Should we treat terrorists as pirates?

What is needed now is a framework for an international crime of terrorism. The framework should be incorporated into the U.N. Convention on Terrorism and should call for including the crime in domestic criminal law and perhaps the jurisdiction of the International Criminal Court. This framework must recognize the unique threat that terrorists pose to nation-states, yet not grant them the legitimacy accorded to belligerent states. It must provide the foundation for a law that criminalizes not only terrorist acts but membership in a terrorist organization. It must define methods of punishment.

Coming up with such 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.

Doesn’t seem like a bad idea, but I wonder what would actually change? Piracy was used as a strategic tool by states, which then united against pirates when their activities came to be viewed as threatening common order and commerce in an intolerably uncontrollable fashion. That seems to me to be similar to the journey the world is taking right now in regards to terrorism. One dissimilarity is that pirates committed many of their crimes in a commonly held geographic area. However, the idea of “lawless places” where pirates dwell and can be hunted down legally seems to be a common thread in our current actions.

Link courtesy of Bruce Schneier