The Penalties for Piracy: An Empirical Study of National Prosecution for International Crime

26 Pages Posted: 13 Jul 2012 Last revised: 6 Nov 2012

See all articles by Eugene Kontorovich

Eugene Kontorovich

George Mason University - Antonin Scalia Law School, Faculty

Date Written: July 10, 2012

Abstract

This Article examines the sentences imposed by courts around the world in prosecutions of Somali pirates captured on the high seas. As with other international crimes, international law is silent on the subject of penalties. With piracy, the large number of parallel prosecutions of offenders from a single international “situation” offers an empirical window into the interactions between international and national law in municipal courts; into factors affecting punishment for international crimes and the hierarchy of international offenses; and of course into potential concerns with the current model of punishing piracy.

Using a new comprehensive data set of all Somali piracy sentences in foreign courts (256 sentences), the Article finds that the global average sentence for piracy is just over 14 years, comparable to the average penalties for more serious human rights offenses in international courts. Yet few pirates receive the “average” sentence. The Article finds massive variance in sentences imposed in Somali pirate cases around the world, ranging from four years to life for substantively similar conduct. There are roughly two kinds of sentencing jurisdictions – lenient and strict. The former includes European countries, the latter primarily the United States and Asian states. The gulf in sentencing between these two rough groups is quite significant. Finally, regression analysis of particular sentencing factors shows that the particular characteristics do not contribute significantly to the variance in sentences. Most variation that can be accounted for can be attributed the characteristics of the prosecuting state.

The empirical results suggest that there can be an international consensus about a crime’s international illegality without a corresponding consensus on the severity or magnitude of the crime. It also suggests that the distributed prosecution of a single international criminal situation across multiple municipal courts raises potential problems of inequity for similarly situated defendants. This may be an inevitable consequence of a lack of an international tribunal, but it also suggests the challenges of establishing one.

Keywords: piracy, sentencing, international law, deterrence

JEL Classification: K10, K30, K33

Suggested Citation

Kontorovich, Eugene, The Penalties for Piracy: An Empirical Study of National Prosecution for International Crime (July 10, 2012). Northwestern Public Law Research Paper No. 12-16, Available at SSRN: https://ssrn.com/abstract=2103661

Eugene Kontorovich (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8151 (Phone)

HOME PAGE: http://https://www.law.gmu.edu/faculty/directory/fulltime/kontorovich_eugene

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