The Dread Pirate Bin Laden

May only be of interest to a few of you, but those interested in the practicalities and legal structures regarding terrorism, and particularly the identification and prosecution of terrorists should find this interesting. From the most recent edition of Legal Affairs:

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. ...

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. ...

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." ...

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.