The murky waters of piracy and maritime terrorism: an analysis of the blurred lines between the two crimes

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The murky waters of piracy and maritime

terrorism: an analysis of the blurred lines

between the two crimes

(Final Draft)

By: Kylie McKenzie Morrell

Mater Thesis: International and Transnational Criminal Law University of Amsterdam

Supervisor: Harmen Van der Wilt

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To what extent has modern international law amalgamated

contemporary piracy and maritime terrorism?

Abstract:

The last 20 years have seen terrorism firmly placed at the forefront of world politics, beginning in earnest with the ‘war on terror.’ Piracy has also seen a resurgence in the last decade with the rise of Somali pirates and piracy in Southeast Asia. Legal developments in the field since the 1980s display a trend of conflation between piracy and maritime terrorism, combined under the umbrella of maritime security. Lack of universal definitions, speculation concerning pirates and terrorists working together, and some overlap in conditions facilitating the crimes have provided the basis for this amalgamation. Furthermore the traditional

standing of pirates as outside the regular legal order is arguably also applicable to terrorists, allowing the international community to advocate the same countermeasures against the crimes. The ‘war on terror’ and political aspirations of various states – and particularly the US – have played an active role in cultivating this trend. The controversial actions taken against pirates in Somalia are an example of how the differences between maritime terrorism and piracy are being blurred and indicate that the crimes are almost fully amalgamated.

Key words:

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Acknowledgements:

I would like to thank Professor Harmen van der Wilt for his expert advice and encouragement throughout the writing of this paper.

Thank you also to Susanne Morrell for generously taking the time to proofread it and thank you to Margy McKenzie, whom without I would never have had the opportunity to write a thesis. Finally a big thank you to the rest of my friends and family for their unfailing support and for putting up with me during the writing period.

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Abbreviations

AMISOM - African Union Mission in Somalia

CSCAP – Council for Security Cooperation in the Asian Pacific HSC – 1958 Geneva High Seas Convention

ICC – International Chamber of Commerce IHL -International Humanitarian Law IHRL – International Human Rights Law IMB – International Maritime Bureau IMO – International Maritime Organisation LTTE - Liberation Tigers of Tamil Eelam

NSMS – National Strategy for Maritime Security (US) PLO – Palestine Liberation Organisation

PSI – Proliferation Security Initiative

SOLAS – International Convention for the Safety of Life at Sea STL – Special Tribunal for Lebanon

SUA Convention – The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation

TGF – Transitional Federal Government UJ – Universal Jurisdiction

UK - United Kingdom of Britain UN – United Nations

UNCLOS – United Nations Convention on the Law Of the Sea UNGA – United Nations General Assembly

UNSC – United Nations Security Council US – United States of America

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1. Introduction

Piracy may be the oldest international crime in existence and was for nearly 200 years an almost forgotten one. Gone are the days of the swashbuckling Caribbean pirates, replaced with a very different kind of modern equivalent. In the last decade and a half maritime piracy has re-emerged at the international law level. 1_{The focus has been mostly on Somali pirates,} though events in Southeast Asia and the Gulf of Guinea have also garnered attention. 2_{At its} peak between 2010 and 2012, piracy off the coast of Somalia cost the world an estimated $12 billion including additional security measures taken by merchant and transporter vessels and hostage ransoms. 3

The attacks of 9/11 raised concern about the risk of terrorist attacks on ships or port facilities, and about the possibility of commandeered ships being used as terrorist weapons, as

commercial aircraft had been. 4_{Maritime security has thus become an important issue on the} political agenda of both coastal states and international organisations.

The potential impact on of insecure sea trade routes on the world economy is enormous. 5 Thus we can already see a clear link between maritime terrorism and contemporary piracy, in that both have the potential to threaten maritime security. Recent developments have

suggested that piracy may be used to fund terrorist activities, and there has been fear of pirates and terrorists working together. 6_{The overlap of the two crimes, along with their} superficial similarities, has led to them being grouped together by the international community for the purposes of countermeasures and legal regulation.

How far this conflation goes and whether it has been translated to the international level is the matter I intend to explore. I will do this by focusing on the research question: To what

1_{Micheal Scharf and Mistale Taylor, ‘A Contemporary Approach to the Oldest International Crime’ (2017) 33}

Utrecht Journal of International and European Law 77.

2_{Tullio Treves, ‘Piracy and the International Law of the Sea’ in Guilfoyle. Douglas (ed), Modern Piracy: Legal}

challenges and responses (Edward Elgar Publishing 2013) 117 -118.

3_{Scharf and Taylor (n 1).}

4_{Nong Hong and Adolf KY Ng, ‘The International Legal Instruments in Addressing Piracy and Maritime}

Terrorism: A Critical Review’ (2010) 27 Research in Transportation Economics 51.

5_{Peter Chalk, The Maritime Dimension of International Security : Terrorism, Piracy, and Challenges for the}

United States (RAND 2008) 31.

6_{Eric Shea Nelson, ‘Maritime Terrorism and Piracy: Existing and Potential Threats’ (2012) 3 Global Security}

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extent has modern international law amalgamated contemporary piracy and maritime terrorism?

In order to provide an answer, I will first analyse the legal definitions and regulatory

apparatus of contemporary piracy and maritime terrorism, followed by a section pointing out the defining characteristics of each crime. I will then turn my attention to the shared features and conduct a legal analysis on the international law that combines the two. I will include a section on the complex situations where piracy and terrorism occur at the same time.

Together the shared features and interlinking of piracy and terrorism will allow me to analyse to what extent these crimes are being amalgamated. Finally, I will provide a case study on Somalia and explain its relevance to future cases.7_{Somalia is home to both pirates and} terrorists, making it an excellent example. I will conclude by giving a reasoned answer to my research question based on all the sections.

2. Methodology

I have used a technique of applied interdisciplinary methodology known as, ‘law reform research’. 8_{‘Interdisciplinary’ refers to the fact my analysis has made reference to outside} factors to seek answers that are consistent with the existing body of law, for example, considering the historical context. ‘Applied’ refers to assessing the change and future ramifications of the law itself and its administration. This style of research was named ‘law reform research’ by H Arthurs in his 1983 report. 9_{It is now known as ‘law in context’ or} ‘socio-legal research’.

There has already been some academic discussion on the relationship between piracy and maritime terrorism, although nothing conclusive has been decided. It is the discussion surrounding this issue that has enabled me to write my paper, as the overwhelming majority of my research has been of the desk variety. My primary resources will include the

documents pertaining to the crimes themselves, such as, the United Nations Convention on

7_{Treves (n 2) 118.}

8_{Paul Chynoweth, ‘Legal Research’ in L Ruddock and A Knight (ed), Advanced Research Methods in the Built}

Environment (Wiley Blackwel 2008).

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the Law of the Sea and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, as well as United Nations resolutions and soft law. The literature review will have its basis in secondary sources such as textbooks, journal articles and official websites.

I have included the example of Somali pirates as a case study in my analysis as an illustration of the issues to be discussed in the literature review. I chose this example as it sparked

political and legal debate. In presenting the case I have stuck to the method of desk research including both primary and secondary sources. I have also provided my personal opinion, interpretation and conclusion, reached by considering the facts discovered during my research. By including multiple sources I have been able to provide a well-rounded and accurate depiction of the main arguments surrounding the discussion and provide an answer to the question: To what extent has modern international law amalgamated contemporary piracy and maritime terrorism?

3. Piracy

Before being able to assess whether piracy and maritime terrorism are being amalgamated by international law it is necessary to understand the definition of both crimes. In this section I will explore the development and legal meaning of piracy, first, by examining historical definitions and developments, and then by analysing current definitions and elements in international law.

3.1 Historical definition and developments

Pop culture shapes our perception of what a pirate is. Images of Johnny Depp, eye patches and wooden legs tend to spring to mind, but this perception is not helpful when developing a legal definition. It is important to distance ourselves from Hollywood and focus on the quintessential elements of the crime. Piracy has been around in some shape or form since humankind took to the seas. Laws on piracy almost certainly appeared in ancient

Mediterranean laws. 10_{Legislation such as the Lex Rhodia, which was a “body of regulations}

governing commercial trade and navigation in the Byzantine Empire beginning in the 7th

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century” 11_{and the Lex Gabinia – a Roman legal proposal for proconsular powers to fight} pirates in the Mediterranean Sea – both included piracy. 12_{Official punishments in that} period included beheading, crucifixion and exposure to the beasts. 13_{Pirates in ancient times} were not easy to discern from privateers, who carried out similar acts of plunder. Privateers, however, acted in the name of a state, and it was the lack of state affiliation which became important in delineating punishment for pirates.14_{Thus, the idea that piracy must involve} private gain was born.

Traditionally robbery at sea would appear to be a fundamental element of piracy, for example, in a book published in 1744, De Jure Maritimo et Navi the author states:

“A Pyrate is a Sea-Thief, or hostis humani generis, who for to enrich himself, either

by surprise or by open force, sets upon Merchants and others trading by Sea, ever spoiling their Lading, if by any possibility they can get the mastery, sometimes bereaving them of their lives, and sinking of their ships; the Actors wherein, Tully calls Enemies to, with whom neither Faith nor Oath is to be kept. Againt Pyrates and such as live by Robbery at Sea, any Prince hath power to make War, tho’ they are not subject to his Government. 15“

Since that time there has been much development in the understanding of piracy but at its heart piracy remains robbery at sea. 16_{According to the extract, a pirate is communes hostes}

gentium or humani generis – the enemy of all mankind. This phrase became key when

describing pirates in case law. Turning to more recent history, this notion materialised once again and perhaps most importantly in public international law, with the Lotus Case. Para 249 of the judgement provides:

11_{The Editors of Encyclopaedia Britannica, ‘Rhodian Sea Law - Byzantine Law’, Encyclopaedia Britannica}

<https://www.britannica.com/event/Rhodian-Sea-Law> accessed 5 June 2019.

12_{M Cary, ‘The Lex Gabinia Once More’ (1924) 38 The Classical Review 162: Editors of Stories of Antiquity,}

‘Lex Manilia and Lex Gabinia’ (Stories of Antiquity) <https://storiesofantiquity.weebly.com/lex-manilia-and-lex-gabinia.html> accessed 5 June 2019.

13_{Omerod (n 10).}

14_{Peter MacDonald Eggers QC, ‘What Is a Pirate? A Common Law Answer to an Age-Old Question’ in}

Douglas Guilfoyle (ed), Modern Piracy: Legal Challenges and Responses (Edward Elgar Publishing 2013) 250-251.

15_{Charles Molloy, De Jure Maritimo et Navali : Or, A Treatise of Affairs Maritime, and of Commerce (8th edn,}

London: John Walthoe 1744).

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“Piracy by law of nations, in its jurisdictional aspects, is sui generis. Though statutes may provide for its punishment, it is an offence against the law of nations; and as the scene of the pirate's operations is the high seas, which it is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry, and is treated as an outlaw, as the enemy of all mankind – hostis humani generis - whom any nation may in the interest of all capture and punish.17_”

Lotus confirmed that, at an international level, pirates are still considered the ‘enemy of

mankind’. The declaration strengthened the legal basis for universal jurisdiction in piracy cases, discussed in depth in a later section (5.2 Jurisdiction).

We have seen that ancient law continues to affect piracy but to understand modern laws it is necessary to review legal developments in the last century. In 1926, the League of Nations created a report by the Committee of Experts for the Progressive Codification of International Law, which included a section on piracy. The report attempted to give a definition of the crime, stating:

“According to international law, piracy consists in sailing the seas for private ends

without authorisation from the Government of any State with the object of committing depredations upon property or acts of violence against persons..….Piracy has as its field of operation that vast domain which is termed "the high seas”…. The same acts committed in the territorial waters of a State do not come within the scope of international law, but fall within the competence of the local sovereign power 18_”

This was the first clear definition of piracy at an international level. It limits piracy to the high seas but maintains that pirates must act for private ends. The next main development was the 1958 Geneva High Seas Convention (HSC) which gave its attention to piracy in Article 15, stating:

“Piracy consists of any of the following acts:

17_{Case Concerning SS Lotus (France v Turkey) (Judgement) PCIJ Rep Series A No 10, para 249.}

18_{League of Nations ‘Committee of Experts for the Progressive Codification of International Law’ (Geneva}

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1. Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

a. On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

b. Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;19_”

Again, we see some common wording: piracy must be for private gain and is limited to the high seas. The HSC definition compared to the definition laid out by De Jure Maritimo et Navi in 1744 proves the fundamental elements of being a pirate have not changed. The perception of pirates as a threat to all nations prevails throughout. Pirates’ lack of state affiliation and exclusion from the ‘regular order’ of national law places them in a ‘legal limbo’ of sorts. The relevance of ‘othering’ pirates as the enemy of mankind is discussed in depth in a later section (6.1 The enemy of mankind), however, for now it is enough to know they have special status. As we move into defining contemporary piracy it is important to have an understanding that, from ancient times to the current decade, the crime has consistently been an international concern.

3.2 Modern public international law definition and elements

Now we have tracked the development of piracy as a crime through history, we will turn to the definition and legal norms in use today. Interestingly, there is still no single definition of piracy and discrepancies remain across different legislation, cases and soft law. Furthermore, there is no overarching international court that deals with acts of piracy, meaning

prosecutions are pursued at a national level using a mixture of national and international law. The lack of an international court related to piracy has allowed states to develop their own diverse interpretations of the crime. This paper focuses on international law and will therefore discuss international legal definitions.

One definition can be found in the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation (SUA Convention). However, SUA does

19_{Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 103}

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not define piracy per se. Its purpose is to cover all violence at sea and so piracy is

encompassed but not specifically defined. 20_{The SUA Convention is typical of suppression} conventions, in that it was drafted in reaction to an event of international concern. In the case of the SUA it was the Achille Lauro hijacking. The Achille Lauro was an Italian cruise ship captured in 1985 by four Palestinian militants in pursuit of a political agenda but, since it occurred in territorial waters, the attack fell outside the scope of existing international legislation.21

The SUA convention’s scope is laid out in Article 4 and covers all navigation on the seas. 22 The offences under the SUA are listed in Article 3 and cover all robberies as well at internal hijackings and attacks on the ship itself such as the placement of bombs etc. 23_{The SUA is} also important when discussing terrorism and will be revisited in detail in a later section (7.1

the SUA Convention).

Bearing in mind the historical developments discussed in the previous section, Article 101 of the United Nations Convention on the Law Of the Sea (UNCLOS) provides the most

comprehensive definition of a pirate, stating that:

“Piracy consists of any of the following acts:

a. any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

i. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

ii. against a ship, aircraft, persons or property in a place outside the jurisdiction of any State24_”

20_{Robert C Beckman, ‘The 1988 SUA Convention and 2005 Protocol: Tools to Combat Piracy, Armed}

Robbery, and Maritime Terrorism’ in Rupert Herbert-Burns, Sam Bateman and Peter Lehr (eds), Lloyd’s MIU

Handbook of Maritime Security (Taylor & Francis Group 2009).

21_{Richard Pallardy, ‘Achille Lauro Hijacking’, Encyclopaedia Britannica.com (2010)}

<https://www.britannica.com/event/Achille-Lauro-hijacking> accessed 2 May 2019.

22_{Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (adopted 10}

March 1988, entered into force March 1992) UNTS 1678 (SUA) art 4.

23_{Ibid art 3.}.

24_{UN Convention on the Law of the Sea (adopted 10 December 1982, entered into force November 1994) 1833}

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Paragraphs (b) and (c) criminalise voluntary participation, instigation and facilitation. Immediately it is possible to draw comparisons to the HSC and 1927 League Report. There are criteria that must be fulfilled for an act to be considered piracy under this convention. From Article 101 we can deduce that:

- Illegal violence must be involved, - It must be for private gain,

- Must be a private ship or aircraft against another ship/aircraft or the persons and goods on board, (two ship rule)

- It must take place on the high seas

These elements reinforce the principle that piracy cannot be committed by states and must be for private gain. The high seas criterion has been added to allow states to maintain

sovereignty within their territorial waters. 25_{The definition, though clear, contains several} gaps and limitations including:

- Piracy can only occur on the high seas, and hot pursuit ends when a ship re-enters territorial waters 26

- Piracy is only ‘private’

- There must be two ships involved, therefore internal seizures are not covered - There is no obligation on states to enact legislation on piracy27

The de facto prosecution of pirates tends to be at the national level and a combination of domestic and international law is often used. However, I will focus on the UNCLOS

definition of a pirate as it has been widely ratified and is in accordance with the lex specialis principle, although I will revisit the SUA Convention later (7.1 The SUA convention). 28

25_{Eggers (n 14) 267.} 26_{UNCLOS (n 24) art 11.}

27_{Martin N Murphy, Contemporary Piracy and Maritime Terrorism: The Threat to International Security}

(Routledge 2009) 14.

28_{See more on lex specialis at - Editors of USLegal, ‘Lex Specialis Law and Legal Definition’ (USLegal}

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4. Maritime terrorism

Compared to piracy, maritime terrorism is a relatively new criminal act. Over the last 50 years there has been an increase in terrorism on land, so it is not surprising that it eventually spread to the maritime arena. 29_{This section will explain what maritime terrorism is,}

beginning with its historical development and then focusing on the special features of the crime. Once both crimes are defined it will be possible to see where they are being conflated.

4.1 Definitional developments and elements of terrorism

Maritime terrorism is assumed to be a variety of broader ‘conventional’ terrorism, so it is crucial to understand what we mean by that term. However, defining terrorism is no mean feat. The question of its definition has been the topic of countless academic debates and there is no consensus on the international legal meaning of the term. 30_{In this section I will give} the traditionally ‘accepted’ definition of terrorism as well as discuss more controversial developments.

The differentiating factor of terrorism from other crimes is the purpose with which the crimes are committed. Terrorism is a compound offence that requires the mens rea for both the underlying offence and for terrorism itself. 31_{The compound nature of the mens rea is} similar to that of the special intent to genocide, which similarly requires intent for the

underlying crime and the intent to commit genocide. 32_{It can therefore be said that terrorism} shares this special intent element, meaning that terrorism in its most general form is:

“Premeditated violence waged against innocent persons and private property whose

goal is to induce a state of fear to intimidate or coerce a government, individuals or groups.33_”

29_{Gal Luft and Anne Korin, ‘Terrorism Goes to Sea’ (2004) 83 Council on Foreign Relations 61.} 30_{Ben Saul, Defining Terrorism in International Law (Oxford University Press 2008) 190.}

31_{Robert Cryer and others, An Introduction to International Criminal Law and Procedure (Cambridge}

University Press 2014).

32_{Read more in, Andra Mirela Cãluian, ‘The Interpretation of the Special Intent to Commit Genocide’ (Erasmus}

University of Rotterdam 2010) 4.

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Terrorism was officially condemned by the UNGA in 1985, but the statement did not include any definition of terrorism.34_{One reason a definitive definition is avoided is the paradigm of} terrorism. To some, terrorists are heroes with a cause while to others they are criminals inflicting terror on innocents for political gain. The cliché that “one man’s terrorist is

another man’s freedom fighter,” is no less true for its repetition, and articulates this

paradigm.

Although terrorism is a ‘new’ crime, especially in comparison to piracy, there are definitions that date back to the beginning of the last century. In the III Conference for the Unification of Criminal Law in Brussels in 1930, terrorism was defined as:

“The intentional use of means capable of producing a common danger… crimes against life, liberty or physical integrity of persons or directed against private or state property with the purpose of expressing or executing political or social ideas will be punished. 35_”

The VI Conference in Copenhagen also made an attempt to define terrorism in 1935 stating:

“international acts directed against the life, physical integrity, health or freedom [of

protected persons, where the perpetrator has created] a common danger, or state of terror that might incite a change or raise an obstacle to the functioning of public bodies or a disturbance in international relations.36_”

These definitions have been followed in more recent history with a series of reactionary suppression conventions on specific types of terrorism. For example, once terrorism took to the skies, aviation safety conventions were drafted, including the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, and the 1971 Montreal Convention for the Suppression of Unlawful Acts against the safety of Civil Aviation. There are specific

34_{UNGA Res 40/61 (9 December 1985) UN Doc A/RES/40/61.}

35_{Final commission proposal cited in Ben Saul, Defining Terrorism in International Law (Oxford University}

Press 2008) 59.

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suppression conventions for nuclear terrorism,37_{hostage-taking,}38_{terrorist bombing}39_and terrorist financing.40

In more recent times ad hoc tribunals have attempted to offer some clarity on the definition of terrorism. Controversially, the Special Court for Lebanon (STL) gave what it claims is the customary international law definition of terrorism. Para 85 of the interlocutory decision reads:

“This customary rule requires the following three key elements:

i. the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act;

ii. the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; iii. when the act involves a transnational element. 41_”

The decision by the STL, however, has not yet been accepted by the international community or by any other international court. The declaration that terrorism has been defined in custom is contested and the STL court has been criticised heavily on its legal reasoning.42_{Thus this} definition remains purely indicative.

Despite the lack of a cohesive definition, there is no hesitation amongst the international community to label acts as terrorist. This suggests that there is something obvious that is distinctive about the crime, perhaps that terrorism is a form of ‘extranormal’ violence that targets civilians in a peacetime environment.43

37_{UN Convention on the Physical Protection of Nuclear Material (adopted 3 March 1980, entered into force 8}

February 1987) 1456 UNTS 101; International Convention for the Suppression of Acts of Nuclear Terrorism (adopted 13 April 2005, entered into force 7 July 2007) 2445 UNTS 89.

38_{International Convention Against the Taking of Hostages (adopted 17 December 1979, entered into force 3}

June 1983) 1316 UNTS 205.

39_{International Convention for the Suppression of Terrorist Bombings (adopted 15 December 1997, entered into}

force 23 May 2001) 2149 UNTS 256.

40_{International Convention for the Suppression of Financing of Terrorism (adopted 9 December 1999, entered}

into force 10 April 2002) 2178 UNTS 197.

41_{Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative}

Charging STL-11-01/1 (16 February 2011) para 85.

42_{Matthew Gillett and Matthias Schuster, ‘Fast-Track Justice: The Special Tribunal for Lebanon Defines}

Terrorism’ (2011) 9 Journal of International Criminal Justice 998 1005-1014.

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When all the definitions are taken into account there are some common factors. The obvious being the purpose of spreading terror, which appears to be uniform across all definitional attempts.44_{The 1999 Convention on Terrorist Financing Convention perhaps comes closest} to offering a comprehensive definition of the crime, and the common elements in Art 2(1)(b):

“any act intended to cause death or serious bodily injury to civilians… when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a government or international organisation (IO) to do or abstain from doing any act.45_”

Many of the articles above use the word ‘or’ in their definitions, for example, “to intimidate a

population, or to compel a government or international organisation.46_{” The use of ‘or’} suggests the linking of alternatives. Thus terrorism can be to create fear amongst a population ‘or’ to coerce a government/ IO. This is indicative of a bifurcated intent, in which either will suffice to fulfil the criteria for the crime. Some scholars argue that terrorism is ‘ineluctably

political in aims and motives.47_{’ However, the judgement of the STL along with the opinions} of certain scholars points to the receding importance of political aim in the terrorist

definition.48

The more traditional definition of terrorism as politically motivated would play a role in differentiating maritime terrorism from piracy, as the difference in intent is more pronounced. In emerging interpretations, however, piracy and maritime terrorism become more aligned, and thus more readily amalgamated. Regardless, the mens rea of terrorism is still separate from that of piracy as special intent is a prerequisite for terrorism.

To summarise the mens rea of terrorism we can say that terrorism has a double intent, for the underlying crime and for terrorism itself. Furthermore, the special intent for terrorism itself is bifurcated. To put it simply terrorism mens rea requires:

44_{Cryer (n 31).}

45_{Terrorist Financing Convention (n 40) art 2(1)(b).} 46_Ibid.

47_{Bruce Hoffman, Inside Terrorism (Columbia University Press 2006).}

48_{Gillett and Schusster (n 43); Ben Saul, ‘Defining Terrorism: A Conceptual Minefield’ Sydney Law School}

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1. The intent for the underlying crime/violence 2. The intent to:

i. instil fear or intimidate innocents or

ii. influence a government (or IO) to act or refrain from acting

Maritime terrorism derives its definition from terrorism. Therefore the defining elements of terrorism must be carried into the definition of maritime terrorism.

4.2 Important historical and definitional developments of maritime terrorism

The world’s oceans are a largely unregulated space, partly because of their vastness. This makes them vulnerable to terrorist attacks. In the past there was a tendency to frame terrorism as piracy due to the fact that there were no specific international rules pertaining to maritime terrorism. Even when concerning a concrete terrorism case, courts were forced to use piracy law in order to avoid perpetrators escaping justice.49_{The lack of legislation was caused by} maritime terrorism not being viewed as a serious international matter until the 1990s.50_Thus the legal history of maritime history is relatively short and any case law precedent is recently established.

The Achille Lauro incident was the first time maritime terrorism was discussed at an international level. Hijackers from the Palestine Liberation Front – a part of the Palestine Liberation Organisation51_{– seized the Italian-flagged cruise ship as it sailed from Alexandria} to Port Said.52_{The men had boarded the ship in Genoa posing as tourists, took it over and} held the passengers and crew hostage, threatening to kill them unless Israel released 50 Palestinian prisoners. They also threatened to blow up the ship if any rescue mission was launched. 53_{When Israel did not comply the men shot Leon Klinghoffer, an elderly,}

49_{Hong and Ng (n 4) 51-60.} 50_Ibid.

51_{“The PLO is an umbrella political organization claiming to represent the world’s Palestinians. Formed in}

1964 to centralize the leadership of various Palestinian groups that previously had operated

as clandestine resistance movements.” - The Editors, ‘Palestine Liberation Organization’, Encyclopaedia

Britannica.com (2019) <https://www.britannica.com/topic/Palestine-Liberation-Organization> accessed 21 May

2019.

52_{Malvina Halberstam, ‘Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on}

Maritime Safety’ (1988) 82 American Journal of International Law 269.

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wheelchair-bound American Jew, and threw his body overboard.54_{The US labelled the event} as piracy but others in the international community disagreed. The Achille Lauro flew an Italian flag and the person killed was a US national, but the demand was for Israel to release prisoners. Thus, a political battle ensued over who should take jurisdiction, and the incident sparked the initiative for a convention on maritime terrorism. The convention drafted in the wake of the hijacking was the SUA, which is discussed in detail later (7.1 the SUA

convention). The SUA does not, however, include a definition of maritime terrorism.

The attacks of September 11th_{2000 introduced the world to the possibility of terrorists using} aircraft as weapons. Since then, military and civilian analysts have seen the potential for the same to occur with vessels on the seas.55_{There has been speculation that terrorists may} attempt to interfere with the world energy supply by commandeering seaborne trade in raw materials and oil, or target specific ships.56_{These fears were realised as early as October} 2000 when the USS Cole, an American naval destroyer, pulled in to refuel in the Yemeni port of Aden and was attacked by Al-Qaeda. Suicide bombers in a small vessel steered their boat alongside the USS Cole and blew themselves up. The blast created a 150m2 _{hole in the hull,} killed 17 US sailors and left 39 more wounded. 57_{The attack was symbolic as the USS Cole} with its high-tech weapons capable of dispensing far-reaching death, was a symbol of American power and invincibility. 58

Two years later on October 6 2002, French supertanker the Limburg was attacked in a similar fashion. A smaller vessel pulled up next to the ship and exploded, destroying the ship’s protective lining and setting the cargo ablaze. One crew member died and 90,000 barrels of oil spilled into the ocean.59_{Osama bin Laden himself commended the attack saying:}

“ exploding the oil-tanker in Yemen, the holy warriors hit the umbilical cord and lifeline of the crusader community, reminding the enemy of the heavy cost of blood

54_Ibid.

55_{Murphy (n 29).} 56_Ibid.

57_{The Editors of the Encyclopaedia Britannica, ‘USS Cole Attack’, Encyclopaedia Britannica.com (2000)}

<https://www.britannica.com/event/USS-Cole-attack> accessed 20 May 2019.

58_{Jeremy Engels, ‘Floating Bombs Encircling Our Shores: Post-9/11 Rhetorics of Piracy and Terrorism’ (2007)}

7 Cultural Studies and Critical Methodologies 326-249.

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and the gravity of losses they will pay as a price for their continued aggression on our community and looting of our wealth.60_”

After the Limburg attack the International Maritime Bureau (IMB)61_{stated a ‘new age of sea} violence’ had arrived.62_{This had a marked effect on national policy in many states and} severely affected insurance rates. 63

Since these events there have been several other incidents that have placed maritime terrorism on the world agenda. In March 2003 an event off the coast of Sumatra raised

concerns. ‘Terrorists’ had hijacked chemical tanker the Dewi Madrim, using pirate techniques and then manoeuvred it as if attempting to learn to control it.64_{The ‘terrorists’ only took} control of the vessel for an hour and left with nothing of real value, suggesting that they had wanted to learn how to pilot the ship, rather as the hijackers had learnt to fly before 9/11.65 There have been many other attacks since then with varying degrees of violence.

None of these attacks led to a specific definition of maritime terrorism at an international level. However, bearing in mind the definition of ‘conventional’ terrorism, it is possible to deduce some common factors. The attacks all have special intent to terrorism, in these cases mostly taking the form of politically, religiously or ideologically motivated crime as well as the underlying intent. These are not acts of ‘robbery’ and do not include material gain. The council for Security Cooperation in the Asian Pacific (CSCAP) has offered one definition of maritime terrorism, stating:

“…the undertaking of terrorist acts and activities within the maritime environment, using or against vessels or fixed platforms at sea or in port, or against any one of

60_Ibid.

61_{“The IMB is a specialized department of the International Chamber of Commerce. The IMB's responsibilities}

lie in fighting crimes related to maritime trade and transportation, particularly piracy, terrorism and commercial fraud, and in protecting the crews of ocean-going vessels.” - International Chamber of Commerce, ‘A

Specialised Division of the International Chamber of Commerce’ (ICC ) <https://www.icc-ccs.org/> accessed 20 May 2019.

62_{Engles (n 58).} 63_Ibid.

64_{Murphy (n 29).} 65_Ibid.

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their passengers or personnel, against coastal facilities or settlements, including tourist resorts, port areas and port towns or cities…66_”

However, the CSCAP definition lacks explanation on what constitutes a terrorist act and on whether this would cover attacks on civilian/merchant ships or include military vessels.67

Thus, in review, there is no easy way to define maritime terrorism. Most of the challenges stem from the lack of an overarching definition for terrorism itself. The SUA Convention, while not defining maritime terrorism, is the instrument providing the most guidance on how to deal with the crime but there is no specific instrument in effect today.68

5. Defining characteristics of each crime

This section will point out the special features that separate the definitions of piracy and maritime terrorism. I will discuss motives, jurisdiction and jurisdictional scope, the ‘ship to ship’ rule and the right to visit. The analysis will consider international law legislation and cases to explain how piracy and maritime terrorism definitions differ.

5.1 Motives

5.1.1 Importance of motive in piracy

A special feature of piracy has been the development of the criteria of ‘private gain’. Piracy can only be committed when the gain is for a private person or organisation. The importance of private gain as a motive has been reflected in case law. Common law case development is relevant as it forms the foundation of the HSC, which in turn forms the basis of UNCLOS.

The first case is the Republic of Bolivia v Indemnity Mutual Marine Assurance Co Ltd.69_The case concerned an insurance claim made after Brazilian malcontents used an armed vessel to

66_{CSCAP, ‘Council for Security Cooperation in the Asia - Pacific Memorandum 5’}

<http://www.cscap.org/uploads/docs/Memorandums/CSCAP Memorandum No 5 - Cooperation for Law and Order at Sea.pdf> accessed 19 May 2019.

67_{Hong and Ng (n 4) 51-60.} 68_{SUA (n 22).}

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seize goods being taken to Bolivian soldiers on the Amazon. The intention of the Brazilians was to create an autonomous territory in Bolivia and the goods belonged to the Bolivian Government. The insurance company claimed this was not piracy and, therefore, not within the scope of the insurance policy.70_{The court judge, Pickford J, stated in agreement with an} authoritative book at the time that:

Its [piracy’s] essence consists in the pursuit of private, as contrasted with public, ends. Primarily the pirate is a man who satisfies his personal greed or his personal vengeance by robbery or murder in places beyond the jurisdiction of a State….71_”

Another case with relevance is the Banque Monetaca and Carystuki v Motor Union

Insurance. 72_{This case concerns a vessel seized off the Black Sea coast of Turkey by Osman} Agha, a man who had functional control of the region in which he seized the vessel and was a virtual dictator. He captured the vessel to make a political statement on the Kemalist

Turkish/Greek conflict. The judge, Roache J, stated that the hijackers were, “killing from

hatred and revenge and not from a scheme of brigandage.73_{” Thus the court ruled that this} attack was not piracy, but that this did not preclude other attacks by the same group from constituting piracy.

Together these judgments prove private gain is a fundamental criterion of piracy.

5.1.2 Importance of motive in maritime terrorism

Official definitions of terrorism tend to focus on the importance of intention or motive, as we saw when looking at the definition of terrorism. This is reflected in the wording of the UNSC Resolution 1566 which states:

“the purpose of terrorism must be to intimidate a population or compel a government or international organisation to do or to abstain from doing any act.74_”

70_Ibid. 71_Ibid. 72_Ibid. 73_Ibid.

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The special intent element of the definition can be problematic because it is contingent on purely subjective elements. Furthermore, whether a state or IO acts or abstains from acting, and the long-term effects of the terrorist attack can only be determined post facto.75_The ‘terrorist’ label can be seen as an extra dimension to a regular crime that elevates it to a higher level of criminality.76_{Since maritime terrorism is, in simple terms, regular terrorism} with some connection to the seas, the importance of motive must translate to maritime terrorism.

5.1.3 Relevance of motive to amalgamation

Frequently pirates’ motives create the only clear distinction of their crime from maritime terrorism. 77_{Terrorists are characterised by their special intent, meaning they must have both} intent to the underlying crime and to terrorism. Terrorism has ulterior motives, while piracy relies only on personal gain as motivation. It is evident that the crimes are of a different character but the delineation may lie only in motive. Hence the private aim criterion is fundamental in understanding the difference between maritime terrorism and piracy.

This difference was articulated by Young and Valencia, who stated:

“Terrorism is distinct from piracy in a straightforward manner. Piracy is a crime motivated by greed, and thus predicated on financial gain. Maritime terrorism is motivated by political goals beyond the immediate act of attacking or hijacking a maritime target78_”

Despite the differentiations existing in theory, we will see later that practice is not necessarily in line with this.

Furthermore, as discussed previously in the section on defining terrorism (4.1 Definition of

Terrorism), the importance of political motive is receding, contributing to the difficulty of

75_{George P Fletcher, ‘The Indefinable Concept of Terrorism’ (2006) 4 Journal of International Criminal Justice}

894-911.

76_Ibid.

77_{Eggers (n 14) 264-265.}

78_{Adam J Young and Mark J Valencia, ‘Conflation of Piracy and Terrorism in Southeast Asia: Rectitude and}

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separating the crimes. Terrorism without political motive is harder to differentiate from piracy than politically motivated terrorism.

However, since piracy does not require the intent to reach a wider audience, the definitions of motive remain independent of one another, constituting an indication that they are not (yet) amalgamated.

5.2 Jurisdiction

5.2.1 Universal jurisdiction in piracy

Piracy is unique as the only crime with absolute universal jurisdiction. Universal jurisdiction can be defined as:

“a legal principle allowing or requiring a state to bring criminal proceedings

in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim. 79_”

When Article 105 and 110 of UNCLOS are read together, acts of piracy can be prosecuted by any state.80_{When an act of piracy occurs it is possible for any world state to take jurisdiction} over the case, even if there is no direct link between that state and the act. UNCLOS only indirectly criminalises piracy with the purpose of providing states with additional grounds for jurisdiction.81_{The law of piracy and its universal jurisdiction application developed in the} national laws and practices of the major seafaring nations between the 1600s and 1800s. States had mutual interest in protecting their ships and traders and so despite differences in the manner of development of laws, results across states were similar. The first basis for universal jurisdiction came through recognizing the flag state’s authority to seize and prosecute pirates under their national law. The ideology that pirates are the enemies of all mankind - hostis humani generis has played a role in customary acceptance of universal

79_{Kenneth C Randall, ‘Universal Jurisdiction under International Law’ (1987) 66 Texas Law Review, 785-788.} 80_{UNCLOS (n 24) art 105 and 110.}

81_{Marta Bo, ‘Piracy at the Intersection between International and National: Regional Enforcement of a}

Transnational Crime’ in C Paulussen H van der Wilt (ed), Legal Responses to Transnational and International

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jurisdiction for piracy.82

The efficiency of universal jurisdiction has been questioned and there is some argument that piracy should be decoupled from universal jurisdiction but that discussion is beyond the scope of this paper. 83

Furthermore, the jurisdictional scope of the main legal instruments for piracy and maritime terrorism are different. The definition of piracy when taken from the UNCLOS is limited to acts occurring outside the territorial jurisdiction of any state as set out in Article 101 1(a) (ii):

“against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;84_”

Outside the jurisdiction of any state refers to the high seas and shipping lanes. The criterion of piracy having to occur on the high seas is a result of the historical development of the crime. Universal jurisdiction for piracy has been established, therefore, in order to respect sovereignty of states. It is worth noting that the UNCLOS does not impose any obligation on states to establish jurisdiction, potentially creating a jurisdictional gap. 85

5.2.2 Jurisdiction for maritime terrorism

In the absence of a specific international legal instrument for maritime terrorism, its jurisdiction is governed by the SUA Convention. This follows the same rules as other suppression conventions, in which the basis for jurisdiction is ‘Aut Dedere Aut Judicare,86_’ thus imposing international obligations on all state parties to use their own national courts or to extradite to a state that will. 87_{The Convention establishes two types of jurisdiction in}

82_{M Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and}

Contemporary Practice’ (2001) 42 Virginia Journal of International Law 108-112.

83_{Micheal Joshua Goodwin, ‘Universal Jurisdiction and the Pirate: Time for an Old Couple to Part’ (2006) 39}

Vanderbilt Journal of Transnational Law 973.

84_{UNCLOS (n 24) art 101.} 85_{Randall (n 79).}

86_{“The obligation is phrased in different ways in different treaties, but essentially it requires a state which has}

hold of someone who has committed a crime of international concern either to extradite the offender to another state which is prepared to try him or else to take steps to have him prosecuted before its own courts”- M Cherif Bassiouni and Edward M Wise, Aut Dedere Aut Judicare : The Duty to Extradite or Prosecute in International

Law (M Nijhoff 1995).

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Article 6: obligatory – when states are obligated to take jurisdiction, and discretionary – when states can choose to take jurisdiction.88

5.2.3 Relevance of jurisdiction to amalgamation and its consequences

Historically terrorists were labelled as pirates to ensure they could not escape justice if their acts were perpetrated on the high seas.89_{The universal jurisdiction for piracy allowed any} state to take up jurisdiction against ‘pirates’ who may actually have been terrorists. This meant that in court cases the language used for pirates and terrorists was the same and the effect was a blurring of the lines between the two crimes.90_{Universal jurisdiction is a unique} feature of piracy and so should delineate between maritime terrorism and piracy. The

historical use of the term ‘pirate’ to bring maritime terrorists to justice has, however, contributed to the conflation of the crimes in the modern day.

In present times, the SUA Convention has affected jurisdiction for both crimes since it applies in territorial waters as well as on the high seas. The SUA Convention encompasses both crimes and the jurisdictional rules and obligations in the Convention apply uniformly thereby amalgamating the crimes.

Although the aim of my paper is not necessarily to criticise, matters of jurisdiction are a point of major objection in the conflation of maritime terrorism and piracy and so deserve some attention here.

Despite making reference to piracy and maritime terrorism in international law throughout this paper, I do so in the broad sense of international law. Technically both crimes fall into the category of transnational law.91_{Transnational law differs from international law in that it} pertains to crimes made illegal for, “political, social and economic interests” and makes

“assertions about the harm caused to these interests,” whereas international law crimes,

88_{SUA (n 22) art 6.}

89_{Hong and Ng (n 4) 51-60.} 90_Ibid.

91_{Harmen van der Wilt, ‘Legal Responses to Transnational and International Crimes : Towards an Integrative}

Approach’ in Harmen van der Wilt and Christophe Paulussen (eds), Legal responses to transnational and

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“threaten the peace, security and well-being of the world, are of a concern to the international community as a whole and must not go unpunished.92_”

In general, the prosecution of transnational crimes occurs almost exclusively at a national level. In extreme cases, there have been indications of terrorism reaching the ‘crimes against humanity’ or ‘war crimes’ threshold wherein it could be tried at an international tribunal.93 There has even been discussion on expanding the mandate of the ICC to transnational crimes, but this has not materialized.94_{As it stands today there is no overarching centralized court for} transnational crime,95_{making the application of universal jurisdiction to piracy particularly} important. When maritime terrorism and piracy are amalgamated it opens the door for acts of maritime terrorism to be awarded absolute universal jurisdiction, granting them admissibility to the courts of all states, regardless of that state’s connection to the crime.

Universal jurisdiction in domestic courts has an inherent risk in regards to terrorism. Austen Parrish made the astute statement, “extraterritorial application of American law certainly has

the appearance of a unilateral instrument of American hegemony.96_{” Thus the vestiges of} imperialism loom over world powers when they attempt to prosecute terrorists for acts that occur outside their territories, particularly in cases brought by the US.97_{Understandably,} other countries are suspicious whenever a powerful nation attempts to impose its domestic legislation in order to control matters outside its territories.98_{In the light of the political} climate and sensitivity of the crime of terrorism it would therefore seem unwise to bestow absolute universal jurisdiction on maritime terrorism via its conflation with piracy. The ramifications of such action could be far-reaching and set an unwarranted precedent. Extreme caution should be exercised when applying universal jurisdiction to cases where crimes of piracy and maritime terrorism are blurred.

92_{Neil Boister, ‘Transnational Criminal Law?’ (2003) 14 EJIL 953: Luz E Nagle, ‘Terrorism and Universal}

Jurisdiction: Opening a Pandora’s Box’ (2011) 27 Georgia State University Law Review, 344: Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 preamble.

93_{Cryer (n 31) 293-294.} 94_{van der Wilt (n 91).} 95_Ibid.

96_{Austen L Parrish, ‘Reclaiming International Law from Extraterritoriality’ [2008] SSRN Electronic Journal}

<http://www.ssrn.com/abstract=1013740> accessed 21 June 2019.

97_{Luz E Nagle, ‘Terrorism and Universal Jurisdiction: Opening a Pandora’s Box’ (2011) 27 Georgia State}

University Law Review 360-361.

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5.3 The ‘ship to ship’ rule

When referring to the UNCLOS definition of piracy in article 101, para 1 (a) and para (1)(a)(i) refers to acts of piracy by, “a private ship… directed….. against another ship.99_” This has become known as the ‘ship to ship’ rule.100_{From this article there are two main} legal gaps.

The first is the private ship criterion. What is a private ship? If a government or naval ship commits an act of piracy is it then excluded from prosecution under UNCLOS guidelines?

The second is the case of stowaways. If a ship is taken over by pirates stowed away on board rather than from another vessel, do they then fall outside of the UNCLOS definition?

The first gap is partially filled by article 16 UNCLOS, which states:

"acts of piracy... committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship.101_”

Thus if ‘public’ vessels are used in a private capacity, the vessels are treated as ‘private.’ However, the second lacuna is not addressed by the UNCLOS, establishing the criterion that two (or more) vessels must be involved to constitute piracy.102

The ‘ship to ship’ rule therefore is a limitation on the scope of piracy. The SUA Convention has no such limitation. It was drafted in reaction to a case of internal takeover of a ship and thus includes these from its inception.103

5.3.1 Relevance of the ‘ship to ship’ rule to amalgamation

The UNCLOS definition of piracy limits piracy to cases concerning at least two vessels. This is a gap in piracy law as it fails to cover internal takeovers. While in this respect the SUA has 99_{UNCLOS (n 24) art 101.} 100_{Nelson (n 6).} 101_{UNCLOS (n 24) art 16.} 102_{Nelson (n 6).} 103_{Halberstam (n 52).}

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closed the gap, the use of SUA for piracy cases indicates amalgamation, since it makes no distinction between the crimes of piracy and maritime terrorism. Perhaps this gap could have been filled by an amendment to the UNCLOS or a new protocol to keep piracy and maritime terrorism separate but this was not done. As a result, for any case of piracy initiated by an internal attack the mechanism of international law is the same as for maritime terrorism.

5.4 The right to visit

The freedom of the high seas has been enshrined in custom for hundreds of years. Hugo Grotius in 1608 argued that the very nature of the oceans demanded they be available to all users. That, unlike land territory, the physical characteristics of the oceans mean the high seas do not permit the same level of control.104_{Thus it was accepted that states should not}

encroach on the sovereignty of other vessels on the high seas. Exceptions were made, however, for pirates.

The UNCLOS allows for pirate ships to be forcibly boarded in specific circumstances. Article 110 states that when a warship encounters a vessel on the high seas it may board the ship if there are reasonable grounds for suspicion that:

a. “the ship is engaged in piracy; b. the ship is engaged in the slave trade;

c. the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;

d. the ship is without nationality; or

e. though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.105_”

The original SUA Convention did not mention any right to board foreign vessels, therefore the right to visit was a differentiating factor between piracy and maritime terrorism. In 2005 this changed with the addition of a protocol to the SUA Convention. Article 8bis in the 2005 Protocol refers to the procedures to be followed if a state party wishes to board a ship flying

104_{Ralph Van Deman Magoffin and James Brown Scott (trs) Hugo Grotius, ‘The Freedom of the Seas’ (OUP}

2001) 28.

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the flag of another state party.106_{Therefore, the 2005 Protocol ‘levels the playing field’} between piracy and maritime terrorism despite requiring the authorisation and co-operation of the flag state before boarding.

5.4.1 Relevance of the right to visit to amalgamation

The addition of the 2005 Protocol to the SUA Convention increased the amalgamation of piracy and maritime terrorism. The Protocol was introduced to provide legitimacy for the Proliferation Security Initiative (PSI), which was first instrument to give ship-boarding rights for acts related to terrorism. The Protocol expands the scope of the SUA Convention and allows for boarding of foreign-flagged ships. The limitations of the Protocol – requiring the express consent of the flag state for boarding – do serve to leave some level of distinction in how pirates and maritime terrorists are treated.107_{However, the additions bring the SUA} Convention more in line with traditional action against pirates, therefore contributing to amalgamation. The 2005 Protocol and the PSI are both discussed in detail in chapter 7. (7.1.1

The 2005 Protocol, 7.2 The PSI)

6. Shared characteristics

The distinction between piracy and terrorism often lies in the eyes of the beholder. The perception of one state may differ to that of another and national laws delineate the crimes in different and non-uniform ways.108_{The crimes’ shared characteristics and the lack of}

definitional consensus has had significant impact on divergent policy development. 109 Although piracy and maritime terrorism are separate crimes with different motivations, they nonetheless share several characteristics. This overlap has led to misunderstanding of the nature of the crimes and to some misconstruing of the challenges they pose to law

enforcement and regulation. Unsurprisingly, their shared characteristics have encouraged conflation in policy development, so it is important to understand what the two crimes have

106_{Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime}

Navigation (adopted 14 October 2005) IMO 15/21 art 8bis.

107_{Natalie Klein, ‘The Right of Visit and the 2005 Protocol on the Suppression of Unlawful Acts Against The}

Safety of Maritime Navigation’ (2008) 35 Denver Journal of International Law and Policy.

108_{Nelson (n 6).} 109_Ibid.

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in common before answering the question of the degree to which piracy and maritime terrorism are amalgamated in international law. 110

6.1 The enemy of mankind

As we have already seen in the section on the historical development of piracy, pirates have long been considered, hostis humani generis or the ‘enemies of mankind.’ 111_{The notion was} confirmed in the Lotus Case, where the court stated a pirate is, “treated as an outlaw, as the

enemy of all mankind – hostis humani generis - whom any nation may in the interest of all capture and punish.”112_{The ‘enemy of mankind’ definition of a pirate became very} important in establishing universal jurisdiction and its place in the international order.

Terrorists have been compared to pirates and also sometimes dubbed ‘enemies of mankind.’ In a 1901 speech President Theodore Roosevelt spoke after an anarchist had shot and killed President McKinley in a terrorist attack113_{. He said:}

“Anarchy is a crime against the whole human race; and all mankind should band against the anarchist. His crime should be made an offense against the law of nations, like piracy and that form of manstealing known as the slave trade.114_”

Although the reference is to anarchists this is relevant for terrorism too. Anarchists believe in system without official government and law as a political ideology.115_{Clearly not all}

anarchists are terrorists but those making use of terrorist tactics, such as assassinations, could fit the modern day terrorist definition. In this example the underlying crime element is the killing of a person, while the bifurcated special intent is the political motive behind killing a president. Labelling anarchists as the enemies of the state prepared the ground for doing the same to terrorists.

110_Ibid.

111_{Molloy (n 15).}

112_{Lotus (n 17) para 249.}

113_{Mikkel Thorup, ‘Enemy of Humanity: The Anti-Piracy Discourse in Present-Day Anti-Terrorism’ (2009) 21}

Terrorism and Political Violence 401.

114_{R Jensen, ‘The United States, International Policing and the War against Anarchist Terrorism, 1900-1914’}

(2001) 13 Terrorism and Political Violence 15 19.

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The pirate was the first non-state and non-conventional ‘enemy’ of the state, but these descriptions also fit terrorists. Pirates and terrorists have been linked by the consistent interpretation of their crimes as a global security threat. They are branded as enemies of humankind because they fall outside the ‘normal’ boundaries of what is considered good citizens’ behaviour.116_{The alienation of pirates and terrorists has led to parallels in the} manner in which ‘war’ has been waged against them.

The legal theorising of Carl Schmitt is helpful in understanding why terrorists and pirates are removed from society more than ‘regular’ criminals. Schmitt wrote on what he called the

discriminating concept of war and the implications of partisan warfare.117_{He addressed the} structural and theoretical implications of partisan warfare, which takes place outside

conventional international law.118_{He claimed that powers were using partisan warfare to} intensify antagonisms and use them as a justification to extend social control both domestically and extraterritorially.

Partisan warfare has many parallels with the conduct of the ‘war’ against terrorist organisations.119_{Schmitt emphasised that the partisan is treated as an outlaw and that} occupying troops are the main target, but that the ideological message of partisans is not limited to territory.120_{Similarly, the ideologies of terrorist groups extend further than any one} territory.

These ‘new’ wars, which are simultaneously international and national, have made clear separation between combatants and non-combatants virtually impossible. As a consequence there have been an efforts to infuse jus in bello with ‘universal’ morality, for example through the notion of the ‘responsibility to protect.’121_{The introduction of morality gives} powers authorisation to engage in asymmetric war against enemies who are ‘universally’

116_{Thorup (n 113).}

117_{Martti Koskenniemi, ‘Carl Schmitt and International Law’ in Jens Meierhenrich and Oliver Simons (eds),}

The Oxford Handbook on Carl Schmitt (Oxford University Press 2015).

118_Ibid. 119_Ibid. 120_Ibid.

121_{The Responsibility to Protect doctrine is the enabling principle that first obligates individual states and then}

the international community to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity - UNRIC, ‘Responsibility to Protect’ (UN Regional Information Centre for Western Europe ) <https://www.unric.org/en/responsibility-to-protect?layout=default> accessed 6 June 2019.

The murky waters of piracy and maritime terrorism: an analysis of the blurred lines between the two crimes