Are pirates criminals or combatants? The historically developed legal views on piracy with an account of the US intervention in Tripoli

Essay, 2015

9 Pages, Grade: 1,0


Pirates – Criminals or Combatants

Essay about the historically developed legal views on piracy with an account of the US intervention in Tripoli

The sea plunderer, the corsair, the privateer, the pirate – These are only some of the terms, which are used nowadays to describe the phenomenon of sea thievery. Besides historians, philosophers and novel writers also jurists are concerned with the so called pirate. Since the 14th century BCE there have been accounts of the existence of mostly non-state armed forces, used to raid coastal communities by means of transport over the sea. A clear distinction in terms however, was not made by the ancient greek authors between piracy and the overlapping crime of (armed) robbery. Though people already could distinguish between common banditry ashore and those acts committed on sea, in practice, the pirates of those days mainly operated in coastal waters or assaulted harbor cities. Also there was no clear distinction between acts of certain individuals and whole towns or communities depredating commercial ships. A few centuries later we find the first accounts of state-sanctioned piracy with regard to the people of Chalcedon. They firstly instituted a kind of piracy by allowing their people, if they have had claims against any foreign individual, to hire mercenaries. Those pirates for hire were instructed to act in a way of enforcing private rights of reprisal. They did so by capturing ships from any individuals whom were of the same community as the person a chalcedonian citizen had a claim against. This constituted one of the first accounts of legitimately using force to acquire someone else’s property on the high seas.

The Romans on the other hand were not too eager in fighting pirates in the Mediterranean at first, because due to the rapid expansion of their empire they were in constant need of new slaves. After the destruction of Carthage and Corinth the Romans fueled slave trade through the market of the city of Delos, where everything was to be sold. So in this time slave trade from Palestine, Syria and Mesopotamia was one of the most lucrative branches for the plunderers of the sea. In contrast to that, Rome used the concept of the pirate as an “enemy of all”, as Cicero put it, to subdue some lesser maritime powers in the Mediterranean such as the Illyrians, the Dalmatians, Ligurians and Balearic Islanders.

By the beginning of the first century BCE the development in the Mediterranean was definitely not going in Rome’s favor. Roman historians recount many acts of violence at or from sea, for example the pillaging of many roman sanctuaries and abductions of Roman citizens that were held to ransom.

The most famous episode of that practice clearly was the capturing of Julius Caesar. As a consequence of an alliance between the king of Pontus and the various groups of plunderers, the Roman dominion in the waters they proudly have called “mare nostrum” was endangered at best, if not non-existent. As a consequence of the shrinking roman influence in the waters and the steady humiliation of the empire, a law was to be passed in the Roman Senate to fight piracy. It was opposed by many senators at first in accordance with most of the roman people, because they feared it was aimed at transforming the republic back into a monarchy due to the extraordinary powers it was supposed to give to one general to fight the pirates. The former consul Pompey was chosen for this mission and within just a few months he successfully secured the roman waters. Though many groups of pirates subdued themselves to Pompey and/or were incorporated into his forces. This posing one of the first hints of the future relevance of piracy in international law as important example of an enemy of all or an enemy of humanity, against which all civilized nations have to join force. The ways and means of combatting piracy though were altered until modern times from waging war without granting the rights of combatants in Roman times, to policing by use of military force. On the one hand with the obligation to fight piracy as laid down in Article 101 of the United Nations Convention on the law of the sea of 1982, but also an obligation to try them before a proper tribunal, without a status as combatants granted to them by International Humanitarian Law.

Another field of law for many years dealing with the effects of piracy was private law because there was a dispute between roman legal scholars, whether proprietorship of goods, this also including slaves and in some cases women, would be altered, once they were robbed and taken beyond the shores by pirates. In pre-modern times Bartolus de Saxoferrato finally made clear that “the pirate does not alter ownership”.

The defining characteristics of the crime of piracy and the problems of combatting it that arise because of the non-territorialisation and disability of attribution to a state are brought down by Danial Heller-Roazen to the four characteristics of the “piratical paradigm”:

1. Piracy involves a region in which exceptional legal rules apply, a region of which the high seas and international air space have been until today the dominant examples.
2. Piracy involves an agent who, committing deeds in such an unusual legal space, displays an antagonism that cannot be defined as that one of an individual with respect to another or of one political association with respect to another. Such an antagonist may not possess a single object; it may not discriminate in its target. It appears not as particular but as general; it is often represented as “universal.” The title “enemy of all” points to the character of this antagonism.
3. As a consequence of the first and second defining characteristics, piracy brings all about the confusion and, in most extreme cases, the collapse of the distinction between criminals and political categories. Acting outside regions of ordinary jurisdiction and conceived as not opponents of one but as “enemies of all,” pirates cannot be considered common criminals, whose place may be defined in the terms of a single civil code. But they also cannot be represented as lawful enemies, for by virtue of their enmity with respect to a general collectivity they fail to constitute an association with which there might be peace as well as war.
4. Finally, by virtue of the third defining trait, piracy entails a transformation of the concept of war. Since “enemies of all” are neither criminals nor belligerents in any accepted sense, the operations carried out against them cannot be formally identical to those employed against a lawful enemy. They must involve the measures used in prosecuting both belligerents and criminals: procedures of external relations and of internal security, technologies of politics, as well as of police.[1]

In addition to the problems of how to treat the perpetrators of armed violence at the high seas, another problem was emerging: state-sponsored sea-robbery. For some states to hire freebooters deemed an attractive extension of the capabilities of the own navy, a prominent example for this would be Sir Francis Drake who plundered especially Spanish ships with authorization by a letter from the British Crown. He was able to diminish the Spanish influence in the Caribbean and Latin America and to bring the government of King Phillip II. near to financial collapse. Later he gained popularity for his substantial role in fighting off the Spanish Armada in 1588 CE.


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Are pirates criminals or combatants? The historically developed legal views on piracy with an account of the US intervention in Tripoli
University of Vienna  (Rechtswissenschaftliche Fakultät/ Institut für Europarecht, Internationales Recht und Rechtsvergleichung)
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Public International Law, Piracy, United Nations Convention on the Law of the Sea, unable or unwilling, Barbary Wars, US Intervention in Tripoli, Law of Nations, Völkerrecht, Piraterie, Piraten, Pirates, UN Seerechtsübereinkommen
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Michael Friedl (Author), 2015, Are pirates criminals or combatants? The historically developed legal views on piracy with an account of the US intervention in Tripoli, Munich, GRIN Verlag,


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