[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
http://www.legalaffairs.org/issues/July-August-2005/feature_burgess_julaug05.msp
July|August 2005
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First, the summary from the "Magazine and Journal Reader" feature of the daily
bulletin from the Chronicle of Higher Education, 5.7.27
http://chronicle.com/prm/daily/2005/07/2005072701j.htm
A glance at the July/August issue of Legal Affairs: Bin Laden, the new
Blackbeard?
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
terror."
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
Hague.
----------------------
How thinking of terrorists as pirates can help win the war on terror.
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.
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