Hostis humani generis
Encyclopedia
Hostis humani generis 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. Is also used in the present to describe the status of torture
rs.
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.
have their own customs and usages, their own rules and articles, and thus, their own law
s. 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 mankind, 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 mankind. 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.
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. 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.
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 mankind. 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.
and hijackers are not subject to universal jurisdiction in the same way as piracy; this is despite arguments that they should be. Instead these crimes, along with terrorism, torture, crimes against internationally protected persons 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".
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 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 John Yoo
, the author of a memorandum 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…" (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".)
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
) who were found to have committed the crime of torture against a Paraguayan citizen, using its jurisdiction under the Offenses Clause 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, 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.
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
. Before the adoption of public international law, maritime pirates
Piracy
Piracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...
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. Is also used in the present to describe the status of torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
rs.
A comparison can be made between this concept and the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
"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
Ancient Rome
Ancient Rome was a thriving civilization that grew on the Italian Peninsula as early as the 8th century BC. Located along the Mediterranean Sea and centered on the city of Rome, it expanded to one of the largest empires in the ancient world....
civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
concept of proscription
Proscription
Proscription is a term used for the public identification and official condemnation of enemies of the state. It is defined by the Oxford English Dictionary as a "decree of condemnation to death or banishment" and is a heavily politically charged word, frequently used to refer to state-approved...
, and the status of homo sacer
Homo sacer
Homo sacer is a figure of Roman law: a person who is banned, may be killed by anybody, but may not be sacrificed in a religious ritual....
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 seasInternational waters
The terms international waters or trans-boundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems , and wetlands.Oceans,...
have their own customs and usages, their own rules and articles, and thus, their own law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s. Unlike the case with land
Earth
Earth is the third planet from the Sun, and the densest and fifth-largest of the eight planets in the Solar System. It is also the largest of the Solar System's four terrestrial planets...
, 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
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
through the high seas. The high seas, since they cannot be owned by anyone, are held to belong to all mankind, 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
Freedom of the seas
Freedom of the seas is a principle in the international law and law of the sea. It stresses freedom to navigate the oceans. It also disapproves of war fought in water. The freedom is to be breached only in a necessary international agreement....
. 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
Reciprocity (international relations)
In international relations and treaties, the principle of reciprocity states that favours, benefits, or penalties that are granted by one state to the citizens or legal entities of another, should be returned in kind....
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
Safe harbor
The term safe harbor has several special usages, in an analogy with its literal meaning, that of a harbor or haven which provides safety from weather or attack.-Legal definition:...
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
Allegiance
An allegiance is a duty of fidelity said to be owed by a subject or a citizen to his/her state or sovereign.-Etymology:From Middle English ligeaunce . The al- prefix was probably added through confusion with another legal term, allegeance, an "allegation"...
, 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
Sack
A sack is a bag, especially a large one for carrying or storing goods.Sack may also refer to:* Quarterback sack, a tackle of the quarterback behind the line of scrimmage in American and Canadian football* Sack , an Irish band...
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 mankind. 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
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...
or admiralty court
Admiralty court
Admiralty courts, also known as maritime courts, are courts exercising jurisdiction over all maritime contracts, torts, injuries and offences.- Admiralty Courts in England and Wales :...
(in extreme circumstances, by means of a drumhead court-martial
Drumhead court-martial
A drumhead court-martial is a court-martial held in the field to hear urgent charges of offences committed in action. The term is said to originate from the use of a drumhead as an improvised writing table, altar for religious services, and a traditional gathering point for a regiment for orders...
convened by the officers of the capturing ship), and, if found guilty, to execute
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
the pirate via means of hanging
Hanging
Hanging is the lethal suspension of a person by a ligature. The Oxford English Dictionary states that hanging in this sense is "specifically to put to death by suspension by the neck", though it formerly also referred to crucifixion and death by impalement in which the body would remain...
from the yard-arm of the capturing ship, an authoritative Custom of the Sea.
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. For instance, in early 1831, the 250-strong crew of a pirate captured off Ascension
Ascension Island
Ascension Island is an isolated volcanic island in the equatorial waters of the South Atlantic Ocean, around from the coast of Africa and from the coast of South America, which is roughly midway between the horn of South America and Africa...
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.
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
Universal jurisdiction
Universal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...
, 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
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
, and the 1958 Convention on the High Seas
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea , also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea , which took place from 1973 through 1982...
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 mankind. As such, these treaties, as well as the customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
, 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, banditsBandits
Bandits is a 2001 American crime-comedy drama film directed by Barry Levinson. It stars Bruce Willis, Billy Bob Thornton, and Cate Blanchett. Filming began in October 2000 and ended in February 2001. It helped Thornton earn a National Board of Review Best Actor Award for 2001...
and hijackers are not subject to universal jurisdiction in the same way as piracy; this is despite arguments that they should be. Instead these crimes, along with terrorism, torture, crimes against internationally protected persons and the financing of terrorism are subject to the aut dedere aut judicare
Aut dedere aut judicare
In law, the principle of aut dedere aut judicare refers to the legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition...
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".
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 War in Afghanistan, Iraq War, and First Chechen War
First Chechen War
The First Chechen War, also known as the War in Chechnya, was a conflict between the Russian Federation and the Chechen Republic of Ichkeria, fought from December 1994 to August 1996...
. ("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 John Yoo
John Yoo
John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...
, the author of a memorandum regarding the conditions of "unlawful enemy combatants" held in Guantanamo Bay, Abu Ghraib
Abu Ghraib
The city of Abu Ghraib in the Baghdad Governorate of Iraq is located just west of Baghdad's city center, or northwest of Baghdad International Airport. It has a population of 189,000. The old road to Jordan passes through Abu Ghraib...
, the Salt Pit
Salt Pit
The Salt Pit is the codename of an isolated clandestine CIA black site prison, and interrogation centre in Afghanistan. It is located north of Kabul and functioned as a brick factory prior to the US invasion of Afghanistan...
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…" (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".)
Actual extended usages of the term
As John YooJohn Yoo
John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...
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
Filártiga v. Peña-Irala
Filártiga v. Peña-Irala, 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...
, 630 F.2d 876
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, the United States 2nd Circuit Court
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
ruled that it could exercise jurisdiction over agents of the Government of Paraguay (in their individual capacity
Individual capacity
In law, individual capacity is a term of art referring to one's status as a natural person, distinct from any other role. For example, an officer, employee or agent of a corporation, acting "in their individual capacity" is acting as himself, rather than as an agent of the corporation...
) who were found to have committed the crime of torture against a Paraguayan citizen, using its jurisdiction under the Offenses Clause of the Constitution of the United States, the Alien Tort Claims Act, and customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
. 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
International Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
in the conviction of a torturer in Prosecutor v. Furundžija, marking its acceptance as a peremptory norm, part of the customary international law, held as jus cogens, applying erga omnes
Erga omnes
In legal terminology, erga omnes rights or obligations are owed toward all. For instance a property right is an erga omnes entitlement, and therefore enforceable against anybody infringing that right...
, upon any and every state and human individual without exception or reservation whatsoever.
See also
- Homo sacerHomo sacerHomo sacer is a figure of Roman law: a person who is banned, may be killed by anybody, but may not be sacrificed in a religious ritual....
- Outlawry
- TortureTortureTorture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
- Universal jurisdictionUniversal jurisdictionUniversal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...