Caught in the act?

Making important distinctions is a skill that seems under attack. On the domestic front this attack seems to be on the defense of self as a justifiable. On the international front this attack is about the ideal of considering terrorists and pirates as just plain ol’ criminals. Mackubin Thomas Owens provides a bit of background on this at The Corner

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 in 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

The key in this distinction is that of being caught in the act. When someone breaks into your house, you respond to their act. When a non state actor is captured on the battlefield, soldiers respond to their actions. When pirates attack a ship at sea, the response should be to their action.

The idea of ‘caught in the act’ is that it is a means of making the distinction between ‘us’ and ‘them’ that can supercede the usual evidentiary process in a contingency or provide a significant basis for evidence of guilt if conditions permit. The logical fallacy being used to attack this concept is that of marginalization. The consequences of such efforts need careful consideration.

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