[Paleopsych] Legal Affairs: Douglas R. Burgess Jr.: The Dread Pirate Bin Laden

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Legal Affairs: Douglas R. Burgess Jr.: The Dread Pirate Bin Laden 
July|August 2005

First, the summary from the "Magazine and Journal Reader" feature of the daily 
bulletin from the Chronicle of Higher Education, 5.7.27

    A glance at the July/August issue of Legal Affairs: Bin Laden, the new

    In 1856 international law recognized two entities: people and states.
    People followed the rule of their governments, while nations bowed to
    international pacts. When the Declaration of Paris was signed that
    year, a category was created for a third group: pirates. Almost 200
    years later, says Douglas R. Burgess Jr., an author and expert on
    international law, the parameters of that category can be used to
    fight an enemy of today: terrorists.

    In 2005 no international law defines terrorism, says Mr. Burgess.
    Following older standards can work, he says, because terrorists, like
    pirates, lack the protection of law afforded to citizens. They also
    lack the sovereignty of legitimate nations. That unique status means
    pirates can be captured wherever by whomever.

    "The ongoing war against pirates," he argues, "is the only known
    example of state vs. nonstate conflict until the advent of the war on

    But how can terrorism be compared to piracy? The corollaries, says Mr.
    Burgess, can be "profound and disturbing." Both declared war against
    civilization. Both have prepared their attacks in hiding, whether in a
    remote cove or in a secret cell. Both have aimed to bring attention to
    their causes. They share the goals of destruction, homicide, and
    frustration of commerce. Most important, he says, "both are properly
    considered enemies of the rest of the human race."

    A more effective war against terrorism could be fought, says Mr.
    Burgess, if these actions were taken: Terrorists would be enemies of
    all states if an international definition for terrorism existed.
    Universal jurisdiction would also keep nations from harboring
    terrorists as freedom fighters by distinguishing between legitimate
    insurgents and outright terrorists. Above all, though, nations would
    not balk at helping the United States if a defined crime of terrorism
    could be prosecuted before the International Court of Justice, in The
    How thinking of terrorists as pirates can help win the war on terror.

    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
    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.

    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
    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.

    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.

    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.

    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
    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
    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.
    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
    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
    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.

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