Pirates of the Deep

Sovereign powers have long wished to dominate the depths as well as the surfaces of the seas. The first among them may well have been Alexander the Great. The Hellenistic Alexander Romance records how, having once come across a crab of monstrous proportions inside whose shell there lay seven pearls the likes of which no man had ever seen, the Macedonian monarch concluded that “they must originate in the inaccessible depths of the sea.” That thought immediately led him to another. “Then,” Alexander proudly recalled in an informative, if lengthy, letter to his mother, “I made a large iron cage, and inside the cage I placed a large glass jar, two feet wide, and I ordered a hole to be made in the bottom of the jar, big enough for a man’s hand to go through. My idea was to descend and find out what was on the floor of this sea.”^[1] The classical and medieval traditions offer multiple accounts of Alexander’s voyages beneath the waters.^[2] In Greek literary sources, he observes “all kinds of fish,” including one enormous swimming beast that dares to pull the sovereign’s own cage through the sea, before wrecking it against the shore, spilling the king on the sand.^[3] Medieval Latin and Romance versions of the tale find the sovereign in a glass jar, absorbed in contemplation of the strange spectacles before him: “He saw fish looking very much like men and women, walking on their feet on the sea-bed and feeding on other fish, just as men in this world feed on animals.”^[4] The Old French adaptation attributed to Alexander of Paris has the king commenting on the ways of belligerent fish in battle.^[5] That rendition also suggests that Alexander’s wish to fashion the marvelous jar may not have been altogether unrelated to his infamous imperial ambitions. “My lords,” the weary monarch declares in the verse romance, before proposing his novel plan, “I have conquered widely. The inhabitants of Jerusalem do exactly as I will. I have destroyed the people of Tyre on account of their great cruelty. Because of me, Darius, King of Persia, has been put to death by his own people. Now I will tell you what I have thought: I have come and gone about the earth enough. I wish to know the truth concerning the people of the seas.”^[6]

“Cage” or “jar,” the vessel Alexander invented to obtain that truth bears more than a passing resemblance to the sturdy and armed devices of underwater travel now commonly called “submarines.” It was not till the first half of the twentieth century, however, that common monarchs had at their disposal tools like Alexander’s, and that the unlikely ships began to contribute significantly to the naval forces of sovereign states. The new vessels emerged, so to speak, most notably during World War I, when the German Empire employed them with considerable success against its enemies. Those who witnessed the appearance of the new technology of war naturally noted its remarkable stealth and destructive power, but they also saw immediately that this was a ship unlike those used in traditional combat between belligerents. The submarine marked a departure for the international principles of war. Although the underwater vessel could be, and indeed was, employed against ships of state, by its very form it resisted adherence to the rules established by the law. The modern doctrine of war stipulated that to be lawful, state vessels were to comply with certain principles. They were required, for instance, to affiliate themselves visibly with their state, usually by means of a flag—if not permanently, at least always in the moments prior to attacking. When they waged war, they were to discriminate, at least in principle, between a neutral and an enemy vessel. They also had to be willing to receive on board for safety the crew of the opposing vessel, and if they took captives, they were to do so in accordance with the jurisdiction of the prize court.

By its design, however, the submarine could respect no such imperatives.^[7] Its action was secretive by definition; it possessed no technology, at least at its inception, by which to distinguish under water between enemy and neutral ships; finally, its construction did not furnish it with any certain means for taking aboard captives, and its own crew, in any case, was too exiguous to afford personnel for staffing prize vessels and visiting and searching passing ships. The new underwater craft was no more, and no less, than a sealed and swimming weapon for sinking enemy vessels. In the late nineteenth century, some jurists, such as the members of the jeune école in France, defended the new war vessels for this very reason, claiming that they were less of the form of a ship than that of a boat. They were particularly close in kind to the novel torpedo-boat; therefore “the existing rules relating to visit and search should not apply to them.”^[8] But their judgments were “promptly countered,” as Colombos recalls, “by those of other sailors, especially by Admiral Bourgeois in 1886: ‘the advent of the torpedo, whatever its influence on naval material, has in no way changed international treaties, the law of nations or the moral laws which govern the world. It has not given the belligerent the right of life and death over the peaceful citizens of the enemy State or of neutral States.’”^[9] That judgment left little room for doubt. But the juridical status of the seafarers of the new vessels in those years was still far from certain, as interested observers were well aware. With uncanny prescience, Jules Verne famously remarked upon the fact in his 1869 novel, Twenty Thousand Leagues Under the Sea. When Captain Nemo and the underwater crew of the Nautilus abduct Dr. Pierre Aronnax and his companions, the astute and learned, if understandably bewildered, protagonist exclaims: “With whom were we dealing? Perhaps with some pirates of a new variety, who exploit the sea in their own fashion?”^[10]

The question became most acute with the outbreak of World War I. One episode in particular attracted the attention of international lawyers everywhere. It was the sinking, on 7 May 1915, of a large and famous British transatlantic liner, the Lusitania, as it made its way from the shores of the United States to England. While expressing its “deepest sympathy” for the death of some two thousand people on board, who were almost all non-combatants, the German authorities publicly justified the act with reference to the maritime blockade the British had imposed on Germany. The English act of war, they claimed, was starving the German civilian population and had, therefore, effectively obliged the well-meaning representatives of their state “to resort to retaliatory measures.”^[11] The legal authorities of Germany appear largely to have seconded that judgment. They argued that, in any case, it was senseless to demand that underwater vessels conform to the old laws of naval warfare. “New situations,” Max Fleischmann of the University of Königsberg explained, with reference to “the case of the Lusitania,” “necessitate new rules.”^[12] Ernst Zitelmann, from the University of Bonn, was more explicit. “Legal rules that are inapplicable to new conditions,” he wrote, “must give way to new regulations. ‘As the reason for the law ceases, so, too, must the law itself cease’ (Cessante ratione legis cessat lex ipsa). Technical science and polity may create new conditions which of necessity destroy the framework of the old rules of international law. Who would have thought at the time the old rules governing maritime warfare were formed, of the possibilities of submarine warfare? Had the use of submarines been anticipated, special rules governing their employment would have been devised.”^[13]

Anglo-Saxon jurists of the period tended to find such claims unconvincing. Past practices in war, they recalled, set clear standards that need not be lowered. “Even Semmes,” J. W. Garner commented in International Law of the World War, “who was variously described as a ‘freebooter,’ ‘corsair,’ and ‘pirate,’ never destroyed an enemy vessel without taking off the crew and passengers.”^[14] When the Confederate Admiral described his treatment of Northern captives in Memories of Service Afloat During the War Between the States, he had proudly declared: “We were making war upon the enemy’s commerce, not upon his unarmed seamen. It gave me as much pleasure to treat these with humanity as it did to destroy his ships.”^[15] During the Great War, the President of the United States also pronounced himself on the question, stating that armies that availed themselves of submarines could make no such clear distinction. Responding to the torpedoing of the Lusitania in 1915, Woodrow Wilson stressed the “practical impossibility of employing submarines in the destruction of commerce without disregarding those rules of fairness, reason, justice and humanity which all modern opinion regards as imperative.”^[16] A year later, he went further, declaring the submarine, by virtue of its methods of activity, essentially “incompatible with the principles of humanity, the long-established and incontrovertible rights of neutrals and the sacred immunities of non-combatants.”^[17] A naval treaty proposed by the United States in 1922 aimed to establish that judgment in the law of nations forever. “It is practically impossible,” the opening article of the Washington Conference read, “to utilize submarines without violating the generally recognized principles of international law.”^[18] The Conference was not ratified, but it was followed, eight years later, by the London Treaty on the Limitation and Reduction of Naval Armament, signed by Great Britain, France, Italy, the United States, and Japan, which aimed to submit the underwater vessels to the same legal principles that held for ships of war. “Submarines,” the Treaty declared, “must conform to the rules of international law to which surface vessels are subject.”^[19]

That restriction of underwater vessels came to be incorporated into the so-called London Protocol of 6 November 1936, which was signed by many sovereign states, Germany not least. Within months, however, the troubled question of the legal status of the submarine once more emerged. The Spanish Civil War had brought new insecurities to the Mediterranean seas. Although the military conflict was one of notable importance, the major powers chose not to intervene and, claiming complete neutrality in the conflict, they formally refused the rights of belligerency. Almost as soon as the Civil War erupted, however, the waters surrounding Spain were affected. Submarines as well as airplanes began targeting maritime vessels bearing goods to and from the Iberian Peninsula, with little regard for their legal status in the conflict. The perpetrators did not publicly identify themselves, but it could hardly be doubted that those acts of maritime destruction would entail consequences for the Civil War. As one contemporary observer recalled, “the attacks were obviously of strategic importance in cutting the flow of supplies from Soviet Russia to the Spanish Government, as both those governments violently denounced the attacks and openly accused Italy of being responsible for them.”^[20] Soon the range of targets grew wider; not only merchant ships but also war vessels belonging to neutral powers were struck. To offer a united response to such maritime assaults on non-belligerent vessels, the British and French authorities summoned an international conference at Nyon in September 1937. Nine Mediterranean states, including Bulgaria, Romania, and the Soviet Union, but excluding both Italy and Germany, met to discuss the urgent issue of “attacks … repeatedly committed in the Mediterranean by submarines against merchant ships not belonging to either of the conflicting Spanish parties.” Referring to the London Naval Treaty of 1930, the authors of the Nyon Arrangements judged the recent acts to be “violations of the rules of international law.” But then they went one step further. The assaults committed by submarines, they subsequently proclaimed, “constitute acts contrary to the most elementary dictates of humanity, which should be justly treated as piracy.”^[21]

That declaration introduced a new term into the discussion of submarines. Admittedly, the choice of diction was by 1937 not entirely without precedent. Commenting on the Nyon Agreement’s wording, an unidentified contributor to the British Yearbook for International Law recalled in 1938 that two decades earlier, “great indignation was caused by the sinking by German submarines during the Great War, contrary to the rules of maritime warfare with regard to the exercise of belligerent rights at sea, of the merchant vessels of belligerent and neutral powers, and by the loss of non-combatant and neutral lives and property involved. This action was often described popularly as piracy.”^[22] But the author took pains to specify that this was a resolutely non-technical usage, which had been without significance for the practice of the law: “no captured submarine officers, who had acted in accordance with the orders of the government, were tried as pirates.”^[23]

There were good legal reasons for that fact, as commentators soon observed. Prominent British and French legal scholars agreed that such a use of the term “piracy” could not be technically exact.^[24] But the most vehement responses to the Nyon Agreement came from jurists in Italy and Germany. The most eminent among them was Carl Schmitt, who published a characteristically pithy and polemical essay on the international accord the month it was signed.^[25] Discussing the essay in a letter to his friend Ernst Jünger, Schmitt recalled several weeks later, on 14 November 1937, how this particular contribution to the law of nations had arisen from a moment of rare passion. “The essay on ‘The Concept of Piracy,’” Schmitt confessed, “emerged from the affect provoked in me when I see how cold-bloodedly the Anglo-Saxons are pursuing the World War, and how they seem to have succeeded at Nyon in achieving the very thing that, throughout the war, we sought to avoid—namely, the renunciation of the honor of the U-Boot weapon.”^[26]

Despite the unusual emotion that elicited it, however, Schmitt’s essay was in its argument largely conventional. It aimed to establish the inapplicability of the title of “piracy” to political agents, demonstrating the irreducibility, so to speak, of the “concept of the piratical” to the “concept of the political.” Schmitt’s most original contribution lay in his analysis of the political meaning of the Allied invocation of “piracy.” He argued that the terms of the 1937 agreement belonged “to the great domain of attempts at a new and genuine inter-state European order.” This was one new “order” that Schmitt enjoined his readers to oppose, since it implied the confusion of a distinction fundamental to the modern law of nations: namely, that between principles of international relations and principles of domestic jurisdiction; between categories of war and categories of crime; between “politics,” in short, and “police.”^[27] Because “pirates,” he recalled, are not in any classical sense legitimate belligerents, the military operation undertaken against them cannot be defined in traditional terms as “war.” “The action taken against pirates is therefore equally non-political. It is not war; instead it is either criminal justice, according to the English conception, or, according to the continental system, a measure of international maritime police.”^[28]

That Schmitt believed he could uphold “the honor of the U-Boot weapon” by invoking the hallowed principles of the European law of nations is one startling fact. The same jurist who had famously explained in an article of 1934 how exactly “the Führer protects the law”^[29] now strenuously warned his readers that the English notion of piracy would forever disturb the classic order of European public law. “Should the English conception of submarine piracy be established as a general concept of the law of nations,” Schmitt wrote, “the concept of piracy will have changed its place in the system of international law. It will have been displaced from the empty space of non-political action into the space of intermediary concepts between war and peace, which is typical of the after-war period.”^[30] One might certainly respond that a scholar of the law who had publicly revealed the reasons why “the Führer has the right, as well as the force, to found a new state and a new order” and who had been willing to assent, not least, to the National Socialist doctrine of the biological substance of race, could not credibly implore others to rise in defense of the traditional legal principles of war and peace.^[31] One might doubtless allege that Schmitt’s position was incoherent, even hypocritical. But such considerations do not alter one insight he expressed in this brief tract. By 1937, the legal status of warfare had undergone one irrevocable change: state vessels were no longer impervious to charges of criminality. In addition to the classic conception of war as the lawful conflict of sovereign nations, a new model of confrontation had emerged. It pitted not one public figure against its symmetrical antagonist but one collective term against its lesser, infamous opponents, setting the representatives of a universal code of law against the stateless criminals who sought to transgress it.

Schmitt understood that the sole noun that would lend legitimacy to this new confrontation was one the jurists of the tradition had rarely employed: “humanity.” Only if war could be defined with respect to such an abstract and general notion as the common species would it become possible to treat the conflict of sovereign states as “either criminal justice, according to the English conception, or, according to the continental system, a measure of international … police.” Only then could enemies be cast as criminals. In his vain and lucid attempt to recall the traditional doctrine of public law he had done so much to supplant with his legal theories of the National Socialist régime, Schmitt also intuited that one figure alone would be sufficient to summon such a generic collectivity: the figure of its archaic foe, “the enemy of the human species.” “Against the pirate as ‘the enemy of the human species,’” Schmitt remarked, “all humanity—which is otherwise so disheveled—suddenly appears as if united on a single front.”^[32] Hence the intensity with which the erstwhile “crown jurist” militated against references to piracy in war. Committed by “affect” no less than interest to defending the legitimacy of the German and Italian belligerents, he implored his contemporaries not to conjure, through the magic name of “the common enemy of all,” the humanity he hoped might still continue to remain “otherwise so disheveled.” But by 1937 it was already too late. The modern submarine was neither the iron cage of the ancient and medieval fables nor the state ship of war of modern times, whose movements across the surface of the seas, while threatening, could still be safely restricted by the old principles of law. The U-Boot, a creature of unsettled and unsettling times, penetrated a new dimension. Its destructive operations beneath the surface of the world’s waters announced the age in which piracy would inevitably “change its place,” and in which it would soon be quite impossible to keep that obscure presupposition of the law of the nations, humanity, from coming into view.