There is no piracy off the coast of Somalia. Who says? The UN, for starters. Since 1982, the UN Convention on the Law of the Sea defines piracy as an act of theft on sea, carried out for private (read, nonpolitical) ends. American law, which defers to the Law of Nations, says much the same. Which means that if the Somali pirates don't have a convenient place to stash 100,000 barrels of crude oil, and merely hold the vessel and its crew for ransom, they are not pirates at all. Really. It also means that if any of the alleged connections between the pirates and Somali insurgency groups are factual, they suddenly become "political" and no longer pirates.
Or, say, if they capture and murder four American hostages? Yep, not pirates.
But if they are not pirates, what are they? Hijackers? Murderers? Extortionists? Perhaps all three, but that is not what we chose to call them. We call them pirates, because in the 21st century this is what piracy has become. And now the law must catch up.
Piracy has moved beyond its historical lineage as "sea robbery," encompassing such crimes as insurgency, ransoming, hijacking, and homicide -- sometimes without any pecuniary aim whatsoever. Consider, for example, that until the end of the 20th century hijacking an airliner was defined as "aerial piracy." Or the 1985 capture of the cruise ship Achille Lauro by a splinter group of Palestinian terrorists, whom the United States government expressly declared as "pirates."
Now, after this latest outrage, we are back to where we started. How will the United States choose to define the men that slaughtered four innocent Americans? How will it respond?
When a law and the crime it identifies no longer mesh, it is the law that must change. The UN Convention emerged from a Cold War climate wherein the United States and its allies feared their Soviet counterpart would declare any encroachment on its territorial waters as an act of piracy. This was no idle threat, for piracy carries with it the definition hostis humani generi, enemies of the human race. Pirates are subject to universal jurisdiction, meaning they can be captured anywhere, by anyone, regardless of extradition. So perhaps we should not blame our forbears for being wary.
The Cold War ended, yet its anachronistic definition of piracy survives. Thus far most states engaged in policing the Gulf of Aden have been reluctant to allow prosecution in their home jurisdiction. It is not hard to see why. The trial of Abduwali Muse, the Somali pirate captured following the Maersk Alabama incident, ended swiftly with a guilty plea in US Federal Court. Had Muse pled not guilty, it would have been the first piracy trial on American soil since 1826, sending scores of harassed law clerks into the dimmest, darkest recesses of Admiralty law. One can almost hear the crackling vellum.
Last week's atrocities have raised the stakes in more ways than one. As the pirates' tactics grow deadlier, so too does our response. Already there are rumblings for more aggressive military action, and even the normally circumspect State Department admits it needs to "recalibrate." A showdown is looming, but once the smoke clears it will not be the Navy's job anymore, but the lawyers'. We need a legal definition of 21st century piracy, and we need it yesterday.
Forget about sea robbery, piracy is terrorism at sea. A proper legal definition of piracy will incorporate its traditional elements which still hold true today -- hostis humani generi, universal jurisdiction -- but also incorporate new acts and motives beyond those of the rollicking 17th century buccaneer. For piracy to remain relevant, it must include the crimes of hijacking, ransom and homicide. Likewise, a pirate cannot claim political motive to excuse his actions; this is no different from Khalid Sheikh Mohammed calling himself a "freedom fighter."
This does not mean that the old concepts disappear. Greed will always be a motive for piracy, and as such will distinguish it (in specific cases) from international organized terrorism. But if the acts are the same, the law should recognize as much. Pirates and terrorists, enemies of the human race, are blood brothers in the law.
D.R. Burgess is the author of The World for Ransom: Piracy Is Terrorism, Terrorism Is Piracy (Prometheus Books) and an assistant professor of legal history at Yeshiva University and the Benjamin Cardozo School of Law in New York City.