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Hostis Humanii Generis

Bush is off in Europe today talking about closing GitMo, so... just what are we going to do with those folks, and others like them in the future?  That's the question we need to answer.  GitMo has mostly just been a way of buying time until we decide.

In the extended entry, a cross-post from Grim's Hall on the subject of dealing with the enemies of mankind.  I will warn you that it says one or two things about Amnesty International that aren't critical, although I disgree with them strongly on... well, most everything really, but there are a few places where I think they're on the right track.

Well, OK, there's only really two places where I agree.  They're wrong about the rest of it.

Strong words from Austria:

The EU has welcomed US president George W. Bush's statements on ending the Guantanamo prison camp, with the Austrian chancellor saying after Wednesday's bilateral summit that it is "grotesque" to claim that the US is harmful to world peace.

I think we'd all like to see GitMo closed. The problem is -- what do you do with the people there if you close it? Bush says he'd like to send them home, except a few to be tried in US courts. I have opposed, and still do oppose, the idea of using criminal courts to try terrorists: they aren't criminals, entitled to the protections of a civilization even when they defy its laws. They're hostis humanii generis, enemies of all mankind, like pirates.

That idea has some currency in odd places. Amnesty International, for example, is trying to push nations to adopt the idea of hostis humanii generis as a way of getting at nations that engage in torture:

Initially, a federal judge dismissed the Filartigas’ claims on the grounds that Paraguay’s treatment of its own citizens was not governed by international law. But the Court of Appeals rejected this reasoning. Specifically, the Court of Appeals found that torture was a violation of international law, and that torturers—like the pirates of the 18th century—were hostis humanii generis (enemies of all mankind) who could be brought to justice anywhere. In the Filartiga v. Peña-Irala ruling, the appeals court relied on the 1975 United Nations Declaration Against Torture and All Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment, which the United Nations promulgated following Amnesty International’s first international campaign against torture. The relationship between human rights activism and success in the courtroom could not have been clearer. The Filartiga case led to dozens of other cases over the next two decades against human rights violators found within the United States, including Ferdinand Marcos and Radovan Karadzic. Under the ATCA, the federal courts accepted claims of torture, extra-judicial killing, prolonged arbitrary detention, genocide, war crimes, and crimes against humanity.

Amnesty and I agree that there are enemies of that type -- people for whom civilization should set aside its protections. The questions on which we differ are these:

1) Which protections should be set aside? Amnesty for example, is willing to set aside the protections of jursidiction and national sovereignty. I am willing to set aside the protections accorded to "ordinary decent criminals" by the Western criminal court system, and pursue these enemies instead as unlawful combatants subject to the laws of war.

2) What punishments should these enemies of mankind face? Amnesty, though willing to set aside crucial parts of the justice system, wishes even humanity's worst enemies to be treated with a special gentleness: they oppose not only the death penalty, but also "supermax" style prisons that would allow you to separate people who might try to recruit others to their poisonous ways. I think that torture should be forbidden, but that execution for terrorists and unlawful combatants who hide among women and children -- because they glady endanger the lives of women and children -- should be permitted, following a proper military hearing on their status according to the forms of the Geneva Conventions.

3) Who exactly are the enemies of mankind? For Amnesty, they are mostly government officials -- which is a wise position, honestly, a wiser one than the United Nations system credits. The UN system believes that rights belong to states, and the "rights" of individuals are to be protected through the various nation states. This is why Cuba is now on the UN's Human Rights watchdog group. For me, I am glad to agree that government officials can be the enemies of mankind, and that the worst ones ought to be hounded out of the civilized parts of the world.

But these terrorists, these people who hide among the innocent and murder, they really are like the pirates of the 18th century. Lawless, stateless, mobile through the uncontrolled parts of the globe, they prey and murder and wage war against mankind. The old idea ought to be upheld.  So should the terrorists, preferably by a rope.

GitMo has been our place for sticking these enemies of mankind while we decide what to do with them. It is, I think, a mistake to go through the courts, and accord criminal protections to these people -- giving them the status of criminals is too good for them. They are barbarians, outlaws, and ought to be treated as such.

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