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International Law

Pirates - The Common Enemies of All, the Enemies of the Human Race, the Law of War and The Rule of Law

“The common enemies of all” - this is the appellation of Marcus Tullius Cicero for pirates, the terrorists of his day. The commonly bandied about phrase “hostis humani generis” appears to derive from a medieval era paraphrasing attributed to the jurist Edward Coke. Cicero’s full statement concerning pirates, which embodies the essence of this phrase, is:
“Nam pirata non est ex perduellium numero definitus, sed communis hostis omnium; *** hoc nec fides debet nec ius iurandum esse commune.”
 Marcus Tullius Cicero, De Officiis, Book III, Ch. XXIX, 107.
Translation: “For a pirate is not included in the list of lawful enemies, but is the common enemy of all; among pirates and other men there ought be neither mutual faith nor binding oath.”
The vehemence that is evident in Cicero’s denunciation of pirates is fueled not simply by the list of heinous acts committed by pirates. These are equally committed, mutatis mutandis, by brigands, thieves, and criminals on land. What especially appears to incite Cicero’s wrath, that of his contemporaries, and most sane and moral folks throughout the ages, is the fact that these acts are committed at sea – on an element of nature that is not the natural locus for human beings. In Cicero’s day as today, sea-faring is often treacherous in and of itself. Human beings at sea owed and owe to this day a moral duty to assist each other when in distress at sea (e.g., the International Maritime Organization conventions: SOLAS 1974, augmented by SAR 1979 and even by SUR 1988), the customary law rules and the modern statutory rule being the same: save life above all and first, then property. Certainly and logically, the idea of helping and saving lives at sea is especially diametrically opposed to harming others and taking their lives at sea, because, at sea, not being in or on our natural element – terra firma- we are more exposed to the powerful and life-threatening elements of nature against which we need – and it has long been thought entitled- to rely on fellow human beings for aid and succour.
The idea of harming or killing someone at sea thus took on a more vile aspect. It’s bad enough one at sea is at risk of perishing from natural forces, but for another human being to act towards one in any way other than to aid and succour and preserve life was and is considered the height of violation of morals and law. The odds of survival on a sea voyage were bad enough without someone behaving in a criminal manner at sea. It is little wonder that the customary international law penalty for pirates captured during an attack was summary execution. Their assailing behavior was considered so heinous as to render them unworthy of custody and feeding (ship’s stores being precious commodity) and the risk of their attempting to escape, or actually escaping custody and attacking again, to be too great a risk to justify preserving them. Both customary as well as now statutory international law has condemned piracy for millennia (and privateering – that quasi-political carve out in time of war - for well over a century). 
Indeed this is made explicitly clear by the United Nations Convention on the Law of the Sea in its Article 105, to wit:
Article 105:       
Seizure of a pirate ship or aircraft
 On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. (Emphasis supplied)
Why such enmity? At sea or in the air, people are not on or in their natural element – terra firma. You can’t run really away from a ship (or an airplane, for that matter). Survival by jumping overboard was not likely on the high seas (or from an airplane in flight). One does not have even a sporting chance and hence to attack at sea (or in the air) shows a heinous and criminal disregard for basic human safety (including one’s own) that rendered the pirate beyond any protection of the law. They may as well have been non-human aliens trying to conquer the earth and destroy humankind. Clearly by their actions they hold themselves out as not recognizing even the fundamentals of the rule of law, and having put themselves outside its rule, invited its swift and sudden wrath.
As entertaining as the celluloid antics of Captain Jack Sparrow and his companions may be, they and their non-fictional counterparts are still …pirates. “Take all you can, give nothing back”.
 What then of terrorists and even Hellenic anarchist youth? Terrorists disregard the Rule of Law and the lives of innocent persons wherever they may be and whatever they may be doing are treated as forfeit to the demands of their cause. They are as calculatingly evil as the pirate even if though their actions may take place on land. The recent rampages of Greek anarchist youth reveal a similar disregard for the Rule of Law – anarchist philosophy or political theory demands constant rejection of and revolt against authority, even that of their own making ultimately. The uneasy stasis or semblance of peace that may pass for order among anarchists is based on a combination of mutual fear, mutual threat, and self-preservation only to the point when authority, no matter how derived, must once again be contested.
 In comparing piracy and terrorism, Douglass R. Burgess, Jr. in the July/August 2005 issue of Legal Affairs highlighted the 1856 Declaration of Paris concerning piracy that set forth the condition of persons who chose to place themselves outside the Rule of Law:
 “Until 1856, international law recognized only two legal entities: people and states. People were subject to the laws of their own governments; states were subject to the laws made amongst themselves. The Declaration of Paris created a third entity: people who lacked both the individual rights and protections of law for citizens and the legitimacy and sovereignty of states. This understanding of pirates as a legally distinct category of international criminals persists to the present day, and was echoed in the 1958 and 1982 U.N. Conventions on the Law of the Sea. The latter defines the crime of piracy as "any illegal acts of violence or detention, or any act of depredation, committed for private ends." This definition of piracy as private war for private ends may hold the crux of a new legal definition of international terrorists.”   Douglass J. Burgess, Jr., The Dread Pirate Bin Laden: How thinking of terrorists as pirates can help win the war on terror.
 Current events have now brought Mr. Burgess’ discussion into a new focus as the actions of terrorists, flagrant violators of fundamental human rights and pirates appear to be acting in a form of unofficial concert of supply and support. But its appears to be of little import, especially to their victims, whether a gunman on a boat attacking them is a sheer pirate out for booty or a terrorist practicing his skills and touting his ideology at sea.
 It will likely be of little comfort to the orphaned victims of the genocide in Darfur, themselves barely clinging to life, and likely yet to be a victim of violent death at the hands jinjaweed armaments, possibly supplied by Somali pirate gangs, to know that Her Majesty’s Royal Navy chooses not to engage pirates for fear that taking them into custody will allow them to sue for asylum in British courts. (The British navy used to know how to treat pirates – do they not now because they now have ships without yardarms?). It will likely be of little comfort to the surviving family members of the Chinese sailor executed by the Somali pirates when ransom negotiations stalled, that the Indian navy takes pirates into custody in order to feed, shelter, and transport them for trial. It will likely be of little comfort to the surviving family members of the crewman of the Ukrainian munitions vessel captured by the pirates who died of a heart attack while in their custody, that the Danish Royal Navy is also confused about its jurisdiction to capture, hold and bring to trial pirates caught in the act.
Universal jurisdiction over piracy is based on the fact that piracy is abhorrent to all nations where the Rule of Law prevails – that is clear even from Cicero’s day – and should be punished wherever and by whoever is in the position to apprehend the pirates. The idea that this claim to jurisdiction is tenuous falls in the face of the legal history of the crime of piracy and the international responses to it. It is doubtful that any civilized (i.e., one that adheres to the Rule of Law and is not governed by a rogue president or dictator) nation would resist taking action against known perpetrators of genocide, and even nowadays trafficking, and piracy as the classic crime against humanity is, and should be, no exception. If the Rule of Law is to have any meaning for those who profess it importance, its principles must be backed by effective sanctions and use of force – that is the plain fact of the matter.
It is utterly surprising to many that an area of the international law of war regarding piracy and privateering that has been for so long settled should be deemed by contemporary practitioners to be so unclear. Perhaps the inroads of the celluloid-based romantic notion of pirates has taken its toll. Perhaps the politically correct, good natured quest to see those engaged in piratical behavior as socio-economically challenged and for that reason not to be held responsible for their fatal depredations, because their personal circumstances “force” them into the commissions of these crimes against humankind. Or perhaps those practitioners ought to take the counsel of the clear-sighted commandant of the French special force “Commando Hubert”, whose unit in September freed two hostages (Jean-Yves and Bernadette Delanne) held by Somali Pirates aboard their yacht off the coast of Somalia, killing one armed pirate and capturing six others – and this was Commando Hubert’s second such rescue. The Commando Hubert’s ultimate commander-in-chief, President Nicolas Sarkozy of , has a clear understanding and has not been afraid to express it, as reported in the Times On Line
 “This operation is a warning to all those engaged in this criminal activity. will not accept that crime pays,” Mr. Sarkozy said at a triumphant news conference after the predawn rescue. The operation was proof that Paris would protect every citizen in trouble abroad, he said.
“He went on to call for a new international effort to combat the heavily armed gangs, who have been increasing their attacks in recent months, and have extended their range hundreds of miles into the Indian Ocean . “These are not isolated cases, but a fully fledged criminal industry. [It] endangers our fundamental rights, freedom of movement and international trade,” Mr Sarkozy said. “The world must not remain indifferent or passive. I call on other countries to take their responsibilities as has done twice.”
Pirates are pirates – and they don’t discriminate about whom they attack. The civilized nations of the world must learn that they are not allowed to discriminate in enforcing the customary or the statutory international laws against piracy, either. Otherwise we will wind up with Puntlands, Tripolis, South China Seas , and Tortugas being set up all over the world - again. Unless the force of the law meets and overcomes the force of those who hold themselves outside the law, it is unlikely that the latter will ever come forth to invoke “parley” and their depredations and their fatal effects will continue.


Some Somali Pirates                            (US Navy photo)




Somali Pirates holding Chinese vessel's crew on foredeck (US Navy Photo)