State Responsibility and the War on Terror: The Legacy of Thomas Jefferson and the Barbary Pirates

The first "purpose" of the United Nations set forth in Article 1(1) of its Charter is "[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace."1 Article 2(4) outlaws all aggressive uses of force.2 This reflects a radical departure from the prevailing legal regime of earlier centuries, which recognized a sovereign state's inherent legal right to resort to force and imposed a duty of neutrality on all states not involved in a conflict. Today, as America faces asymmetric threats to its security often characterized by the tactics of terrorism, there is wisdom to be found in the writings of one of America's greatest Founding Fathers, Thomas Jefferson. He foresaw the principle of nonintervention in the internal affairs of other states, the utility of multilateralism and collective security arrangements, and the importance of dealing decisively with acts of aggression or terrorism, lest they become parents to others. A brief discussion of Jefferson's contributions in this area is particularly relevant to the theme of the present issue of the Chicago Journal of International Law, as Jefferson led America in its first battles with state-sponsored international terrorism.3 In so doing, he relied upon a combination of regular forces (navy and marines) and unconventional/covert warfare to present his adversaries with the choice between abandoning their predation or losing their jobs and perhaps their lives. In the process, he showed the world that the most promising path to peace, when confronted by terrorism, is unity and strength, and paved the way for the restoration of freedom of the high seas. I. SETTING THE STAGE One of the many parallels to the modern American war against terrorism is that Jefferson's problem was exacerbated by a long history of European weakness during which payments of tribute and ransoms promoted a growth industry of terrorism.5 The Barbary regencies had preyed upon European commerce-and were generously rewarded for having done so-for two centuries before the United States of America arrived on the scene as an independent actor.6 The revolutionary victory deprived America of the protection of the British flag-like other European powers, the British were paying tribute to secure unmolested transit on the high seas. This lack of protection, combined with the increase in American commerce,7 and the fact that American merchant ships "carried not an ounce of shot"8 to defend themselves made the new nation's commerce particularly attractive for plunder. In October 1784, the American merchant brig Betsy was seized on the high seas and taken with its crew of eleven to Morocco.9 Lacking both a naval force to protect American commerce and the ability to compel the American states to furnish the necessary funds to provide for a navy, the Continental Congress ultimately decided to follow the European lead and authorized $80,000 to "negotiate peace" with Morocco to obtain the release of the prisoners.10 Not surprisingly, two weeks after the crew of the Betsy was freed, cruisers from Algiers seized two other American vessels with 21 hostages. The conditions of imprisonment were such that, by the time peace was purchased in 1796, only 85 of the 131 American hostages that had been imprisoned in Algiers remained alive.11 As word spread across the North African coast that the Americans had signed a treaty to pay tribute to Algiers, the other Barbary states quickly threatened to prey upon American vessels unless they received equally generous treatment.12 Particularly troublesome in this regard was one Yusuf Karamanli, Bashaw of Tripoli, who had seized power upon the death of his father in 1796. Six years earlier, Yusuf had murdered his older brother Hasan, and he held the family of his eldest brother Hamet-who had been out of the country at the time of their father's death-as hostages to dissuade the rightful heir from returning and asserting his claim to power. …