Terrorists As Pirates

According to Douglas R. Burgess Jr. at Legal Affairs, it can be justified that today's terrorists should be treated like yesteryear's pirates:

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.

An especially relevant parallel is that between state-sponsored piracy (letters of marque and reprisal) and state-sponsored terrorism (such as Hezbollah). This reminds me of the first American president to invade another country—and the nation's first Democrat—Thomas Jefferson.

Jefferson, facing the lack of British Navy support for American trade in the Mediterranean and looking with some distaste at the tribute paid to the Barbary States (and ransom paid for captured American crewmen), first sought to create an international coalition to fight the pirates (stymied by France), then finally fought an unpopular war in against Tripoli. In yet another interesting parallel, the war was ended by treaty just before forcing regime change in Tripoli, and another war had to be fought ten years later. (source)

There are still pirates today, but terrorism has replaced it as a source of hostis humani generis. Perhaps the piracy precedent should be applied to them:

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.


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.
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.

So, the question remains as to whether the current administration can be influenced to push down this path. We've had inconsistent results gathering coalitions, but defining terrorists as the enemies of all states and requiring by treaty that every member state to enforce their capture and prosecution may have an effect.

Josh Poulson

Posted Wednesday, Aug 30 2006 07:42 AM

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