Hostis Humani Generis - Theorized Extended Usages of The Term

Theorized Extended Usages of The Term

The land and airborne analogues of pirates, bandits 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 and current professor at University of California at Berkeley School of Law 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, when referring to pirates and slave traders, and declaring them outside the law, he makes an unmistakable reference to "hostis humani generis".)

Professor Yoo, when referring to terrorists in a June 8, 2012 Wall Street Journal opinion piece stated, "just-war theory should broaden, rather than limit, the use of force against terrorists. The work of the Catholic theologians (Aquinas and Augustine) drew upon traditions stretching back to the ancient world that would have considered terrorists to be hostis humani generis, the enemy of all mankind, who merited virtually no protections under the laws of war."