Theoria

Jon Beasley-Murray wrote a few weeks ago, “it is the terrorists who are the inheritors of piracy’s historic tradition.” It is surprising that it has taken this long for attention to be drawn to the similarities between pirates of the early modern era to terrorists of the postmodern era — or, perhaps, the similarity is in reverse? Such similarities do lead one to pose an essential question, one that Jon has been silent on: in the Walt Disney superproduction, “Terrorists of Arabia”, will Johnny Depp play Osama bin Laden and can Orlando Bloom pull off a convincing Saddam Hussein? Only time will tell.

Like Jon, Douglas R. Burgess, Jr., does not address this essential question in his essay, “The Dread Pirate bin Laden“, but he does address some other issues worthy of consideration. Burgess’ article has three moments: first, he gives a brief history of the pirate from the Roman Empire to the end of the nineteenth century; next, he gives an even briefer history of terrorists from the Cold War to the present culminating in a comparison of terrorists and pirates; finally, he suggests a legal solution to “the moral authority of the United Nations and its strength in condemning” (as Kofi Annan puts it) terrorism on the model of hostis humani generis. While the general comparison is correct — postmodern terrorists as the current incarnation of Golden Age pirates — Burgess’ solution is, nonetheless, disquieting, if not dangerous. The effect of the definition of hostis humani generis being pirates are reduced the homo sacer described by Giorgio Agamben and thus become figures to be killed without impunity. One also wonder, returning to Agamben, if terrorists as political actors without a state become the inverse of refugees, thus revealing once again the problematic relation between universal declarations of rights and political reality.

The problem that terrorism provokes, and the lack of ‘moral authority’ in combatting it, is simply a matter of law:

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.

If the community of international actors can agree to a single legal framework on the definition, prosecution and punishment of terrorism, the problem, presumably, would go away. Or, at the very least, there would be means for retribution when terrorism does occur. The clear problem, in this regard, is that a definition of terrorism becomes nothing but the imposition of will and power of certain states over others. Claiming that “a terrorist is X” does not resolve the problem (and it is a significant problem for Burgess) that does who support the ‘terrorists’ will redefine their activities as ‘freedom fighting’. If it were even possible to define terrorism via international law — and the United States is, at best, reluctant to join new international accords and disinclined to follow commitments under current accords — such a definition would merely become another tool in realpolitik. (As the intervention against Saddam and the lack of intervention in Darfur adequately demonstrate.)

But, Burgess tells us skeptics, there is nothing to worry about. If we imagine that terrorists are a lot like pirates, then we can come up with an international framework by analogy that will solve the problem of the legal status of the terrorist, the definition thereof, and legitimate means of reprisal:

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.

Leaving aside the false claim that “the ongoing war against pirates is the only known example of state vs. nonstate conflict until the advent of the war on terror”, we see a troubling distinction emerging in the definition: pirates and terrorists are hostis homini generis — enemies of the human race. There’s an immediate opposition created between ‘the human race’ and their ‘enemies’ which, in an important sense, legitimates their killing because they do not fall under the purview of protections afforded to ‘the human race’ that we find in the declarations of rights ‘and man’. This logic follows immediately from The Declaration of the Rights of Man and of the Citizen (1789), whose first three articles read as follows:

1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.

2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.

3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.

Following the movement of this argument, we see that, first, all humans “are born and remain free and equal in rights”. Second, when humans band together, they do so to form a “political association”, which has the purpose of realizing the “The Declaration of the Rights of Man and of the Citizen”. Among these rights secured by political associations is “resistance to oppression”. Third, these rights through political association can only be realized through the nation, which is the vessel that holds sovereignty. Only a sovereign power, meaning an equation between the nation and the state, can be a determinant of right. Thus, the only legitimate form of “resistance to oppression” is to realize the state form modeled on the nation.

Pirates and terrorists, however, are neither nations nor states, they are “nonstate actors” who have a “hybrid status in the law” which necessarily opposes them to “recognized state actors”. Outside the protection of the state and of the nation, the pirates are reduced to homo sacer; they are the realization of ‘the ban’. Homo sacer, like the hostis homini generis, is a figure from Roman law (one wonders: why does the current imperial arrangement always look back to the Romans for legal principles?). Homo sacer is sacred man “who may be killed and yet not sacrificed” (Homo Sacer, 8). The terrorist as hostis homini generis and homo sacer meets the essential question of the contemporary biopolitical arrangement: is a life of terrorism “a life worthy of being lived” (Homo Sacer, 137)? If it is not ‘a life worthy of being lived’, the life has no value as such and is thus reduced to a variable in a calculation: should the life continue to live? The answer, of course, for Burgess, Bush and Blair alike is “no”.

When the answer is “no”, the terrorist enters into relation with the refugee via “the sovereign ban”. The ‘law is in force but without significance’ (Homo Sacer, 51). “The Declaration of the Rights of Man and of the Citizen” is, as human life, ‘in force’, but removed from the protection of nation, state and sovereignty, the Declaration has no standing:

The concept of the refugee (and the figure of life that this concept represents) must be resolutely separated from the concept of the rights of man, and we must seriously consider Arendt’s claim that the fates of human rights and the nation-state are bound together such that the decline and crisis of the one necessarily implies the end of the other. The refugee must be considered for what he is: nothing less than a limit concept that radically calls into question the fundamental categories of the nation-state, from the birth-nation to the man-citizen link, and that thereby makes it possible to clear the way for a long-overdue renewal of categories in the service of a politics in which bare life is no longer separated and excepted, either in the state order or in the figure of human rights (Homo Sacer, 134).

It is, perhaps, best to leave the original to Burgess the final word. He concludes his essay as follows:

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. Recall the U.N. definition of piracy as acts of “depredation [committed] for private ends.” Just as international piracy is viewed as transcending domestic criminal law, so too must the crime of international terrorism be defined as distinct from domestic homicide or, alternately, revolutionary activities. If a group directs its attacks on military or civilian targets within its own state, it may still fall within domestic criminal law. Yet once it directs those attacks on property or civilians belonging to another state, it exceeds both domestic law and the traditional right of self-determination, and becomes akin to a pirate band.

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.

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