July 4, 2010

How should the world deal with terrorism?

Nine years after the 9/11 attacks ushered in a new era in global conflict, lack of clarity reigns supreme. Leaving aside the fact that there is still no generally accepted name for this conflict, top-level planners cannot even agree about what constitutes “the enemy.” Under such circumstances, it should come as no surprise that it is difficult to conceive of, let alone speak about, attaining victory.

Several recent books have attempted to illuminate how the present war should be understood in scope and focus. While such efforts are needed, at their worst they can produce further confusion. Such is the case for D R Burgess’s The World for Ransom: Piracy Is Terrorism, Terrorism Is Piracy, which argues that terrorism should be understood as in effect the same crime as piracy. He argues that the best actor to define terrorism as piracy and handle future prosecutions is the International Criminal Court, but that the United States should concurrently adopt this definition domestically. Mr Burgess’s volume makes a hubristic error that can sometimes be discerned among those with little practical experience in formulating policy or undertaking the dirty work of combating terrorism: it offers a somewhat clever re-conceptualisation of the problem, and poses its central idea as a panacea with little regard for practicalities.

Mr Burgess makes two basic arguments: that piracy is terrorism, and terrorism is piracy. While this may seem circular, he in fact argues for a new definition of the crime of terrorism that encompasses acts of piracy, and provides a model statute that draws heavily from the 1982 UN Convention on the Law of the Sea.

There are indeed strong parallels between piracy and terrorism that can be discerned from piracy’s long history. Pirates were the original non-state actors to not only challenge the nations of the world, but to in fact declare “war on the whole world,” in the memorable words of Captain Charles Bellamy. Far from the romanticised notion of pirates that popular culture has helped foster in the current age, pirates used savagery and terror as a tool of this warfare. As one modern commentator has written: “Not only did they seize ships and all persons and property aboard, not only did they murder, rob, and rape, but they also did so by creating fear and panic among their intended victims and seafarers everywhere.” Because of pirates’ avowed opposition to civilised society and the tactics they employed, various ancient civilisations embarked on wars to try to eradicate them: these include Crete, Athens, and the Roman Republic. Over time, pirates were declared to be hostis humani generi (enemies of mankind), and the legal doctrine of universal jurisdiction (holding that pirates “could be seized anywhere they were found, by anyone that found them”) was developed to deal with the unique scourge of piracy.

Clearly, important lessons and precedents from the history of piracy can be applied to the problem of modern terrorism. But Mr Burgess goes beyond this and argues that terrorism should be legally defined to be the same as piracy. He writes that the three elements of terrorism and piracy—the mens rea, or state of mind, the actus reus, or act, and the locus, or venue—are in fact identical:

The mens rea of piracy is the desire to inflict death, destruction or deprivation…. Second, the actus reus of piracy, which includes acts of homicide and destruction absent actual robbery, is synonymous with the actus reus of most forms of modern terrorism. Third, the locus of piracy, while traditionally confined to the high seas or other territories outside state jurisdiction, has been expanded to include acts of piracy committed on state territory “by descent from the sea”; a provision which … may likewise apply to nearly all acts of terrorism.

Mr Burgess poses three major reasons that defining terrorism as piracy would constitute a great leap forward: it would grant states universal jurisdiction to apprehend terrorists, reverse many of the human rights problems that have arisen, and bring greater legitimacy to the fight against terrorists by depoliticising questions of how to define terrorism. None of these rationales withstand scrutiny, and the first two points—that defining terrorism as piracy will allow greater apprehension of terrorists while safeguarding rights—are in fact contradictory.

When Mr Burgess argues that defining terrorism as piracy will enhance states’ jurisdiction, his argument is marred by a failure to argue concretely. He correctly notes that nation-states are understood as having universal jurisdiction to capture pirates, but does not provide a single example of how placing terrorism under the umbrella of piracy would allow arrests that cannot take place at present. He does reason: “If we [the United States] present ourselves as good faith partners in the fight to rid the world of an international scourge, the combined effort of the US and her allies may compel otherwise hostile states to relinquish the terrorists within their borders.” Without denying the importance of principled action, this is the ultimate in pie-in-the-sky logic. Does Mr Burgess actually believe that defining terrorism as piracy will convince states like Iran and Syria to relinquish the terrorists within their borders, and stop offering safe haven to Islamist insurgents?

Similarly, Mr Burgess points out that under the current US criminal code, there is no separate crime of terrorism. To be prosecuted, terrorists must have committed enumerated offences: they cannot be tried simply for belonging to a terrorist organisation. But Mr Burgess again fails to show a single case where a member of a terrorist organisation was not prosecuted, to the detriment of security, because he had not committed any offences. Though there have certainly been American trials where membership charges could have been brought in addition to conspiracy or material support charges, the advantage to having these additional charges is unclear. Moreover, this legal problem is not universally shared. India’s Prevention of Terrorism Act (POTA) 2002 criminalised membership in a terrorist organisation; Australia, Britain, Germany, and Italy, among others, have brought prosecutions for membership in a terrorist organisation within the past three years.

Yet a bigger problem with Mr Burgess’s claim that defining terrorism as piracy will allow more aggressive pursuit and prosecution of terrorists is that it contradicts the second purported advantage of the definition, that it is protective of individual rights. In part, this contradiction stems from his sweeping claims of the repugnancy and illegality of the United States’ anti-terrorism policy since 9/11. He writes that the US “captured men and women and held them prisoner in camps outside of American legal jurisdiction. It engaged in acts of brutality, humiliation, and outright torture against those it believed—rightly or wrongly—participated in terrorist crimes.”

Leaving aside the question of whether Mr Burgess is right in this portrayal of the reaction to 9/11, if one believes that the country descended to this level of barbarism, his redefinition of terrorism as piracy is a prescription for more rather than fewer abuses. He writes that what is currently lacking in US law is the statement “that terrorists are hostis humani generi”—enemies of mankind, as pirates have come to be defined under international jurisprudence. But is doing so a prescription for protecting the rights of those accused of being terrorists, or will it produce a greater likelihood of abuses? Moreover, he writes that “the classification of terrorists as enemies of the human race gives legal credence to almost any action undertaken to capture them, at home or abroad, under the doctrine of universal jurisdiction” (emphasis added). There is a real tension between security and civil liberties: while a few rare measures can legitimately enhance both, one should be sceptical of grandiose claims like Mr Burgess’s that a legal innovation can protect civil liberties while massively increasing the leeway afforded to states in their policing efforts.

Mr Burgess does argue that the definition of terrorism as piracy will protect the accused because “[i]f the US gives a legal definition to terrorism, it is obligated to prove that the suspects it captures fit that definition.” But since the Supreme Court’s landmark 2008 Boumediene v. Bush decision, detainees at the Guantánamo Bay facility have been afforded increasing rights of judicial review; Mr Burgess never specifies how defining them as pirates will be more protective of their rights. Moreover, defining someone as a terrorist/pirate is not clear-cut. Creating a status offence (being able to prosecute someone for being a terrorist, rather than committing terrorist acts) where it did not previously exist may well create more potential for abuse.

The final purported advantage to defining terrorists as pirates—that it depoliticises the concept of terrorism—is the most implausible. It is true that there is no internationally-recognised definition of terrorism, but this is neither for lack of effort nor because previous attempts have been disingenuous. Instructive in this regard is the draft of a UN Comprehensive Anti-Terrorism Convention produced by members of the General Assembly’s Sixth (Legal Affairs) Committee in 2005-06. Victor Comras has noted that the Organisation of the Islamic Conference (OIC) had specific objections to the draft, including an insistence “on additional language in the treaty that could be interpreted as exempting armed resistance groups involved in so-called ‘struggles against colonial domination and foreign occupation,’” as well as a desire for the convention to “specifically cover the activities of regular armed forces.” Because he fails to situate his proposed terrorism law within extant debates, Mr Burgess can provide no assurance that it brings us closer to an international consensus on this vexing question.

Moreover, this is another area where Mr Burgess is hampered by arguing in the abstract. He writes frequently of “legitimacy”: that US anti-terror efforts have not been perceived as legitimate by other countries, and this is harming the broader mission. But what has been hampered, specifically, and how will this redefinition improve co-operation? Will defining terrorism as piracy improve international anti-money-laundering efforts or facilitate intelligence sharing that does not exist at present? While pundits often argue in generalities about concepts such as “international legitimacy,” doing so is less excusable in Mr Burgess’s case, since it is one of his book’s central arguments.

Mr Burgess’s conclusion, entitled “A Message for the President,” argues that the terrorism-as-piracy framework can help to produce victory against the terrorists. “Victory is possible,” he writes. “Indeed it is certain, once we are willing to recognise the nature of what we are fighting.”

Though this may surprise some lawyers, a good legal definition of terrorism is not central to defeating al-Qaeda. Far more important than the definition attorneys employ is the way strategists understand the scope of the conflict—yet on a strategic level, Mr Burgess’s definition is unsuitable. Rather than allowing strategists to focus on central goals, defining terrorism as piracy massively expands the number of enemies that are seen as a part of the fight against transnational terrorism—encompassing not only jihadi groups, but also Latin American narco-terrorists, pirates in the Indian Ocean and Strait of Malacca, and still others.

Clarity is surely necessary in the fight against terrorism. But the central flaw of The World for Ransom: Piracy Is Terrorism, Terrorism Is Piracy is that in its search for clear thinking, its efforts only produce greater confusion.

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