, The Enemy of All: Piracy and the Law of Nations (Brooklyn: Zone Books, 2009), 103. 7 Six Livres de la Republique, (1576), Book i, Chapter 1, translated in Walter Rech, Enemies of Mankind: Vattel’s Theory of Collective Security (Leiden: Martinus Nijhoff, 2013), 51. 8 De Re Militari et Bello Tractatus (1563) (trans. Herbert C. Nutting) (Oxford: Clarendon, 1936), 83. 9 Three Books on the Law of War and on the Duties Connected with War and on Military Disci- pline (1582), ed. John Westlake (Washington DC: Carnegie, 1912), 11–12, 59 and 66. 10 Thomas Heebøll-Holm, Ports, Piracy and Maritime War: Piracy in the English Channel and the Atlantic, c. 1280 – c. 1330 (Leiden: Brill, 2013), 14. 11 Alberico Gentili, De Jure Belli Libri Tres (trans. John C. Rolfe) (Oxford: Clarendon Press, 1933). 12 Hugo Grotius, The Rights of War and Peace (ed. Richard Tuck), (Indianapolis: Liberty Fund, 2005). 13 P.W. Birnie, “Piracy: Past, Present and Future”, 11 Marine Policy (1987) 163, 164; Lauren Ben- ton, “Toward a New Legal History of Piracy: Maritime Legalities and the Myth of Universal Jurisdiction”, 23 International Journal of Maritime History (2011) 225, 225.