Over at The Corner on National Review Online, they have been asking folks about piracy. I was asked for my take and here is what I said:
Our problem with pirates is the same as the one with al Qaeda et al. We have extended legal rights to people who do not deserve them. We need to return to an important distinction first made by the Romans and subsequently incorporated into international law by way of medieval and early modern European jurisprudence, e.g. Grotius and Vattel. The Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi — pirates, robbers, brigands, and outlaws — "the common enemies of mankind."
The former, bellum, became the standard for interstate conflict, and it is here that the Geneva Conventions and other legal protections were meant to apply. They do not apply to the latter, guerra — indeed, punishment for latrunculi traditionally has been summary execution. Until recently, no international code has extended legal protection to pirates.
So first, we should revive that distinction. When pirates are caught, they should be hanged. Second, I’m not the first to suggest that we should use force to wipe out the pirate lairs. Under the old understanding of international law, a sovereign state has the right to strike the territory of another if that state is not able to curtail the activities of latrunculi.
Americans recognized this principle from the outset. Here’s something I wrote for the Winter issue of Orbis:
The Early Republic faced many threats, including a continuing European presence in North America-Great Britain in Canada and Spain in Florida and Texas-and what we would today call "non-state actors:" marauding Indians and pirates, ready to raid lightly defended areas on the frontier. These threats were exacerbated by the weakness of what John Quincy Adams called "derelict" provinces, which provided an excuse for further European intervention in the Americas, and sanctuary for hostile non-state actors. In 1818, Florida provided an occasion to address such threats.
After Creeks, Seminoles, and escaped slaves launched a series of attacks on Americans from sanctuaries in Spanish Florida, General Andrew Jackson, acting on the basis of questionable authority, invaded Florida, not only attacking and burning Seminole villages but also capturing a Spanish fort at St. Marks. He also executed two British citizens whom he accused of aiding the marauders.
Most of President James Monroe’s cabinet, especially Secretary of War John Calhoun, wanted Jackson’s head, but Adams came to Jackson’s defense. He contended that the United States should not apologize for Jackson’s preemptive expedition but insist that Spain either garrison Florida with enough forces to prevent marauders from entering the United States or "cede to the United States a province.which is in fact a derelict, open to the occupancy of every enemy, civilized or savage, of the United States, and serving no other earthly purpose than as a post of annoyance to them." As Adams had written earlier, it was his opinion "that the marauding parties ought to be broken up immediately." As John Gaddis has observed, Adams believed that the United States "could no more entrust [its] security to the cooperation of enfeebled neighboring states than to the restraint of agents controlled, as a result, by no state."