Douglas R. Burgess Jr.: The Dread Pirate Bin Laden
[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.]
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.
[This article continues. The author next discusses specific laws the international community could adopt to target terrorists.]
Read entire article at Legal Affairs
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.
[This article continues. The author next discusses specific laws the international community could adopt to target terrorists.]