ETA: This is more readable at the following link - www.legalaffairs.org/issues/July-August-2005/feature_burgess_julaug05.msp
The Dread Pirate Bin Laden
How thinking of terrorists as pirates can help win the war on terror.
By Douglas R. Burgess Jr.
INTERNATIONAL LAW LACKS A DEFINITION FOR TERRORISM as a crime. According to Secretary General Kofi Annan, this lack has hampered "the moral authority of the United Nations and its strength in condemning" the scourge.
But attempts to provide a definition have failed because of terrorists' strangely hybrid status in the law. They are neither ordinary criminals nor recognized state actors, so there is almost no international or domestic law dealing with them. This gives an out to countries that harbor terrorists and declare them "freedom fighters." It also lets the United States flout its own constitutional safeguards by holding suspects captive indefinitely at Guantánamo Bay. The overall situation is, in a word, anarchic.
This chaotic state is reflected in, and caused by, the tortuous machinations of the U.N. in defining terrorism. Over 40 years of debate have produced a plethora of conventions proscribing acts ranging from hijacking to financing terrorist organizations. But the U.N. remains deadlocked on what a terrorist is. As a result, terrorists and countries like the United States pursue one another across the globe with virtually no rules governing their actions.
What is needed now is a framework for an international crime of terrorism. The framework should be incorporated into the U.N. Convention on Terrorism and should call for including the crime in domestic criminal law and perhaps the jurisdiction of the International Criminal Court. This framework must recognize the unique threat that terrorists pose to nation-states, yet not grant them the legitimacy accorded to belligerent states. It must provide the foundation for a law that criminalizes not only terrorist acts but membership in a terrorist organization. It must define methods of punishment.
Coming up with such a framework would perhaps seem impossible, except that one already exists. Dusty and anachronistic, perhaps, but viable all the same. More than 2,000 years ago, Marcus Tullius Cicero defined pirates in Roman law as hostis humani generis, "enemies of the human race." From that day until now, pirates have held a unique status in the law as international criminals subject to universal jurisdiction—meaning that they may be captured wherever they are found, by any person who finds them. The ongoing war against pirates is the only known example of state vs. nonstate conflict until the advent of the war on terror, and its history is long and notable. More important, there are enormous potential benefits of applying this legal definition to contemporary terrorism.
AT FIRST GLANCE, THE CORRELATION BETWEEN PIRACY AND TERRORISM seems a stretch. Yet much of the basis of this skepticism can be traced to romantic and inaccurate notions about piracy. An examination of the actual history of the crime reveals startling, even astonishing, parallels to contemporary international terrorism. Viewed in its proper historical context, piracy emerges as a clear and powerful precedent.
Piracy has flourished on the high seas for as long as maritime commerce has existed between states. Yet its meaning as a crime has varied considerably. The Roman definition of hostis humani generis fell into disuse by the fifth century A.D. with the decline of the empire. But the act didn't disappear with the definition. By 912, pirates along the coasts of Western Europe who styled themselves as "sea-warriors," or Vikings, had terrorized Britain and conquered Normandy. In the early Middle Ages, with no national navies to quash them, pirates held sway over nearly every trade route in Europe. Kings like Edward I of England then began to grant "Commissions of Reprisal" to merchantmen, entitling them to attack both pirate ships and any other merchant vessel flying the same country's flag as the one flown by the pirates they had seen before.
By the 16th century, piracy had emerged as an essential, though unsavory, tool of statecraft. Queen Elizabeth viewed English pirates as adjuncts to the royal navy, and regularly granted them "letters of marque" (later known as privateering, or piracy, commissions) to harass Spanish trade.
It was a brilliant maneuver. The mariners who received these letters, most notably the famed explorers Francis Drake and Walter Raleigh, amassed immense fortunes for themselves and the Crown, wreaked havoc on Spanish fleets, and terrorized Spain's shoreside cities. Meanwhile, the queen could preserve the vestiges of diplomatic relations, reacting with feigned horror to revelations of the pirates' depredations. Witness, for example, the queen's disingenuous instructions saying that if Raleigh "shall at any time or times hereafter robbe or spoile by sea or by lance, or do any acte of unjust or unlawful hostilities [he shall] make full restitution, and satisfaction of all such injuries done." When Raleigh did what Elizabeth had forbidden—namely, sack and pillage the ports of then-ally Spain—Elizabeth knighted him.
This precedent would be repeated time and again until the mid-19th century, as the Western powers regularly employed pirates to wage secret wars. After a series of draconian laws passed by George I of England effectively banished pirates from the Atlantic, the Mediterranean corsairs emerged as pre-eminent maritime mercenaries in the employ of any European state wishing to harass another. This situation proved disastrous. The corsairs refused to curtail their activities after each war's conclusion, and the states realized that they had created an uncontrollable force. It was this realization that led to the Declaration of Paris in 1856, signed by England, France, Spain, and most other European nations, which abolished the use of piracy for state purposes. Piracy became and remained beyond the pale of legitimate state behavior.
IF THIS CHRONOLOGY SEEMS FAMILIAR, IT SHOULD. The rise and fall of state-sponsored piracy bears chilling similarity to current state-sponsored terrorism. Many nations, including Libya, Iran, Iraq, Yemen, and Afghanistan, have sponsored terrorist organizations to wage war against the United States or other Western powers. In each case, the motivations have been virtually identical to those of Elizabeth: harass the enemy, deplete its resources, terrify its citizens, frustrate its government, and remain above the fray. The United States is credited with manufacturing its own enemy by training, funding, and outfitting terrorist groups in the Middle East, Afghanistan, and Central America during the cold war.
But the important lesson for us is not merely that history repeats itself. Looking at the past provides a parallel to our current dilemma but also a solution. The Declaration of Paris is, on the one hand, a recognition of shared guilt. On the other, it represents the first articulation since the Roman era of piracy as a crime in and of itself. The pirate, by this definition, exists like a malevolent satellite to the law of nations. "Considering . . . that the uncertainty of the law and of the duties in such a matter [as piracy] gives rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties, and even conflicts," the declaration stated, the signing parties "have adopted the following solemn declaration: Privateering is and remains abolished."
Until 1856, international law recognized only two legal entities: people and states. People were subject to the laws of their own governments; states were subject to the laws made amongst themselves. The Declaration of Paris created a third entity: people who lacked both the individual rights and protections of law for citizens and the legitimacy and sovereignty of states. This understanding of pirates as a legally distinct category of international criminals persists to the present day, and was echoed in the 1958 and 1982 U.N. Conventions on the Law of the Sea. The latter defines the crime of piracy as "any illegal acts of violence or detention, or any act of depredation, committed for private ends." This definition of piracy as private war for private ends may hold the crux of a new legal definition of international terrorists.
DANIEL DEFOE, THE GREAT CHRONICLER OF PIRACY'S GOLDEN AGE in his General History of the Pyrates, described his subjects as stateless persons "at war with all the world," a definition that may connect contemporary terrorism to piracy even more than state sponsorship does. The legacy of the Elizabethan era was a diaspora of unemployed, malcontent mariners throughout the Atlantic colonies. By the late 17th century, they began to coalesce into small pirate bands, seize vessels at anchorages or on the high seas, and wage their own private wars.
The myth of the romantic buccaneer, perpetuated by such diverse artists as Robert Louis Stevenson and Johnny Depp, must be set aside. The pirates of the so-called golden age, as historian Hugh Rankin described them, were "a sorry lot of human trash." Coming from the lowest tier of the English merchant navy, they struck indiscriminately in ferocious revenge against the societies that they felt had condemned them. Often these disenchanted sailors cast their piratical careers in revolutionary terms. The 18th-century English legal scholar William Blackstone defined a pirate as someone who has "reduced himself afresh to the savage state of nature by declaring war against all mankind," while another account tells of one Edward Low, common seaman, who "took a small vessel, [hoisted] a Black Flag, and declared War against all the World." Pirates gave their ships names that reflected this dark purpose: Defiance, Vengeance, New York's Revenge, and even New York Revenge's Revenge.
Perhaps the most telling statement of the pirates' motives comes from a pirate named Black Sam Bellamy. To a captured merchant captain, he boasted, "I am a free prince, and have as much authority to make war on the whole world as he who has a 100 sail of ships and an army of 100,000 men in the field."
This was more than bravado. Historian Marcus Rediker has suggested that it indicates a new "pirate democracy" that drew its revolutionary principles from its perceived war against civilization and cast itself as civilization's antithesis. Some pirate bands even had constitutions. The "pirate articles" that became commonplace in the early 18th century purported to lay out in legal terms both the rights and obligations that members in a pirate band enjoyed. An excerpt from articles of Captain John Phillips, drafted in 1723, even provides a sort of liability insurance for injured comrades.
The corollaries between the pirates' "war against the world" and modern terrorism are profound and disturbing. With their vengeful practices, pirates were the first and perhaps only historical precedent for the terrorist cell: a group of men who bound themselves in extraterritorial enclaves, removed themselves from the protection and jurisdiction of the nation-state, and declared war against civilization. Both pirates and terrorists deliberately employ this extranationality as a means of pursuing their activities. The pirates hid in the myriad shoals and islands of the Atlantic. The terrorists hide in cells throughout the world. Both seek through their acts to bring notice to themselves and their causes. They share means as well—destruction of property, frustration of commerce, and homicide. Most important, both are properly considered enemies of the rest of the human race.
WHILE THESE HISTORICAL PARALLELS MAY TITILLATE THE IMAGINATION, they only go so far. Piracy and terrorism may share similar histories, but are they the same crime under the law? How could something generally thought of as sea robbery equal the crime committed by the people who destroyed the World Trade Center? This apparent incongruity has prevented scholars from recognizing the currents that run through them both.
A crime, under the domestic law of most nations, has three elements familiar to veterans of introductory classes in criminal law: mens rea, the mental state during the commission of a crime; actus reus, the actions that constitute a crime; and locus, the place where a crime occurs. If two crimes share the same mens rea, actus reus, and locus, they are, if not identical, comparable. While piracy and terrorism may not be the same crime, they share enough elements to merit joint definition under international law.
First, consider the mens rea. Terror has always been an integral part of piracy, often used to achieve a psychological effect. Perhaps the greatest terrorist of all time was Edward Teach, alias Blackbeard. When boarding a prize in battle he wove sulfur fuses into his long beard and lit them, wreathing his face in green smoke and giving himself a satanic appearance. Pirates like Blackbeard understood that their trade was a highly dangerous one and that the odds were rarely on their side. If the sight of a pirate flag could strike terror into the hearts of the victim and lead to a bloodless capitulation, pirates could avoid exposing their vulnerabilities.
Pirates used fear as a tactic and for its own sake as well. They often viewed their predatory activities as a means of striking blows against civilization. Terror, in this light, became a vital part of the message they wished to send. It was not uncommon for pirates to leave a single captured sailor alive to pass on the story of their depredations.
Thus the mens rea of piracy—the desire to inflict death, destruction, or deprivation of property through violent acts accompanied by deliberate use of terrorism—is a close cousin to the perceived mens rea of organized terrorism. The main distinction between them is that, although pirates might use terror as a means to an end or an end in itself, terrorists necessarily employ it for the latter purpose.
A similar calculus can be made for the actus reus. Piracy still refers to sea robbery, and most piratical incidents that occur today, particularly in the Malacca Straits in Southeast Asia and other pirate "hot spots," have pecuniary rather than political motives. Yet piracy also includes a great many acts that involve no actual theft at all.
In 1922, in the aftermath of World War I, France, Italy, Japan, Britain, and the United States pledged in the Washington Declaration to punish "as an act of piracy" any unprovoked submarine attacks. The Spanish Civil War a decade later produced a second and even more revolutionary treaty, the Nyon Agreement of 1937. Signed by countries including Egypt, Greece, France, Britain, and the Soviet Union, it extended universal jurisdiction to any unidentified vessels or aircraft attacking merchant shipping on behalf of the Spanish insurgents, referring to such acts as "piratical."
President Ronald Reagan extended this politicized definition of piracy still further during the Achille Lauro affair of 1985. Following the seizure of an Italian cruise liner by members of the Palestine Liberation Organization and the murder of one of its passengers (a wheelchair-bound American), Reagan declared the terrorists "pirates" and demanded their extradition. This melding of terrorist and piratical crimes later resulted in the creation of a U.N. convention that introduced the term "maritime terrorism" into the legal lexicon of piracy. Over time, then, the actus reus of piracy and terrorism have moved closer to one another, and overlapped in incidents like that of the Achille Lauro.
Finally there is the locus. It seems axiomatic that piracy must occur at sea, but that assumption is false. Legal scholars have long recognized two secondary forms of piracy, one ancient, one quite modern. The first is termed "descent by sea." In the old days, this meant sending jolly boats ashore and sacking a town, as Captain Henry Morgan did throughout the Spanish colonies at Portobello, Maracaibo, and Panama City in the late 17th century.
The second form, far more recent, is aerial piracy, commonly known as hijacking. The linkage of piracy and hijacking under the law is made explicit in numerous sources, including the Tokyo, Hague, and Montreal conventions on hijacking, the latter of which extended the definition of piratical acts to those committed "by the crew and passengers of a private ship or a private aircraft . . . against another ship or aircraft or against persons or property on board." Even in the infancy of aerial flight, jurists recognized the potential linkages between piracy in the air and piracy at sea. The Harvard Draft Convention on Piracy of 1932 stated, "The pirate of tradition attacked on or from the sea. Certainly today, however, one should not deem the possibility of similar attacks in or from the air as too slight or too remote for consideration. . . ."
Suppose an airplane is hijacked en route and sent hurtling into a coastal city, causing great loss of life and destruction of property. Under both the U.N. hijacking and piracy conventions, it is certainly an act of aerial piracy. Yet it is also a descent by sea under the broadest understanding of the term. The pirates seize the vessel and use it to attack a shoreside target, descending upon their target from the air.
This piratical understanding of locus lends itself to the attacks of September 11, of course, but also to many other cases. It could be extended to include any terrorist acts committed after the terrorist has landed in a foreign nation, provided that he arrives with the intention to commit them—meaning that there's great similarity in mens rea, actus reus, and locus between piracy and terrorism.
TO UNDERSTAND THE POTENTIAL OF DEFINING TERRORISM as a species of piracy, consider the words of the 16th-century jurist Alberico Gentili's De jure belli: "Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law." Gentili, and many people who came after him, recognized piracy as a threat, not merely to the state but to the idea of statehood itself. All states were equally obligated to stamp out this menace, whether or not they had been a victim of piracy. This was codified explicitly in the 1856 Declaration of Paris, and it has been reiterated as a guiding principle of piracy law ever since. Ironically, it is the very effectiveness of this criminalization that has marginalized piracy and made it seem an arcane and almost romantic offense. Pirates no longer terrorize the seas because a concerted effort among the European states in the 19th century almost eradicated them. It is just such a concerted effort that all states must now undertake against terrorists, until the crime of terrorism becomes as remote and obsolete as piracy.
But we are still very far from such recognition for the present war on terror. President Bush and others persist in depicting this new form of state vs. nonstate warfare in traditional terms, as with the president's declaration of June 2, 2004, that "like the Second World War, our present conflict began with a ruthless surprise attack on the United States." He went on: "We will not forget that treachery and we will accept nothing less than victory over the enemy." What constitutes ultimate victory against an enemy that lacks territorial boundaries and governmental structures, in a war without fields of battle or codes of conduct? We can't capture the enemy's capital and hoist our flag in triumph. The possibility of perpetual embattlement looms before us.
If the war on terror becomes akin to war against the pirates, however, the situation would change. First, the crime of terrorism would be defined and proscribed internationally, and terrorists would be properly understood as enemies of all states. This legal status carries significant advantages, chief among them the possibility of universal jurisdiction. Terrorists, as hostis humani generis, could be captured wherever they were found, by anyone who found them. Pirates are currently the only form of criminals subject to this special jurisdiction.
Second, this definition would deter states from harboring terrorists on the grounds that they are "freedom fighters" by providing an objective distinction in law between legitimate insurgency and outright terrorism. This same objective definition could, conversely, also deter states from cracking down on political dissidents as "terrorists," as both Russia and China have done against their dissidents.
Recall the U.N. definition of piracy as acts of "depredation [committed] for private ends." Just as international piracy is viewed as transcending domestic criminal law, so too must the crime of international terrorism be defined as distinct from domestic homicide or, alternately, revolutionary activities. If a group directs its attacks on military or civilian targets within its own state, it may still fall within domestic criminal law. Yet once it directs those attacks on property or civilians belonging to another state, it exceeds both domestic law and the traditional right of self-determination, and becomes akin to a pirate band.
Third, and perhaps most important, nations that now balk at assisting the United States in the war on terror might have fewer reservations if terrorism were defined as an international crime that could be prosecuted before the International Criminal Court.
For now, these possibilities remain distant. But there are immediate benefits to pointing out that terrorism has a precedent in piracy. In the short term, it is a tool to cut the Gordian knot of definition that has hampered antiterrorist legislation for 40 years. In the long term, and far more important, it provides the parameters by which to understand this current and intense conflict and the means within which it may one day be resolved. That resolution will begin with the recognition among nations that terrorism is a threat to all states and to all persons, the same recognition given to piracy in 1856. Terrorists, like pirates, must be given their proper status in law: hostis humani generis, enemies of the human race.
Douglas R. Burgess Jr. is the author of Seize the Trident: The Race for Superliner Supremacy and How It Altered the Great War, published this year by McGraw-Hill.