HereÂ’s a neat idea for dealing with Osama and every other terrorist on the planet. They are hostis humani generis -- the enemies of all mankind.

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.

What would be the impact of classifying terrorism along with 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.

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.

I encourage you to read the article by Douglas R. Burgess Jr., “The Dread Pirate Bin Laden”. It may come out of the Legal Affairs, but it is incredibly approachable.

Posted by: Greg at 10:45 AM | No Comments | Add Comment
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