Hostis Humani Generis

December 4, 2013 6:56 PM

The legal framework of terrorism has been ... complex. Under the Bush Administration, terrorists were deemd to be "unlawful enemy combatants," and not afforded the protections of the III Geneva Convention. The policy, thought not the name, has continued under the Obama Adminstration, and this indeterminate legal status has significantly complicated efforts to try or release them. However, there is an older legal model that may suffice: piracy. (previously

Dictionary Of War: Hostis Humani Generis - video and text
The Piracy Analogy And Modern Universal Jurisdiction
'A Guantanamo on the Sea': The Difficulties of Prosecuting Pirates and Terrorists: Abstract (SSRN), California Law Review (PDF)
Hostis Humani Generis: Piracy, Terrorism and a New International Law - HeinOnline, University Of British Colombia (PDF)
Douglas Burgess in the NYT: Piracy Is Terrorism
Cicero's Ghost: Rethinking the Social Construction of Piracy

This legal framework relies on the concept of "universal jurisdiction," that some crimes are crimes against all people, and any state can prosecute them, in any jurisdiction. This is rarely used against terrorist suspects.
More about pirates: why we no longer “hang them high”
Universal jurisdiction and the pirate: time for an old couple to part.

The concept of a person "outside the law" existed in English common law ("outlawry") and Iceland (see also: The Life Of An Icelandic Outlaw(PDF)). In Republican Rome under Sulla, the lex Cornelia allowed for "proscription" and was used to designate people not under state protection, whose murder would not be considered a crime.


"Thus you would not pay robbers a price that you had agreed to pay for your life; it is no wrong if you fail to do this after having promised with an oath. For a robber2 is not included in the list of belligerents, but is the common enemy of all. Between him and other men there ought to be neither mutual confidence nor binding oath." - Marcus Tullius Cicero, On Moral Duties (Book 3), turned into a bit of Latin by Sir Edward Coke, hostis humani generis

posted by the man of twists and turns (16 comments total)

Oh, the lengths we'll go to to avoid using the criminal justice system to prosecute crimes.
posted by Pope Guilty at 7:07 PM on December 4, 2013 [9 favorites]

Soon we'll also be lynching hackers under cattle-rustling laws. P0wned sheep, he did!
posted by RobotVoodooPower at 7:13 PM on December 4, 2013 [3 favorites]

'Suffice' is not the appropriate bar. The new 'terrorism' needs to be able to justify a new state of permanent war and thus global jurisdiction for the whims of the US.
posted by pompomtom at 7:20 PM on December 4, 2013 [2 favorites]

The Supreme Court held that the detainees were protected under Geneva Convention Common Article III. The significance of that holding was that they had to be given habeas rights, which they were. Habeas hearings began immediately thereafter and continued under Obama.
posted by jpe at 8:32 PM on December 4, 2013 [2 favorites]

jpe : I always enjoy reading more on this subject. Do you have any links?
posted by the man of twists and turns at 8:53 PM on December 4, 2013

Not to mention that we have a web of international human rights instruments like the ICCPR that bar states from placing anyone, no matter what they may be accused of doing, outside of the protection of the law. Even franc tireurs can't be summarily executed, at least not legally.
posted by 1adam12 at 8:57 PM on December 4, 2013

Human rights only apply to humans, come on people!
posted by blue_beetle at 9:07 PM on December 4, 2013

Thanks for posting this. Before I left academia I was in the very early stages of develop a project on piracy and its influence on ideas of the nation after the American Revolution and into the nineteenth century (hence); it weighed heavily on some of this material. If anyone's interested I can dig up the bibliography. It came out of some earlier stuff I wrote on outlawry and banditry in the wake of the American war on Mexico and how the identification of the bandit as such played a role in translating Mexican land into American.
posted by synecdoche at 9:41 PM on December 4, 2013 [1 favorite]

I can recommend Jess Bravin's "Terror Courts" to anyone who wants a gripping and well-researched account of the inception of the Guantanamo bay tribunals.
posted by anewnadir at 10:32 PM on December 4, 2013

It's really vital that we treat terrorism as a standard criminal matter, and not something special. We need trials of terrorists for the same reason we've always needed trials for everything - to make sure we actually have the right guys. We haven't exactly been amazing about figuring that out so far. And they need to be regular trials, not secret military tribunals or whatever, because otherwise they'll inevitably be misused to dispose of political opponents, malcontents, undesirables, etc. if not in the US than elsewhere. Even the US would probably love to do that to insurgents, which aren't necessarily terrorists.
posted by Mitrovarr at 10:44 PM on December 4, 2013 [7 favorites]

Weren't pirates, so to speak, equal opportunity attackers? That's why they were "enemies of the human race."and were "at war with all the world,"

Terrorists usually have a very well defined objective and a named target.
posted by TheLittlePrince at 12:37 AM on December 5, 2013 [1 favorite]

I remember reading that the 2003 Afghanistan war was justified (in the sense of international law) by piracy-related things
posted by thelonius at 1:03 AM on December 5, 2013

they had to be given habeas rights, which they were. Habeas hearings began immediately thereafter and continued under Obama

I know nothing about all this, but surely 'habeas' hearings that continue for months or years while the person concerned is still detained are nonsense in terms, contradicting the principle they're meant to uphold?

Equally someone who is still and jail and has not been properly charged cannot intelligibly be said to have been given 'habeas rights', can they? The right conferred by habeas corpus is not the right to check whether habeas corpus applies; it's the right to be set free now.

But as I say, I don't understand the law.
posted by Segundus at 1:25 AM on December 5, 2013 [1 favorite]

This is a really great post, thanks for putting all this together!
posted by corb at 3:52 AM on December 5, 2013

Equally someone who is still and jail and has not been properly charged cannot intelligibly be said to have been given 'habeas rights', can they?

The basis for detention in most / many cases was that the detainee was a combatant and, as such, could be held for the duration of hostilities, IIRC. the habeas hearing assessed the basis for that determination. whether charges were pending was neither here nor there.

I didn't really follow the habeas closes closely, but I think there were a few cases where courts got salty that a detainee wasn't released immediately following a determination that there wasn't evidence for detention. I'm not sure how those turned out or how the.court responded.
posted by jpe at 4:58 AM on December 5, 2013

If Al Qaeda was smart, they'd incorporate. No one goes to jail and the fine is less than the gains, plus there are tax incentives, powerful congressional lobbies, and well... free reign...
posted by Nanukthedog at 4:59 AM on December 5, 2013 [3 favorites]