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Debate Club
DEBATE CLUB 7/11/05

Can laws against piracy help stop terrorism?

Michael Byers and Douglas R. Burgess Jr. debate.

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In the current issue of Legal Affairs, Douglas Burgess proposes a new tool in the war on terror: the law against piracy. The 2000-year-old "war against pirates," he recounts, "is the only known example of state vs. nonstate conflict until the advent of the war on terror." This history, argues Burgess, teaches important lessons about how to fight terrorism today.

Can laws against piracy help stop terrorism?


Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia in Vancouver and is the author of War Law: Understanding International Law and Armed Conflict. Douglas R. Burgess, Jr. is the author of Seize the Trident: The Race for Superliner Supremacy and How It Altered the Great War.

Byers: 7/11/05, 09:40 AM
I'm writing from London, the site of last Thursday's atrocities, and sympathize entirely with your desire to strengthen the legal mechanisms concerning terrorism. But I'm not sure that your specific proposal makes sense, for two reasons.

First, I don't see the need for universal jurisdiction. Universal jurisdiction was necessary over piracy because piracy takes place on the high seas—as well as, more recently, in the airspace above the high seas—and thus beyond the territorial jurisdiction of any country. Acts akin to piracy are, legally speaking, not piracy if they take place within any country's territorial sea or national airspace. But while those who commit acts akin to piracy within a country's territory are not subject to universal jurisdiction, they are subject to the jurisdiction of the territorial state, and will likely be extradited there if they flee abroad.

A couple of land-based crimes are also subject to universal jurisdiction, including genocide (recall Adolf Eichmann, who was tried in Israel for crimes committed in Europe) and torture (recall Augusto Pinochet, who the British courts deemed extraditable to Spain for acts allegedly committed in Chile). Universal jurisdiction is necessary over these crimes because they are committed by governments against their own citizens, and the responsible authorities are unlikely to prosecute themselves. The same rationale does not apply to terrorism unless it is committed by state officials—which is not the problem that you seek to address.

Second, the problem that you're concerned with isn't caused by limitations in existing laws. Rather, it's due to President Bush's decision to cast the entire effort against terrorism as a "war" instead of as an exercise in criminal investigation, prosecution, and transnational judicial cooperation, including extradition. By choosing the military rather than legal framework, the United States crash-landed on the unaccommodating legal terrain of self-defense, the UN Charter and the 1949 Geneva Conventions.

At the time, the decision was a mistake easily made, and not just because of the scale and horror of the September 11th attacks. The Taliban government of Afghanistan was willingly harboring senior members of al-Qaeda; it even went so far as to publicly endorse their actions. But a clear line should have been drawn between the responsibility of a country in international law, including for willingly supporting those suspected of serious crimes in other countries, and the responsibility of individuals under domestic criminal law. A country's sovereignty sometimes yields to a right of intervention when that country violates international law—as Afghanistan did—but it stands firmly in the way of force being deployed simply because a suspect is located there. Consider, for instance, the position of Germany after 9/11: The City of Hamburg had unwittingly harbored several of the terrorists, but surely you wouldn't accept that this fact alone could have justified a U.S. attack? As soon as it defeated the Taliban, the U.S. government should have shifted from a war-fighting to a prosecutorial mode.

It bears emphasizing that there is no shortage of criminal law applicable to these crimes. The attacks on the World Trade Center and Pentagon violated U.S. domestic law. If any perpetrators of those crimes are apprehended—most likely in the now fully cooperative countries of Afghanistan or Pakistan—they should be extradited to New York forthwith and prosecuted in a regular court there (as, indeed, were the terrorists who bombed the World Trade Center in 1993).

The British authorities framed their response to last week's atrocities as a "criminal investigation." The army was not called in, and Londoners are back at work today. Let's not do the terrorists the unnecessary favor of treating their crimes as special.

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Burgess: 7/12/05, 09:19 AM
First let me say what an unexpected pleasure it was to hear that you would be responding to my article. It was at the University of British Columbia that I formulated this thesis, some three years ago, under the expert mentoring of your colleague Professor Peter Burns. It is an honor and a privilege to discuss it with you today.

You raise some very key points, echoing many of the doubts and concerns which I experienced when I first tackled the problem of defining terrorism. Let us try to work through them one at a time.

Universal jurisdiction was applied to pirates for two reasons. First, as you point out, because their crimes often took place on the high seas, outside the known jurisdiction of any state. Thus it was necessary to facilitate their capture by creating a jus cogens norm—universal jurisdiction—to apply in cases where domestic criminal law could not reach. The second purpose flows from the first. Since the very nature of the crime was extra-territorial, the criminals themselves became enemies not merely of one (the aggrieved) state, but of all states. This is the rationale behind the old, but still quite valid, concept of hostis humani generi. Pirates were inferred to have renounced their own citizenship through membership in piratical bands, becoming enemies of the entire human race. In my article I likened them to "malignant satellites": belligerent entities which lacked the legitimacy of states yet whose actions transcended ordinary criminal law. They were deemed "at war with all the world." Thus the crime of piracy was given universal jurisdiction in recognition not only of the unique qualities of the act, but also of the actor.

It is precisely this recognition that I believe we must extend to terrorists. Granting universal jurisdiction to terrorist crimes accomplishes two very critical purposes. First, as I suggest above, it gives them their proper definition as enemies of the human race whose actions transcend ordinary criminal law. Second, it recognizes that, like pirates, terrorists are quicksilver brigands who use the porous borders of nation states in precisely the same way as pirates once used outlying shoals—to emerge suddenly, strike, and retreat into obscurity. Also like pirates, many of these terrorists enjoy the protection of sympathetic harboring states. Universal jurisdiction ameliorates both obstacles. It compels all states to assist equally in pursuing terrorists, puts pressure on harboring states to relinquish their suspects, and (perhaps most importantly) obviates the need for extradition. Terrorists may be captured wherever they are, by anyone that finds them.

You write that "acts akin to piracy are, legally speaking, not piracy if they take place within any country's territorial sea or national airspace." If we are speaking of the ordinary acts associated with the crime—robbery, plundering, etc.—I quite agree. But the definition of piracy is quite a bit broader. Consider the "descent by sea" provision that I mentioned in the article. Pirates such as Henry Morgan who sacked a port city were still inferred to have committed an act of piracy even though it occurred on known territory. The idea of descent by sea means basically that the pirates bring their misdeeds to shore. This, as I tried to show, is precisely what the terrorists are doing. As distinct from revolutionaries and insurgents, they bring their private "war" home to third-party states. Thus 9/11 and the last Thursday's tragic bombings in London are legally analogous to pirate raids on the shores of innocent states.

As for your suggestion that President Bush has wrongly conflated terrorists with military combatants, we are in complete accord. This, I believe, is the single most damaging development in the entire "War on Terror." Treating terrorists as quasi-military combatants gives them too much legitimacy. While combatant status removes some restraints regarding pursuit and capture, it replaces the matrix of domestic criminal law with another, equally inappropriate surrogate: the Laws of War. If terrorists are combatants, then terrorist organizations must be regarded as so many belligerent states, a definition which gives these brigands precisely the recognized status as international actors which they desperately crave. Yet the alternative which you advocate, treating them as ordinary criminals under domestic criminal law, also has its pitfalls. Relegating them to this status fails to recognize the unique threat which terrorism poses to our society. Moreover, it raises a host of legal obstacles impeding capture, chief among them the continued intransigence of harboring states. And choosing ad hoc which body of law, military or domestic, should be applied on a case-by-case basis (as some have suggested) invites total chaos.

I assure you I am doing the terrorists no "favor" by advocating their definition as international criminals. As pirates, they are neither armed combatants nor ordinary criminals, but a global scourge which can be eradicated. Hence they lack both the protections granted belligerent armies under the Laws of War and the rights given ordinary criminals under our own domestic laws. My chief aim is to facilitate the capture and prosecution of terrorists around the world, and I believe the only way to do so is by giving them their proper recognition in law. You write that we can now count on the assistance of the "now fully cooperative countries of Afghanistan and Pakistan" to relinquish terrorists. The tortuous course undertaken to insure that cooperation is a matter for some debate, but that is a problem for another time. While Afghanistan and Pakistan may be cooperative, many other nations are not. I do not suggest that we 'attack' these states, as your Hamburg example implies, but rather that—having failed to obtain the terrorist suspects by diplomatic means—we are entitled to enter and retrieve them without violating that state's sovereignty.

Moreover, the purpose of defining terrorists as pirates transcends our immediate geopolitical circumstances. Given the nature of modern organized terrorism, it is a truism that as long as some country somewhere is willing to harbor terrorists, terrorism will continue. It is only when all states recognize that terrorism is simply beyond the pale—as they did with piracy in 1856—that we can finally win the War on Terror.

Byers: 7/12/05, 12:34 PM
I have to question your assertion that universal jurisdiction would compel all states to assist equally in pursuing terrorists. Genocide is being committed in Darfur but there's little evidence that any government feels compelled to prevent it. A few years ago, a Belgian prosecutor began trying Ariel Sharon in absentia for alleged war crimes, including the killings of one thousand Palestinian refugees in Lebanon in 1982, until his government was pressured into intervening by the United States. And in a recent case before the Supreme Court, the Bush administration argued that the Alien Torts Claims Act should not be used in civil cases concerning human rights violations committed by non-Americans against non-Americans outside the United States. Universal jurisdiction doesn't compel governments to cooperate in efforts to prevent or prosecute crimes; it merely gives them the option of mounting a prosecution themselves.

Nor is there much evidence of universal jurisdiction helping to pressure countries which harbor individuals accused of such crimes. Idi Amin lived out a quiet exile in Saudi Arabia, Jean-Claude "Baby Doc" Duvalier resides happily in France, and Radovan Karadzic and Ratco Mladic have enjoyed ten years of remarkable success evading NATO peacekeepers in Bosnia-Herzegovina. And then there's Luis Posada Carriles, who Venezuela has asked the United States to extradite in connection with the 1976 bombing of a Cuban airplane that killed several Venezuelans. Does anyone think the Bush administration would be any more willing to send Carriles to Caracas if terrorism were subject to universal jurisdiction?

I'm particularly concerned about your claim that universal jurisdiction would somehow obviate the need for extradition. It wouldn't. Despite the existence of universal jurisdiction over torture, Spain still had to request Pinochet's extradition to Madrid. More importantly, while extradition procedures are often inconvenient and time-consuming, they provide essential due process protections to the accused, including some assurance that the allegations are not contrived. Extradition procedures also provide a public record of the existence and location of suspects that protects them from being "disappeared". We're only just learning of the abuses resulting from the widespread use of extra-judicial rendition and secret detention centers by the United States. I urge you to rethink this argument, which plays directly into the hands of those among us who are willing to sacrifice any and all civil liberties on the altar of national security.

As for your argument about "descent by sea," it's curious that this component of the prohibition on piracy didn't survive the codification efforts leading to the 1958 Geneva Conventions on the Law of the Sea and later the 1982 United Nations Law of the Sea Convention. My guess is that the absence of this component in current international law is due in part to the ongoing development and strengthening of domestic legal systems, as well as to the expansion of the international legal system to include a far greater number and diversity of states, including many which, unlike the United States, are concerned about the prospects of conventional military force being used against them, their ships and their citizens in unjustified circumstances. In any event, one has to pay attention to the existing law when reaching for historical precedents.

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Burgess: 7/13/05, 09:21 AM
While you again raise several interesting arguments, I'm afraid much of your critique rests on several questionable assumptions regarding my central thesis. First, I did not claim that universal jurisdiction "compels" states to assist in the pursuit and capture of terrorists; I said it "requires" them to do so. As an expert in international law, you know that there is a world of difference between those terms. There is very little which can 'compel' a state to do anything, yet international law is predicated on a set of shared values and codes of conduct which 'require' certain behavior. If the state does not comply, it faces international pressure and sanction. Saying that all states are equally liable to assist in the capture of international criminals does not mean, obviously, that all will have an equal role. It simply means that no state may harbor the suspects and shield them from justice.

That is not to suggest that certain states won't continue to do so, and in this case—an ongoing war on terror—I fully agree with you that many will. The definition of terrorism as a species of piracy was never intended to be a magic incantation which would suddenly make all our problems disappear. By giving the crime its proper definition, however, we will have the parameters for understanding the true nature of this conflict, and responding accordingly. If a state then wishes to harbor terrorists, it must do so in the face of considerable international pressure.

More important is the potential for capturing terrorists without violating a state's sovereignty. At the present time, with no definition of terrorism per se, states may (and have) argued that the terrorists within their borders are legitimate insurgents. Our only response is to invoke of our own domestic criminal law and demand extradition. The hostile state then refuses on the grounds that the suspect is not a criminal and perfect stalemate is achieved. Without a definition of the crime of terrorism, their claims cannot be discounted. Yet by defining terrorists as pirates—international criminals—we remove this defense. We also gain the ability to enter and retrieve the suspect without violating that state's sovereignty or precipitating an act of war.

Which leads me to the question of extradition. As you rightly point out, extradition procedures are inconvenient—in fact, they are often unworkable. If the pursuant state demands extradition and the harboring state refuses, the only viable alternative is universal jurisdiction. Yet while universal jurisdiction does indeed obviate the need for extradition (and for proof of that you need only the definition itself, which specifically sanctions capture by any competent authority, wherever the suspect is found, a concept which would be untenable if extradition were required), it does not mean that pursuant states may simply engage in worldwide turkey shoots. The United States and her allies would continue to seek diplomatic means of obtaining terrorist suspects; universal jurisdiction would be invoked in specific cases where the harboring state is unwilling to surrender the suspect. Most importantly, this only concerns the means by which the terrorist is captured, not the prosecution thereafter. While I freely admit that I am more concerned with facilitating the capture of terrorists and the dismantling of terrorist organizations than I am with ensuring "due process" during their prosecution, there is nothing in the definition of terrorism as a species of piracy that sanctions the wholesale "disappearing" of suspects. My purpose has always been to provide a legal matrix for the crime of terrorism; if impunity and barbarity were desired, the present absence of such a law provides far more fertile ground.

Finally, I am rather surprised that you chose to take issue with the possibility of "descent by sea." While it is perfectly true that the UN Conventions do not specifically mention it, they are very far from the only sources of law on the subject of piracy. The Harvard Draft Convention of 1932 specifically discusses the potentials of "descent by sea" in modern piracy, and Professor Hall in his seminal work A Treatise on International Law elaborates this concept: "Piracy no doubt can take place independently of the sea, under the conditions at least of modern civilization; but the pirate does not so lose his piratical character by landing within state territory that piratical acts done on shore cease to be piratical.... [P]iracy may be said to consist in acts of violence done upon the ocean or unappropriated lands, or within the territory of the state through descent from the sea, by a body of men acting independently of any politically organized society." There is nothing to suggest this possibility has been abandoned; indeed it seems to remain as a jus cogens norm. As we both know, international law draws from a great number of sources beyond the codified strictures of the United Nations, many of which emerge from international common law: that is, how a crime or an act was commonly understood over time. Descent by sea is just such an understanding.

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Byers: 7/14/05, 09:16 AM
You're contradicting yourself! In your first contribution to our debate, you wrote that universal jurisdiction "compels all states to assist equally in pursuing terrorists." Now you write: "I did not claim that universal jurisdiction 'compels' states to assist in the pursuit and capture of terrorists; I said it 'requires' them to do so."

In any event, universal jurisdiction is not a prerequisite for international pressure on states to prosecute or extradite suspects, including terrorists. Libya initially refused to surrender the two suspects in the Pan Am 103 bombing over Lockerbie, Scotland. Despite the absence of universal jurisdiction, considerable pressure was applied, including through U.N. sanctions, and the accused were eventually tried in a specially constituted Scottish court located in the Netherlands.

On "descent by sea", my point is that the conventions of 1958 and 1982 do not include this concept. Given the dates of these widely ratified treaties and their near-universal acceptance as authoritative, comprehensive codifications of the customary international law of the sea, how much weight can we ascribe to a 1924 book and a 1932 draft treaty?

Moving on, I'm concerned by how you conflate the issue of defining terrorism with the issue of universal jurisdiction. Last December, the U.N. Secretary General's High Level Panel on Threats, Challenges and Change, which included former National Security Adviser Brent Scowcroft among its members, produced a concise and authoritative definition of terrorism: "any action ... that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or any international organization to do or to abstain from doing any act." The definition is new and not yet universally accepted, but constitutes a significant step towards greater uniformity on this issue in domestic and international law. And note that it doesn't deal with jurisdiction, since jurisdiction and the definition of a crime are different issues.

I'm even more concerned with your assertion that, with universal jurisdiction, we "gain the ability to enter and retrieve the suspect without violating that state's sovereignty or precipitating an act of war." After Israel abducted Adolf Eichmann in 1960 and charged him with genocide, the U.N. Security Council declared (with the U.S. voting in favor) that this constituted "a violation of the sovereignty of the Argentine Republic". Or take an example closer to home: Reports concerning the mistreatment of detainees suggest that Donald Rumsfeld has a case to answer under the 1984 Torture Convention, which provides for universal jurisdiction, once he ceases to be secretary of defense and loses the protection of state immunity. Does this mean that foreign agents could enter the United States and remove Rumsfeld for trial overseas without violating U.S. sovereignty or precipitating an act of war? You simply can't rely upon the existence of universal jurisdiction over a crime such as piracy, which by definition is committed outside the territorial jurisdiction of any state, to argue for a universal right of capture and removal from within the territorial jurisdiction of non-consenting states.

Which brings me to my final point: With the exception of treaties, which only apply between their parties, international law is made and changed by all of the world's nearly 200 nation-states. I doubt your proposal would receive the support or acquiescence of even one quarter of these countries, especially given current concerns about the treatment of detainees and the bona fides of the Iraq War. And the internationally unmarketable character of your proposal means that it won't be taken up by the U.S. government either. Consider the Bush Administration's Proliferation Security Initiative: Instead of seeking to develop a right of "universal interdiction" over vessels suspected of trafficking in weapons of mass destruction and missile components on the high seas, the State Department concluded bilateral treaties with Panama and Liberia, the world's largest shipping registries, whereby they consented in advance to the boarding of vessels flying their flags. In an important sense, the treaties with Panama and Liberia are a lot like extradition treaties, in that they secure the specific rights needed to address a practical problem without embarking on a long and probably futile effort to change general international law.

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Burgess: 7/15/05, 07:30 AM
Reading your latest response I was suddenly reminded of my old law school professor, who—having listened to a colleague expound at some length—finally answered him quietly: "I have only three problems with your thesis: your introduction, your argument, and your conclusion." Surely we are not as far apart as all that.

Indeed, as much of your criticism seems to rest on uncertainty regarding the model definition of terrorism which I propose, I think it would be a good idea at this juncture to refer you to my article in the current issue of the ABA National Security Law Report, which should settle some of your concerns. I assure you I am not unmindful of the U.N. Conventions on the Law of the Sea (though to maintain that they are the only recognized international law on the subject of piracy is frankly ridiculous); indeed, they served as the model and template for my own definition of the joint crimes of piracy and terrorism.

As you can see from that full definition, I am not "conflating" the definition of terrorism with the question of jurisdiction; they are two separate issues, and I have dealt with them separately. I was delighted when I read that the U.N. Panel had proffered its own definition, but I—like many other scholars—was rather disappointed with the result. Far from being "concise and authoritative," it seems vague and greatly oversimplified. What of membership in a terrorist organization, absent the commission of terrorist acts? On what precedent is this definition based? My concerns are shared by U.N. Secretary General Kofi Annan, who, several months after this supposed definition appeared, lamented the lack of a proper definition for the international crime of terrorism and chided the United Nations for failing to agree upon one. Clearly, the issue is far from resolved.

Secondly, your focus on the intricacies of universal jurisdiction overlooks the second, and far more crucial, purpose in defining terrorists as pirates: hostis humani generi. To compare the invocation of universal jurisdiction against terrorists to that against key political figures like Donald Rumsfeld is to ignore the definition of the crime of terrorism and focus merely on the procedure. The reason that pirates are subject to universal jurisdiction is that they are considered enemies of the human race, a scourge which must be removed from the face of the earth. Donald Rumsfeld, however you might feel about him personally, is not a scourge. By classifying terrorists as akin to pirates under the law, we recognize their singular status as non-state actors that nevertheless pose a greater threat to national security than ordinary criminals. It is precisely this unique status that has bedeviled the United Nations—and the United States—in responding to this new breed of criminal. It would be folly to argue for the extension of universal jurisdiction to terrorists unless it can be successfully demonstrated that their crimes already warrant it in law. In other words, without the precedent of piracy, I would fully agree with you that there would be no way of distinguishing between terrorists and freedom fighters and Donald Rumsfeld and Henry Kissinger. But I have maintained, and continue to maintain, that the crimes of terrorism and piracy are legally analogous. Once that fact is demonstrated, universal jurisdiction is extended to terrorists as a matter of course, and these debates over Eichmann et. al. are rendered moot.

Finally, I was astonished to read that "the internationally unmarketable character of your proposal means that it won't be taken up by the U.S. either." How often in the last four years has the United States allowed its policies regarding the War on Terror to be dictated by what other nations find "unmarketable"? Past experience seems to indicate that if the U.S. finds a policy or definition viable and useful, it will adopt it without a great deal of concern over achieving international consensus and approval. I do not suggest that this is the best course, but it certainly seems to be the present one. If concluding bilateral treaties with Panama and Liberia was the most expedient means of limiting the trafficking of weapons, then naturally that was the course the United States would pursue. Similarly, if giving terrorists their proper definition as pirates can facilitate their capture and provide a viable defense to charges of violating sovereignty, I think there is little doubt that the American government would do so.

Yet your point concerning other states' intransigence to this definition is a valid one, and deserves to be addressed. It is quite true that at the present time many states would balk at giving any definition to terrorism, much less an admittedly stringent one; it was precisely this attitude that Mr. Annan lamented. But that does not mean, as you seem to suggest, that we should simply retire from the field. There are two ways in which a piratical definition of terrorism can be implemented. The first is through a declaration by the United States that terrorists are hostis humani generi under international common law. This can be done at once, and requires no great transformation of existing statute. Yet while this declaration could potentially go very far towards facilitating the capture of suspects worldwide, I do not believe that it alone is sufficient to combat the threat of terrorism. As I have said earlier, the War on Terror will continue until states reach an understanding that the crime of terrorism, like that of piracy, is anathema to statehood itself.

This is not a realization which will come quickly; indeed, it took the European states several centuries to reach it with regard to piracy. But it must come. Ideally—and again I am speaking of a goal to be sought for, not immediately achieved—terrorism should be given status as an international crime within the jurisdiction of the International Criminal Court. At the present time, we both know that neither the United States (which is not a member of the ICC) nor most other states would countenance this. But, again to reiterate an earlier point, jurists must think beyond the current geopolitical parameters of a conflict and consider instead the role of the law over time. And the beginning of every law is definition; we must give a name to the crime. Once terrorists are properly understood as akin to pirates— international criminals and enemies of the human race—the law will assume its own trajectory of implementation. This has been the pattern of every law, domestic and international, since the very first criminal codes. If jurists and diplomats thought merely in terms of immediate circumstance and did not dare to call things by their proper name simply because it would be presently unpopular, I suspect that we would all be throwing rocks at one another between caves.

And, as a final aside, I checked back over my previous writings and found that I employed both the terms "require" and "compel." For obvious reasons, I stand by the former. A foolish consistency is the hobgoblin of small minds, Professor!

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