Hostis humani generis
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Hostis humani generis (Latin for "enemy of mankind") is a legal term of art, originating from the admiralty law, and referring to the peculiar status, before the public international law, of maritime pirates, since time immemorial, and slavers, since the 18th century. It is also used in the present to describe the status of torturers.
A comparison can be made between this concept and the common law "writ of outlawry", which declared a person outside of the King's law, a literal out-law, and subject to the violence of anyone. The Ancient Roman civil law concept of proscription, and the status of homo sacer conveyed by proscription may also be similar.
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[edit] Background
Piracy is the broadest exception to the principle that a ship on the high seas is subject to the protection of, and jurisdiction of, her flag state. It is considered an offense of universal jurisdiction, such that any state may board and seize a ship engaged in piracy, and any state may try a pirate and impose sanctions according to that state's own law. Piracy is defined in Article 101 of the 1982 Convention on the Law of the Sea, and the 1958 Convention on the High Seas also regulates this exercise of jurisdiction. Under the same principles, these treaties, as well as the customary international law, allow states to act similarly against slavers on the high seas.
[edit] Theorized extended usages of the term
The land and airborne analogues of pirates, bandits and hijackers, respectively, have been treated, and continue to be treated, in a similar manner as maritime pirates are. Perhaps due to the connection of terrorism and hijacking during the early 1970s, commentators have occasionally called for terrorists of all sorts (and not just hijackers) to be treated "hostis humani generis".
Other commentators have called for the extension of this hypothetical connection of "hostis humani generis" from pirates to hijackers to terrorists all the way to that of "unlawful enemy combatants". "Unlawful enemy combatants", or persons captured in war who do not fight on behalf of a recognized sovereign state, have become an increasingly common phenomenon in contemporary wars, such as the wars in Afghan War, Iraq War, and the Chechen War. ("Unlawful enemy combatants" have also fought in other wars of historical interest, such as the American Revolutionary War). These commentators opine that because "unlawful enemy combatants" do not fight for a recognized sovereign state, they are therefore "hostis humani generis", and can be put on trial using a "military commission" and subjected to capital punishment, for things like throwing a grenade at soldiers in a battle, or shooting and killing a soldier in a firefight.
One prominent advocate of this theory, former Deputy Assistant Attorney General of the United States John Yoo, the author of a memorandum[1] regarding the conditions of "unlawful enemy combatants" held in Guantanamo Bay, Abu Ghraib, the Salt Pit at Bagram Air Force Base, and other locales, recently emphasized the continuing relevance of the term, and his interpretation of it, stating: “Why is it so hard for people to understand that there is a category of behavior not covered by the legal system? What were pirates? They weren’t fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for their trial, or imprisonment. If you were an illegal combatant, you didn’t deserve the protection of the laws…”[2] (Although Mr. Yoo does not use the term openly, by referring to pirates and slave traders, and declaring them outside the law, he makes an unmistakable reference to "hostis humani generis".)
[edit] Actual extended usages of the term
As John Yoo points out, the term "hostis humani generis" and the peculiar status of the "enemies of mankind" that it conveys continues to be relevant up until the present day. However, the only actual extension of "hostis humani generis" blessed by courts of law has been its extension to torturers. This has been done by decisions of U.S. and international courts; specifically, in a case tried in the United States in 1980, Filártiga v. Peña-Irala, 630 F.2d 876, the United States 2nd Circuit Court ruled that it could exercise jurisdiction over agents of the Government of Paraguay (in their individual capacity[3]) who were found to have committed the crime of torture against a Paraguayan citizen, using its jurisdiction under the Offenses Clause[4] of the Constitution of the United States, the Alien Tort Claims Act, and customary international law. In deciding this, the court famously stated that "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind." This usage of the term hostis humani generis has been reinforced by the ruling of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Furundžija[5], marking its acceptance by courts of an international character, beyond the jurisdiction of the United States.
[edit] Notes
- ^ "DOJ Yoo Memorandum".
- ^ "PBS Frontline: The Torture Question".
- ^ Under the legal principles of the United States, the government of a nation, as a legal body, cannot be held liable for willful or intentional acts against its constitution, the law of nations, or its internal laws, because a government is a creature created by law (and the law that creates a government is created by the sovereign will of the people). Therefore, a government, as a creature of law, cannot act against the very thing that gives it meaning. However, this poses a problem: what if a government does act unlawfully? How can this conduct be punished? Over the years, the courts have created a legal fiction so as to give relief to victims of unlawful governmental acts. This fiction supposes that these unlawful acts are not engaged, conspired, or otherwise directed by the government in question, but by the individual employees or officers of a government who carried out the unlawful acts. Therefore, even though a government may not be held liable for acts committed in its name, individual government agents who commit acts against the Constitution or the law of nations can be held personally liable. (Indeed, their liability is heightened, as they acted under color of law, gravely aggravating the magnitude of the offense; see Ex parte Young, 209 U.S. 123 (1908), as well as Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).) This provides an incentive to government agents not to "just follow orders" when those "orders" are criminal.
- ^ Article 1, Section 8, Clause 10 of the Constitution of the United States, which provides that the Congress is granted the power to "[t]o define and punish Piracies and Felonies on the high Seas, and Offenses against the Law of Nations"; this clause both expressly provides that the Congress may codify customary international law into federal law, and implicitly recognizes the customary international law, or, as it has been known, since time immemorial, the Law of Nations, as a source of law outside of the Constitution, like the common law is.
- ^ Janis, M. and Noyes, J. "International Law: Cases and Commentary (3rd ed.)", Page 148 (2006)
