The Treatment of Prisoners under International Law 
by Nigel Rodley, with Matt Pollard.
Oxford, 697 pp., £85, August 2009, 978 0 19 921507 2
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The Enemy of All: Piracy and the Law of Nations 
by Daniel Heller-Roazen.
Zone, 295 pp., £21.95, November 2009, 978 1 890951 94 8
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The Invisible Hook: The Hidden Economics of Pirates 
by Peter Leeson.
Princeton, 271 pp., £16.95, May 2009, 978 0 691 13747 6
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When Germany’s ultimatum – delivered, as the Kaiser had explained, ‘only with the friendliest intentions towards Belgium’ – expired in August 1914, von Emmich’s infantry crossed the frontier in parade-ground order, accompanied by horse-drawn field kitchens with fires burning and army cooks stirring the regimental stew.

They don’t wage war like that any more. Indeed the big wars are rarely now between neighbours: one state will cross a continent or an ocean to attack or invade, or occasionally to defend, another. The choreographed exchange of diplomatic threats, the ultimatum, the formal declaration of a state of war, have been pretty much dispensed with. The last time the United Kingdom declared war was against Romania in 1941.

Among the casualties of warfare during the last hundred years have been many of the rules governing the conduct of hostilities. The Hague and Geneva Conventions describe the members of warring states’ armies and militias as ‘lawful combatants’. The reason they contain no category of ‘unlawful combatant’ is that no such antithesis is recognised in international law. The counterpart of the lawful combatant, who enjoys special protections (in particular from the law of homicide), is the civilian, who is entitled to the ordinary protection of the law. In a militarily occupied country such protection is likely in practice to be attenuated or disregarded in favour of arbitrary and brutal forms of justice; but that does not make the torture of partisans or the execution of hostages lawful.

The unlawful combatant is a false extrapolation, a quasi-legal description applied to an opponent, or suspected opponent, who lacks the overt authority of a sovereign state. But such a person is in law a civilian, at risk of being held to account by the law of the state in whose hands he finds himself, but in no way deprived of the right to due process in order to determine, first, what his status actually is and, second, whether he is guilty of a crime known to the law. Captured guerrillas may have little ultimately to hope for, but they are entitled not to be summarily executed or tortured or held indefinitely without trial.

The Bush administration after 9/11 set out to change all that. With the designation of unlawful combatant it created a self-sustaining doctrine that there are individuals who, having attacked the US or opposed it by force, have forfeited all rights both as combatants and civilians: in short, a new class of outlaw.

The potential impact of this doctrine on the morality of state conduct can be gauged by the new edition of Nigel Rodley’s classic work on the treatment of prisoners, both lawful and de facto. Rodley, an academic lawyer and a member of the UN Human Rights Committee, accepts that international law has been ‘decidedly ambitious in the limits it sets on the behaviour of government authorities towards those in their hands’; but his answer is to back ambition with legal action. The international community over recent decades has achieved wide agreement on the abolition of the death penalty, the prevention and redress of enforced disappearances and extra-legal executions, the humane treatment of prisoners, the control of firearms in the hands of public officials, and – albeit with the signal abstention of the United States – the Rome Statute setting up the International Criminal Court. Enforcement remains the big problem, but the UK at least gave grounds for optimism when its highest court in 1999 ruled that General Pinochet could not claim sovereign immunity from extradition on charges of torture.

The reaction to the 9/11 atrocity set this clock running backwards. Rodley is clear that years of uneven but real progress towards a humane international legal order were halted and in significant part reversed. ‘General or customary international law was essentially brushed aside … on the view that customary international law “does not bind the executive branch under the constitution because it is not federal law”.’ But the courts, including the US Supreme Court, have in some measure halted or slowed this reversal, and Rodley is not wholly pessimistic about the future.

The Bush doctrine that some captives have no rights echoes a similarly false belief about pirates and slave-traders. When Britain in 1807, the US in 1808 and the major European powers at the Congress of Vienna in 1815 banned the transportation of slaves by sea, slaving became assimilated in international law to piracy, a capital offence. In the seaman’s ballad ‘The Flying Cloud’, dating from the 1830s, the narrator recounts from the condemned cell how he signed on as a seaman, fetched up penniless in the West Indies, and shipped aboard a vessel carrying slaves from Africa. Slaves delivered and money spent, captain and crew turned to piracy until eventually a British man-of-war ran them down and the survivors surrendered:

And it’s now to Newgate we are come, bowed down with iron chains
For sinking and for plundering of ships on the Spanish main.
The jury found us guilty and we are condemned to die.
Young men, a warning take by me, and shun all piracy.

No doubt the judge told them, before he passed sentence, that they were enemies of mankind (hostis humani generis in legal Latin); but he would not have told them that they were outlaws without the right to a trial or to the protection of the law from torture, for, whether sea-robbers or slave-traders, by the 19th century they were entitled to both. The Americans hanged their last slave-trader, Captain Nathaniel Gordon, in 1862. He too wasn’t treated as an outlaw: he was captured by an American vessel off the west coast of Africa, brought back to New York, tried there for piracy by a judge and jury and sentenced according to law.

Although he knows of the Gordon case, Daniel Heller-Roazen appears not to understand all this. Since his chair at Princeton is in comparative literature, this would be unsurprising if his book were what for much of its length it appears to be: an elegantly composed and widely researched survey of the treatment of piracy in the literature of ancient and modern Europe. But the book is in fact a polemic: it argues that the unlawful combatant is the modern pirate, an aggressor without a state, at large on the sea or in the air or on land and, like the pirate, the enemy of all mankind. The argument assumes, first, that the status of an unlawful combatant can be determined without due process and second that, once so classified, an individual has neither civil nor military rights.

The foundational reasoning, which is not Heller-Roazen’s invention, goes like this. Pirates operate outside the territories of states and are thus beyond the reach of ordinary policing; they are indiscriminate in their targets and in this central sense are the enemy of all; they collapse the political into the criminal and so cannot be parties to treaty or truce; and what they wage is not war in any known sense. These propositions are all perfectly defensible so far as they go, but they do not go nearly as far as US practice since 9/11, which has been principally based on the capture of individuals, commonly on exiguous evidence, on the territory of sovereign states and their rendition to secret places beyond the reach of any law to see what can be extracted from them by torture.

This has as little to do with the law of piracy as it is possible to conceive. Heller-Roazen cites the 17th-century maritime lawyer Charles Molloy in support of the notion that the pirate is an outlaw; but he fails to mention that, also according to Molloy, it is the obligation of a sea captain who captures pirates to ‘bring them to the next port’. It is only if the judicial authorities there cannot or will not try them that ‘justice may be done on them by the law of nature.’ To this can be added killing by way of self-defence or attempted capture (both, interestingly, preserved in Article 2 of the European Convention on Human Rights). Today, accordingly, EU and US warships which seize the crews of Somali vessels suspected of tanker hijacking deliver them to the Kenyan authorities in Mombasa for trial under the universal jurisdiction over piracy which all states possess.

Looking for some acknowledgment of the gaps in the thesis, one finds instead a bald equation: ‘The unmistakable presence of the figure of the “enemy of all” in our time … can be located wherever all four elements of the paradigm may be found’. As the French jurist Antoine Garapon has pointed out, there are two other classes that fit this template – hackers and financiers. And there is arguably one further class that fits it: mercenaries. With the outsourcing of war to commercial enterprises, the tawdry soldier of fortune, the freebooter who kills for gain rather than for beliefs, may have achieved respectability. But it might have been interesting to have Heller-Roazen’s view on whether mercenaries – a regular instrument of US foreign policy – can legitimately be taken out and shot, or taken away and tortured, along with pirates and terrorists. Some of those states which have actually captured mercenaries – Angola, Equatorial Guinea – have taken a more civilised view: they have tried and sentenced them according to law. And how do you shoehorn into a model based on extraterritorial acts individuals acting and captured on the soil of sovereign states? Here’s how: ‘Today … the pirate may no longer be defined by the region in which he moves. Instead, the region of piracy may be derived from the presence of the pirate … There, the regular statutes of the law … may not apply.’ If anyone thought lawyers were without rivals as casuists, this might give them pause.

A single page of the polemic is given over to the post-9/11 reality in the US. Recording that Congress had authorised the president to make military orders for the ‘detention, treatment and trial of certain non-citizens’, Heller-Roazen notes that the Guantánamo detainees were treated neither as criminal accused nor as prisoners of war but as members of a ‘more obscure order’ – illegal enemy combatants – said by the former deputy assistant attorney general John Yoo (the author of two of the infamous legal memoranda on the legitimacy of torture) to be, yes, equivalent to pirates. We are back at the door wherein we came.

It might be thought remarkable that a scholarly book, published as the US administration, in the wake of domestic regime change, declassifies more and more of its predecessor’s ignoble legal opinions and memoranda, should deal so casually with something so important. A note acknowledging that there is now an abundant literature on the notion of the illegal enemy combatant hardly makes amends. Yoo, in the quote attributed to him, was asserting wrongly and ignorantly exactly what Heller-Roazen in his book has elected to assume: that piracy is ‘a category of behaviour not covered by the legal system’. Once you believe that, the four-part paradigm becomes an argument against the rule of law.

If Heller-Roazen were willing to come straight out with the proposition that, where the interests of the United States are concerned, might is right, one could at least have a candid discussion. What we have instead is a breezy dismissal of two of the things the common law of Britain and the United States values most highly: freedom from arbitrary detention and trial by due process of law.

The terrorist as pirate is a conceit that doesn’t work: it both overstates the extra-legal character of piracy and understates the harm that terrorism can do. A different oddity, the pirate as self-interested economic maximiser, is the conceit of The Invisible Hook, in which a somewhat parodic version of Adam Smith surveys the world of buccaneering.

You might wonder what else a pirate could be. But with pirates the unexpected is everywhere. Although he doesn’t get a mention beyond the title, one recalls that Captain Hook himself, in the prose version, lures the flying Peter Pan into using his foot instead of his dagger to deliver the coup de grâce and tumbles into the crocodile’s jaws with the gratified riposte: ‘Bad form!’ Even better, in the stage version he goes to his death with the words ‘Floreat Etona!’ on his lips (as, one imagines, Simon Mann would have done if things had gone badly for him in Equatorial Guinea). True, Hook could have been an oik trying to make an impression, but at least he had the Latin, and in swordsmanship he fought and died by the rules.

Some of Peter Leeson’s material is equally surprising and engaging. The pirate ship regimes for which records survive were quite a lot better than those of naval and merchant vessels. In the 1720s Bartholomew Roberts’s ship’s articles established an Athenian democracy on his vessel in relation to ‘Affairs of Moment’. They gave every man free access to the ship’s victuals unless the crew voted ‘a Retrenchment’ for reasons of scarcity. Loot was to be distributed in equal shares, save that the captain and quartermaster were entitled to two shares, the master, boatswain and gunner to one and a half shares, and the other officers to one and a quarter. Until £1000 apiece had been shared out the ship’s company was indissoluble; from that point they were free to leave, but before then desertion or retreat in battle was punishable by death or marooning. There was generous provision for disability benefit. Gaming for money was banned; lights out was at 8 p.m., after which time any drinking was to be done on deck; fighting was banned (‘Quarrels to be ended on Shore, at Sword and Pistol’); smuggling women or boys aboard carried the death penalty; and the ship evidently carried its own orchestra, with terms that could have been negotiated by the Musicians’ Union: ‘The Musicians to have Rest on the Sabbath Day, but the other Six days and Nights, none without special Favour.’

It gets better still. Leeson cites research showing a substantial and sometimes very high black membership of 23 known pirate crews operating between the 1680s and the 1720s, apparently on equal terms and conditions with the rest of the crew, though some historians think they were slaves. Bartholomew Roberts in 1721 had 88 black seamen in his crew. Blackbeard had 60; Captain England had 80.

You might consider much of this to be beyond anything that economic reductionism can explain. You might even start to think more benignly about a micro-society in which, as Leeson puts it, a single share separated the top of the pay scale from the bottom. But pirates (lefties may or may not be relieved to learn) did not have a ‘quasi-socialist … ideology’. It was, as ever, economic self-interest in action: egalitarianism was the only way to stop envy, favouritism and greed from disrupting the piratical enterprise. Perhaps; but if so, even anarchism would seem to come within the explanatory power of free-market economism.

And the racial mix? This too comes down, it appears, to the profit motive. Leeson – who is the BB&T professor for the Study of Capitalism at George Mason University and whose seminars must be wildly popular – explains why discrimination doesn’t pay: if an employer hates redheads but can get them cheaper than brunettes, that’s what he will do. What is more, doing it will create pay equity because the price of hiring redheads will rise and the price of hiring brunettes will fall. Somebody – a lawyer perhaps – might explain to Leeson that, in the real world, as long as racial and sexual discrimination were permitted in the labour market, they went on. Cheap labour remained cheap. It was only when legislation banning discrimination resulted in hefty awards of damages that boardrooms started waking up to the fact that discrimination was both costly and wasteful. It would be good to think that economics students have learned this by the time they graduate from George Mason University. They might also by then have wondered about Professor Leeson’s solemn explanation that the reason a pirate would try to avoid injury in combat – a ‘negative externality’, no less – was in order not to diminish his eventual utility on the labour market. Might there just be some atavistic human urge, unknown to economists, to stay alive and if possible intact?

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Vol. 32 No. 13 · 8 July 2010

It isn’t true, as Stephen Sedley asserts, that ‘slaving became assimilated in international law to piracy, a capital offence,’ after Britain and the US outlawed the slave trade for their nationals in 1807-8 and the Congress of Vienna issued a moral condemnation of the trade (LRB, 24 June). For more than four decades after Britain criminalised the slave trade, the judges who administered international law in British courts considered it a legal activity for foreigners. The key judgment was Sir William Scott’s in the case of Le Louis. Scott, the senior judge in the High Court of Admiralty, overruled the condemnation by the Freetown vice-admiralty court of a French slaving vessel in 1817, and upheld the ‘natural’ right of the French crew to resist an unlawful search. (Twelve men from the Queen Charlotte had been killed in seizing Le Louis.)

Scott’s opinion was a masterly summation of customary international law with respect to the freedom of the high seas. The law’s fundamental principles were, first, ‘the perfect equality and entire independence of all distinct [sovereign] states’ and, second, their ‘equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation’. On the high seas ‘no one state, or any of its subjects, [had] a right to assume or exercise authority over the subjects of another.’ The right of visit and search, which belligerents legitimately exercised in wartime in the interests of self-defence, could not lawfully be exercised in peacetime, without a prior treaty establishing that right. Since the search of Le Louis had been unlawful, any evidence of slaving so revealed could not be part of the legal case for condemning the vessel.

Scott demolished the Crown’s contention that the declarations of the European powers at the Congress of Vienna condemning the slave trade as repugnant to the principles of humanity and universal morality sufficed to make it a crime on a par with piracy, which all states had a right and duty to suppress. Slavery was a legal institution in British dominions and buying and transporting African slaves had once been a legal business actively encouraged by British governments. Slaving, Scott argued, ‘cannot be deemed a legal piracy’:

It wants some of the distinguishing features of that offence. It is not the act of freebooters, enemies of the human race, renouncing every country, and ravaging every country in its coasts and vessels indiscriminately; but of persons confining their transactions (reprehensible as they may be) to particular countries. It is not the act of persons … assaulting coasts … against the will of [African] governments and the course of their laws, but of persons [carrying] on a traffic not only recognised but invited by the institutions and the administrations of those barbarous communities.

Scott warned the British executive that British courts administering international law were bound to respect the legality of slave-trading by nationals of states which had not positively outlawed the activity: if their slave cargoes were seized by the Crown’s officers, then they had to be restored to them; ‘and if not taken under innocent mistake, to be restored with costs and damages’. Although he did not award costs and damages to the plaintiff in what was a ‘test’ case, Scott’s judgment opened the way for foreign slave-traders to sue British naval officers for financial restitution if they broke international law in suppressing the slave trade, and they had considerable success.

Bernard Waites
Hunworth, Norfolk

Vol. 32 No. 14 · 22 July 2010

Bernard Waites’s account of the judicial sabotage of the international ban on slave-trading following the Napoleonic Wars is perfectly correct, but it does not falsify what I wrote (Letters, 8 July). It was indeed the case that slaving became assimilated to piracy; but, like the common law prohibition of slave-holding in the previous century, this took decades to achieve in the face of sometimes dogged judicial opposition. In both instances, the first expedient was to decide that the ban might apply in Britain or to British vessels, but that it could not affect what was done in the colonies or by foreign ships. That was the story of English law following Mansfield’s historic decision in James Somersett’s case in 1772 (a decision Mansfield himself later went back on), and it was the story Waites tells about the Admiralty Court’s retrograde decision in the case of Le Louis, which was still having effects as late as 1860. But the fact that some judges are resistant or obstructive to new developments does not mean that the law has not changed. It means that change in the law is a process which can take time – unless Parliament intervenes, which the UK Parliament for decades failed to do.

Stephen Sedley
London WC1

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