Hostis humani generis

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Hostis humani generis (Latin for 'an enemy of mankind') is a legal term of art that originates in admiralty law. Before the adoption of public international law,[ when? ] pirates and slavers were already held to be beyond legal protection and so could be dealt with by any nation, even one that had not been directly attacked.

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A comparison can be made between this concept and the common law "writ of outlawry", which declared a person outside the king's law, a literal out-law, subject to violence and execution by anyone. The ancient Roman civil law concept of proscription, and the status of homo sacer conveyed by proscription may also be similar. [1]

Background

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 not motivated by national allegiance, is shared by the vessels and mariners of all nations, and thus represents a crime upon all nations. Since classical antiquity, pirates have been held to be individuals waging private warfare, a private campaign of sack and pillage, against not only their victims, but against all nations, and thus, those engaging in piracy hold the particular status of being regarded as hostis humani generis, the enemy 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 band of pirates in question, 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. [2]

Although summary battlefield punishment was conducted by certain nations at certain times with regard to pirates, it was regarded as irregular (but 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. [3] For instance, in early 1831, the 250-strong crew captured off Ascension was brought to Ascension and summarily hanged, as they were acting in a rebellious manner and threatening to overthrow the 30-man crew of HMS Falcon, a British sloop-of-war, which took them captive. As the summary punishment, in this case, was due to military necessity, there was clear evidence of the offense, and it was done proximate in time and location to the battlefield, it can be classified as merely irregular, and not a violation of the custom of the sea. [3]

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 [4] that they should be.[ citation needed ] Instead these crimes, along with terrorism, torture, crimes against internationally protected persons [5] 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. [6]

Other commentators, such as John Yoo, [7] 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[ dubious – discuss ], such as the War in Afghanistan, Iraq War, Chechen Wars and Syrian Civil War.

Actual extended usages of the term

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 Alfredo Stroessner military dictatorship 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]

In the Eichmann trial of 1961, the Jerusalem District Court did not explicitly deem Adolf Eichmann a hostis humani generis. The prosecution, however, invoked the standard, ultimately cited in the verdict by reference to piracy. [12] [13]

See also

Related Research Articles

Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation to the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage. The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as to the concept of jus cogens – that certain international law obligations are binding on all states.

<span class="mw-page-title-main">Piracy</span> Act of robbery or criminality at sea

Piracy is an act of robbery or criminal violence by ship or boat-borne attackers upon another ship or a coastal area, typically with the goal of stealing cargo and other valuable goods. Those who conduct acts of piracy are called pirates, vessels used for piracy are pirate ships. The earliest documented instances of piracy were in the 14th century BC, when the Sea Peoples, a group of ocean raiders, attacked the ships of the Aegean and Mediterranean civilisations. Narrow channels which funnel shipping into predictable routes have long created opportunities for piracy, as well as for privateering and commerce raiding.

<span class="mw-page-title-main">Unlawful combatant</span> Person who engages in armed conflict in violation of the laws of war

An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed not to be protected by the Geneva Conventions. The International Committee of the Red Cross points out that the terms "unlawful combatant", "illegal combatant" or "unprivileged combatant/belligerent" are not defined in any international agreements. While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document. Article 4 of the Third Geneva Convention does describe categories under which a person may be entitled to prisoner of war status. There are other international treaties that deny lawful combatant status for mercenaries and children.

<span class="mw-page-title-main">United Nations Convention Against Torture</span> International human rights instrument against torture and cruel or unusual punishment

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<span class="mw-page-title-main">Extradition</span> Transfer of a suspect from one jurisdiction to another by law enforcement

In an extradition, one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdictions and depends on the arrangements made between them. In addition to legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.

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Ex parte Quirin, 317 U.S. 1 (1942), was a case of the United States Supreme Court that during World War II upheld the jurisdiction of a United States military tribunal over the trial of eight German saboteurs, in the United States. Quirin has been cited as a precedent for the trial by military commission of unlawful combatants.

<i>Filártiga v. Peña-Irala</i> United States court case

Filártiga v. Peña-Irala, 630 F.2d 876, was a landmark case in United States and international law. It set the precedent for United States federal courts to punish non-American citizens for tortious acts committed outside the United States that were in violation of public international law or any treaties to which the United States is a party. It thus extends the jurisdiction of United States courts to tortious acts committed around the world. The case was decided by a panel of judges from the United States Court of Appeals for the Second Circuit consisting of judges Wilfred Feinberg, Irving Kaufman, and Amalya Lyle Kearse.

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References

  1. ↑ Jonsson, Stefan (2008). A Brief History of the Masses: (Three Revolutions). Columbia University Press. ISBN   9780231145268.
  2. ↑ Ward, Graham, ed. (2006-02-21). "Under The Brave Black Flag: Pirates and Mutineers". Submission to the HMAS Sydney II Commission of Inquiry (PDF). Australia: Ministry of Defense. pp. 6th pg. in excerpt. Retrieved 2009-05-10.
  3. 1 2 Brantly, W. T., ed. (1831-02-19). "(The) Summary Method". The Columbian Star & Christian Index. IV (8). Philadelphia, Pennsylvania: Martin & Bolden: 125. Retrieved 2009-05-10.
  4. ↑ Air Piracy and Capture Act 2001 - Hon. Ron Paul (Extensions of Remarks); October 10, 2001
  5. ↑ 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.
  6. ↑ Hostis Humani Generi: Piracy, Terrorism and a New International Law
  7. ↑ Yoo, John (2012-06-07). "John Yoo: Obama, Drones and Thomas Aquinas". Wall Street Journal. Retrieved 2016-08-13.
  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)
  12. ↑ Arendt, Hannah (2006). Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin Books. p. 260. ISBN   0143039881.
  13. ↑ Luban, David (2018). "The Enemy of All Humanity". Netherlands Journal of Legal Philosophy. 47 (2): 123–124. doi: 10.5553/NJLP/221307132018047002002 .
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