Pode o Direito ser a alternativa à cegueira de uma Guerra Perpétua?

Douglas Burgess, na Legal Affairs

TO UNDERSTAND THE POTENTIAL OF DEFINING TERRORISM as a species of piracy, consider the words of the 16th-century jurist Alberico Gentili’s De jure belli: “Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law.” Gentili, and many people who came after him, recognized piracy as a threat, not merely to the state but to the idea of statehood itself. All states were equally obligated to stamp out this menace, whether or not they had been a victim of piracy. This was codified explicitly in the 1856 Declaration of Paris, and it has been reiterated as a guiding principle of piracy law ever since. Ironically, it is the very effectiveness of this criminalization that has marginalized piracy and made it seem an arcane and almost romantic offense. Pirates no longer terrorize the seas because a concerted effort among the European states in the 19th century almost eradicated them. It is just such a concerted effort that all states must now undertake against terrorists, until the crime of terrorism becomes as remote and obsolete as piracy.

But we are still very far from such recognition for the present war on terror. President Bush and others persist in depicting this new form of state vs. nonstate warfare in traditional terms, as with the president’s declaration of June 2, 2004, that “like the Second World War, our present conflict began with a ruthless surprise attack on the United States.” He went on: “We will not forget that treachery and we will accept nothing less than victory over the enemy.” What constitutes ultimate victory against an enemy that lacks territorial boundaries and governmental structures, in a war without fields of battle or codes of conduct? We can’t capture the enemy’s capital and hoist our flag in triumph. The possibility of perpetual embattlement looms before us.

If the war on terror becomes akin to war against the pirates, however, the situation would change. First, the crime of terrorism would be defined and proscribed internationally, and terrorists would be properly understood as enemies of all states. This legal status carries significant advantages, chief among them the possibility of universal jurisdiction. Terrorists, as hostis humani generis, could be captured wherever they were found, by anyone who found them. Pirates are currently the only form of criminals subject to this special jurisdiction.

Second, this definition would deter states from harboring terrorists on the grounds that they are “freedom fighters” by providing an objective distinction in law between legitimate insurgency and outright terrorism. This same objective definition could, conversely, also deter states from cracking down on political dissidents as “terrorists,” as both Russia and China have done against their dissidents.

Recall the U.N. definition of piracy as acts of “depredation [committed] for private ends.” Just as international piracy is viewed as transcending domestic criminal law, so too must the crime of international terrorism be defined as distinct from domestic homicide or, alternately, revolutionary activities. If a group directs its attacks on military or civilian targets within its own state, it may still fall within domestic criminal law. Yet once it directs those attacks on property or civilians belonging to another state, it exceeds both domestic law and the traditional right of self-determination, and becomes akin to a pirate band.

Third, and perhaps most important, nations that now balk at assisting the United States in the war on terror might have fewer reservations if terrorism were defined as an international crime that could be prosecuted before the International Criminal Court.

For now, these possibilities remain distant. But there are immediate benefits to pointing out that terrorism has a precedent in piracy. In the short term, it is a tool to cut the Gordian knot of definition that has hampered antiterrorist legislation for 40 years. In the long term, and far more important, it provides the parameters by which to understand this current and intense conflict and the means within which it may one day be resolved. That resolution will begin with the recognition among nations that terrorism is a threat to all states and to all persons, the same recognition given to piracy in 1856. Terrorists, like pirates, must be given their proper status in law: hostis humani generis, enemies of the human race.

4 thoughts on “Pode o Direito ser a alternativa à cegueira de uma Guerra Perpétua?”

  1. Mas não estamos em séculos passados…nesta altura do campeonato, se aparecessem piratas, podes crer que milhares de pessoas iriam dizer coitadinhos só estão a lutar pelo que é deles, pelo que acreditam, tiveram infâncias infelizes, também têm direito a colocar umas bombas, perdão, baralhei-me…abordar uns navios, era isso, estávamos a falar de quais mesmo?

    (muito bem visto, o artigo)

  2. Seja mito ou não: Quem não gostaria de estar um dia só que fosse numa Libertatia?
    Já dizia Oscar Wilde: “Quem conhece a história sabe que a desobediência é a maior virtude do Homem”.

    (Isto é o que se chama de um texto perigoso. Mais um pouco e estamos a aplaudir a teoria criminológica de Jakobs – O Direito Penal do Inimigo.)

    O medo faz destas coisas…

  3. Gibel,

    Tem razão, anda por aí pirataria a mais.. E é como o gajo diz, precisamos com urgência duns regulamentos para manter esses terroristas na ordem. Podemos começar indo às origens dessa indústria de roubalheira se quizermos saber das similaridades para mais facilmente botarmos a lei internacional no papel.

    Este naco dum artigo no Libcom.org é bastante elucidativo. E é pena que você não nos tivesse lembrado das conotações entre o Skull and Bones da bandeira desses senhores com o Clube exclusivista de Yale. E havia muita paneleiragem entre os flibusteiros, não nos esqueçamos disso, pois é muito importante, tambem, especialmente nas acareações, se as tivermos de ter no grande julgamento do Medo.

    “As long as maritime trade routes have existed, there have been pirates; the ancient Greeks considered piracy as a valid option for merchants down on their luck and did not place any moral weight to the term. The Romans, however, used ‘piracy’ at sea in much the same way as they employed the term ‘barbarian’ on land. A pirate was anyone on the ‘Roman’ sea who wasn’t Roman. In their determination to dominate and control their world, they created a policy, describing the pirates as hostes humani generis, the common enemies of mankind, that the rulers of the later emerging British Empire would employ to justify its campaign of extermination of the Atlantic pirates.

    The British experience of piracy began as a wing of semi-official government policy. In perpetual war against the mighty catholic empires of Spain and Portugal, protestant England granted letters of mark to private adventurers to explore, trade and prey upon the treasure ships of the enemy as they sailed back to Europe packed with silver and gold from the Spanish and Portuguese American territories. Drake, Grenville, Raleigh and Morgan cut themselves a page in history and folklore as they carved England a slice of the New World out of the control of the ‘Dons’.

    The end of the War of Spanish Succession saw the end of the need for these ‘privateers’. Britain gained the assiento, the right to import slaves to the Spanish colonies and so began the trade that would provide the spur and capital for the industrial revolution. As Karl Marx would later note, capitalism was born in blood and filth: the middle passage, from the African coast to the slave markets of Havana and Virginia, saw the bloody birth of a brutal age”.

    TT

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