Pirates and Terrorists

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. As Larry May has pointed out, one problem with the terrorist/pirate analogy insofar as it goes back to the 16th and 17th centuries is that pirates were said to be outside any system of rules, their voluntary actions constituting a waiver of any rights they would otherwise be entitled to. I don’t think we should see alleged terrorists as having waived any rights, for surely the people in question “don’t recognize what they have done as constituting a waver,” and thus we have a rather tendentious employment of the concept of voluntary action.

    In addition, those who are terrorists are often individuals who, in their capacity as individuals and as members of organizations and movements, are capable of foreswearing use of terrorist methods over time (think of the ‘founding fathers’ of not a few nation-states who eventually became more or less conventional political actors accepting the rules of democractic governance), which is a reminder of their status as humans and thus, as May says, there is “no reason to think that terrorists are not owed what is considered the minimum for all humans,” that being “drawn in terms of both considerations of justice and humanity” (hence procedural justice along with a minimum amount of compassion, mercy, and justice).

    As May also informs us, in the case of both pirates and terrorists “there is a tradition that these people can be treated without restraint. The idea was that there were no limits to what could be deployed contra barbarum (‘against the barbarians’).”

    Before a trial there seems little justification for treating terrorists as international criminals, as if they’ve already been convicted of a crime. It thus behooves us to at least treat them with restraint and decency (the sort of humane treatment May argues for in War Crimes and Just War, 2007), given their status as prisoners utterly dependent on us.

  2. ParatrooperJJ says:

    The answer is simple. Don’t take prisoners.

  3. That’s not an answer but an evasion: its simplicity is in reference to its immoral substance, one that violates the principles of just war and humanitarian law, while doing dishonor to anyone who ever was or is a soldier. Perhaps some need reminder that

    “The general idea behind the rules of war…is that soldiers qua soldiers, have various duties (as well as rights). The best way to restrain soldiers who have been given a license to kill is to require the same restraints from each of them at a given time regardless of whether they fight on the just or unjust side of war. For soldiers not to be merely simple killers, they need to be men and women of honor, that is, people who kill but only under heavily restrained conditions and only behalf of their States, not for their own interests or pleasure. The idea of a ‘soldier’s honor’ is as old as war chronicles going back at least as far as the Iliad. Socializing soldiers to view their honor as of paramount importance is the chief way that soldiers are motivated to restrain themselves according to the rules of war. [….]

    Honor is a motive in that it influences the will in a certain way—namely, to follow certain moral rules scrupulously. [….] Soldiers don’t necessarily care about fellow soldiers fighting on the other side, but they do care about their own honor, their sense of being morally superior to others as scrupulous followers of moral rules. [….] Honor is the combination of enhanced respect for normal moral rules plus the respect for special rules that require conscientious reflection and socialized motivation crucial for humanitarian law’s requirement that soldiers act with restraint even when their lives are jeopardized on the battlefield. …[T]he primary motivation for humane treatment comes from a sense of self-worth of the person who acts humanely. Honor generally calls for acting in ways that we would not only approve of, but that we would seek to emulate and use as a basis for educating others. In fighting a war with restraint, we seek to to that which we would heartily approve of if it were aimed not at other but at ourselves. [….]

    A sense of honor offsets other emotions, especially anger, that can run so high in war. In ‘On Anger,’ Seneca rails against the sort of anger that he defines as ‘a burning desire to avenge a wrong.’ If States only instill a strict sense of justice—at least that form of justice that is based on what is owed to another because of what he or she has done—the violence of war can spiral out of control as we move from one angry episode of revenge taking to another.”
    Larry May, War Crimes and Just War (2007)