Enemies of All Mankind

Stephen Sedley

  • The Treatment of Prisoners under International Law by Nigel Rodley, with Matt Pollard
    Oxford, 697 pp, £85.00, August 2009, ISBN 978 0 19 921507 2
  • The Enemy of All: Piracy and the Law of Nations by Daniel Heller-Roazen
    Zone, 295 pp, £21.95, November 2009, ISBN 978 1 890951 94 8
  • The Invisible Hook: The Hidden Economics of Pirates by Peter Leeson
    Princeton, 271 pp, £16.95, May 2009, ISBN 978 0 691 13747 6

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.

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