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Wednesday, September 20, 2006

Terrorists - Hang 'em from the yardarm!

Thanks to my friend Oriolebird (despite his affinity for the Detroit Pistons) for passing on this information, and also to Quizlaw for identifying Islamofascists as modern day pirates.

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.


The full article covers this subject in great detail with plenty of historical anecdotal information for flavoring. Here are a couple of important excerpts:

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.


Piracy became a method of warfare in the 16th through the 19th centuries as regents like Queen Elizabeth gave sea captains/brigands "letters of marque" (later known as privateering, or piracy, commissions) to harrass enemy shipping and pirate their vessels and outposts with the authority of the Crown.
Burress gets to an important point as he reminds readers of 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."...


I'll skip a good part of the article which deals with both the history of piracy and the technicalities of bringing terrorist acts under the same general umbrella and bring us to the conclusion of Burress' fine article:

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.

1 comment:

highboy said...

Excellant points.