Hostis humani generis

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Hostis humani generis (Latin for "enemy of mankind") is a legal term of art that originates from admiralty law. Before the adoption of public international law, maritime pirates and slavers were held to be beyond legal protection, and could be dealt with as seen fit by any nation, even if that nation had not been directly attacked.

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.

Background

Being one of the most ancient fields of continuous human endeavor, along with that of war, farming, hunting and gathering, and prostitution, the high seas have their own customs and usage, their own rules and articles, and hence their own laws. Unlike the case with land, above the high-tide mark, where title, ownership, and sovereignty are created by use and possession, no nation may claim as its territory the high seas, for continuous use and possession of them is impossible; as such, no nation may thus forbid trespass through the high seas. The high seas, since they cannot be owned by anyone, are held to belong to all humanity, and every nation is held to have a separate and equal right to have its ships navigate over them; this is the concept of mare liberum, or the freedom of the seas. As the sea is the common property of all, the perils of the sea and of navigation are shared in by all mariners, and all nations. As such, there exists a law of amity and reciprocity among the seafaring powers, especially in regards to matters related to the protection of life and to a lesser extent, property; for instance, the law is clear regarding the obligation of every mariner to assist sailors who are shipwrecked, or the obligation of every harbormaster to provide safe harbor to any vessel in need during a storm, regardless of the flag she flies.

Perhaps the oldest of the laws of the sea is the prohibition of piracy, as the peril of being set upon by pirates, who are motivated by their own needs rather than by national allegiance, is shared by the vessels and mariners of all nations, and thus represents a crime upon all nations; as such, since the time of the Ancient Romans, pirates have been held to be individuals waging a private warfare, a private campaign of sack and pillage, against not only their victims, but against all nations, and thus, pirates hold the peculiar status of being regarded as "hostis humani generis", the enemies of humanity. Since piracy anywhere is a peril to every mariner and ship everywhere, it is held to be the universal right and the universal duty of all nations, regardless of whether their ships have been beset by the particular pirate captured, to capture, try by a regularly constituted court-martial or admiralty court (in extreme circumstances, by means of a drumhead court-martial convened by the officers of the capturing ship), and, if found guilty, to execute the pirate via means of hanging from the yard-arm of the capturing ship, an authoritative Custom of the Sea.[1]

Though summary battlefield punishment, meaning hanging without trial, was conducted by certain nations at certain times with regards to pirates, it was regarded as not preferable and somewhat irregular (but completely lawful, if the attenuation of due process was dictated by urgent military necessity), as individuals captured with pirates could potentially have a defense to charges of piracy, such as coercion.[2] For instance, in early 1831, the 250-strong crew of a pirate captured off Ascension was brought to said isle and summarily hanged, as they were acting in a rebellious manner and threatening to overthrow the 30-man crew of HM Falcon, a British sloop-of-war, who took them captive. As the summary punishment in this case was due to military necessity, rather than whim, there was clear evidence of the offense, and it was done proximate in time and location to the battlefield, it was merely irregular, and not a violation of the custom of the sea.[2]

In more recent times, much of the customary law of the sea has been codified. 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. Piracy 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.

The tradition of classing the pirate as "hostis humani generis" has been expanded to one other particular class of seafaring criminal, that of the slaver, who, by trafficking in human flesh upon the high seas, is similarly held to be in a state of war against all humanity. As such, these treaties, as well as the customary international law, allow states to act similarly against slavers.

Though the tradition of privateering has certainly been in decline over the past several centuries, and international treaties are held to have abolished it, privateering, or the use of private ships as raiders of commerce of the enemies of the sovereign whose flag the privateer flies, is not considered piracy, but warfare against a particular national enemy, and do not represent a crime against the customary international law, provided they adhere to the law of naval warfare.

Theorized extended usages of the term

The land and airborne analogues of pirates, bandits and hijackers are not subject to universal jurisdiction in the same way as piracy; this is despite arguments that they should be.[citation needed] Instead these crimes, along with terrorism, torture, crimes against internationally protected persons[3] and the financing of terrorism are subject to the aut dedere aut judicare principle (meaning prosecute or extradite). In the current global climate of international terrorism some commentators have called for terrorists of all sorts to be treated hostis humani generis.[4]

Other commentators (see below, John Yoo, various U.S. Federal courts) 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 War in Afghanistan, Iraq War, and First Chechen War. ("Unlawful enemy combatants" have fought in wars of historical interest, including 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. However, this definition of "unlawful enemy combatants" would appear to be contrary to the Third Geneva Convention which contains provisions for those fighting for an unrecognised state to receive protection as Prisoners of War.

One prominent advocate of this theory, former Deputy Assistant Attorney General of the United States and current professor at University of California at Berkeley School of Law John Yoo, the author of a memorandum[5] 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…"[6][7] (Although Mr. Yoo does not use the term openly, when referring to pirates and slave traders, and declaring them outside the law, he makes an unmistakable reference to "hostis humani generis".)

Professor Yoo, when referring to terrorists in a June 8, 2012 Wall Street Journal opinion piece stated, "just-war theory should broaden, rather than limit, the use of force against terrorists. The work of the Catholic theologians (Aquinas and Augustine) drew upon traditions stretching back to the ancient world that would have considered terrorists to be hostis humani generis, the enemy of all mankind, who merited virtually no protections under the laws of war."

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[8]) who were found to have committed the crime of torture against a Paraguayan citizen, using its jurisdiction under the Offenses Clause[9] of the Constitution of the United States, the Alien Tort Claims Act, and customary international law. In deciding this, the court famously stated that "Indeed, for purposes of civil liability, the torturer has become like the pirate and 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 the conviction of a torturer in Prosecutor v. Furundžija,[10][11] marking its acceptance as a peremptory norm, part of the customary international law, held as jus cogens, applying erga omnes, upon any and every state and human individual without exception or reservation whatsoever.

See also

Notes

  1. ↑ Ward, ed, Graham (Excerpt published 2006-02-21). Submission to the HMAS Sydney II Commission of Inquiry, ed. Under The Brave Black Flag: Pirates and Mutineers. Australia: Ministry of Defense. pp. 6th pg. in excerpt. Retrieved 2009-05-10. 
  2. ↑ 2.0 2.1 Brantly, ed., W.T. (1831-02-19). "(The) Summary Method". The Columbian Star & Christian Index (Philadelphia, Pennsylvania, USA: Martin & Bolden) IV (8): 125. Retrieved 2009-05-10. 
  3. ↑ The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents(also referred to as the “Protection of Diplomats Convention”) was adopted by the United Nations General Assembly on 14 December 1973.
  4. ↑ Hostis Humani Generi: Piracy, Terrorism and a New International Law
  5. ↑ "DOJ Yoo Memorandum". 
  6. ↑ Jane Mayer (Feb 8, 2005). "Outsourcing Torture: The Secret History of America's "Extraordinary Rendition" Program". The New Yorker. 
  7. ↑ "PBS Frontline: The Torture Question". 
  8. ↑ 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. This is because a government is a creature created by action of positive law, and therefore, as a creature of law, cannot act in a matter inimical to 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 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.
  9. ↑ 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 this law, or, as it has been known, since time immemorial, as the Law of Nations, as a source of law outside of the Constitution, like the common law is.
  10. ↑ "Decision of ICTY in Prosecutor v. Furundžija". 1998-12-10. Archived from the original on 2008-03-13. Retrieved 2008-09-10. 
  11. ↑ Janis, M. and Noyes, J. "International Law: Cases and Commentary (3rd ed.)", Page 148 (2006)
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