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

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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