23 August 2007

What is necessary to find terrorists to be Pirates?

The title asks the question and I am going to look and see if I can understand the law and the background enough to give answer. This is something, actually, which has meaningful underpinnings on how we view the world and its workings and will be heading into some places not often delved into. This is especially the case as the Civil Law of the United States of America is involved and it appears that no one is bothering to bring suit based on that law.

To start with it is always good to go to the beginning. The widest application of Piracy is held in the 18 USC 1651 and that is as good a place as any. That said my argument will be to the consideration of al Qaeda, as a whole, on the question of its being a Piratical organization. Thus we start with the Law as it stands:

Sec. 1651. Piracy under law of nations

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.
That is very succinct in terms of outlay and, perhaps, one of the simplest laws in the US Code. One would think this is pretty obvious on the high seas part, but al Qaeda has been involved with that area, also, so it is best to start there. And a good as place as any to start is the USS Cole bombing in 2000. Jamal Mohammed Al-Badawi was sentenced and convicted of this crime, along with his confederates in Yemen, but he is also a part of this larger organization known as al Qaeda. This attack was after a failed attack by this organization on the USS The Sullivans in Yemen, which failed due to their explosive laden boat sinking before it could get to the US warship. The attack itself, in Yemen, took place in the 'Near Seas' of a Foreign Nation, which would normally be an act of war if this was done by that Nation. Established law gives the US Admiralty Court jurisdiction on all US vessels on the 'High Seas' plus all US ships at sea, regardless of their position within or outside territorial waters of another Nation. By that the ship, itself, is an extension of US Sovereign territory. While Yemen may prosecute for the actions taken in their territorial waters, the Sovereignty of the US was attacked and, as Yemen has denounced such attacks and had established safe passage for the USS Cole, this was an unwarranted attack.

At this point the Law of Nations must be looked at, which is, itself, relatively well established, thus allowing older documents to serve for a foundation of what is and is not acceptable behavior in this realm. To do this I will be using the translated text of Monsieur De Vattel from the Joseph Chitty edition of 1883: The Law of Nations. In Book 2, Chapter VI, Of the Concern a Nation May Have in the Actions of Her Citizens, in paragraph 71 we come to this passage:
WE have seen in the preceding chapters what are the common duties of nations towards each other, — how they ought mutually to respect each other, and to abstain from all injury and all offence, — and how justice and equity ought to reign between them in their whole conduct. But hitherto we have only considered the actions of the body of the nation, of the state, of the sovereign. Private persons who are members of one nation, may offend and ill-treat the citizens of another, and may injure a foreign sovereign: — it remains for us to examine what share a state may have in the actions other citizens, and what are the rights and obligations of sovereigns in this respect.

Whoever offends the state, injures its rights, disturbs its tranquillity, or does it a prejudice in any manner whatsoever, declares himself its enemy, and exposes himself to be justly punished for it. Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is, safety.
Bolding is mine throughout. In the case of the USS Cole bombing the justice of Yemen is not the same as giving amends to an attack by an unwarranted organization. Such acts, when a Sovereign Nation disavows same, falls upon those that have committed such actions and for this it is more than just the immediate actors, although justice is done to them, but those who are their confederates in this crime against the United States: al Qaeda. For it is that organization that sponsored and committed this act through those that did the actual work. That work could not be done wholly on their own and the arrangement to put them into that position for such actions was consciously and deliberately done by their organization.

A ship of a Nation which represents the Nation in physical being and given safe passage is due the same respect as an Ambassador who is also a representative of the Sovereign Nation. Further, as the USS Cole was invited to such passage it did, indeed, serve as a Public Emissary to Yemen. These things are not without consequence, as Vattel would point out in Book 4, Chapter VI, Of the Right of Embassy, or the Right of Sending and Receiving Public Ministers:
Such being the rights of nations, a sovereign who attempts to hinder another from sending and receiving public ministers, does him an injury, and offends against the law of nations. It is attacking a nation in one of her most valuable rights, and disputing her title to that which nature herself gives to every independent society: it is offering an insult to nations in general, and tearing asunder the ties by which they are united.
It is not beyond reason to call an attack upon such a Public sending from the good will of the People of the United States to Yemen as represented by the USS Cole and freely offered safe passage and harbor by the Nation of Yemen to be a violation of the law of nations. If such an offense done by a Sovereign it is also one when done by those not a Sovereign. And when disavowed by the Nation in which this occured it is a violation of the law of nations in any event: it is the action that is described, not the intent. al Qaeda by doing this action was attempting to 'tear asunder' the ties being formed by the agreement to travel and the actual travels of the USS Cole itself. In Book 3, Chapter III, Of Just Causes for War, Vattel would look at the general cause for a just war in paragraph 26:
The right of employing force, or making war, belongs to nations no farther than is necessary for their own defence, and for the maintenance of their rights (§ 3). Now, if any one attacks a nation, or violates her perfect rights, he does her an injury. Then, and not till then, that nation has a right to repel the aggressor, and reduce him to reason. Further, she has a right to prevent the intended injury, when she sees herself threatened with it (Book II. § 50). Let us then say in general, that the foundation, or cause of every just war is injury, either already done or threatened. The justificatory reasons for war show that an injury has been received, or so far threatened as to authorize a prevention of it by arms. It is evident, however, that here the question regards the principal in the war, and not those who join in it as auxiliaries. When, therefore, we would judge whether a war be just, we must consider whether he who undertakes it has in fact received an injury, or whether he be really threatened with one. And, in order to determine what is to be considered as an injury, we must be acquainted with a nation's rights, properly so called, — that is to say, her perfect rights. These are of various kinds, and very numerous, but may all be referred to the general heads of which we have already treated, and shall further treat in the course of this work. Whatever strikes at these rights is an injury, and a just cause of war.
Due note must be taken on the defensive character, that receiving an unjust attack is due and sufficient cause to go to war in, and of, itself. He would expand upon this in paragraph 36:
Defensive war is just when made against an unjust aggressor. This requires no proof. Self-defence against unjust violence is not only the right, but the duty of a nation, and one of her most sacred duties. But if the enemy who wages offensive war has justice on his side, we have no right to make forcible opposition; and the defensive war then becomes unjust: for that enemy only exerts his lawful right: — he took arms only to obtain justice which was refused to him; and it is an act of injustice to resist any one in the exertion of his right.
Defensive war is always just against an unjust aggressor. The question is: is al Qaeda an 'unjust aggressor'? To most this should be obvious, but to examine this it must go to the heart of the type of organization that al Qaeda actually *is*. Those that can actually declare war are these things known as 'sovereign powers'. It is quite clear that to make 'just war' one must be a 'sovereign power' of a Nation or representative of that power. Chapter I, paragraph 4 is quite clear on this:
As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature, — the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it, — that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).

Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.1 Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.
al Qaeda by being no Nation, having no territory and having none of the elements of being a 'sovereign power', as described earlier by Vittel, is not allowed to make war. There is no authorizing power for al Qaeda, not even their deity has granted them this power to make such war. Even with a claim of divinely granted right, it would still need to be contained in a sovereign power concept called a Nation. Without any linkage to being a sovereign power, the attack by al Qaeda cannot be considered to be just or legitimate.

In Chapter IV, paragraph 67 we can distinguish between lawful and unlawful war:
Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.
The finding in the tribunals of Guantanamo have deep and distinct meaning by naming individuals as being unlawful enemy combatants. So, too, is the attack upon the USS Cole unlawful and illegitimate. Here we see that attacks purely for their own accord, given to spoils and plunder to benefit those doing the attacking but with no sovereign power to back them are illegitimate forms of warfare. Indeed they have special names attached to them: bandit, buccaneer, and, generally, pirates.

By the law of nations as described by Vattel, such an attack by this organization directly to its own aggrandizement, to go after the sovereign territory and good embassy of the United States as allowed for by Yemen is an piratical attack in and of itself. This is expanded in paragraph 68:
In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war.
This is predatory warfare conducted by an illegitimate actor called al Qaeda. Note that there is no consideration of 'civilized warfare' when dealing with those that wage predatory, illegitimate war. The US Congress has very kindly set a standard to be upheld when individuals are found to be waging illegitimate warfare from the high seas: life imprisonment.

What is interesting is that this is exactly how Abraham Lincoln authorized the US Army to deal with things in the Field Manual - 100, of 1863-81, last reprinted in 1898:
Art. 82.

Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.
You have read that correctly. Those waging illegitimate war, who act as this thing we call 'terrorists' when captured by the US Army would summarily be treated as robbers or pirates. Those were immediate CIVIL PENALTIES handed out by the US Army, given SUMMARILY upon capture. Those waging illegitimate war in that era, who remain, to THIS DAY under all Treaties signed by the United States of America and ratified by the Senate, can be held to this exact same standard. The US has not signed nor ratified the 1977 Geneva Conventions on terrorism because we hold, quite rightly, that terrorism is NOT LEGITIMATE WARFARE.

It is Piracy.

I doubt, very much, if the Law of Nations has been revised so as to REMOVE the ability of sovereign powers to PROTECT its citizens against the depredations of those that would prey upon them. The United States has most assuredly NOT signed that right away as that would require a new Constitution. We the People hand the right to defend us from these Pirates, Buccaneers, Bandits and Outlaws to the President and to Congress to set the penalties involved. 'Terrorism' is an activity in support of Piracy, and there is one penalty given for Piracy.

Life imprisonment.

Unless someone can come forward showing and demonstrating that there is some *other* law of nations that the US operates under, then this would make a very, very interesting 'test case' the US Federal Courts to get al Qaeda branded as a Piratical operation and all those directly adhering to it as Pirates.

Might get the President off the dime on this too, come to think of it.

Any help on this is greatly appreciated.


Harrison said...

By expounding upon the concept of sovereignty that revolves around and defines the international system of states, and taking into account that sovereignty has been coveted as a privilege, a license to legally participate in the international system and be recognised for its right to do so, it seems logical to assume that any terminologies, conceptualisations and definitions regarding the preservation or violation of sovereignty in terms of territoriality or constitutional independence must be attuned to the reality that every act by a sovereign or non-sovereign actor is judged according to that concept and the upholding of the pillars of sovereignty.

I would perhaps attempt to refine the term attached to aQ - 'unjust aggressor'. First of all, aQ being a non-sovereign actor that exploits the transnationalistic reach of terrorism, ideology and arms sales - it does not qualify as being even eligible as an entity to be judged in the context of international justice. International justice - like international law - is not a doctrine governing how each person in every sovereign state should be judged by an external authority other than the state which he or she resides in: it is akin to the Law of Nations, whereby the behaviour of nations with relation to other nations is regulated by certain rules agreed upon by the nations themselves. I make this distinction because it should not be conflated with the transnational strain of International Justice and its embrace of 'terrorist rights' and Kantianesque 'international society' that presupposes moral equivalence.

International justice in this aspect thus acts as a regulating mechanism in determining which sovereign actors are justified in waging wars, which of them are 'just'; which actors are 'unjust' in pursuing military options, and which sovereign actors are being 'unjustly' besieged and targeted for such violation of sovereignty. Of course, international justice is akin to a convention that states themselves choose whether to adhere to or not - their possession of international legal sovereignty bestows them with the right to join such a convention or withdraw from one. Those who choose to join and respect the rules of this doctrine are the same actors tasked with the responsibility of defending the doctrine itself, and they are automatically accorded the right to judge whether a questionable act by a sovereign is 'just' or 'unjust' according to the principles of sovereignty as defined by the convention.

aQ, by disqualifying itself as a sovereign actor, is denied both the right to be recognised as an equal participant in international relations and the right to be judged according to its course of action whether it is justifiable in terms of moral or altruistic reasoning. aQ's actions are devoid of legitimacy and justification in this international system of sovereign states. No extent of 'divinely granted right' can alter that fact, unless the day comes when all sovereign actors accept that religious doctrines, not agreed-upon rules and conventions, govern relations between states.

Thus, the term 'unjust' does not seem at all appropriate for aQ, since the entity falls outside the jurisdiction of the international system of states. It does not need to be judged in this context, no matter how obvious its transgressions are. What should be more apparent and therefore recognised by sovereign powers is that aQ is an invalid anomaly that threatens the preservation of the system which orders relations between themselves, and thus should be exterminated by whatever means necessary. No 'right' or 'wrong',no moral dilemma with regard to the scales of justice, but the realist perspective on this issue dictates that this decision taken by states is amoral and purely for rational interests.

By extension, those sovereign actors whose rational interests coincide with the survivability of entities such as aQ, and who are harbouring elements of aQ or providing it with the resources necessary to flourish are putting themselves at risk of violation of their own membership in the international system. Sovereignty as a privilege can be easily withdrawn should its defenders judge that the transgressor is exploiting the privilege itself to sanction and support illegitimate and unjustifiable acts of violation of other participating states' sovereignties. This act of withdrawal requires no transnational entity or overarching authority to approve, but it is up to each sovereign state to safeguard its own sovereignty and therefore respond convincingly to communicate its intent to punish such transgressions for exploiting its position within the system. And that points to the right of sovereign powers to deny other sovereign powers the right to undermine the very doctrine that recognises them as legitimate actors.

A Jacksonian said...

Harrison - Fascinating disquisition there!

The type of warfare being used by aQ is, by the view of a Sovereign State, as cited by Vattel: illegitimate and informal wars, or predatory wars without lawful (in the form of a Nation State sponsor) authority or (again in the Nation State realm) without apparent cause. The type of war by al Qaeda is actually all of those things and is typified by having no Nation State backing.

The US being formed under the conception of Nation State of the 18th century also has view on this, as seen by Blackstone in his chapter on Offenses against the law of nations:
"III. LASTLY, the crime of piracy, or robbery and depredation upon the high feas, is an offence againft the univerfal law of fociety ; a pirate being, according to fir Edward Coke k, boftis humani generis. As therefore he has renounced all the benefits of fociety and government, and has reduced himfelf afrefh to the favage ftate of nature, by declaring war againft all mankind, all mankind muft declare war againft him : fo that every community hath a right, by the rule of felf-defence, to inflict that punifhment upon him, which every individual would in a ftate of nature have been otherwife entitled to do, any invafion of his perfon or perfonal property."

To the US, even though we do *not* follow Edward Coke's court and the Admiralty Court was set up under full Common Law guidelines in the US, that statement of having renounced society and government and the benefits of both, then make such individuals truly 'outlaws'. Outside the protection of the law.

International justice, in this, is in the declaration of such outlaws to be waging predatory war upon mankind as a whole. Later in Blackstone, we see the following: "THE offence of piracy, by common law, confifts in committing thofe act of robbery and depredation upon the high feas, which, if committed upon land, would have amounted to felony there n. as, by ftatute 11&12 W.III.c.7. if any natural born fubjeft commits any act of hoftility upon the high feas, againft others of his majefty's fubjefts, under colour of a commiffion from any foreign power ; this, though it would only be an act of war in an alien, fhall be conftrued piracy in a fubject."

Here the 'subject' is the individual who is a citizen of a Nation State, but that has turned to outlawry and depredation upon the high seas. Do note that while this would be a felony at home, in the US treason comes to mind, when conducted abroad by outlaw actors, the same definition applies to outlaws committing war: pirate.

Piracy upon the high seas is the best known part of this, but the activity of illegitimate warfare, on land or sea, is, as you pointed out, a crime against the Nation State system. It is not only a crime against a single Nation, but against *all* Nations. That is why the US allows for its high seas definition, other Nations to declare an organization piratical and use that as a basis for treating them the same. The unjust war waged via illegitimate means is a crime against all Nations. The Navies of the 16th - 17th centuries would coordinate on missions to go against pirates on the high seas. On land the 'banditti' and land based brigand, who fights only for themselves and no Nation would get similar treatment.

That is why Abraham Lincoln would promulgate those Field Manual activities and that would be upheld to near the end of the 19th century. When captured on the field of battle, such individuals have *no* legality. Today they are 'illegal enemy combatants' which is the exact concept used for piracy, and Lincoln, and Presidents after him, had their forces use summary judgments upon those captured doing those activities.

This brings up the interesting case in that deciding those in Guantanamo to BE 'illegal enemy combatants' the courts have actually just performed the SOLE finding necessary for piracy. In 18 USC 1651 there is NO other finding necessary: illegal combatants waging illegitimate war upon the United States. That single and sole finding is sufficient grounds for life imprisonment. Note that this is wholly different than 'espionage' which has other factors like observing and passing information to a TRUE and DECLARED enemy of a Nation State. Pirates wage illegitimate war for their own, personal, ends against Nations.

This common law declaration and view, which shifted from Admiralty Court to Federal Court in the US, now indicates a lack of understanding by the legal community on both the civilian and military side on how to actually handle those picked up as 'illegal enemy combatants' because we have not seen their like for nearly two centuries.

What is even worse is that this research of mine took, cumulatively, about 2 weeks of work for me, meaning at least 2 months for anyone else. Why have we lived for nearly 6 years under ANY other viewpoint? We cannot ratify the GC of 1977 because of this view of the US, and yet we have forgotten it completely in trying to address 'terrorism'. 'Terrorism' is an activity taken up by those waging illegitimate and unjust war. The crime that describes that form of warfare is the civil one of piracy. Trying to address 'terrorism' separately would be like trying to address 'close assault tactics' in the UCMJ: an asinine thing to do. It is but a method or means, but the activity as a class is illegitimate and unjust war of depredation. That is the 18th and 19th century logic behind the law of nations as used by the US at its founding. We look back before Coke and Henry VIII for original jurisdictional precedent, but utilize their outlooks and those of Lord Stowall (which are used as guideline, not precedent). From that the US varies from the British system and those of other colonies now become Nations. Thus the 'rough and ready' form of view of the US was codified in the Piracy statutes and this one I am citing here is the first of them, and most basic.

And because it *is* basic that should make it a simple case to prosecute. al Qaeda has expounded at length on their going to war with the US (1996 and 1998, plus other cites by Saudi Arabia), India, UK, Pakistan, Israel, and many, many others. They have not only waged illegitimate war but even done so against a National vessel and Emissary of the US to Yemen. In and of itself, that is piracy. This was done not only against the USS Cole but was tried against USS The Sullivans: failure to carry out a bombing does not indicate lack of want to carry it out and every indication of wanting to do so. That is repeated attempts to perform that same act of illegitimate and unjust war. The heading under which illegitimate and unjust war, personal war or other similar acts falls: Piracy.

If we can't dispense with terrorism and call this for what it *is*, then we are well nigh on the road to the dissolving of the Nation State as we no longer *understand it* as a concept.

That is highly worrying.