Rightless Enemies: Schmitt and Lauterpacht on Political Piracy

Oxford Journal of Legal Studies, Vol. 32, No. 2 (2012), pp. 235–263 doi:10.1093/ojls/gqs001 Published Advance Access March 8, 2012

Rightless Enemies: Schmitt and Lauterpacht on Political Piracy Walter Rech*

Abstract—This article retraces the debate on the assimilation of submarine warfare with piracy that arose with the Washington Treaty of 1922 and culminated with the Nyon Agreement of 1937. It argues that the rejection of the superior orders defence at Nyon, together with the enforcement of anti-piracy international police measures, represented the first concrete breach of the international legal taboo that the public enemy cannot be criminalized. It also argues that the presence of an ‘enemy of mankind’, as denied by Carl Schmitt and asserted by Hersch Lauterpacht, played a significant role in this process by motivating international co-operation and justifying collective recourse to force. With reference to the current debate on terrorism, the article problematizes recent attempts to establish an analogy between historical pirates and contemporary terrorists. Keywords: Carl Schmitt, Hersch Lauterpacht, piracy, terrorism, submarine warfare, international law

1. Introduction On 14 September 1937, an international agreement was signed in Nyon, Switzerland, which effectively assimilated submarine warfare with piracy.1 Enraged by this resolution, Carl Schmitt immediately responded with an article on ‘The Concept of Piracy’, lashing out against the banning of the submarine and against all other outgrowths of the ‘Anglo-Saxon’ moralist approach to international law.2 In a letter addressed to Ernst Ju¨nger, Schmitt later explained that * Melbourne Law School, University of Melbourne. Email: [email protected]. I am grateful to Anne Orford, Kevin Heller, Greg Taylor and an anonymous referee for their helpful comments on earlier versions of this article. I extend my thanks to the University of Melbourne and the Max-Planck-Institut fu¨r europa¨ische Rechtsgeschichte of Frankfurt for funding the research for this article, and to Michele Nicoletti, Diego Quaglioni and Michael Stolleis for their support in the early stages of this research. 1 Nyon Arrangement (14 September 1937) 181 LNTS 135. 2 C Schmitt, ‘The Concept of Piracy’ (2011) 2 Humanity 1, 27–9 (1st German edn ‘Der Begriff der Piraterie’ (September–October 1937) 6–7 Vo¨lkerbund und Vo¨lkerrecht 351–4, reprinted in G Maschke (ed), Frieden oder Pazifismus. Arbeiten zum Vo¨lkerrecht und zur internationalen Politik 1924–1978 (Duncker & Humblot 2005)). ß The Author 2012. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected]

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[t]he article on the ‘Concept of Piracy’ was generated by the feeling which affects me when I see how cold-bloodedly the Anglo-Saxons carry on the World War and seem to have achieved in Nyon something against which we resisted so fiercely during the war, ie giving up the honour of the U-boat weapon.3

In Schmitt’s view, by setting up international policing against submarines and treating them as piratical vessels, the signatories at Nyon had regrettably radicalized the trend towards moralizing warfare and discriminating against the public enemy that had emerged with the end of the First World War. Today, we face a similar situation. In the context of the ‘war on terror’, attempts have been made to ascribe universal hostility, traditionally attributed to pirates only, to terrorists in order to deprive them of political legitimacy, submit them to universal jurisdiction and ensure that they can be harshly punished.4 The assimilation of terrorism with piracy thus impacts on the status and rights of the terrorist and the pirate, and on jurisdiction over such crimes. Yet, this assimilation is highly problematic. Assuming that neither the terrorist nor the pirate enjoys any right under international law, a fundamental difference has traditionally been maintained: while sea-robbers on the high seas are denationalized and virtually rightless individuals that any state may punish as it believes appropriate, the terrorist is an offender to be punished under municipal criminal law, which entails a set of legal guarantees.5 Although several Western countries have responded to domestic as well as international terrorism from the 1960s onwards by enforcing an outright ‘enemy criminal law’ under which terrorist suspects came close to being regarded as rightless, this has been viewed as an exceptional measure to be revoked as the terrorist threat receded.6 The present question is whether the terrorist will effectively regain their legal subjecthood, or whether they constitutively belong to the lawless limbo between domestic criminal law, international criminal law and the law of war.7 Further, it may be asked to what extent the assimilation of 3

C Schmitt to E Ju¨nger (14 November 1937) quoted in Maschke (n 2) 514–15. All translations are mine. See AJ Colangelo, ‘Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law’ (2007) 48 AJIL 121, 201; P Bobbitt, Terror and Consent (Knopf 2008); J Burgess and R Douglas, ‘Piracy is Terrorism’ New York Times (New York, 12 May 2008) 39; M Thorup, ‘Enemy of Humanity: The Anti-Piracy Dicourse in Present-Day Anti-Terrorism’ (2009) 21 Terrorism Pol Viol 401; M Kempe and O Ga¨nswein, ‘Die Ru¨ckkehr der Universalfeinde’ (2010) 32 Zeitschrift fu¨r Neuere Rechtsgeschichte 2, 91–106; A Chaturvedi, ‘Two Faces of High-Seas Crime’ (2010) 136 US Naval Institute Proceedings 7, 24–28. 5 The traditional right of states to repress piracy at their own discretion has been reasserted by UNCLOS art 105: United Nations Convention on the Law of the Sea (Montago Bay, 10 December 1982) 1833 UNTS 437. States may however relinquish the right to punish pirates due to the costs associated with their detention and prosecution, or for fear of losing popularity on the international stage, especially when detainees claim the status of insurgents and freedom fighters. This is the reason why anti-piracy repression in Somalia has lost its edge. See E Kantorovich, ‘ ‘‘A Guanta´namo on the Sea’’: The Difficulty of Prosecuting Pirates and Terrorists’ (2010) 98 California L Rev 243. For an extensive historical and doctrinal analysis of the concept of piracy in the Western legal tradition, see A Rubin, The Law of Piracy (Naval War College Press 1988). 6 G Jakobs, ‘Bu¨rgerstrafrecht und Feindstrafrecht’ (2004) 3 Ho¨chstricherliche Rechtsprechung im Strafrecht (HRRS) 88. 7 D Heller-Roazen, The Enemy of All. Piracy and the Law of Nations (Zone Books 2009) 179; S Sedley, ‘Enemies of All Mankind’ (2010) 32 London Rev Books 33. 4

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terrorists with pirates affects the status of the latter, particularly when pirates claim political legitimacy as freedom fighters.8 Against the background of the contemporary discussion, this article returns to the last significant piracy debate of the late 1930s to untangle the issues of universal hostility and universal jurisdiction blurred by recent political rhetoric. It argues that the anti-piracy international police measures enforced in pursuance of the 1937 Nyon Agreement represented the first instance of collective struggle against an ‘enemy of mankind’. Further, it contends that such a shift towards justifying war in humanity’s name definitively broke the international legal taboo of non-discrimination against the public enemy—a taboo that had been under threat since the criminalization of German Emperor Wilhelm II at Versailles. Indeed, Nyon’s successful response to the problem of submarine warfare demonstrated that in case of egregious violations of the law of war the superior orders defence can be overruled. It also proved that international policing based on treaty law can be effective in preventing ‘international crimes’ and mobilizing the international community around common values. The significance of this agreement lay less in the law of naval warfare, on which it only had short-term effects,9 than in the implementation of ideas of world order and international criminal law that had fruitlessly been proclaimed throughout the age of the League of Nations.10 This process was not painless and split the opinions of many jurists in the interwar period. The cosmopolitan innovators, eager to assimilate submarine warfare with piracy to revive moralist accounts of warfare, were opposed by the purists who professed political realism and stuck to the categories of classical international law. To emphasize such a strain between realism and cosmopolitanism in the debate on piracy and submarine warfare, special attention will be paid to Carl Schmitt’s Begriff der Piraterie of 1937 and Hersch Lauterpacht’s Insurrection et piraterie of 1939, both not yet fully analysed in English.11 8 Mostly, pirates’ claim to political legitimacy have been rejected. See D Guilfoyle, ‘The Laws of War and the Fight Against Somali Piracy: Combatants or Criminals?’ (2010) 11 Melbourne J Intl L 1. Guilfoyle has actually suggested that this is hardly a thorny issue as the essential element of piracy is the lack of state sponsorship, not the absence of political motive (D Guilfoyle, Shipping Interdiction and the Law of the Sea (CUP 2009) 36). Somali pirates should thus be deemed ordinary criminals as they lack public sanction. 9 DHN Johnson, ‘Piracy in Modern International Law’ (1957) 43 Trans Grotius Soc 63, 84. 10 Well before Nyon, V Pella acknowledged that the problem of piracy as a means of warfare raised political disputes that could only be settled by means of an international penal jurisdiction: V Pella, ‘La repression de la piraterie’ (1926) 15 Recueil des cours de l’Acade´mie de droit international 149, 176 and 209. Nyon did not go that far, but represented a concrete step in the direction suggested by Pella. 11 Schmitt, ‘The Concept of Piracy’ (n 2); H Lauterpacht, ‘Insurrection et piraterie’ (1939) 46 Revue de droit international public (3rd Series) 513. Readings in French and Italian of Schmitt’s Concept of Piracy have been given by D Weber, ‘Le pirate et le partisan. Lecture critique d’une the`se de Carl Schmitt’ (July 2009) 356 Esprit 124, and by F Ruschi, ‘Communis hostis omnium. La pirateria in Carl Schmitt’ (2009) 38 Quaderni Fiorentini per la storia del pensiero giuridico moderno 1215. D Heller-Roazen, who has recently translated Schmitt’s article in English (n 2), had already commented on it in his The Enemy of All (n 7) 142–46. Schmitt and Lauterpacht aside, the most relevant contributions to that debate were the following: G A Finch, ‘Piracy in the Mediterranean’ (1937) 31 AJIL 659; R Genet, ‘La qualification de ‘‘pirates’’ et le dilemme de la guerre civile’ (1937) 3 Revue internationale du droit des gens 13; AD McNair, ‘The Law Relating to the Civil War in Spain’

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Despite his ideological biases and questionable historical analyses, Schmitt brought forward the most relevant critique of the extension of the notion of piracy, recognizing its vast implications for the structure of world public order and international humanitarian law. In terms of the Schmittian philosophical history of the nomos,12 the criminalization of submarine warfare as piracy by the Nyon Agreement represented the peak of post-Versailles universalist moralism and the fulfilment of the epochal ‘turn to the discriminating concept of war’ and ‘enemy’.13 In the opposite corner from Schmitt stood Lauterpacht, who pleaded for a wide application of universal jurisdiction against ‘enemies of mankind’. To this end, he defined piracy broadly as ‘any act of violence committed on the high seas’, stressing that even political acts might be qualified as piratical and rightfully repressed by any civil authority able and willing to do so. Lauterpacht ultimately aimed to extend the concept of piracy to public enemies in order to submit them to universal jurisdiction. He believed it useful that, at this early stage of international criminal law, international criminals be labelled as pirates and ‘enemies of mankind’ in order to legitimate their prosecution and punishment before the international community. At present, those who assimilate terrorism with piracy follow in his steps. Given the historical approach of the article, the positions of Schmitt and Lauterpacht will not be analysed in themselves, but interpreted as contributions, albeit outstanding ones, to the larger debate on piracy and submarine warfare in the interwar period. Accordingly, Section 2 will launch the historical inquiry by calling attention to the outlawing of submarine warfare at the time of the First World War and the Washington Treaty of 1922, when many demanded that submarine crews be treated as pirates and deprived of belligerent rights. Section 3 will explain that the ramifications of those claims actually remained limited as the notion of piracy as a private endeavour was soon re-established, in particular by the London Treaty of 1930. And yet, as illustrated in Section 4, the idea that piracy may include political acts was recovered in the Nyon Agreement of 1937 in response to submarine attacks in the context of the Spanish Civil War. After Section 4 has dealt with the

(1937) 53 LQR 471; NJ Padelford, ‘International Law and the Spanish Civil War’ (1937) 31 AJIL 226; R Sandiford, ‘Les Guerres civiles et le Droit maritime international’ (1937) 4 Revue internationale franc¸aise du droit des gens 113; HA Smith, ‘Some Problems of the Spanish Civil War’ (1937) 18 British Ybk Intl Law 17; Anon, ‘The Nyon Arrangements. Piracy by Treaty?’ (1938) 19 British Ybk Intl Law 198; CG Fenwick, ‘Can Civil Wars be Brought under the Control of International Law?’ (1938) 32 AJIL 538; J Mirwart, ‘Piraterie et reconnaissance internationale’ (1938) 19 Revue de droit international et de le´gislation compare´e 341; P Cortina Mauri, ‘La guerra civil sin reconocimiento de beligerancia’ (1940) 1 Cuadernos de Derecho Internacional 5. 12 C Schmitt, ‘Die Einheit der Welt’ (January 1952) 6 Merkur, reprinted in Maschke (n 2). 13 ‘The Concept of Piracy’ thus sharpened Schmitt’s 1920s–30s anti-universalist polemic, anticipating several themes on hostility and spatial order that were to arise later in the Nomos of the Earth and the Theory of the Partisan. See C Schmitt, The Nomos of the Earth (1st German edn, Der Nomos der Erde 1950, Telos 2003); C Schmitt, Theory of the Partisan (1st German edn, Theorie des Partisanen 1963, Telos 2007).

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historical context and the political concerns at Nyon, Section 5 will spell out the doctrinal stakes. Section 6 will deal with Schmitt’s attack on the Nyon Agreement, emphasizing his insights as well as contradictions. The same treatment will be reserved to Lauterpacht’s defence of Nyon in Section 7. The conclusion will account for the enduring relevance of Schmitt’s and Lauterpacht’s positions today.

2. Does Political Piracy Exist?14 The Debate over the Legality of Submarine Warfare in the First World War and the Washington Treaty of 1922 Underwater warfare first appeared during the American War of Independence, with the use of semi-submersibles able to sink an armoured warship.15 As the technological development of these weapons gradually manifested their revolutionary character, the question arose as to whether their deployment inherently contravened the laws of war. Indeed, as the strategic relevance of submarines lay in their capacity to destroy enemy trade by attacking civilian shipping by surprise, they could hardly observe the traditional prize rules requiring warships to issue warnings prior to targeting civilians and to place them in safety once their vessels had been torpedoed.16 Already debated at the First Hague Peace Conference of 1899, the legality of underwater warfare became a particularly thorny issue when submarines were widely deployed during the First World War. Opinions were then divided on both fronts. The Germans had massive recourse to U-boats, but political reasons urged them to shrink from exploiting all potentialities of these weapons and from using them to annihilate the enemy. On the British side, the military elite traditionally insisted on the moral values embodied by their navy and were averse to resorting to submarine warfare, which they regarded as a last resort for defensive purposes only. This attitude changed by September 1918 as the Head of the British Naval Staff, Admiral Sheer, concluded that ‘[i]n the light of the present military situation the U-boat arm is the only offensive weapon open to us’, and it must therefore be used to achieve ‘a worthwhile peace settlement’.17 Britain’s submarines, unlike Germany’s, had thus far only targeted warships and had thereby managed to conform to the law of war. Yet the strategy experts of all powers by then recognized that for underwater warfare to be relevant it must be oriented to the systematic destruction of the enemy’s maritime trade with no regard for civilians. In 20th century total 14 The shorthand expression ‘political piracy’ was not used by historical sources. In this article, ‘political piracy’ means piracy that is politically motivated and authorized either by sovereigns or by political and military authorities claiming sovereignty and belligerent rights in the context of armed conflict. 15 R Compton-Hall, Submarines and the War at Sea 1914-1918 (Macmillan 1991) 90. 16 K Lautenschlager, ‘The Submarine in Naval Warfare, 1901–2001’ (1986–87) 11 Intl Security 94, 101. 17 Compton-Hall (n 15) 301.

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conflicts, in which all nations’ entire populations and economies were mobilized at the service of military goals, submarine warfare had to become total and unrestricted warfare. Facing the absence of any adequate existing legal category, those averse to this military revolution characterized submarines as piratical vessels. This began in March 1915 as British Prime Minister Herbert Henry Asquith, in a speech at the House of Commons, declared Germany’s indiscriminate maritime war to be an outright ‘campaign of piracy and pillage’.18 He thereby triggered a successful and enduring narrative that became legitimated both by the sinking of the British passenger ship Lusitania in May of the same year, and by Germany’s decision to resort to unrestricted submarine warfare once again in January 1917, after it had long been suspended due to American protests. However, such assimilation of submarine warfare with piracy was legally disputable, and it raised questions as to the status of U-boat crews in custody. Refusing to grant them full belligerent rights, the Admiralty provisionally decided that, pending trials for violations of the rules of war, they ‘were to be made the subject of special restriction, and neither to be accorded the distinctions of their rank, nor allowed to mingle with other prisoners of war’.19 A lively and enduring debate on this matter unfolded in the columns of The Times. British jurist Frederic Harrison, followed by a number of his colleagues, readily adopted the language popular with policymakers and the press, referring to German prisoners from U-boats as ‘submarine pirates’. In light of the gravity of their crimes, he claimed, they could not avail themselves of the superior orders defence and should be tried in British courts as pirates and murderers instead.20 Other lawyers, including Harry Poland and TE Holland, conceded that the German attacks violated the law of war, but insisted that as acts of war they must not be treated as ordinary crimes.21 Probably mindful of the early-modern history of privateering, both argued that submarine aggressions could not be qualified as piratical, at least jure gentium, insofar as they were politically motivated and authorized by public authorities. While domestic laws may define piracy in broader and different terms, international law conceived of it only as an act of violence committed on the high seas without sovereign commission and aimed at private gain. This was evidently not the case with U-boat attacks. TE Holland clearly denied the suggestion that the revolutionary phenomenon of submarine warfare be regulated through hasty conceptual

18 19 20 21

Anon, ‘Reply of the Allies’ The Times (London, 2 March 1915) 5. Anon, ‘A Campaign of Piracy and Pillage’ The Times (London, 16 March 1915) 5. F Harrison, Letter to The Times (London, 16 March 1915) 7. H Poland, Letter to The Times (London, 17 March 1915) 7.

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assimilations. In his eyes, the piratical analogy was not an appropriate instrument to outlaw the U-boat weapon: A ship is regarded by international law as ‘piratical’ only if, upon the high seas, she either attacks other vessels, without being commissioned by any State so to do (nullius Principis auctoritate, as Bynkershoek put it), or wrongfully displaces the authority of her own commander. The essence of the offence is absence of authority, although certain countries, for their own purposes, have, by treaty or legislation, given a wider meaning to the term, e.g., by applying it to the slave-trade. . . . In ordering the conduct of which we complain, Germany commits an atrocious crime against humanity and public law; but those who, duly commissioned, carry out her orders, are neither pirates nor murderers. The question of the treatment appropriate to such persons, when they fall into our hands, is a new one, needing careful consideration.22

TE Holland’s plea for conceptual innovation went unheard. In the aftermath of the First World War, the idea that submarine crews should be treated in the same manner as pirates was notoriously included in the Washington Treaty of 1922, the provisions of which nearly constituted a general banishment of submarine warfare. The treaty stated that U-boats should comply with established prize rules to the effect that ‘[a] merchant vessel must be ordered to submit to visit and search to determine its character before it can be seized’ and ‘must not be attacked unless it refuses to submit to visit and search after warning, or to proceed as directed after seizure’.23 It was also affirmed that ‘[a] merchant vessel must not be destroyed unless the crew and passengers have been first placed in safety’,24 which entailed an outright prohibition of the use of submarines as commerce destroyers pursuant to Article 4 of the treaty. As U-boats were essentially conceived by many as a means to target enemy trade, these dispositions if observed would have severely compromised the strategic significance of the new weapon. Finally, the drafters at Washington included the revolutionary provision that [a]ny person in the service of any Power who shall violate any of those rules, whether or not such person is under orders of a governmental superior, shall be deemed to have violated the laws of war and shall be liable to trial and punishment as if for an act of piracy and may be brought to trial before the civil or military authorities of any power within the jurisdiction of which he may be found.25

Submarine warfare was thus officially assimilated with piracy jure gentium; an act potentially harmful to mankind and which therefore elicited the common jurisdiction of all states.

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TE Holland, Letters to ‘The Times’ Upon War and Neutrality (1881-1920) (Echo Library 2006) 65. Treaty Relating to the Use of Submarines and Noxious Gases in Warfare (Washington, 6 February 1922) art 3, 2 Hudson 796. Signatories were the United States, the British Empire, France, Italy and Japan. 24 ibid. 25 ibid (emphasis added). 23

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In fact, submarine officers and crews were unlikely to perceive the charge of piracy formulated at Washington as an unfavourable development, as sea-robbers by the 1920s were no longer the rightless people they had once been. According to contemporary general opinion, pirates could only be captured by public authorities and should possibly be granted a fair trial. Hence, they were in a far better situation than their predecessors in earlier centuries who, as Vattel argued, could be rightfully killed on the spot by whoever caught them.26 Humanitarian considerations had come to the fore since the early 19th century, as sea-robbery gradually ceased to constitute a serious threat to global trade and safety (while the argument of the suppression of piracy continued to be alleged in the West’s colonial rhetoric). Henceforth states tended to abandon the practice of summary judgments, though it was and remained permitted under international law, and to treat pirates jure gentium more humanely by equating them with domestic criminals. Although still labelled as ‘enemies of mankind’, pirates were no longer penalized as such. In the second half of the century, the humanitarian attitude popular among lawyers led them to look at piracy with even more indulgence. This is well illustrated by the stance taken by Her Majesty’s Attorney-General in reference to the Hua´scar case during the Peruvian Civil War of 1877. In a speech delivered at the House of Commons, he argued that [i]n strictness [the Peruvian rebels] were pirates, and might have been treated as such; but it was one thing to say that, according to the strict letter of the law, people had been guilty of acts of piracy, and another to advise that they should be tried for their lives and hanged at Newgate.27

In respect to this humanitarian tradition, the Washington Treaty’s new stance was radical. First, it was intended to reassert the states’ anti-piracy universal jurisdiction on the stronger basis of contractual obligation, by requesting international co-operation in order effectively to banish submarine warfare. Secondly, and more importantly, the treaty, a response to the events of the First World War, clearly targeted the public enemy. Following in the steps of Frederic Harrison, and dismissing the opinion of Harry Poland and TE Holland, the drafters at Washington stated that submarine attacks were to be considered as acts of piracy; this applied regardless of whether they were committed under public authority, in peacetime or wartime, and irrespective of the perpetrator’s rank. Any public enemy guilty of resorting to submarine warfare would be deprived of the status of lawful combatant and of international legal personality, as implied by the charge of piracy. The view of universal jurisdiction at Washington thus reflected the move towards criminalizing aggression that had been inaugurated at Versailles through the 26 27

E de Vattel, Droit des gens (first published 1758, Carnegie 1916) pt I, ch 19, para 233. HC Deb 11 August 1877, vol 236, col 796.

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declaration of William II as an offender against international morality.28 Nevertheless, the international community was not yet ready to draw the consequences of this process to a bitter end.

3. The London Treaty of 1930 and the Restoration of the Account of Piracy as a Private Endeavour Despite the trend displayed at Versailles and Washington towards establishing an international criminal law, little changed in practice. The trial of the former German emperor never took place, hence the 19th century principle was maintained that heads of state had no legal responsibility and could not be punished either by their own subjects or by foreigners. Neither was the later outlawing of war through the Kellogg–Briand Pact more successful, lacking as it did any enforcement provision.29 As to the attempted criminalization of submarine warfare at Washington, it resulted in a complete failure: the treaty was never ratified, given states’ fear of its consequences for sovereignty and belligerency. Underwater war was discussed again in 1930 on the occasion of the London Treaty for the Limitation and Reduction of Naval Armaments, which reaffirmed once more that ‘submarines must conform to the rules of international ‘law to which surface vessels are subject’. More particularly, it provided ‘that a warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew and ship’s papers in a place of safety’.30 However, distanced as they were from the Great War, the drafters of the London Treaty significantly dropped the piratical analogy, thereby adopting a more moderate tone compared to the Washington Treaty. The general view was reasserted at London that piracy jure gentium constituted an act of violence committed without sovereign commission and for private ends; hence submarine crews acting for political motives were not pirates. This was upheld some years later in the codification project of the Harvard Research on International Law and was maintained by most legal scholarship in the interwar period.31 In 1935, with the echo of the Underwater World War long past, Italian jurist Roberto Sandiford recalled that the moves towards widening the notion of piracy through the preceding century had been legally groundless and ultimately unable to establish a precedent. Sandiford, like Holland, did not 28

Treaty of Versailles (28 June 1919) ch VII, para 227, 225 CTS 285. General Treaty for Renunciation of War as an Instrument of National Policy (Paris, 27 August 1928) 94 LNTS 57. 30 Treaty for the Limitation and Reduction of Naval Armaments (London, 22 April 1930) pt IV, art 22(1–2), 112 LNTS 88. 31 Harvard Research on International Law, Draft Convention on Piracy, art 3(1), (1932) AJIL 26, supp, 739. 29

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deny the criminal nature of submarine warfare, but did reject the validity and improper extension of the piratical analogy: Attempts have sometimes been made to equate piracy with various other unlawful acts on the high seas imputable to private ships, such as: the slave-trade, weapons smuggling, the destruction or damaging of submarine cables; but they have a different legal basis. Similarly some States during the European war [the First World War] wanted to consider the action of German submarines as constituting piracy, but, because they operated under orders and responsibility of a sovereign state, this equation had no foundation whatever.32

This represented but a reaffirmation of the traditional categories. It served merely a conservative, not constructive function, and belonged to the grand narratives on the good old jus publicum Europaeum then popular with such purists. Twenty years after Holland had mentioned that submarine warfare should be treated as a unique phenomenon and that appropriate norms were needed to restrain it, this kind of rhetoric still dominated. Meanwhile, the task of conceptualizing and regulating political piracy remained untouched. Sandiford, along with other purists, correctly asserted that the central question was one of definition (and not of mere terminology, as some others claimed). But they were wrong to reiterate categories which had long become ineffective and to shrink from engaging with international law’s desperate need for conceptual reformulation.

4. The Reappearance of Submarine Warfare in the Context of the Spanish Civil War and the Nyon Agreement In the summer of 1937, the military confrontation in the Spanish Civil War had reached a relative stalemate, with the Republicans defending sovereignty over New Castile, Eastern Spain and the provinces along the Bay of Biscay, and the Nationalists controlling much of the western part of the country. Despite the Non-Intervention Agreement stipulated under the aegis of Britain and France in order to prevent the conflict from spilling over,33 foreign powers, notably Germany, Italy and Russia, unofficially yet patently continued to dispatch tanks, warships, aircraft and troops to Spain and lend expertise to the warring parties. Civilian volunteers also kept on pouring into the country from abroad to assist and engage in hostilities.34 Early in August, the equilibrium seemed on the verge of change. The Burgos nationalist government sent a telegram to Rome reporting intelligence that Russian ships were headed to Spain loaded with 600 tanks and weapons for the 32 33 34

R Sandiford, Diritto marittimo di Guerra (4th edn, Rome 1935) 30. Fenwick (n 11) 540. H Thomas, The Spanish Civil War (4th edn, Penguin 2003) 937–44.

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Republicans.35 Ciano and Mussolini responded by ordering four Italian submarines with Spanish liaison officers on board to operate in the Western Mediterranean with the support of Italian destroyers and aircraft so as to prevent the alleged shipment from arriving at its destination. On 12 August, Mussolini authorized unrestricted submarine warfare against all those who co-operated with the Republicans, after which not only Russian but also French and British flags became targeted, although Italy officially remained at peace.36 The situation shifted as soon as foreign secretary Eden of Britain and foreign minister Delbos of France summoned an international conference to be held at Nyon from 10 September with a view to tackling submarine warfare. The participants agreed that all shipping in the Western Mediterranean must pass along specific courses under the protection of French and British fleets mandated to suppress illegal submarine assaults in territorial waters of the signatories as well as on the high seas.37 Illegal submarine assaults were defined as ‘piratical acts’ giving rise to universal jurisdiction, though this was first to be exercised by France and Britain only. Fearing an escalation of the conflict, the Italians chose to enter the Nyon agreement on 21 September. This decision followed negotiations aimed at appeasing Mussolini, which resulted in Italy obtaining a right to patrol the Adriatic and Tyrrhenian Seas as well as the waters along the coasts of Libya.38 In the aftermath of the conference, submarine warfare was gradually restrained by means of international policing and became strategically irrelevant in the continuation of the Spanish Civil War. Unlike the Washington Treaty, the Nyon Agreement thus proved successful in addressing the issue at stake through effective international co-operation.

5. Piracy and Civil War The key doctrinal question at Nyon was a broader (re)definition of piracy jure gentium that could encompass political piracy, that is, politically motivated piracy committed by parties to an armed conflict.39 The way had already been opened to some extent, as the strict view of sea-robbery (as a violent act committed on the high seas without sovereign authorization) had been repeatedly challenged since the beginning of the 19th century. This had especially occurred with charges of piracy against slave-traders and rebels, whereby individual powers attempted to enforce their domestic laws internationally. Unilateral attempts to criminalize insurgency, however, had been 35

P Gretton, ‘The Nyon Conference – The Naval Aspect’ (January 1975) 90 English Historical Rev 103. ibid 105. The Nyon Arrangement (n 1) arts 4 and 6, 181 LNTS 139. 38 Gretton (n 34) 110. On the late 1930s Italian foreign policy and Mussolini’s quests for political prestige, see R De Felice, Mussolini il duce, pt II, Lo stato totalitario. 1936–1940 (Einaudi 1981). 39 See n 14. 36 37

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largely unsuccessful internationally and had been rejected by most state practice. This was paradigmatically exemplified, many argued, by the international legal acknowledgement during the American Civil War of the Confederate States by Britain and others despite President Lincoln designating them as pirates.40 The US government may have viewed this acknowledgement of the Southern states’ sovereignty as a diplomatic affront and an intrusion in American affairs. But the European attitude merely confirmed the view, dating back to Vattel, that civil strife was a matter of effectiveness alone (an opinion that the US themselves appealed to on other occasions, by assimilating their struggle against the South with a war between sovereign entities).41 According to this view, once the insurgents had gained permanent control over a large part of the country they had to be considered lawful belligerents, and therefore foreign powers could not treat them as criminals or pirates unless directly offended by them. By the time of the Nyon Agreement, Vattel’s stance was widely recognized as the general opinion.42 Nonetheless, the characterization of insurgents as pirates had been intensively debated in relation to the Spanish Civil War since its inception in July 1936, as the Republican government began denouncing Nationalist warships as piratical vessels. It was still with respect to this problem that French jurist Raoul Genet raised the question of piracy in his early 1937 article La qualification de ‘Pirates’ et le dilemme de la guerre civile.43 After pleading for the Vattelian view of civil war as a matter of mere effectiveness, Genet argued that characterizing insurgents as pirates jure gentium was formally erroneous. By no means could insurgency and piracy be equated. At most they might be conceptually ‘assimilated’, as Carlos Testa had argued in the light of some domestic legislation.44 Genet claimed that the law on piracy did not require amendment and that the trend towards criminalizing rebels and submarines threatened the stability of the old international legal categories, whose validity ought to remain intact despite increasing worldwide ideological conflict and technological innovations in warfare.

6. The Divided Mankind and the Myth of the Public Enemy: Carl Schmitt’s Concept of Piracy The first to speak out against Nyon was Carl Schmitt. In his ‘Concept of Piracy’, he reasserted that sea-robbery historically constituted an offence committed for profit on the high seas by ‘stateless’ or ‘denationalized’ 40

Genet (n 11) 19. Vattel, Droit des gens (n 25) pt III, ch 18, para 292–96; E Jouannet, Emer de Vattel et l’e´mergence doctrinale du droit international classique (Paris 1998) 158 (G Bellande, R Howse trans, Vattel and the Emergence of Classic International Law (Hart Publishing 2012) forthcoming). 42 Smith (n 11) 17; Cortina Mauri (n 11) 10–11. 43 Genet (n 11) 12–25. 44 ibid 21. 41

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individuals, and not a political action carried out by public enemies. As the piratical action was apolitical, so too was the repression of pirates: ‘[i]t is no war, but either criminal justice, according to the English understanding, or a measure of international sea police, according to the continental construction’.45 Both accounts were tenable in principle. However, while the ‘Anglo-Saxon’ attitude, oriented to municipal law, was justifiable if applied to sea-robbers acting privately, it had no legal basis when directed against public enemies. To Schmitt, Britain’s and the United States’ attempts internationally to impose their domestic concepts of piracy attested to their project to moralize the world order according to the ideological tenets of liberal universalism. In response, he argued that the private motive must be retained as essential to distinguishing the sea-robber from the revolutionary fighting for a political cause; notably General Franco and others like the Germans and the Italians supporting him. Schmitt claimed that no action by revolutionary parties figured as piracy, not even if directed against powers refusing to acknowledge them formally as belligerent parties. Thus far, such theses were no novelty, as they had already been advanced by Genet and Sandiford. However, unlike them, Schmitt did not attempt to demonstrate that the principles of the ‘traditional doctrine on piracy’ were unshakable. Notwithstanding his questionable idealization of the jus publicum Europaeum (which later led him to make untenable claims in his Nomos der Erde46), Schmitt recognized that the golden age of the European law of nations had passed, and that new legal and political categories were needed to face the challenges posed by contemporary events. The Kierkegaardian existentialist approach to history once underlying political decisionism was now employed to understand the crisis of international relations and speculate about a new nomos based on the notion of Großraum. Unlike other conservative lawyers, Schmitt did not attempt to save traditional international legal concepts by understating their manifest shortcomings. He admitted that the law on piracy was highly controversial and that its characteristic mixture of ancient, medieval and modern components was obscuring the reality of the contemporary situation. (Perhaps that ambiguous blend of doctrines blinded the very eyes of conservatives like Genet with whom Schmitt sympathized.) Thus the new omnipotence of the ‘total’ state merely magnified the contradictions which had historically characterized the doctrine on piracy. Since the First World War, technology and ideology had irretrievably changed the old paradigm of law and politics, with particular repercussions for the perception of traditional border figures such as pirates. Adopting a Ju¨ngerian perspective, Schmitt claimed that the ‘totality’ of the political and of war as its substantial expression was erasing the space of ‘non-statehood’ where 45

Schmitt, ‘Der Begriff der Piraterie’ (n 2) 508, trans mine (D Heller-Roazen trans (n 2) 27). See, for instance, Schmitt’s simplistic and instrumental interpretations of Vattel and Kant in the Nomos of the Earth (n 13) 164–71. 46

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sea-robbers formerly operated, and which had been fundamental for the definition of piracy hitherto.47 Radically deprived of citizenship and international legal status, pirates provided an easy target for those engaged in moralizing global politics. Paradoxically, the pirate was now central due to his marginal position. Indeed, pirates and other outsiders represented the proper antagonists for cosmopolitan moralizers interested in repressing international deviance, to confer legitimacy upon their ideal of world order grounded upon universal justice and collective security. Had they managed to identify humanity’s foes, punish them, and thereby secure peace, the cosmopolitans would have justified their project for integrating and institutionalizing the international community: Protego ergo obligo.48 Following a Durkheimian functionalist suggestion, it may be claimed that anomie is necessary for order to exist and that, at the international level, the presence of ‘common enemies of all’ performs a constitutive function in respect to the formation of the world public order. So, where there are ‘enemies of mankind’, there is ‘humanity’ to be defended and hence wars in its name. Schmitt was among the first writers to pursue this argument and spell out the function of universal enmity in the international society. In his ‘Concept of Piracy’, he remarked that an otherwise shattered mankind might claim to be a unified front only when faced with an ‘enemy of mankind’.49 If applied internationally to justify anti-piracy measures, the idea of universal enmity would become the globalized version of the friend/enemy logic governing internal affairs. Nevertheless, Schmitt claimed that this principle could not apply with regard to humanity and its alleged enemies. For a mankind which can only be defined by the external presence of an apolitical figure such as the pirate was itself inevitably apolitical.50 Moreover, as Schmitt argued in the posthumously published The International Crime of the War of Aggression, no world institution may require obedience by any citizen if it cannot provide protection.51 As long as the essential relationship between protection and obedience remains ineffective on a global level, universal powers will therefore always be illegitimate. 47

Schmitt, ‘The Concept of Piracy’ (n 2) 28. On the Hobbesian relationship between protection and obedience, see A Orford, International Authority and the Responsibility to Protect (CUP 2011). 49 In the same vein, Gerry Simpson has recently argued that ‘pirates as enemies of mankind are vital in the mobilization of political and legal resources around the idea of ‘‘mankind’’ itself’, such that ‘mankind punishes war crimes and piracy but, at the same time, relies on these outsiders for its existence as a ‘‘community’’ ’: G Simpson, Law, War and Crime. War Crime Trials and the Reinvention of International Law (Polity 2007) 174–75. 50 Schmitt, ‘The Concept of Piracy’ (n 2) 28. In this perspective, it seems that humanity could become a political entity uniquely if threatened by hypothetical alien invaders likewise politically organized. If a struggle for super-planetary spaces was fought by earthly superpowers, it would be a traditional war to secure political power and the chain appropriation–distribution–production: Schmitt, Theory of the Partisan (n 13) 80. 51 C Schmitt, Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz ‘‘Nullum crimen, nulla poena sine lege’’ (Dunker & Humblot 1994) 78 (T Nunan trans, The International Crime of the War of Aggression and the Principle ‘‘Nullum crimen, nulla poena sine lege’’ in C Schmitt, Writings on War (Polity Press 2011) 125–197). 48

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Although the idea of humanity as a political subject is questionable in many respects, Schmitt’s counterargument was weak. It assumed that politics involves hostility, if potential, and that the enemy in the international sphere must be a public enemy and ultimately a state-like subject.52 The former principle is a matter of definition and may be justified from a descriptive point of view if combined with alternative or broader accounts of the ‘political’. Yet the reduction of the political enemy to the public enemy was a Schmittian construction, which did not hold either historically or theoretically. It was based upon the untenable idealization of the 18th century ‘war in due form’;53 upon the fallacious assumption that modern war proper is inter-state war only; and finally upon the ideological statement that the ‘irregulars’ (or, in today’s debate, the ‘illegal enemy combatants’) are always outsiders, whereas the state either never resorts to unconventional/terrorist warfare at all or, if it does, it does so lawfully. These claims—snapshots of the jus publicum Europaeum—attested to Schmitt’s move towards ontologizing the difference between ‘external enemy’ and ‘internal enemy’. He thereby distanced himself from the nominalism of Hobbes, for whom the enemy is simply the one who jeopardizes the political unity of the state, whether from within or without.54 For Schmitt needed to ontologize the historical categories of the classical ius in bello to claim its civilizatory function and warrant its survival, threatened as it was by the revival both of international moralism and of the ‘discriminatory’ notion of the enemy. As a result, the closest Schmitt ever came to considering state terrorism was when speaking of General Raoul Salan, founder of the Organisation de l’arme´e secre`te in the early 1960s, who himself became a rebel to the French Republic as he had recourse to terrorist warfare in Algeria.55 To Schmitt, following in Balthazar Ayala’s steps, state officials could not be terrorists. This reduction of the political enemy to the public enemy was instrumental. After all, although Schmitt maintained that modern inter-state war normatively represents the pattern for a ‘humane’ and ‘non-discriminating’ international law, he allowed that rebels and irregular combatants might also become politically relevant hostiles, depending on the intensity of the conflict. Examining religious wars and class struggles, he clearly stated that political authority legitimates itself through the definition of the internal, not just external, enemy.56 Further, in the sphere of international relations partisans and other irregular and paramilitary groups operated who were not ‘public’ but

52 An account of the notion of public enemy in Schmitt has been given by E Kennedy, ‘Hostis non Inimicus’ in D Dyzenhaus (ed), Carl Schmitt’s Critique of Liberalism (Duke University Press 1998) 100–101. 53 The paradigm of the guerre en forme was provided by Vattel at Droit des gens (n 26) pt III, ch 4. 54 See, for instance, De cive (first published 1642, Clarendon Press 1983) ch XIII, para 13. 55 Schmitt, Theory of the Partisan (n 13) 61–67. 56 Schmitt, The Concept of the Political (1st German edn 1927, University of Chicago Press 2007) 32 ff.

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were indeed political and ‘real’ enemies.57 Both in civil wars and wars of independence, the modern nation state fought non-state organs and gained legitimacy precisely through this confrontation. Moreover, why would it suffice for most domestic communities to confront any enemy, internal or external, in order to gain acknowledgement and become political entities, while mankind to the same end must oppose a public enemy? Why would not a universal struggle against pirates, terrorists and war criminals suffice to constitute mankind as a political subject? Schmitt was correct in recognizing that these villains are traditionally countered by international police action, rather than public war. However, as far as the mere definition is concerned, war is primarily a clash of military forces, and not a clash of ‘public authorities’ as our modern understanding suggests. The essential difference between war and policing lies not in the actors involved, whether labelled as lawful or unlawful belligerents depending on the political viewpoint, but in the intensity of the contraposition, as Schmitt himself asserted in his Concept of the Political.58 As much as this appears speculative, it cannot be ruled out in principle that some ‘enemy of mankind’ in the future could provide the necessary degree of hostility to gather all nations around common values, fight wars for humanity’s sake, and institute a world state or federation to further their common objectives. From this perspective, Schmitt’s critique of a global political subject waging war in humanity’s name was purely normative. Not unlike Kant, he feared that the centralization of power on a world scale might lead to an eternal swing between universal despotism and world civil war.59 Schmitt’s arguments against a universal polity were therefore fully understandable, but not persuasive. Schmitt was no more credible when he purported to be upholding the distinction between war and policing for humanitarian purposes. His claim, that this differentiation is necessary to maintain a non-discriminating notion of war and to restrain military violence by means of humanitarian international law, inevitably fell short in the light of the atrocities characterizing contemporary warfare. In contrast, humanitarianism is probably best served if the classical notion of public war is widened to encompass non inter-state conflict too and thereby also protect those combatants who enjoy popular support but 57 Schmitt, Theory of the Partisan (n 13) 85–89. This work of Schmitt’s has been commented on in relation to contemporary issues by A de Benoist, ‘Global Terrorism and the State of Permanent Exception’ in L Odysseos, F Petito, The International Political Thought of Carl Schmitt (Routledge 2007) 73–96; GL Ulmen, ‘Partisan Warfare, Terrorism and the Problem of a New Nomos of the Earth’ in L Odysseos, F Petito, The International Political Thought of Carl Schmitt, 97–106; G Slomp, Carl Schmitt and the Politics of Hostility, Violence and Terror (Palgrave Macmillan 2009). 58 Schmitt, The Concept of the Political (n 56) 37 ff. The classical international legal account espoused by him of civil war as a matter of effectiveness was grounded on this very idea. 59 I Kant, On the Old Saw (first published 1793, University of Pennsylvania Press 1974), para III. On Schmitt’s dissociation from contemporary theorists like Koje`ve and Aron on the question of universal liberalism see JW Mu¨ller, A Dangerous Mind. Carl Schmitt in post-War European Thought (Yale University Press 2003) 102–103. See also JF Kerve´gan, ‘Carl Schmitt and ‘‘World Unity’’ ’ in C Mouffe (ed), The Challenge of Carl Schmitt (Verso 1999) 54–73.

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are deprived of state legitimacy. This idea, implemented since the Second World War, was heavily criticized by Schmitt.60 As to the ‘empty space of non-statehood’ where pirates once operated, Schmitt himself conceded that it no longer existed. Modern technology had enormously increased the states’ capability to police the seas to the extent that old-style sea-robbery had practically disappeared. As a result, charges of piracy were now brought against submarine crews and irregular combatants who acted for political motives and were therefore not pirates in the strict sense. Schmitt argued that in the era of ‘total politics’ furthered by technology and ideology, there was no longer any room for the private or the apolitical. Without the aid or tacit consent of some states, no band of maritime bandits could now afford the modern warships and weapons necessary to operate on the high seas. That is, outsiders had no chance to escape repressive actions unless supported and harboured by interested third parties. This was a powerful and somewhat prophetic argument that Schmitt later pursued in his Theory of the Partisan in relation to the Cold War.61 Returning to the Nyon Agreement, although the powers involved did attempt to respond to the challenges posed by the technological evolution of modern maritime warfare, Schmitt claimed their response to be invalidated by the epochal impact of ‘total politics’ on the legal restriction of warfare. Failing to recognize this radical change, the Agreement represented a further illegitimate attempt to replace war with collective measures based on the criminalization of the enemy and performed by entities purportedly acting in the name of mankind. This kind of response was not furthering the law of nations, Schmitt argued. International police operations, moral disqualifications, and economic sanctions were signalling the erosion of the traditional dichotomy of war and peace in favour of undetermined and manipulable ‘in between concepts’ imported from penal law. Whereas the ‘totality’ of the political and the imminent possibility of a ‘total war’ called on international law to provide clear categories to regiment war, the signatories to Nyon provided for speculations and ambiguities only. Schmitt’s ‘Concept of Piracy’ was largely rhetorical and incoherent. It started exposing the ‘essential’ features of sea-robbery according to the tradition (normative moment), proceeded to question it on the ground of its original incongruities (historical critique) and then demolished it by reason of its obsoleteness following the advent of ‘total politics’ (contemporary critique). Finally, the traditional, ambiguous view on piracy crept in and was reasserted in opposition to the likewise ambiguous ‘English understanding’ at Nyon (recovery of the flawed normativity). The English were said to be dangerously removing piracy from its usual ‘empty space of non-statehood’ and placing it 60 61

Schmitt, Theory of the Partisan (n 13) 23–32. ibid 79.

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among the dubious concepts in between war and peace so much in vogue. But had not this space already been swept away by the ‘totality’ of the political? And had not ‘state piracy’ in peacetime already placed itself beyond the categories of war and peace to approach traditional, debatable in between notions such as reprisal? In addition, it may be noted that Carl Schmitt in Land and Sea and the Nomos of the Earth defined filibusters and buccaneers in the 16th and 17th centuries as outright ‘partisans of the sea’ in the globalized Protestant struggle against imperial Catholicism.62 In that case, as in many others throughout the history of maritime warfare, ideological factors blurred the apparently clear distinction between piracy as robbery on the high seas, and privateering as robbery under sovereign commission. The question whether filibusters and buccaneers were privateers or pirates was purely political and was answered according to the interests at stake. Schmitt briefly reverted to the traditional definition of piracy as a solely private enterprise in the Theory of the Partisan for the sake of coherence in his (dubious) picture of the history of international law, where he now needed to accommodate proper partisans and revolutionaries.63 Yet he remained convinced that the pirates at the centre of the international legal debate were not the romantic adventurers acting alone, but the fighters involved in the inter-European struggle for empire or, more recently, in the Spanish Civil War. While this might appear a doctrinal heresy, piracy that mattered was always political. Interestingly for today’s reader, Schmitt argued that labelling political enemies as pirates entailed creating a new, rightless enemy and placing him in a zone of indeterminacy between wartime and peacetime, war and policing, political and apolitical.64 Accordingly, present terrorists can be said to occupy the same ‘legal limbo’ that was created at Nyon for submarine crews.65 Whether justifiable or not, this limbo strategy represents the response of major powers vis-a`-vis ‘irregular’ hostiles claiming political legitimacy and rejecting the criminal label. Due to their military inferiority, these enemies need to operate on a different ground, be it the high seas, the skies, or the mountains of Afghanistan, resorting to unconventional warfare and destabilizing the existing order through ‘spatial mutations’. Unable to respond effectively to these new threats by traditional warfare, the powerful also ‘play dirty’ by treating irregulars and terrorists as absolute enemies. Incidentally, this limbo strategy does not equal a bare exclusion strategy: exclusion from a group and a normative system still allows for those excluded to refer to alternative groups or sets of rules, through which they may obtain social recognition, form an 62 C Schmitt, Land und Meer (Reclam 1942) 39 ff (S Draghici trans, Land and Sea (Plutarch Press 1997)); Schmitt, The Nomos of the Earth (n 13) 174. 63 Schmitt, Theorie of the Partisan (n 13) 14–15. 64 Schmitt, ‘The Concept of Piracy’ (n 2) 29. 65 The expression ‘legal limbo’ is borrowed from AM Danner, ‘Defining Unlawful Enemy Combatants: A Centripetal Story’ (2008) 43 Texas Intl L J 1, 1.

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identity, and fight back. Conversely the limbo strategy, applied in remote places beyond the public eye, is one of absolute isolation, denial of human dignity, and outright banishment from mankind (of which the convict has been declared the enemy). Reflecting the numerous inconsistencies undermining Schmitt’s argumentation, his critique of the Nyon Agreement resulted in a nostalgic and resentful protest against the dismanting of the jus publicum Europaeum. His awareness of the epochal change occurring in the world public order, however, distinguished his position from Genet’s and Sandiford’s. As a novel philosopher of history, and having been a constitutional lawyer and political theorist, Schmitt had greater insight into the implications of international law’s current transformation. Nevertheless, he was neither convincing in his attack on those who had perverted the law on piracy, nor did he suggest any alternative proposals to reform it. In this regard, he failed to exceed the conservative mainstream.

7. Preventive Self-Defence and Collective Security: Lauterpacht’s Account of Piracy as the Pattern of International Crimes At the end of March 1939, the Nationalist forces occupied Madrid and the last Republican strongholds in the south-east of Spain.66 The civil war was officially over. Later that year, a last authoritative voice reviewed those events to investigate the question of piracy. This voice was Hersch Lauterpacht’s, in his provocative piece on Insurrection et piraterie.67 In opposition to Genet, Lauterpacht claimed that the controversy over the Nyon Agreement had been merely terminological, and that the severe provisions of the Nyon Agreement had not resulted from the signatories resorting to the charge of piracy jure gentium. This claim was questionable, as the characterization of submarine attacks as piratical did provide the most convenient justification for exercising universal jurisdiction and collective use of force against allegedly unidentified aggressors on the high seas. Had these submarine aggressions been defined as war operations, action taken by the signatories could have been characterized as a collective reprisal, notably against Italy and the Spanish insurgents. However, Italy’s involvement in the attacks could not be disclosed, as negotiations were under way to obtain this country’s accession to the treaty, and because of the repercussions for international peace of retaliatory acts explicitly directed against Rome. Neither could the notion of reprisal be employed in reference to the use of force against Spanish insurgents, as reprisal proper was either an act by one state against another state, or against the latter’s civilian population during 66 67

Thomas (n 34) 888–90. Lauterpacht, ‘Insurrection et piraterie’ (n 11) 513–49.

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occupation.68 None of these categories applied to rebels who operated on the high seas and were not recognized as subjects of international law by the parties to the Nyon Agreement. Moreover, it was doubtful whether the notion of reprisal could legitimate massive international policing of the kind envisaged at Nyon. Alternatively, the Spanish insurgents could have been repressed and put to death as war criminals, ie as belligerents violating the customs of war in the sense of the Hague Regulations.69 Once it was assumed, as Lauterpacht did, that these rules potentially applied to naval warfare, submarine crews could be denied the status of lawful combatants and treated in the same manner as private individuals unlawfully participating in land warfare.70 However, this analogy was disputable. In the absence of further codification, the law of naval warfare did not provide a clear distinction between military and civilians, or lawful and unlawful belligerents; this made the status of and jurisdiction over the war criminal at sea highly problematic. At that stage, war crimes could not provide the best argument upon which to base international policing. Political reasons were equally as important as the juridical reasons for using the charge of piracy at Nyon. States were arguably less inclined to justify international police measures through the vocabulary of reprisal and war crimes, to which they might also fall victim at some point, than of piracy. The old charge of piracy thus presented the most suitable and reliable argument against submarine warfare, and Lauterpacht himself ultimately agreed on this approach.71 The key obstacle in this approach was that submarine aggressions were politically motivated and hence incompatible with the classical definition of piracy jure gentium. Yet this could be overcome: the Nyon Agreement demanded that submarines in violation of the laws of war be destroyed on the spot, thus precluding the crew from making any claims to political legitimacy, especially since no government was willing to take responsibility for the attacks or publicly justify them. In addition, the political motive was a less thorny issue as the signatory powers declaring politically motivated submarine aggressions as piratical were simply binding themselves, rather than creating a new norm of general international law. Finally, and fundamentally, the charge of piracy, along with the rhetoric on universal enmity, granted the parties to the Nyon Agreement the highest legitimacy in the eyes of the international public opinion, the right to exercise universal jurisdiction, and a broad discretion on the modes and extent of the use of force. The signatories could hardly ask for more. 68 L Oppenheim, International Law: A Treatise, vol II (6th edn by Hersch Lauterpacht, Longmans, Green & Co 1940) 110, 346. 69 International Convention with respect to the Laws and Customs of War by Land (The Hague, 29 July 1899) Annex, s 1, art 1. 70 Oppenheim, International Law, vol II (n 68) 204, 456. 71 Lauterpacht, ‘Insurrection et piraterie’ (n 11) 529.

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Lauterpacht specified that ‘[t]he treatment reserved to the aggressors by the accord was harsher than the one which is applied to pirates; for the rigorous punishment which was inflicted on [the aggressors] had to be immediate, and its execution was not subject to judicial guarantees’.72 This statement was no less problematic than Lauterpacht’s above point on terminology, for pirates had no judicial guarantees whatsoever under customary international law. The provision contained in the Washington Treaty of 1922 to the effect that submarine crews in violation of the established prize rules ‘may’ be brought to trial did not imply that they ‘should’ be tried instead of being executed prior to or after summary judgment.73 Moreover, the Washington Treaty remained unratified and had left unaltered the traditional doctrine according to which pirates were non-citizens at the disposal of anyone who caught them. Pirates might well be entitled to a fair process under domestic law, even if they were apprehended on the high seas, but this did not modify the status of pirates jure gentium. In arguing otherwise, Lauterpacht was setting the bar too high by pretending that international law needed to treat sea-robbers with the same humanity as some municipal laws would. Most fundamentally, Lauterpacht contested the traditional view endorsed by purists that only private and not political enterprises could be defined as acts of piracy. Here, his declared aim was to overcome the doctrinal stalemate on the matter by abandoning the requirement of animus furandi altogether.74 In support, he claimed that a number of countries’ domestic law had classified as piratical certain acts that had little to do with sea-robbery.75 Lauterpacht did not bother to deal with the many criticisms against extending the notion of piracy by assimilation or analogy. To him, piracy was simply an act of violence committed on the high seas, and its unique effect in terms of international law was universal jurisdiction. Aside from the latter, all elements commonly characterizing piracy were ‘more or less subject to controversy’76 and must not concern the international lawyer. The radical outcome of this reasoning was that piracy jure gentium included any offence that states agreed to name so and to counter by means of universal jurisdiction (some nowadays repeat the same argument when assimilating terrorism with piracy). 72

ibid 514. Treaty Relating to the Use of Submarines and Noxious Gases in Warfare (n 24) art 3, 2 Hudson 796. This treaty stated that a member of a piratical submarine crew ‘may be brought to trial before the civil or military authority of any Power within the jurisdiction of which he may be found’. In this passage, the drafters may have wished simply to define the jurisdiction competent over the crime of piracy. But it is significant that they did not explicitly disavow the classical view that pirates jure gentium may be rightfully killed on the spot—which was indeed the most likely outcome if submarines were to be neutralized effectively by torpedoing. The Nyon Agreement dispelled any ambiguity by declaring that piratical submarines ‘shall be counter-attacked and, if possible, destroyed’. See The Nyon Arrangement (n 1) art 2. Indeed, Lauterpacht himself later affirmed that pirates and others in violation of the laws of war were ‘liable to be treated as war criminals and shot’: Oppenheim, International Law, vol II (n 68) 205. 74 Lauterpacht, ‘Insurrection et piraterie’ (n 11) 522; H Lauterpacht, Recognition in International Law (CUP 1947) 305–06. 75 Lauterpacht, ‘Insurrection et piraterie’ (n 11) 523–24. 76 ibid 525. 73

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As for piratical insurgents, Lauterpacht’s problem was that despite some declarations by governments and legal advice urging repressive policies, no tribunal had yet convicted any one of piracy jure gentium.77 He sought to account for this phenomenon by explaining that rebels rarely attacked foreign ships (his may sound a bizarre explanation considering he himself had drawn on such infrequent cases). In addition, and more importantly, he claimed that ‘[w]hen such an attack takes place, the adequate and necessary way [to respond] consists of confronting the molestations and depredations not through judicial proceedings, but through immediate and summary measures of resistance and destruction’.78 The manner of exercising universal jurisdiction over piracy depended entirely upon the circumstances and upon individual states’ discretion. Contradicting his initial statements, Lauterpacht admitted that although some lawyers ventured to state that pirates had a right to fair trial even under international law, custom and reason suggested otherwise. Rejecting both the Schmittian idea of ‘total politics’ and the related political characterization of sea-robbery as irrelevant to the effects of international law, Lauterpacht concluded that piratical vessels which were unrecognized by the major powers had no rights. They were denationalized, deprived of the guarantees normally conceded to criminals by municipal law, and denied the status of lawful belligerents. They comprised rightless ‘illegal enemy combatants’ subject to an exceptional ‘enemy criminal law’. Indeed, pursuant to the 1938 supplementary agreement to the Nyon Treaty, submarines could be attacked in ‘preventive or repressive self-defence’ if they merely entered zones where navigation was forbidden. As with today’s terrorist suspects, submarine crews could be annihilated, punished or their freedom restricted based on their supposed criminal intent only, rather than their actual commission of a crime. The analogy with the developments of penal law in the last decade is striking.79 Whilst according to the Nyon Agreement suspect submarines should not be attacked unless a ship had recently been object of an aggression and there was reason to think that the submarine was responsible, henceforth the bare presence in the forbidden zone was considered tantamount to a criminal intent and act. One may, if one so wishes, give to this procedure of repression the name of self-defence, or, more exactly, of preventive or repressive self-defence.80

77 Some courts had come close to this, as in the Ambrose Light case, but convictions proper did not take place: ibid 522. 78 ibid 522, 525. 79 In the criminal justice system of several Western countries, from the United States to France and Italy, the struggle against terrorism has weakened the principle of culpability in favour of that of dangerousness, while re-socialization policies have been undermined by a repressive approach that has rapidly and problematically extended to crimes other than terrorism. On this topic, see Jakobs (n 6) 94; M Maxwell and S Watts, ‘Unlawful Enemy Combatant: Status, Theory of Culpability, or Neither?’ (2007) 5 J Intl Criminal Justice 19; M Donini, ‘Il terrorista-straniero come nemico e le contraddizioni di una giurisdizione penale di lotta’ (2009) 38 Quaderni Fiorentini per la storia del pensiero giuridico moderno 1699, 1707. 80 Lauterpacht, ‘Insurrection et piraterie’ (n 11) 525.

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On the one hand, Lauterpacht conceived that his notion of ‘preventive or repressive self-defence’ in conformity with the 1938 Supplementary Agreement sufficiently justified radical countermeasures by individual states that were victims of submarine aggressions or were potentially threatened by an attack. On the other hand, he knew that such a wide-ranging licence to use force could never be accepted by the non-signatories as a part of general international law. The Agreement completely disregarded the requirements of imminence and proportionality in the use of force and conferred exceptional international police tasks on some maritime powers based on purely political motives. Although Lauterpacht claimed that the signatory parties might claim for the treaty a ‘more general validity’, he was aware that this would never be the case (let alone the idea of collective security as contained in the Covenant of the League of Nations, which nobody had taken seriously and which had been mocked throughout the 1930s).81 Wide consent on international policing necessarily depended on the presence of an ‘enemy of mankind’. Lauterpacht believed that if the repression of submarine warfare was to be effective, several powers must be involved and the perpetrators must be branded as pirates subject to universal jurisdiction. Despite all the ridicule of the purists engaged in the ‘short-lived terminological controversy’82 on the status of maritime bandits, he could not resist taking up position and strongly asserting his own definition of piracy. Of course, such a definition must be minimalist, serving only to invoke universal jurisdiction and to authorize states to administer international justice at their discretion without being restrained by either municipal law or the laws of war. Had this view been asserted, submarine crews would have been plunged into a legal limbo wherein they possessed no rights. Such was the reason for Lauterpacht’s inquiries into the history of sea-robbery in search of workable precedents. For submarines to be subjected to universal jurisdiction, it was necessary to formulate an explicit charge of piracy against them. As an anonymous writer in the 1938 British Yearbook of International Law observed, the Nyon Agreement did not reassert the provision stated in Article 3 of the Washington Treaty that the perpetrators of submarine attacks could be brought to trial before the civil and military authorities of any power.83 But such a common right to try and punish needed to be stressed, as it represented the very core of piracy jure gentium and of universal jurisdiction. Though the Nyon Agreement employed the term ‘piracy’ and put in place ‘special collective measures’ to stop it, it failed explicitly to mention the ‘exceptional’ universal jurisdiction which applies to piracy under international law.84 Lauterpacht aimed to fix this. If the view of 81 82 83 84

The Covenant of the League of Nations (Versailles, 28 June 1919) arts 16–17, 225 CTS 201–202. Lauterpacht, ‘Insurrection et piraterie’ (n 11) 527. Anon, ‘The Nyon Arrangements. Piracy by Treaty?’ (n 11) 208. ibid 199, 205.

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the signatories was to be relevant to general international law, and if repression of submarine piratical attacks was to be regarded as something more than merely an exceptional act of retaliation related to the events of the Spanish Civil War, then the charge of piracy jure gentium and its legal effects had to be brought to the fore unequivocally. But what was the point of persisting in the allegation of piracy if actual sea-robbery was virtually extinguished and the few still convicted of it were granted fair trials? If the threshold of tolerance towards maritime robbery had been rising for at least a century, it was doubtful whether this charge was still appropriate to warrant the harsh repression of submarine warfare. Indeed, the Nyon Arrangement itself was difficult to justify in light of the contemporary, ‘humane’ treatment of piracy. As Lauterpacht remarked, the repressive measures against submarine warfare in pursuance of the Supplementary Agreement to Nyon exceeded the scope of recent anti-piratical actions. Lauterpacht was therefore urged to adopt a problematic assumption: for submarine crews to be properly punished, they should not be treated as contemporary pirates, but as early-modern pirates. He recalled that harsh anti-piracy measures had been applied in the early modern period when sea-robbers still signified a scourge to the civilized world and were almost unanimously regarded as unworthy of a fair trial and punishable by summary judgement.85 This very law would be suitable again, as systematic destruction seemed the only option to stop submarines that might easily escape milder forms of control and repression. In this respect, he claimed, Nyon was not about tearing international law apart or creating a new international crime with discriminatory consequences for the non-signatories, but about ‘interpreting, by a declarative treaty, the existing law on piracy in respect to a situation without precedent’.86 The harsh customary rules on the repression of piracy might be diluted domestically, but were still in force under the law of nations. Despite such efforts to reconcile the Nyon provisions with the traditional doctrine, Lauterpacht was not concerned with piracy as such, but rather with the function that this charge might fulfil in the suppression of ‘international crimes’ and ‘war crimes’. In the 1948 edition of Oppenheim’s International Law, Lauterpacht clearly adopted this stance as he defended President Roosevelt’s decision to treat German and Italian submarines in violation of international law as piratical vessels during the Second World War. Far from obliterating the charge of piracy as a relic of old times, Lauterpacht wished to transform its traditional features to make it the most relevant historical precedent for nascent international criminal law. His nominalist87 and functionalist critique of lawyers’ 85

Lauterpacht, ‘Insurrection et piraterie’ (n 11) 528. ibid; Lauterpacht, Recognition in International Law (n 74) 307. M Koskenniemi, The Gentle Civilizer of Nations (CUP 2001) 368–69; Koskenniemi, From Apology to Utopia (2nd edn, CUP 2005) 52–53; M Koskenniemi, ‘The Function of Law in the International Community: 75 Years After’ (2008) 79 British Ybk Intl L 353. 86 87

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speculations over Nyon was driven not by relativism, but by a pragmatic intention to impose a new, if minimalist, definition of piracy that could underpin the project of an international legal order where impunity was no longer the rule. Such was Lauterpacht’s aim in extending the notion of piracy to encompass political acts. There is substance in the view that, by continuous usage, the notion of piracy has been extended from its original meaning of predatory acts committed on the high seas by private persons and that it now covers generally ruthless acts of lawfulness on the high seas by whomsoever committed.88

Lauterpacht thus took from municipal law what he needed (the extension of the notion of piracy) and then dismissed it as it mitigated the harshness of international law. Ultimately, the definition of piracy was a trivial matter to him and others who advocated for radical measures against submarine warfare. They wished to abandon the thick notion of sea-robbery, and yet they felt that its thin version must be retained lest the fragile concept of universal jurisdiction should evaporate in the same breath. If new kinds of heinous international offences such as piratical submarine attacks were to be punished, there was no other way but to extend the definition of piracy and thereby subject the perpetrators to the common jurisdiction of all states. The expression of ‘enemy of mankind’ was rhetoric and non-technical, to be sure, and today’s observers view it as a solely propagandistic weapon based on a monistic vision of the world. Some have even argued that piracy, as mere robbery at sea, has never been a particularly heinous offence and thus cannot be cited as a predecessor of contemporary international crimes giving rise to universal jurisdiction today.89 The conclusion may be true, yet the premise is historically fallacious, as it projects the present understanding of piracy as a non-heinous crime onto the past. Although the impecunious, heroic mavericks depicted in so many tales were practically harmless, a time existed when piracy represented an endemic and systematic threat to international security, and was therefore heinous according to the publicists of old.90 Piratical submarine warfare was likewise regarded as heinous in its heyday. Present scepticism should therefore not hide the fact that the label of universal enemy was once powerful. It was regarded by many publicists, 88 L Oppenheim, International Law: A Treatise, vol I (7th edn by Hersch Lauterpacht, Longmans, Green & Co 1948) 563. 89 E Kantorovich, ‘The Piracy Analogy’ (2004) 45 Harvard Intl LJ 183, 223; V Lowe and C Staker, ‘Jurisdiction’ in M D Evans (ed), International Law (3rd edn, OUP 2010) 313–39, 327. 90 Back in 1740, German jurist Samuel de Cocceji already differentiated between quasi-harmless, vagrant sea-robbers and the pirates able to engage in armed conflict. This was not about the classical distinction piracy/ privateering but rather, in a sort of pre-Hegelian or pre-Schmittian move, about the size and intensity of the fight: S von Cocceji, Introductio ad Henrici L. B. de Cocceji Grotium illustratum (first published 1740, Waisenhaus 1748) diss IX, § 166. For piracy as a heinous crime, see E D Dickinson, ‘Is the Crime of Piracy Obsolete?’ (1924–25) 38 Harvard L Rev 334, 351. Recently, P Bobbitt has argued that the idea of piracy as an ordinary crime emerged in the 18th century, while former privateering was a form of outright terrorism. See Bobbitt (n 4) 35.

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including Lauterpacht, as fundamental to unite an otherwise anarchical international society and to legitimize collective security actions that conventional law had not managed to protect. Indeed, while in the late 1930s there existed several international concerns, humanity itself had no common concern. Lauterpacht attempted to amend this by defining submarines as universal foes, thereby breaking the Schmittian taboo according to which the friend/enemy logic must not be applied to an essentially apolitical mankind. Lauterpacht’s opinion might appear dangerously revolutionary as it vested states with a right to punish that they might use arbitrarily, as had formerly been the case under the just war doctrine. And yet his criminalization of, say, political piracy was realist and was justified insofar as it was grounded on the awareness that the traditional opposition between privateering as a political act and piracy as a private endeavour represented but a fiction. Historically, the piracy that had been most harshly repressed had always been political. Hence if the international community was threatened by any ‘enemies of mankind’, claimed Lauterpacht, there was no tenable reason for preventing nations from collectively enforcing international law against them, be they state actors or not. Recent scholarship has emphasized Lauterpacht’s contribution to a doctrine of international criminal law, and particularly his authoritative role in the 1940s debate over Nuremberg and in the drafting of the London Charter.91 Around 1945, in the face of the unprecedented mass atrocities of the Second World War, he obviously shelved the piracy argument to resort to more radical conceptualizations such as the category of ‘crimes against humanity’, which he suggested be included in the Charter.92 Yet there remains a remarkable continuity between Lauterpacht’s decided endorsement of the Nyon Agreement and his later arguments on international crimes and crimes against humanity. For him and many others who participated in the piracy controversy of the late 1930s, the Nyon Agreement represented a significant step in the direction of an enforceable international criminal law.

8. Conclusion The dispute over the concept of piracy was much more than terminological. Those like Lauterpacht who defined it as such were merely seeking to circumvent the doctrinal tangles in order to impose their own view, which was in fact most revolutionary. Essentially, they wished to overcome the hindrance represented by the non-political character of piracy, which had occupied jurists for centuries as the key distinction between sea-robbery and privateering. The argument that piracy need not be a political act was itself politically motivated 91 M Koskenniemi, ‘Hersch Lauterpacht and the Development of International Criminal Law’ (2004) 2 British Ybk Intl L 810. 92 ibid 811.

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and was used as a device to criminalize political enemies. But the international lawyers of those days remained conservative spirits after all. Fearing accusations of being anti-scientific and revolutionizing the established precepts of the law of nations, Lauterpacht thus examined the history of piracy to find precedents for the harsh anti-piratical measures that he wished to be applied to the contemporary situation. Schmitt was one of the few to stress that the alteration of the concept of piracy was a sign of epochal transformations in the world of public order. He argued that this mutation would plunge piracy into the limbo of the ambiguous conceptualities oscillating between war and peace typical of the post-Versailles period. In Schmitt’s view, Nyon was not truly condemning pirates, but discriminating against political enemies and placing them in a no-man’s land where they were deprived of any domestic or international legal protection. This criticism was well grounded, and yet the Schmittian alternatives were unconvincing. Unconcerned with conceptualizing a truly non-discriminating world order, Schmitt in his Großraum theory merely replaced the global hegemony of the West with the hegemony of the major powers within individual ‘large spaces’. Neither view won the day, yet both did to some extent. Schmitt’s counterrevolutionary critique of international law, glancing nostalgically at good old jus publicum Europaeum, was like the owl of Minerva, which takes its flight only as the shades of night are gathering. Aware that the dismantling of the old nomos was irretrievable, Schmitt devoted himself to analysing the inconsistencies of the new world order, and thereby became the first to deliver a theory of the irregular combatant that has been helpful in interpreting partisan, revolutionary and terrorist warfare. However charged with reductionism, his realist theory based on the friend/enemy distinction has significantly influenced both right- and left-wing politics ever since. Several nations’ recent war and security policies in defiance of international law are still grounded on a Schmittian obsession with the enemy, which escalates as governments struggle to maintain sovereignty and political legitimacy in a globalized scenario that terrifyingly resembles the Hobbesian state of nature. In Lauterpacht’s case, his cosmopolitanism could not survive the emergence of international relations.93 Still, cosmopolitan attitudes would return in the management of the decolonized world.94 They grew even stronger as soon as the nuclear fear had passed, when global policemen needed to take humanitarian action against once deterred yet now aggressive warmongers. More recently, wars in humanity’s name are again being fought following the radicalization of international terrorism. 93 94

Koskenniemi, The Gentle Civilizer of Nations (n 87) 353–412. Orford (n 48).

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The confrontation between Schmitt and Lauterpacht thus persists in the present scenario. Assuming that the global arena is affected by an insuperable conflict of rationalities, Schmitt today inspires those who aim to establish clear definitions of the terrorist phenomenon, thereby subjecting it to the categories of a new international law that meets the need for ‘order’ and ‘orientation’ in global politics. As much as this appears a utopian project in times of anxieties over the fragmentation of international law, advocates of Schmittianism might rely on the advent of a non-discriminatory world order grounded on the balance of power of ‘large spaces’.95 While this new nomos is likely simply to transfer hegemonic structures from the global sphere to the continental one,96 Schmittian hardliners will not be bothered by this side effect, just as their mentor was not bothered by the jus publicum Europaeum discriminating against non-Europeans.97 What Schmitt willingly failed to problematize was that the ‘bracketing’ of war only applied among the powerful who feared all-out contests with their peers; it did not apply in conflicts between the powerful and the weak. In struggles of the latter kind—most patently in colonial warfare—major powers resorted to unrestricted warfare and backed it through the same universalist and moralist discourses that they prudently left aside when combating their peers in compliance with fac¸ade humanitarianism. Looking beyond the Schmittian idealization of the jus publicum Europaeum, one may wonder if it is possible for an international law to be based on a ‘non-discriminatory’ concept of the enemy; what it means; and what the point is in striving for it. Lauterpacht was averse to definitional and speculative excesses, so much that he first viewed the qualification of submarine warfare as piracy as a mere ‘terminological’ question. His nominalist attitude was constructive, though. His broader project was to overcome the doctrinal stalemate and introduce a more flexible definition of piracy that both allowed a wider scope for universal jurisdiction and encompassed international and war crimes other than piracy. He offered direct insight when insisting that Nyon was not about suppressing sea-robbery but about enforcing an international criminal law. Lauterpacht now furnishes strong arguments to cosmopolitans who, critical of both positivism and naı¨ve pacifism, believe that true cosmopolitanism is best served by those who concretely act to further it, notwithstanding some inevitable discontent. 95

Schmitt, ‘Die Einheit der Welt’ (n 12) 843. M Nicoletti, Trascendenza e potere. La teologia politica di Carl Schmitt (Morcelliana 1990) 529; M Stolleis, A History of Public Law in Germany 1914–1945 (1st German edn 1999, OUP 2004) 417–22. 97 Immediately after Schmitt advanced his Grossraum theory in April 1939, Hitler started speaking of a ‘German Monroe doctrine’: R Mehring, Carl Schmitt: Aufstieg und Fall (CH Beck 2009) 393. On the reception of Schmitt’s Grossraum theory in Germany and abroad see WE Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield 1999) 161–73; G Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (Verso 2000) 258–60. 96

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Viewing the 1920s–30s debate and the complex history of modern piracy, the question recently surfaced as to whether terrorists are the new pirates is revealed as ill-posed. Which pirates are meant here? Those who might be killed on the spot by any individual; those who might be executed only by state officials after summary judgment; or those entitled to a fair trial? One must further recall the political character that sea-robbery assumed at several points in history and which destabilized the distinction between piracy and privateering. There existed massive conflicts of rationalities and insoluble oppositions of legality and legitimacy in respect of national interests and the world public order. Contemporary terrorism has escalated the potential hostility inherent in the conflict of rationalities in the global arena, and has unleashed a military reaction such that sea-robbery had never provoked. Although terrorism can be seen as analogous to piracy as a phenomenon highly disruptive of international law and deserving suppression by the international community as a whole, historical contextualization shows that the similarities between these two phenomena might be misleading. The fashionable search for comparisons and precedents should not induce us to forget that what is happening at present is an essential transformation of the concept of enemy with enormous ramifications for international as well as municipal law in several countries. Once again, defining deviance is not a mere question of terminology, but a decisive factor in shaping the structure of the world public order.