Night ops

Thursday, May 04, 2006

Terrorists as pirates

A New Zealand lawyer has some thoughts here. Frankly, I think others have plowed this ground before. See, for example, Douglas R. Burgess, Jr's piece "The Dread Pirate Bin Laden" here. (And is it just me or are the pieces very- uh- similar?)

And, the Strait of Malacca is not the only place experiencing piracy these days. The author should have done a little "googling" before he went to print. On the other hand, it is a topic of interest. What do we do about "stateless" enemies of mankind like pirates and terrorists?

Find a handy yardarm.

By the way, you can listen to Mr. Burgess speak on his legal theory in this August 2005 radio show here.

Update: How similar are they? Well, here are some sample paragraphs which I have color matched for content:

Tom Hill NZ Lawyer (2006):Based on a similar legal framework, a concerted effort should now be undertaken by all states against terrorists, but we are a long way from this being recognised. US President George Bush continues to present the war on terror as an orthodox war between opposing blocs of states. In June 2004, he declared "like the Second World War, our present conflict began with a ruthless surprise attack on the United States - we will not forget that treachery, and we will accept nothing less than victory over the enemy".

What constitutes 'victory' when there is no enemy country to invade, no government capital to capture, and no fields of battle, or codes of conduct? If terrorism was combated today as pirates were in the past, the situation would be radically better. The crime of terrorism would be defined, and terrorists would be understood as the enemies of all states. Terrorists could be captured wherever they were found by anyone. States would be deterred from protecting terrorists within their borders on the basis of them being 'freedom fighters', because a distinction would be made between legitimate insurgency and terrorism, and, conversely, states would be deterred from deeming political dissidents to be 'terrorists'. Nations that now view critically the United States' role in the war on terror may find fewer reasons to object if terrorism were defined as an international crime.”

Douglas R. Burgess, Jr (2005):But we are still very far from such recognition for the present war on terror. President Bush and others persist in depicting this new form of state vs. nonstate warfare in traditional terms, as with the president's declaration of June 2, 2004, that "like the Second World War, our present conflict began with a ruthless surprise attack on the United States." He went on: "We will not forget that treachery and we will accept nothing less than victory over the enemy." What constitutes ultimate victory against an enemy that lacks territorial boundaries and governmental structures, in a war without fields of battle or codes of conduct? We can't capture the enemy's capital and hoist our flag in triumph. The possibility of perpetual embattlement looms before us.

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.
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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.



Hmmm.

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