Was bin Laden a criminal, a soldier or a pirate?

Was it really necessary to wage war on the Taliban to rid the world of al-Qaeda's leader?

Despite a disturbingly inept public-relations aftermath, the American raid on Osama bin Laden’s compound was a great success. Indeed, it was so successful that it should force us to reconsider the presumption that the war in Afghanistan was necessary in the first place. The logic is simple: if bin Laden was killed during a secret mission in Pakistan – a country with which America is not at war – could he and his followers have been captured or killed via the same strategy, without entering into a fully-fledged war in Afghanistan?

In just war theory, the relevant criterion of jus ad bellum – the right to wage war – is the requirement that war always be a last resort. If war may be precluded by some less violent, less catastrophic option, then we are obliged to take that option. If military raids and strikes against al Qaeda targets alone in Afghanistan were a feasible option, they ought to have been preferred over a full-scale war with the Taliban.

Instead, a decision was made by President Bush to:

“pursue nations that provide aid or safe haven to terrorism. Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.”

Bush’s attitude is understandable, but it constituted a departure from the just war criterion of “last resort”. Open warfare against the Taliban should not have been pursued unless there was no other option. Yet it seems there was another option, as demonstrated by the successful raid against bin Laden’s compound in Pakistan. Pakistan stands aggrieved at the military incursion into its sovereign territory, yet America is rightly unrepentant for taking action against the terrorist leader, where Pakistan itself was either unwilling or unable.

Could the same approach have been tried in Afghanistan, without full-scale warfare? With the benefit of hindsight, hasn’t the war with the Taliban over the past ten years been a distraction from the primary goal of destroying the al-Qaeda network? It is, of course, likely that the Taliban would have resented any unilateral American incursion into Afghanistan, and might perhaps have instigated open hostilities anyway. In such a scenario, war with the Taliban would indeed have been a “last resort”. But by choosing from the outset not to distinguish between al-Qaeda and the Taliban regime, the United States wilfully took upon itself the unnecessary burden of subduing and placating an entire nation.

An alternative approach has been suggested by several writers, who have noticed unexpected similarities between modern terrorism and historical piracy. Not only were pirates often mercenary employees of nation states, but they also required the cooperation of states for safe-haven and for distribution of their stolen goods. Pirates required sanctuaries, and states benefited from their illicit trade.

 Yet although pirates operated in symbiotic relationships with nation states, they were eventually declared to be enemies of all states and subject to attack “with impunity by all.” As the author Douglas R. Burgess Jr. explains in “The Dread Pirate Bin Laden”:

“Until 1856, international law recognized only two legal entities: people and states. People were subject to the laws of their own governments; states were subject to the laws made amongst themselves. The Declaration of Paris created a third entity: people who lacked both the individual rights and protections of law for citizens and the legitimacy and sovereignty of states. This understanding of pirates as a legally distinct category of international criminals persists to the present day, and was echoed in the 1958 and 1982 U.N. Conventions on the Law of the Sea. The latter defines the crime of piracy as "any illegal acts of violence or detention, or any act of depredation, committed for private ends." This definition of piracy as private war for private ends may hold the crux of a new legal definition of international terrorists.”

This recognition of pirates as a third legal entity provides much needed clarity to the problem of modern terrorism. What better way to describe terrorism than as “private war for private ends”? It seems absurd to treat the likes of bin Laden with either the respect and dignity of a legitimate military commander, or with the rights and presumed innocence of a domestic citizen charged with specific criminal acts. Belonging to a terrorist organisation should be sufficient cause to render a person enemy of all states.

Yet despite being enemies of all states, it must fall to the prevailing superpower or empire of the day to carry out the destruction of terrorist or pirate organisations. According to Donald Puchala, Professor of International Studies at the University of South Carolina, it was ultimately the British Empire that unilaterally set about destroying piracy during the 19th century. The British Royal Navy:

“continued…to enforce the empire’s anti-piracy policies with vigour, identifying, seeking out and destroying pirates and their sanctuaries in all the oceans of the world right up into the twentieth century. The world was relatively free of large-scale piracy for most of the nineteenth century, because the British government deemed it in the national interest that this should be the case, and the Royal Navy saw to it that it was.”

Likewise, it would fall to the United States to commit itself to the destruction of terrorist networks and bases, wherever they may be found. In the context of this mission, the decision to engage in warfare against hostile regimes is a costly and unnecessary diversion.

Zac Alstin works at the Southern Cross Bioethics Institute in Adelaide, South Australia. 

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