As the Bush administration responds to terrorism, proponents of war have seized on a legal precedent from two centuries ago: the effort to eliminate piracy in the world's shipping lanes.
The call for a "war on terrorism" modeled after the 19th century war on piracy had been made before the World Trade Center and Pentagon attacks. In July, former Israeli Prime Minister Ehud Barak said that terrorists must be treated "the same way that our ancestors used to deal with the piracy of the high seas; namely, to fully coordinate operational, intelligence and diplomatic efforts; not let them land at any port or airport for that matter; and immediately isolate them from the family of normal, benign nations."
And last November in the Pakistani newspaper the News International, retired military officer S. Aussaf Hussain wrote that "certain acts of terrorism [should be] international crimes .... Piracy on the high seas was not eradicated until it was made a universal crime, permitting any nation to punish pirates despite their nationality or where their crimes were committed."
Like the war on terrorism, the war on piracy had several components. One was a diplomatic (and, when necessary, military) assault on states that sponsored pirates. The 1856 Declaration of Paris transformed the war on piracy from a war against individual pirates to a war against states that refused to join the anti-piracy struggle. But the war on terrorism is not merely a war between states. Unable to control mobile, unaffiliated groups of pirates in the 19th century, world powers paired the strategy of channeling pirates into states with the strategy of channeling space into states. Land that had remained outside the formal state system was incorporated into one state or another. President Bush now echoes his 19th century predecessors in stressing the need for a stable government in Afghanistan that can govern--and be held accountable for--the nation.
Yet the true space of piracy was not the unincorporated islands of the Caribbean or Indian Ocean but the ocean and the ships that crossed it. And the space of terrorism is not Afghanistan or Sudan but the cities and airplanes--and, arguably, the bodies and minds--of individuals and their societies. What does it mean to decree that these spaces too must be transformed into spaces in which the state maintains, to use Max Weber's famous phrase, a monopoly on violence?
Achieving this level of control involves more than just channeling land-space into state territories and ensuring that states govern these territories. It also involves giving states special powers in the space outside of state territories. Thus, in international law a ship not flying the flag of a recognized state is defined as a potential pirate subject to being seized and tried by any state, regardless of the nationality of either the pirate or the victim.
Is the order maintained by the state system so precious that such license should be granted in the effort to combat international terrorism? Perhaps. But before one assents, one should consider not only the dangers to civil liberties but also whether this will work.
Can the community of states ever really control the space between state territories? Marine piracy remains a problem. In 2000, 72 seafarers were killed in 469 attacks around the world, most of which were directed at large container and tanker ships. Can the state system ever be so powerful that all land and all peoples fall under state control? Countless national governments fail to exercise effective control over their national territories, whether these are the outlying Southeast Asian islands where many of today's pirates base their operations or the Pakistani borderlands that nurture Al Qaeda supporters.
History suggests that a terrorism strategy based on the control of space may not be effective in the long term. To achieve a lasting peace, efforts must be directed at people. This means targeted police investigations and arrests, not military campaigns and occupations. It also means supporting inclusive governments, not dictators who claim to represent people merely because they control the space where those people live.
Although such a strategy goes against the grain of military thinking, it is crucial for ending wars waged by pirates, terrorists and others who operate outside of the state system.