Sunday, July 24, 2005

Arrrr Qaeda

As terrorism seems to more and more become a fact of life, one very contentious issue is, how do we deal with it legally? Conventional criminal law has proven ineffective, because it provides protection to suspects that terrorists regularly take advantage of. The laws of war are ineffective, because under the Geneva Convention, for example, a prisoner is only required to provide his name rank and serial number. This would surely hamper intelligence gathering efforts. Also, since terrorists do not actually represent any country as such, their legal staus as combatants is in doubt. Special anti-terror laws, like the now defunct POTA may be useful, but are widely seen as targetting certain communities, and so bound to fail. How then, should terrorists be legally treated? How can we prevent them from falling between the cracks in these myriad legal systems.

Donald Burgess, writing in Legal Affairs magazine, thinks that a legal framework already exists that can be used against terrorists:
....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.
Terrorists = Pirates?! It really seems loony. Osama bin Laden is nothing like Blackbeard (except for, well, the beard). Or is he?

Strange as it may sound, there actually seems to be a lot of correlation between 18th Century piracy and 20th Century terror. Piracy reached its zenith when they received state sponsorship (in the form of Letters of Marque) as many states cunningly used pirates to wage proxy wars against their enemies. However, the pirates (or Privateers, as those with the Letters were called) soon got out of hand, and became a menace to the very nations that sponsored them. Pirates, many of whom claimed to "wage a war against civilization", became a far greater menace than their erstwhile friends could control on their own. Pirates, hiding in the vast expanses and the myriad islands of the Atlantic, cut off from the rest of civilization, were the original terrorist cell.

Thus piracy quickly became the scourge of the seafaring European powers that practically controlled the entire world. Realising that piracy could not be individually tackled by these powers, they banded together in an agreement codified in the Declaration of Paris, which reamains the basis of anti-piracy legislation even today. The signatories, recognising their complicity in the scourge of piracy, resolved to rid the world of it. They made piracy a crime of and by itself, which means that you did not have to loot or kill on the high sseas to be punished, membership of a pirate band was enough. It was the responsibility of every country to catch and punish pirates as they were found, regardless of the location of their crimes. The European states were so successful that piracy was eradicated from almost all the world's seas, and only endures today in isolated pockets.

But will such a definition of terrorism as a species of piracy really help? Mr Burgess seems to think so:
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.
Obviously, we will not win our war against terrorists simply by declaring them to be pirates. However, such a legal definition will certainly go a long way in clearing up the hurdles that anyone who seeks to try terrorists faces today. The benefits will be immediate, especially for a country like India, which has long battled with terrorists the world chooses to ignore as freedom fighters. It will make antiterrorist legislation far simpler, and remove any roadblocks to international cooperation against terror.

As Mr. Burgess says, it is time terrorist take their place in law as hostis humanis generis: enemies of the human race.

(H/t: Dean's World)

Posted in Politics and Economics.


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