Monday, September 04, 2006


Pirates Is terrorism a legal problem, or a military problem? Who has the authority to go after terrorists? Who has the authority to kill a terrorist, to target a terrorist for assassination? What should we do with captured terrorists?

What is a terrorist?

These are the issues Legal Affairs is dealing with in this article. Their solution? Treat terrorists as pirates:

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.

The fact of the matter is, America's first declared war after the Revolutionary War was a war against the Barbary Coast Pirates. And, guess what. That's right, they were Muslims.

In fact, in trying to figure out how to settle the problem without violence, Thomas Jefferson and John Adams travelled to England to meet with the Ambassador of Tripoli to try to work things out. Here's what happened:

In the book "Victory in Tripoli," Joshua London writes about the Muslim Barbary pirates. They attacked American shipping vessels in the 18th century, often boarding ships and enslaving crewmembers.

Thomas Jefferson, then U.S. ambassador to France, and John Adams, then ambassador to Britain, visited the resident ambassador from Tripoli (modern-day Libya) in London to negotiate a treaty to protect American ships from Barbary pirates. Why, asked Adams and Jefferson, is your government so hostile to the fledgling United States of America? After all, we have no quarrel with you, nor you with us.

The Tripolitan ambassador told them -- as reported to the Continental Congress --

"that it was founded on the Laws of their Prophet, that it was written in their Koran, that all nations who should not have acknowledged their authority were sinners, that it was their right and duty to make war upon them wherever they could be found, and to make slaves of all they could take as Prisoners, and that every Musselman [Muslim] who should be slain in battle was sure to go to Paradise."

Sound familiar?

To think that liberals all over the world think Conservative have just imagined the enemy.