Mackubin Thomas Owens: How to Stop Piracy

From the Foreign Policy Research Institute:

In the 19th century, the United States also played a role in ending the piratical forays of the Barbary States of North Africa. This is one of the reasons why it has been nearly two centuries since pirates last attempted to seize a vessel flying the American flag.

After losing the protection of Great Britain as a result of America’s Declaration of Independence, American ships were preyed upon by the Barbary States—Algiers, Tunis, Morocco, and Tripoli (today's Libya). Like the Europeans during the same period (and most maritime states today), the Americans deemed the cost of military action too high and opted to pay “tribute” to the Barbary States. But the demands for these bribes kept growing while the seizure of U.S. ships only increased.

Congress authorized the construction of several frigates and President Thomas Jefferson dispatched them in 1801 for “policing actions” in the Mediterranean after the pasha of Tripoli declared war on the United States. During the next several years, the fledgling American Navy bombarded the harbors of Algiers, Morocco, and Tunis or threatened them with bombardment. As a result of these actions, these states agreed to cease cooperating with Tripoli. But the pasha remained defiant.

In 1804, a naval force under Captain Stephen Decatur boldly sailed into Tripoli harbor, where he set fire to the captured USS Philadelphia, later rescuing its crew, bombarding the fortified town, and boarding the pasha's own fleet where it lay at anchor. In April 1805, Captain William Eaton led an expedition consisting of U.S. Marines, mercenaries, and Arab rebels across many miles of desert to take Tripoli's second city, Derna, by surprise, largely ending the depredations of the Barbary pirates against U.S. ships in the Mediterranean.

To adopt such an approach to piracy today, however, would require a return to a distinction in the traditional understanding of international law, one that did not extend legal protections to individuals who do not deserve them. This distinction was first made by the Romans and subsequently incorporated into international law by way of medieval and early modern European jurisprudence, e.g. writings on the law of nations by such authors as Hugo Grotius and Emer de Vattel.

The Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi—pirates, robbers, brigands, and outlaws—“the common enemies of mankind.” The former, bellum, became the standard for interstate conflict, and it is here that the Geneva Conventions and other legal protections were meant to apply. They do not apply to the latter, Guerra—indeed, punishment for latrunculi traditionally has been summary execution, although the extreme punishment was not always exacted. The point is that until recently, no international code has extended legal protection to pirates.

As Grotius wrote in Mare Librum (The Free Sea), “all peoples or their princes in common can punish pirates and others, who commit derelicts on the sea against the law of nations.” And more forcefully, Vattel wrote in his 1738 treatise, The Law of Nations, that “legitimate and formal warfare must be carefully distinguished from those illegitimate or 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.”

Once this distinction is revived, it opens the way for the only real way to stamp out piracy, as was done in the 19th century: the use of force to wipe out the pirate lairs. Under the old understanding of international law, a sovereign state has the right to strike the territory of another if that state is not able to curtail the activities of latrunculi.

As John Locke understood, pirates are in a “state of nature” relative to political society. And political society has the right to defend itself against such individuals:

“That, he who has suffered the damage has a right to demand in his own name, and he alone can remit: the damnified person has this power of appropriating to himself the goods or service of the offender, by right of self-preservation, as every man has a power to punish the crime, to prevent its being committed again, by the right he has of preserving all mankind, and doing all reasonable things he can in order to that end: and thus it is, that every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, which no reparation can compensate, by the example of the punishment that attends it from everybody, and also to secure men from the attempts of a criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lyon or a tyger, one of those wild savage beasts, with whom men can have no society nor security: and upon this is grounded that great law of nature, Who so sheddeth man’s blood, by man shall his blood be shed.”

The United States acted in accord with this understanding in the early 19th century. In response to raids from Spanish Florida by Creeks, Seminoles, and escaped slaves, General Andrew Jackson, acting on the basis of questionable authority, invaded Florida, not only attacking and burning Seminole villages but also capturing a Spanish fort at St. Marks. He also executed two British citizens whom he accused of aiding the marauders.

Most of President James Monroe’s cabinet, especially Secretary of War John Calhoun, wanted Jackson’s head, but Secretary of State John Quincy Adams came to Jackson’s defense. He contended that the United States should not apologize for Jackson’s preemptive expedition but should insist that Spain either garrison Florida with enough forces to prevent marauders from entering the United States or “cede to the United States a province, which is in fact a derelict, open to the occupancy of every enemy, civilized or savage, of the United States, and serving no other earthly purpose than as a post of annoyance to them.” As Adams had written earlier, it was his opinion “that the marauding parties ought to be broken up immediately.” As John Gaddis has observed, Adams believed that the United States “could no more entrust [its] security to the cooperation of enfeebled neighboring states than to the restraint of agents controlled, as a result, by no state.”

Unfortunately, we have permitted legalism and moralism to twist our understanding of the “rule of law” into something that Grotius, Vattel, Locke, or the Founders would no longer recognize. For instance, European navies have been advised to avoid capturing Somali pirates since under the European Human Rights Act, any pirate taken into custody would be entitled to claim refugee status in a European state, with attendant legal rights and protections.