Why Piracy Is Not Terrorism

Why Piracy Is Not Terrorism

Douglas Burgess, Jr., has an editorial in today’s New York Times arguing that piracy should be considered terrorism in order to facilitate its prosecution.  It’s an interesting piece, but I have to take issue with the basic premise of his argument:

Are pirates a species of terrorist? In short, yes. The same definition of pirates as hostis humani generis could also be applied to international organized terrorism. Both crimes involve bands of brigands that divorce themselves from their nation-states and form extraterritorial enclaves; both aim at civilians; both involve acts of homicide and destruction, as the United Nations Convention on the High Seas stipulates, “for private ends.”

In short, no.  The defining feature of terrorism is precisely that it is committed not for private ends, but to intimidate a civilian population or to influence government policy.  Indeed, over the long and troubled history of efforts to create a general definition of terrorism, that is perhaps the only aspect of the definition that has never seriously been in doubt.  Two examples — and many more can be found here: in 1937, the League of Nations Convention defined terrorism as “[a]ll criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public,” and in 2004 the Security Council unanimously defined terrorism in Resolution 1566 as “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.”

Pirates have no politics.  They are, therefore, not terrorists.

Topics
Featured, Foreign Relations Law, General, International Criminal Law, International Human Rights Law, North America, Organizations
Notify of
Patrick S. O'Donnell
Patrick S. O'Donnell

I absolutely agree with you that piracy is not equivalent to terrorism and therefore that pirates are not terrorists. However, one premise of the argument also severs the notion of terrorism from nation-states and that doesn’t work either. As Robert Goodin makes clear in What’s Wrong With Terrorism (2006), “states and state officials can practise terrorism, too. There is nothing in the concept itself to preclude that possibility. And there is much in the historical record to demonstrate that the possibility is a real one. States have practised terror both against citizens of other states in time of war and against their own people. Furthermore, states and state officials have been complicit in the terrorism of others, by aiding and abetting terrorist groups. Complicity with terrorism is a form of terrorism, too.” We need only think back to the Vietnam War to appreciate the fact that “terrorizing civilian populations has long been part of warfare,” And it’s equally true that the “fire-bombing of Dresden and Tokyo by Allied forces was terrorism pure and simple. The targets were of no direct military value. The aim was to demoralize enemy non-combatants, ‘to kill civilians in such large numbers that their government is forced… Read more »

mdavis

I hate to say it, but it seems to be rather insulting to actual victims of terrorism to say that a pirate is a terrorist.  Pirates have an anarchist theme about them, whereas terrorists tend to have a political or religious agenda.  The more broadly we start defining “terrorism” the less of a stigma the word retains.  And I am pretty sure it is in the best interest of the international community to ensure the “terrorist” label retains its stigma, in order to dissuade any wannabe terrorists.

Charles Gittings

Gee Michael, aren’t you insulting anarchists a little here?

Republicans swing both ways; the most accurate description is simply gangster. These linguistic wrangles are really depressing. They’re never about getting things straight, but manufacturing excuses. Why is it necessary to suppose piracy and / or terrorism are anything more or less complicated than crimes such as assault, robbery, mayhem, and murder, etc?

After the past seven years, it’s time get clear on the concepts.

Howard Gilbert
Howard Gilbert

Any objective definition will lead inevitably to the discovery that 9/11 was not an act of terrorism. It did not achieve and none of the available evidence suggests that it was intended to “create a state of terror in the minds” or “to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government “. What evidence there is shows that Bin Laden planned a series of escalating attacks on Americans for the purpose of making us mad and triggering a military response against him. Bin Laden arrived in the middle of the Afghan war against the Soviets. With no military training or aptitude, he saw things from a religious point of view. Afghanistan was a location given to Islam by Allah where religiously motivated volunteers could defeat the heavy armor of a modern infidel superpower. He was enraged by US forces in Arabia, but knew that they could not be defeated in the deserts. So he returned to Afghanistan and through the Khobar and embassy bombings, the Cole, and 9/11 he sought to trigger a US invasion of Afghanistan. His mistake was that he assumed… Read more »

Patrick S. O'Donnell
Patrick S. O'Donnell

Charles, Aren’t the “linguistic wrangles” at least sometimes about “getting things straight”? Indeed, I think there is need for conceptual clarification if the term terrorism is to have, as I suspect it should, distinct moral and legal meaning (you seem to agree: ‘it’s time get clear on the concepts’). Of course linguistic wrangling is often a proxy for larger ideological and political battles and thus is more or less interminable. And thanks for mentioning the use of “anarchist” as an abusive epithet, as piracy and anarchism (as a social movement and ‘political’ theory) have little or nothing in common. In fact, in the history of anarchism, comparatively few self-described anarchists have resorted to political violence, and even fewer have resorted to terrorist tactics, although those in the latter category did much to forever tarnish the popular image of anarchism. As Richard Sonn reminds us, “anarchism was more than a political theory of freedom from domination by any and all authority; it was a faith, and a way of life that exercised a powerful hold over the imagination. People did not simply understand anarchist ideas; they lived them. There has always been an existential element to anarchism that transcends dogma. [….] Not only were anarchist… Read more »

Carrie McDougall

Howard,

Murdering more than 3,000 civilians would have been seen as the most remarkable military attack of the past thousand years if only the hijackers had worn uniforms and crashed empty planes?  I’m sorry, but that is as vile as it is ridiculous.

And by the way, your comment that 9/11 wasn’t an act of terrorism refutes itself.  When you admit that “[w]hat evidence there is shows that Bin Laden planned a series of escalating attacks on Americans for the purpose of making us mad and triggering a military response against him,” you admit that 9/11 was terrorism. Intending to trigger a US military response more than satisfies terrorism’s “compel a government… to do or to abstain from doing any act” requirement.

Arguments like the ones in this comment do nothing but discredit the left in the US.  Please, do me a favor and get off my side of the political spectrum.

Kevin

Bill Poser

Pirates with politics licensed by a state are called “privateers”.

Patrick S. O'Donnell
Patrick S. O'Donnell

To Whom It May Concern at the Blog: I posted something last night/early this morning and it appears the blog ate it somehow. Is it possible for someone to look for it and post it for me?

Thanks,
Patrick

Howard Gilbert
Howard Gilbert

On March 10, 1945 a formation of 330 B29 bombers appeared over Tokyo. They carried incendiary bombs based on the newly developed Napalm. The resulting firestorm destroyed 16 square miles of the city. It left a million people homeless and killed 100,000 civilians, mostly women, children, the old and infirm who could not run fast enough. Today we don’t call Truman a murderer. “Murdering more than 3,000 civilians would have been seen as the most remarkable military attack …” I did not say that. I said that if the enemy soldiers had conducted the attack in uniform, as the B29 air crews did, and if they used what were universally recognized as lawful means, then the attack would not have been murder, although the same 3000 people on the ground (but none of the passengers and crews of the planes) would have died. On 9/11 the most powerful nation in the world was attacked by 19 men armed only with box cutters. They severely damaged the US military headquarters in the Pentagon, something that the Germans and Japanese were unable to do during WWII, and the Vietnamese and Chinese were unable to do in subsequent wars. They also attacked the most prominent symbol… Read more »

Carrie McDougall

I don’t know what is more pathetic: (1) trying to justify 9/11 by invoking morale bombing during WW II — a particularly revolting invocation of tu quoque — or (2) knowing so little about IHL that one believes the WTC was a legitimate military target, or (3) wanting to engage in counterfactuals that would somehow magically transform 9/11 into, and here I quote, “the most successful attack against a vastly superior force by a small military unit since some Greek soldiers stuffed themselves into a wooden horse.”

Howard Gilbert
Howard Gilbert

I did not try to justify 9/11, just to point out it was an attack by soldiers. I would not justify the invasion of Poland that started WWII, or the invasion of Belgium that started WWI. Unprovoked military aggression is not justifiable. Insisting that 9/11 was piracy and not terrorism does not excuse it or even make it less criminal. I did not say the WTC was a legitimate target. I did say it was no less legitimate than Dresden or, for a more recent example, the al-Saa restaurant in Baghdad that a US B-1 attacked with four JDAM bombs in the mistaken belief that Saddam was eating dinner there. If military forces attack an unlawful target, IHL declares that to be a “war crime”, not terrorism. In the larger propaganda war the WTC was a symbol of “Wall Street” and in the streets of Pakistan, Wall Street is the core of American military power. You will have a problem explaining in Peshawar how the US can bomb Baghdad legally, but an attack on the US is automatically unlawful. Getting the charge right and choosing a court that actually has jurisdiction over a case should be a legitimate issue. If you charge KSM with terrorism,… Read more »

Carrie McDougall

Howard,

You did indeed say that the WTC was a legitimate target:

Had the 9/11 hijackers dressed in uniform, stolen empty planes on the ground, and crashed them into the same targets, then later on when an objective history is written it would have been remembered as the most successful attack against a vastly superior force by a small military unit since some Greek soldiers stuffed themselves into a wooden horse.

A “successful attack” against a “vastly superior force.”  And we are supposed to believe that you don’t think the WTC was a legitimate military target?  What, were all the investment bankers packing heat?

Carrie McDougall

Howard,

And by the way, terrorism is a war crime.  See here and the ICTY Trial Chamber’s decision in Galic.

Charles Gittings

Patrick, Oh sure clarification matters — lots — but rhetoric and analysis aren’t exactly the same thing. Kevin and Howard have provided a good example of exactly the sort of wrangle I had in mind. Now I respect Kevin a lot and Howard tensds to really rub me the wrong way, but here I have some points of agreement and disagreements with both of them… First, I have to second Kevin that the attack on the WTC is a clear war crime and or crime against humanity. Like so many other points of controversy the last seven years, for me, this one begins and ends with the IMT Charter: “* * * The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment… Read more »

David Glazier

Kevin – I think your statement about terrorism constituting a war crime is a bit overbroad.  I think all that can be fairly said based on the sources you cite is that combatants in international armed conflict commit a war crime by conducting attacks intended to terrorize a civilian population.  The treatise you link to is clearly describing acts committed by combatants, and the ICTY decision you cite specifically limits its holding to a violation of Additional Geneva Protocol I as treaty law, meaning that it, too, is explicitly confined to international armed conflict. This makes perfect sense given that combatants in international armed conflict enjoy immunity from ordinary domestic law, leaving them essentially immunized for prosecution for ordinary terrorism offenses as defined in regular penal codes.  But this does not establish a legal basis for concluding that ordinary terrorists can also be similarly prosecuted for war crimes unless one is willing to concede them combatant status. To be even handed, I think Howard is also imprecise in terming the 9/11 hijackers as “pirates.”  I agree that they are liable to prosecution for air piracy, but the relevant statute (49 U.S.C. sec 46502(a)(1)(A)) requires no particular motive, just a wrongful act.  The actual crime of… Read more »

Carrie McDougall

Charles,

Where, exactly, did I deny that the firebombings of Dresden and Tokyo were war crimes?  To say that the defense of tu quoque is illegitimate is not to say that the other side’s acts were legal; it simply embraces the principle, taught to all children by their parents, that two wrongs do not make a right.  (See, e.g., Israel’s constant defense of its war crimes by pointing out that its enemies commit war crimes, as well.)

Howard Gilbert
Howard Gilbert

In 1945 some US air crews shot down over Japan were tried by local officials as murderers. When they claimed status as POWs under the Geneva Conventions, the court asserted that flying miles high and dropping incendiary bombs on civilians was not the way of the warrior. After the war we tried members of these courts as war criminals for what they did to our men. If any country can declare an entire enemy army “terrorists” and then throw out international law, as Bush did with the Afghan army, then our military will be unprotected in future wars. It would be better if we simply banned the word “terrorist” whenever a country like Afghanistan is responsible. International law treats all countries equal, so the US is not a “real” country and Afghanistan a “third class” country. We have never faced an enemy that did not declare American soldiers and airmen to be “terrorists” and “war criminals”, but until now we insisted that name calling did not erase the obligation that other countries have to follow international law. If Bush cannot simply declare the prisoners as “terrorists” so that he can use unlawful means to question them, then the left cannot… Read more »

Charles Gittings

Kevin,

What you said was:

“trying to justify 9/11 by invoking morale bombing during WW II — a particularly revolting invocation of tu quoque“.

I misconstrued it to mean you thought the comparison was inapt, because I didn’t read Howard as actually trying to justify 911, even though I also find his contortions of LOAC quite repulsive at times. And I’m sick with a damned lingering virus that’s sort of like a mild flu that just makes everything totally BLAH, so I’m not parsing too good these daze.

Howard Gilbert
Howard Gilbert

The Tet Offensive of 1968 was a military defeat but a psychological victory. The enemy was superficially a non-state actor whose “black pajamas” did not constitute a recognized military uniform. They bombed civilian targets and killed local officials who cooperated with the central government. We did not call them terrorists at the time because the term was not popular. Today, as the title of the original post points out, it is common to use to the term for pirates and any other bad guy with a weapon. If Tet happened today, it would probably be called a terrorist attack. I don’t think that any attempt to objectively classify Tet and the other VC operations, or to compare them with Tito’s Partisans in Yugoslavia or guerrilla operations in the Philippines during WWII means that one is siding with the enemy or justifying their attacks on US soldiers. Pointing out (on its anniversary) that Pearl Harbor was a military attack by the Japanese navy and not a terrorist attack does not justify what the Japanese did, it just classifies it correctly. Right now KSM is in Guantanamo. He is responsible for the murder of 3000 Americans. Even if Obama closes the facility, we have to… Read more »

benjaminlozano
benjaminlozano

The etymology of the word pirate stems from Greek word peiran, meaning to try, to test, to push to the limit, or risk. Schmitt (in The Nomos of the Earth) points out that prior to the birth of the great sea empires there was no law to the sea -if sea-bordering peoples kept to the mountains, it was because on the open sea there were no boundaries, no limit, no property, no law. But with the development of the maritime nations, the pirate became an outlaw, an enemy of humanity who could claim no rights -the pirate became a hostis generes humani. In short, the pirate was the first terrorist.

Charles Gittings

The two choices Howard?

There’s way more than two, not that there’s any actual problem here or anything — aside from the war crimes, incompetence, and demented ideological goo of the Bush administration and their supporters that is.

I doubt the Manhattan DA would need to think twice about a plan. Other than his plan to run for Governor after he convicted the guy on 3,000 counts of murder one, etc, maybe.

Perhaps we could just extradite him to Pakistan and let them try him?

Or how about we just release him and give him a one way ticket to the destination of his choice?

If David Addington, Dick Cheney, and George Bush really believed the lying fascist BS they’ve been spouting for seven years now they’d have him flown to Washington and Bush would order Addington to personally put a 9mm round in the back of his head at a Rose Garden summary-execution ceremony on national TV. The only problem with that plan is that they’re liars and cowards.

mdavis

The U.S. Naval Institute’s magazine has an interesting article on piracy and the law this month.  Here is how Commander James Kraska defines piracy:

Defining Piracy

Generally, piracy is any illegal act of violence, detention, or depredation committed outside territorial waters for private (rather than political) ends by crew or passengers of a private ship or aircraft against another ship, persons, or crew. Inside territorial waters such crimes constitute armed robbery at sea and are the responsibility of the state. These definitions emerged from customary international law, the 1958 Convention on the High Seas, and the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which has become the de facto constitution for the world’s oceans.

mdavis

What i meant to point out above is that nowhere in the article does he link piracy to terrorism, or suggest that piracy should be included in any defenition of terrorism.  They are each entirely their own animal.

Patrick S. O'Donnell
Patrick S. O'Donnell

Thus, now both Kevin and Michael have provided us with persuasive reasons for not accepting the proposition that “the pirate was the first terrorist.” Following Kevin’s original point and, again, with Goodin, terrorists intentionally employ a tactic of coercive intimidation for socio-political ends, thus, “they intentionally adopt the ‘production of generalized terror’ as a proximate end.” Neither historically nor in our own time should we think of pirates as identical to terrorists. Of course the problem with the definition of piracy under customary international law, as Goodin also points out, is that “it has always been definitionally impossible for people who are acting on the authority of a state to commit an act that strictly speaking counts as one of ‘piracy.'” This is similar to the problematic definition of terrorism in the US Code that both the State Department and CIA rely on: states and their official agents can commit many wrongs strictly analogous to those committed by terrorism, perhaps; but they cannot commit the particular wrong peculiar to ‘terrorism,’ which is (as with ‘piracy’) doing those things ‘privately’ rather than on the authority of some state.” Yet, “the American Law Institute Reporter is at pains to emphasize that state agents are… Read more »

Lieutenant Maynard
Lieutenant Maynard

Pirates are criminals, not terrorists.  What makes them “pirates” is the commission of their acts outside the scope of any state’s territorial boundaries.  The same acts, committed within the boundaries of a state, would be ordinary crimes. Unlike others, I’m happy to provide references for my comment.  See, e.g., U.S. v. Smith, 5 Wheat 153 (1820) (“robbery and murder committed on the high seas shall be deemed piracy”)  (also noting that the international law writes of the time deem piracy to constitute “depredation on the seas, without the authority of a commission, or beyond its authority” and citing, inter alia, Grotius, Puffendorf, and Vattel); Rex v. Dawson, 8 William III. (England, 1696) (“piracy is only a sea term for robbery, piracy being a sea term committed within the jurisdiction of the admiralty”); Convention on the High Seas, art. 15 (1958) (“Piracy consists of the following acts: (a) any illegal acts of violence of detention, or any act of depredation, committed for private ends by the crew of the passengers of a private ship or private aircraft, and directed:  (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii)… Read more »