I. Introduction

The etymological origins of the word War comes from ‘were’ which signified an act aimed "to confuse or to perplex". It is perhaps from the conceptual debris inaugurated by wars that we need to build a critical dictionary of war, which enables us to invent new concepts to help us navigate our contemporary. The concept that I would like to contribute is “Hostis Humani Generis”. Abstract wars demand abstract enemies, and the Hostis Humani Generis (or the enemy against all mankind) is a title that has been bestowed on a host of figures; starting with the pirate and now the terrorist, I seek to understand the links between property, piracy and terrorism and propose that the concept of Hostis Humani Generis helps us understand the idea of war as a continuation of property by other means.

I would like to begin with two versions of wars, and examine the spaces of meaning that have altered between them.

War Ver.1

On 30th November 1990; George Bush the senior (father of Bush the Idiot) promoting his main general in the war against drugs said that "Martinez was receiving a battlefield promotion; if you will, for a leader who has earned his stripes in the frontlines of the drug wars; He spoke of the battles ahead and ended saying we will remain on the frontlines, and we will take back the streets”. The US administration or war machine has been particularly fond of extending the war metaphor and the idea of a war against drugs invokes the idea of enemies rather than victims. A little more than a month later, on Jan 17th 1991, Operation Desert storm commenced.

We live in a confused time when the metaphor of war stretches from drugs to poverty to oil, while the good old fashioned armed conflicts that we understood as war are not longer called wars. Thus by the time you reach the second war against Iraq, it is not even a war but is instead called ‘Operation Iraqi Freedom’ and ‘Operation Enduring Freedom’

Freedoms are of course central to the new imaginary of war; a freedom that must be obtained at any cost, sometimes these freedoms are accounted for in numbers like 650,000 as Mansur Jacoubi and Shuddhabrata Sengupta reminded us in their papers, or half a million children as Madeline Albraight has also reminded us .

War Ver. 2

In June 2003, after the liberation of Iraq, administrator of the Coalitional Provisional Authority (CPA), L. Paul Bremer III l announced two freedoms:

• The Freedom to directly establish trade relationships with foreign companies
• The Freedom to protect foreign national property in Iraq

There were more than a hundred different orders promulgated by the CPA, and one of them was for the protection of intellectual property. This is not at all surprising given that something very similar happened after the liberation of Afghanistan as well. A report on the Rebuilding of Afghanistan stated that

“While the importance of training the individuals who will be responsible for the implementation and enforcement of Afghanistan’s intellectual property system is undeniable, it will be equally important to educate the Afghan people of their new rights”

It is argued that this move of the CPA “secured property without the warrant of the proprietarian conception of the human from which Euro-American understandings of property, emerged, with Descartes and Locke, in the European Enlightenment And it guaranteed property rights in the absence of-indeed, through the negation of-the overarching public sphere within which property rights are negotiated and claims to property, and thus to personhood, are recognized”

Maurer and others argue that this is a completely new model of thinking about property, comparable to the establishment of a rule of property in the experience of colonialism . The establishment of property without personhood, for Maurer and others is an extremely illiberal formation that either perverts the enlightenment models or merely reveals the latter’s perverse potentialities since it creates an entire domain of property with no institutional supports, or in effect, a system with no law, just rights and freedom. They argue that the model ‘tinkers with the spare parts of the wreckage of both capitalist and socialist utopias, implicitly recognizing that both have passed and failed to live up to their promises’. They identity the current move as being characterized by a logic of acceleration; what they mean by this is that the new property system of the contemporary works by accelerating the foundational utopias of both.

An acceleration of the domain of property does not merely connote a sense of velocity, even though that is critical. It also implies a radical redefinition of property itself and its various contours and avatars; It also implies the creation of new legal regimes that safeguard this acceleration, and new conflicts that emerge from the debilitating force of this acceleration. Nowhere is this acceleration more profound than in the domain of intangible property or intellectual property.

Posing The Problem

We can now begin to see the outlines of a problem emerging, a problem that stems from the epistemic confusion that seems to arise in recent wars that have been declared. For instance consider two seemingly unlikely ‘colaition partners’ that have been brought together under the rubric of war: The War against Terror; and The war against Copyright Piracy.

The two often seem to interchange roles; Sometimes they refer to each other, some times they explain each other and often they justify each other. My task in this paper will be to understand how the metaphor of War against Piracy and Terror are indeed inter changeable and the role played by the Hostis Humani Generis to enable this duality.

2. The Metaphor of the War against Copyright Piracy

The metaphor of the war against piracy is not a new one, but the use of the metaphor of the war against piracy has accelerated with the war against terror. After 9/11 for instance we were often reminded that the pilots who flew into the WTC had used pirated copies of Microsoft’s Flight Simulator in their ‘training’. Very shortly after 9/11, we heard Jack Valenti and Co. declaring that there existed a direct link between music, movie and software piracy and terrorism.

A number of critical IP scholars and activists have raised objections to the use of the word piracy to denote copyright infringement. They argue that designating non legal media use with the term Piracy is objectionable, since pirates were terrible people with eye patches and swords. This objection would indeed be rather touching, were it not so naïve in its ahistoric understanding of the linkages between piracy, war and the commons.

Interestingly, while disavowing the phrase piracy, the Copyleft movement is equally fond of using the war metaphor. Lessig for instance declares that there is a War taking place, a war against culture; He says “Now, I'm all for war in the right context, but is this the ground one stands on to call for a "terrorist war" against technology?

So lets us look at some of the ways in which the link between Copyright Piracy and Terrorism has been sought to be enjoined;

In a presentation made by Jack Valenti before the Sub Committee on Copyright Piracy and Terrorism in 2003 he stated:

Our Next slide is a—this is very ingenious. This is a submersible barge. It's a submarine barge. This next slide shows you what's in that damned barge—174,000 counterfeit DVDs were found when we made this raid. They have very ingenious methods of smuggling. Shipping containers, cars with hidden compartments, stacks of DVDs in bags of asphalt, concealed cavities in stacks of cardboard. You name it, they do it.
Now this looks like an innocent, pristine, pure little blank DVD. But guess what, you pull back the cover, and underneath, you have a pirated DVD. Now these DVDs will go all over the world, but mainly to Australia, the Middle East, Europe, and the United States. And that's pretty much all over the world.

Similarly in a US Department of Transportation Newsletter issued in 2003:

“They run computer manufacturing plants and noodle shops, sell ‘designer clothes’ and ‘bargain basement’ CDs. They invest, pay taxes, give to charity, and fly like trapeze artists between one international venue and another. The end game, however, is not to buy a bigger house or send the kids to an Ivy League school -– it’s to blow up a building, to hijack a jet, to release a plague, and to kill thousands of innocent civilians” (US Department of Transportation, 2003).

The demand to link piracy to terrorism is not that surprising; it makes perfect sense for media empires; but in 2005, you had a strange new demand that was argued by a very influential journal;

And Vice Versa (Terrorists as Pirates)

Dougal Burges wrote a piece called “The Dreaded Pirate Bin Laden: How thinking of terrorists as pirates can help win the war on terror”; in which he argues that modern international law lacks an adequate definition of terrorism and is crippled by issues of jurisdiction since terrorists are not subject to the laws of any nation state; and he suggest that a useful way of out of this situation would be to treat terrorists as pirates;

Burgess argues that what links pirates and terrorists was the "war against the world" which they had declared:

With their vengeful practices, pirates were the first and perhaps only historical precedent for the terrorist cell: a group of men who bound themselves in extraterritorial enclaves, removed themselves from the protection and jurisdiction of the nation-state, and declared war against civilization. Both pirates and terrorists deliberately employ this extranationality as a means of pursuing their activities. The pirates hid in the myriad shoals and islands of the Atlantic. The terrorists hide in cells throughout the world. Both seek through their acts to bring notice to themselves and their causes. They share means as well—destruction of property, frustration of commerce, and homicide. Most important, both are properly considered enemies of the rest of the human race.

If the war on terror becomes akin to war against the pirates, however, the situation would change. First, the crime of terrorism would be defined and proscribed internationally, and terrorists would be properly understood as enemies of all states. This legal status carries significant advantages, chief among them the possibility of universal jurisdiction. Terrorists, as hostis humani generis, could be captured wherever they were found, by anyone who found them. Pirates are currently the only form of criminals subject to this special jurisdiction. Terrorists, like pirates, must be given their proper status in law: hostis humani generis, enemies of the human race.

So here is the problem at its clearest: The problem for a dictionary is when these three distinct terms are conflated to have inter changeable meaning so that the line between 18th century maritime Piracy, 21st century Terrorism and Copyright Piracy become indistinguishable, brought together by the figure of the Hostis Humani Generis;

It is perhaps time for us then to revisit the birth place of the enemy of all mankind;

3. Piracy and the Emergence of the Maritime State

The birth of the Hostis Humani Generis takes place within the turbulent period of the emergence of the maritime state and maritime capitalism. The period between the 17th to the 18th century saw massive battles between various European powers attempting to establish their sovereignty over the seas. This was also the period in which there was a drastic need to mobilize labour for the building of the ships as well as for sailors who would man these ships.

The first enclosures which resulted in the expropriation of the commons freed large territories for capitalist agriculture, logging, mining, and speculation in land, and created at the same time a vast army of the dispossessed who were then freed to become wage earners in new industrializing areas at home or abroad, or criminalized through harsh laws that imposed penal servitude in the colonies. These dispossessed from the land also became the bulk of the work force for the new engines transporting commodities across continents, the Ship.

In England for instance, the successful Expropriation of the commons ensured that there was enough idle labour available to be expropriated as maritime labour and this obtained through the twin strategies of law and terror. The use of Press Gangs and martial laws which provided for death penalties as penalty for resistance has been documented by social historians of property and crime.

A series of laws that were passed to ensure that this effort was successful. Some of these included the :

Navigation Act 1651
Articles of war 1652
Navigation Act 1660 – outlining commodities
Navigation Act 1673- enforcement of trade

In 1629 merchants had shipped 115,000 tons and by 1686 they have shipped 340,000 tons of commodities. In 1633 they had 50 ships and 9500 sailors and by 1688 173 ships with 42,000 sailors. This massive expansion in the world of maritime trade and commodity production and circulation was also accompanied by an equally meteoric rise in laws that criminalized social life. The Articles of war of 1652 for instance imposed death penalty in 25 out of 39 clauses.

Enclosures of the Commons

The law of terror that Marx has documented in that period gradually gave way to the establishment of penal colonies that converted useless criminals into useful labour. Sir William Petty (Father of Political Economy of that period) wrote “Why should not insolvent thieves be rather punished with slavery than death. So as being slaves, they may be forced to as much labour and as cheap fares as nature will endure, and thereby becomes as two men added to the commonwealth and not one taken away from it”. By the 1690’s the navy was the largest employer of labour and the largest consumer of raw materials. The Major developments that took place during this period included

o The Formation of the Bank of England
o Creation of Marie insurance Business
o The Growth of Joint Stock Companies

The Ship was central to the successful circulation of commodities and goods, and the social organization of labour on the ship would prove to be the blue print through which the future modes of the organizing of labour would take place. It is no coincidence that the word factory comes from the word Factor (which designated the Trading representative of maritime trade). The work, discipline and Organization of the ship was the prototype of the factory.

Sailors and ships linked the mode of production and expanded the international capitalist economy. The ship was also the site for the coming together of diverse labours, from different ethnicities, bound together by a pidgin tongue. The solidarity of this motley crew, like many others of the era was forged around a commonality of their situation of dispossession and their labour. Linebaugh and Rediker document in detail the very difficult conditions under which these sailors worked, the dangers that they were constantly exposed to, while at the same time creating the conditions for a solidarity which would challenge smooth flow of capital.

The first sailor riots were always to do with working conditions and payment of wages just like other artisans like the candle makers, the iron smiths etc. In 1654 for instance you have the ‘Humble petition of the Seamen which complained of disease, poor provisions, bloodshed, wage arrears and acts of trashdom and bondage which were inconsistent with the principles of freedom and liberty”. The buccaneers drew from their peasant ancestry and also from the stories of the peasant utopias and the early pirates were the outcasts of the earth, including convicts, vagabonds, prostitutes, debtors, escaped slaves and indentured labour. Sometimes they drifted to marooned communities and they carried with them the memory of an alternative community ( as is the case of the

Dr. Samuel Johnson stated that “No man will be a sailor who has the contrivance enough to get himself into a jail; for being in a ship is being in a jail with the chance of drowning…a man in jail has more room, better food and more commonly better company”. According to a pamphlet of 1700, the ‘imprisonment, hard labour, poor provisions and health, long confinement aboard the ship and wage arrears had cause thousands of sailors to turn pirates”

The first pirates in a sense were often the ‘outcast of the land’ who would mutineer against the conditions of their work, and create an alternative order challenging the division of labour and of capital. In fashioning their hydrachy, these buccaneers often drew from the memory of utopias created by peasants, in which where work had been abolished, property redistributed, social distinctions leveled, health restored and food made abundant. By expropriating a merchant ship (after a mutiny of a capture), pirates seized the means of maritime production and declared it to the common property of those who did its work. Rather than working for wages using the tools and larger machinery (the ship) owned by a merchant capitalist, pirates abolished the wage and commanded the ship as their property, sharing equally in the risks of common adventure.

Piracy’s redistribution of wealth, was considered by many to be a massive problem, and
pirates were declared to belong to no nation, and in fact piracy emerged as one of the
earliest crimes of universal jurisdiction in a time when nation states were carving out
their absolute sovereignty. But piracy was not merely a problem of the failure of
implementation or enforcement, piracy also set up an alternative ethic, and an alternate
mode of being. Piracy was democratic in an undemocratic age and egalitarian in a highly
unequal age. Linebaugh and Rediker provide for various accounts in which the ship
inversed all rules of social hierarchy, and where for brief spells, the laws of private
property were suspended to allow for experimentation with alternative social imaginaries,
even if for very brief spells.

Thus summarizing the characteristic of the multitude or the hydra of the era of early
capitalism, Linebaugh says that

“It was landless, exploited. It lost the integument of the commons to cover and protect its needs. It was poor, lacking property, money or material riches of any kind. It was often unwaged, forced to perform the paid labours of capitalism. It was often hungry, with uncertain means of survival. It was mobie, transatlantic. It powered industries of worldwide transportation. It left the land, migrating from country to town, from region to region, across the oceans, and from one island to another. It was terrorized, subject to coersion. Its hide was calloused by indentured labour, gallery slavery, plantation slavery, convict transportation, the workhouse, the house of correction. Its origins were often traumatic: enclosure, capture, and imprisonment left lasting marks. It was female and male, of all ages. (indeed, the very term proletarian originally referred to poor women who served the state by bearing children.) It included everyone from youth to old folks, from ship’s boys to old salts, from apprentices to savvy old masters, from young prostitutes to old “witches.” It was multitudinous, numerous, and growing. Whether in a square, at a market, on a common, in a regiment, or on a man-of-war with banners flying and drums beating, its gatherings were wondrous to contemporaries. It was numbered, weighed, and measured. Unknown as individuals or by name, it was objectified and counted for purposes of taxation, production, and reproduction. It was cooperative and laboring. The collective power of the many rather than the skilled labor of the one produced its most forceful energy. It moved burdens, shifted earth, and transformed the landscape. It was motley, both dressed in rags and multiethnic in appearance. Like Caliban, it originated in Europe, Africa, and America. It included clowns, or cloons (i.e., country people). It was without genealogical unity. It was vulgar. It spoke its own speech, with a distinctive pronunciation, lexicon, and grammar made up of slang, cant, jargon, and pidgin—talk from work, the street, the prison, the gang, and the dock. It was planetary, in its origins, its motions, and its consciousness. Finally, the proletariat was self-active, creative; it was—and is—alive; it is onamove”.

It is in the struggles of these multitudes that Linebaugh and Rediker see the hidden
history of revolutionary ideas of freedom, entitlements, dignity and everything else
claimed under the name of rights and citizenship. The multitude was neither limited by
the narrow allegiances of ethnicity nor by the vulgar claims of nation, and yet ironically
the moment of the formal institutionalization of a number of these rights, was also the
moment that resulted in the very exclusion of the class that suffered to gain them.
Linebaugh says that

“ The new revolts created breakthroughs in human praxis: the rights of mankind, the strike, the higher law doctrine, that would eventually help to abolish impressments and plantation slavery. They helped more immediately to produce the American revolution, which ended in reaction as the founding fathers used race, nation and citizenship to discipline, divide and exclude the very sailors and slaves who had initiated and propelled the revolutionary movement”.

An examination of the practices of the pirates beyond the usual rhetoric or the popular image of the pirate as the embodiment of social evil shows that pirates were democratic in an undemocratic age, and egalitarian in a hierarchical age. The Articles of Agreements of the famous pirate Bartholomews Roberts for instance included the following articles

1. Every man has a vote in the affairs of the moment.

22. Any man losing a limb or become a cripple when serving is to have 800
dollars out of public stock, and for lesser hurts in proportion.

They were even a lot more sympathetic to the artists and musicians of the era

23. The musicians to have rest on the Sabbath, but on other nights, only via
special favor.

Source: Stanley Richards, Black Bart, 33-34; Johnson, General History, 182-1 84.

Piracy was therefore more than just about criminality and particular instances of violation of the laws of property. It was also the articulation of a different world view. It challenged the might of nation states as guardians of private property and wealth, and it also declared temporary autonomous republics freed from property.

And it was this symbolic threat that was as dangerous as the real effects. According to Nicholas Lawes, ‘Pirates are bandits of all nations; and when arrested and asked which country they were from, they would often answer that they were from the sea’. Thomas Moore’s novel Utopia from where we get the word is itself based on an island community where there is no private ownership, with goods being stored in warehouses and people requesting what they need. There are also no locks on the doors of the houses, which are rotated between the citizens every ten years.


Piracy posed a problem to the foundational idea of nation state sovereignty. Nitin Govil argues that doctrine of ‘universal jurisdiction’ emerged in an age when sovereignty was supreme – to contain the problem of piracy. Since pirates recognized no nations, and their acts were committed on the high seas, the principle of universal jurisdiction emerged over a period to classify the crime of piracy as a crime against humanity and not any particular country.

The jurist Alberico Gentili that : "Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law." “The crime of piracy or robbery and deprivations upon the high seas is an offence against the universal laws of society; a pirate being, according to Sir Edward Coke Hostis Humani Generis (enemy of all mankind) . As therefore he has inoculated all benefit of society and government, and has reduced himself afresh to the savage state of nature, by declaring a war against all mankind, and all mankind must declare a war against him”

DANIEL DEFOE, THE GREAT CHRONICLER OF PIRACY'S GOLDEN AGE in his General History of the Pyrates, described pirates as stateless persons "at war with all the world," a definition that may connect contemporary terrorism to piracy even more than state sponsorship does.

As a result of their status as Hostis Humani generis and the emergence of universal jurisdiction, and for as long as sovereignty-based jurisdictional principles have existed (that is, at least since the early seventeenth century), any nation could try and hang any pirates it caught, regardless of their nationality or where on the high seas they were apprehended. The law of nations also permitted any nation that caught a pirate to summarily execute him at sea. To this very day, international law regards piracy as a universally cognizable offense. The principle of universal jurisdiction is thus based on the fact that Pirates and terrorists, are beyond nations and states, they are “nonstate actors” who have a “hybrid status in the law” which necessarily opposes them to “recognized state actors”.

Outside the protection of the state and of the nation, the pirates are reduced to homo sacer; they are the realization of ‘the ban’. Homo sacer, like the hostis homini generis, emerge as those “who may be killed and yet not sacrificed”. The pirate as Hostis Humani generis and the terrorist as homo sacer meets the essential question of the contemporary biopolitical arrangement: is a life of piracy or a terrorism “a life worthy of being lived”? If it is not ‘a life worthy of being lived’, the life has no value as such and is thus reduced to a variable in a calculation: should the life continue to live?

The contemporary demand for a return of the figure of the Hostis Humani Generis coincides with a time when the ideas of property and personhood themselves are being dismantled, and property can very well accelerate without the need of personhood

The aggressive tone of contemporary anti- copyright piracy campaigns draw on the tradition of the Hostis Humani generis as the universally accepted immorality of piracy, still understood by the community of nations as exceeding even the sovereign power of national jurisdiction. What better basis for unilateral action against the genocidal implications of intellectual property piracy than its historical abjection by the community of nations? In 2005, Robin Jacob argued that “As time goes on…the world will realize that at least for intellectual property the days of the nation-state are over and truly international courts will be created”.

In an era where only Capital has the right to universal jurisdiction; any challenge to the ceaseless flow of capital results in the possibility of the act being declared “Hostis Humani Generis”. It also forces us to contend with the liberal myth of Property and personhood; because there has always existed a sovereign exception to the principle of property and personhood; the declared “Hostis Humani Generis” is to property what the Homo Sacer is for the state of exception; The two meet and merge on the common ground of property backed by sovereign authority;

It therefore allows us to reconfigure Clausewitz thesis “war is the continuation of politics by other means” to its more relevant avatar for the contemporary namely, ““War is the continuation of property by other means”

Crisis Reportage and Peace Reportage

Alain Badiou in Infinite Thought argues that the declaration of a War against Terrorism (and by extension the war against piracy) allows for:

• The determination of a subject or victim or target ( the west democracy/ media industries/ IP Producers/ authors/ inventors/ artists)

• It Supports a predicate (Islam Terrorism) or (Asian Piracy)

• Determines a sequence (we are warned that it will be a long war), with many casualties

How do we begin to start a pacifism in this era of perpetual war? Arundhati Roy, commenting on the nature of crisis reportage in the contemporary says that we need more ‘peace correspondents rather than war correspondents’. The language of war only makes sense when you accept that pirates are a part of the history of war as being the initiators of war itself. Carl Sandburg has said that Sometime they will throw a war and nobody will show up, the Intellectual Property war may well be one such war which has been declared, but which no one has really shown up for, but one in which we are all implicated by our relative proximity to the Hostis Humani generis