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. 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 Treatment of Prisoners under International Law
The Treatment of Prisoners under International Law
Nigel Rodley with Matt Pollard
Oxford University Press (August 2009); £85.00 ISBN: 978 0 19 921507 2
The new edition of the classic work on the treatment of prisoners, both lawful and de facto, by Professor Sir Nigel 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 to those in their hands”; but his answer is to back ambition with legal action. 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 of the 9/11 atrocity set this clock running backwards. “General or customary international law,” Rodley says, “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 the transportation of slaves by sea was banned, slaving became assimilated in international law to piracy, a capital offence. The Americans hanged their last slave-trader, Captain Nathaniel Gordon, in 1862. 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.
The Enemy of All: Piracy and the Law of Nations
The Enemy of All: Piracy and
the Law of Nations
Zone (November 2009); £21.95
ISBN: 978 1 890951 94 8
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 essence 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 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.
Looking for some acknowledgement 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”. 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. 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.
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 Invisible Hook: The Hidden Economics of Pirates
The Invisible Hook: The Hidden
Economics of Pirates
Princeton University Press (May 2009); £16.95
ISBN: 978 0 691 13747 6
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. But some of Peter Leeson’s material is 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 the 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. Until £1,000 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 pm, after which time any drinking was to be done on deck; fighting was banned; smuggling women or boys aboard carried the death penalty; and the ship carried its own orchestra. But pirates did not, says Leeson, have a “quasi-socialist ideology”. It was, as ever, economic self interest in action: egalitarianism, it appears, was the only way to stop envy, favouritism and greed from disrupting the piratical enterprise. Professor Leeson goes on solemnly to explain 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?
Lord Justice Sedley is a Court of Appeal judge and is President of the British Institute of Human Rights. The above is an extract from the full review by Lord Justice Sedley which appeared in the London Review of Books on 24 June 2010 (www.lrb.co.uk)