The Dread Pirate Bin Laden

The United Nations has bumbled for more than 40 years in trying
to come up with a definition of terrorism, creating a legal black
hole that’s allowed some nations to harbor terrorists by declaring
them ‘freedom fighters’ and let the United States sweep up ‘enemy
combatants’ with impunity.

The definition’s been elusive because terrorists are neither
state-actors nor common criminals, a ‘strangely hybrid status’ the
international community’s been unable to grasp,

Douglas R. Burgess Jr. writes in Legal Affairs
. It
shouldn’t be though — it’s the same legal category used for
pirates for more than 100 years.

It may seem a clever, albeit unenlightening observation, but the
history of piracy and the war against it offer some helpful lessons
for today’s botched legal and military efforts against terrorism.
Both groups function as extraterritorial bands of disenfranchised
men who use terrifying tactics to advance their agendas. Both have
given rise to ‘wars’ between states and non-state actors.

Like terrorists, pirates once functioned as adjuncts for states’
dirty work. Queen Elizabeth granted ‘letters of marque’ to pirates
who terrorized the coast of Spain, while she maintained a public
appearance of appall at their actions. But pirates proved difficult
to control, and the threat they posed to countries grew. The
history ‘bears chilling similarity to current state-sponsored
terrorism,’ Burgess writes. One need only look to Afghanistan,
where the United States trained the mujahadeen against the Soviets
in the 1980s.

An international resolve to stamp out piracy was realized with
the Declaration of Paris in 1856, when piracy was deemed an
illegitimate use of state power. It was the first time
international law stretched beyond the categories of people and
states and it set the stage for subsequent UN conventions that put
pirates under universal jurisdiction, meaning they can be tried
anywhere by any nation that catches them.

It’s the type of international action needed now, Burgess
argues. Terrorists would be ruled enemies of all states, just as
Marcus Tullius Cicero judged pirates more than 2,000 years ago to
be hostis humani generis, ‘enemies of the human race.’ The
definition, he says, would create a distinction ‘between legitimate
insurgency and outright terrorism’ and raise the possibility of
broad international cooperation by giving the International
Criminal Court purview over the crimes. — Hannah

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The Dread Pirate Bin Laden

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