Terrorist as Pirate: The Legal Case

Writing in Legal Affairs, Douglas R. Burgess, Jr., makes the case of treating terrorists as pirates, in terms of international law. He observes that the UN’s position against the US was weak in the aftermath of 9/11 because international law currently lacks a working definition of terrorist. However, Burgess argues that international law has a long-standing category of “pirate,” and he provides a short history of piracy and draws comparisons with modern-day terrorists.

Central to the parallel is the view that pirates and terrorists work outside the system of international states, in order to work against that system:

DANIEL DEFOE, THE GREAT CHRONICLER OF PIRACY’S GOLDEN AGE in his General History of the Pyrates, described his subjects as stateless persons “at war with all the world,” a definition that may connect contemporary terrorism to piracy even more than state sponsorship does. The legacy of the Elizabethan era was a diaspora of unemployed, malcontent mariners throughout the Atlantic colonies. By the late 17th century, they began to coalesce into small pirate bands, seize vessels at anchorages or on the high seas, and wage their own private wars.

The myth of the romantic buccaneer, perpetuated by such diverse artists as Robert Louis Stevenson and Johnny Depp, must be set aside. The pirates of the so-called golden age, as historian Hugh Rankin described them, were “a sorry lot of human trash.” Coming from the lowest tier of the English merchant navy, they struck indiscriminately in ferocious revenge against the societies that they felt had condemned them. Often these disenchanted sailors cast their piratical careers in revolutionary terms. The 18th-century English legal scholar William Blackstone defined a pirate as someone who has “reduced himself afresh to the savage state of nature by declaring war against all mankind,” while another account tells of one Edward Low, common seaman, who “took a small vessel, [hoisted] a Black Flag, and declared War against all the World.” Pirates gave their ships names that reflected this dark purpose: Defiance, Vengeance, New York’s Revenge, and even New York Revenge’s Revenge.

Perhaps the most telling statement of the pirates’ motives comes from a pirate named Black Sam Bellamy. To a captured merchant captain, he boasted, “I am a free prince, and have as much authority to make war on the whole world as he who has a 100 sail of ships and an army of 100,000 men in the field.”

This was more than bravado. Historian Marcus Rediker has suggested that it indicates a new “pirate democracy” that drew its revolutionary principles from its perceived war against civilization and cast itself as civilization’s antithesis.

And so he concludes:

Terrorists, like pirates, must be given their proper status in law: hostis humani generis, enemies of the human race.

The philosophical background of his thesis can be found stated most clearly in Lee Harris’s Civilization and Its Enemies, in which Harris explains how rule of law moves away from the gang.