by Mary W Maxwell, LLB
Hostis humani generis is Latin for “an enemy of all mankind.” It is a point of law that was made in the days when piracy caused a problem for oceanic trade. Nations recognized that a pirate at sea was not punishable through normal means. So it was declared that any ship able to seize a pirate ship could deal with it summarily. “No questions asked.”
This article nominates a group of baddies to be called The Sprinklers Club. Let us imagine that this club’s crime, unlike piracy, consists of sprinkling a toxic chemical, from satellites, onto almost all arable land, for the purpose of ending agriculture. No one can deny that they constitute a “hostis humani generis” – an enemy of all mankind. We will all starve if no one can stop the activity of the Sprinklers.
If you caught a member of that club in your territory, say when he was walking down the street, you could corner him, call the police, and expect him to be subjected to the normal laws of your state. “Wouldn’t he have to be extradited to the country in which he is a citizen?” I hear you ask. Presumably not, as the sprinkling of the toxic chemical has hurt your territory so you can charge him with crime – at the very least property damage – per local law.
I think you could also kill him on the spot – legally – owing to the jurisprudence governing acts of self-defense. The Sprinkler is in the process of killing you by wrecking the food supply, thus you will inevitably die.
A person always — and I mean always — has the right to defend herself. A cop may come by and arrest her for shooting the Sprinkler dead, or setting her attack dog on him, or whatever. But if charged with that murder, she may be acquitted, provided she could show that the treat of starvation was “imminent.”
The High Court of Australia ruled, in 1987, in Zecevic v DPP:
“The question to be asked in the end is simple. It is whether the accused believed upon reasonable grounds that it was necessary in self defense to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”
Self-defense is by no means the only answer to the problem. Anyway, many citizens, such as myself, do not have the physical strength to fight the Sprinklers. What else is available? Here is a quick introduction to the law of universal jurisdiction, war crimes, and the International Criminal Court.
Imagine that there is one country, say New Zealand, that is always spared by the Sprinklers Club. We ask: If a New Zealander sees a couple of Sprinklers walking down the street, doing no harm, can she arrest the sprinkler for what he has done to Canada’s agricultural land? Clearly the self-defense argument is not relevant here; the kiwi is well fed. But if Canada had issued a warrant for the arrest of any and all Sprinklers, and if NZ and Canada had an extradition treaty, then yes. Such arrests are common.
What if there were no extradition treaty but the kiwi was keen to see justice done? He could look up the rules of universal jurisdiction. Some crimes have been declared to be punishable without regard to the usual formalities of geographical jurisdiction.
A famous example is that of torture. In 1998, a court in Spain attempted to hold Chile’s ex-ruler Augusto Pinochet liable for the torture of a Spanish citizen. At that moment Pinochet was in London. All members of the European Union had an agreement to extradite. Eventually the UK’s Home Secretary Jack Straw decided not to send Pinochet to Spain based on Pinochet’s age and poor health.
Thus the accountability never came to fruition. Nevertheless, activists for the punishment of torture were joyful that the UK agreed, but for Pinochet’s age, that he was fair game to be extradited for having committed torture. Note: this was not strictly universal jurisdiction. I said that Spain had a normal claim to jurisdiction, insofar as a Spanish citizen had suffered torture in Chile. If a “third party” country, such as Brazil, captured Pinochet, that would be universal jurisdiction.
I am mentioning the law of war crimes separately here, as it has a nuance different from that of torture, even though – in the eyes of many countries – it fits under the rubric “universal jurisdiction.” What is a war crime? It is usually defined by reference to the Geneva Conventions. Anything to which the signatories agreed is a war crime. A simple example is shooting at, or bombing, a Red Cross station in the theatre of war. (Needless to say, killing the enemy in combat is no crime.)
The United States has been committing war crimes since, at least, the Vietnam war when it ran the grotesque Phoenix Program. But America never allows its personnel to get punished. I recall at least one instance of a Canadian lawyer trying to citizen-arrest ex-president George W Bush for crimes in Iraq, but she did not succeed.
There have been instances, though, when an alleged war criminal such as Henry Kissinger or Israel’s Ariel Sharon, have cancelled a foreign trip thanks to warnings that they may be captured.
In 1991, Congress passed the War Crimes Act. It “brought the law home,” so to speak. Here is the wording at 18 USC 2441:
Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).”
Possibly the reason for enacting such a law was to avoid the problem of American military personnel being tried by other nations.
Some contractors of the US, in the Middle East, performed horrible deeds. They did get convicted of war crimes. President Donald Trump then issued a pardon.
I said there was a nuance involved in war crimes. The nuance is that the people of any nation have an automatic loyalty to their own soldiers. (See Mary Maxwell, Morality among Nations, 1990.) All bets are off as to the willingness of a nation to prosecute its own war criminals. Sure, the law is there in black and white, but it is ignored.
Note: Article 1, common to all four Geneva Conventions, requires every signatory state to respect and “ensure” respect for the terms of the Conventions. This requirement is erga omnes.
The ICC – the International Criminal Court
The ICC may be another way of “bringing the law home” – by Western nations who are united against receiving any punishment from outsiders. The Treaty of Rome was written in 1998 to establish an International Criminal Court, and it came into effect in 2002. The ICC purports to capture and punish anyone anywhere who has – after the effective date of 2002 – committed certain crimes.
There had already been the Nuremberg Trials of 1946 and the Tokyo Tribunals of 1948, run by the victors to punish Germans and Japanese for their acts during World War II. There had also been a UN Security Council initiated International Criminal Tribunal for Yugoslavia, the ICTY, and another one for Rwanda (ICTR).
The charter of the ICC calls for enforcement against four crimes: genocide, crimes against humanity, war crimes and international aggression. That fourth one, which would encompass Nation A starting an unjustified war against Nation B, was originally held in abeyance by the Treaty of Rome, until a definition could be agree upon. Surprisingly, a definition was agreed upon and so this part of the treaty came into force in 2017 – with no retroactivity.
I find it hard to take the ICC seriously as there is a provision in its charter for UN Security Council approval before a case will be accepted. Any of the Permanent Five of the UN Security Council (US, UK, France, China, Russia) can veto the acceptance of any case, as it pleases. To date, only Africans have been captured by the ICC and tried, with one convicted. The holding pen is at the Hague, Netherlands. (See International Criminal Law, (2001) by eminent scholar Kriangsak Kittichaisaree.)
Crimes against Humanity
Could members of the Sprinkler Club be tried at the ICC? In principle, yes. Their wrecking of the world’s agricultural base, by toxifying the land, could easily come under the heading of “crime against humanity.” The Rome treaty named some specific crimes as crimes against humanity: murder, extermination, enslavement, forcible transfer of population, persecution, torture, enforced disappearance of persons, imprisonment, apartheid, and the sexual crimes of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and sexual violence.
The ICC statute also says “and other crimes against humanity.” This broad category is limited by Article 7 (1)(k) of the Statute as follows: “acts of similar character [to the above] internationally causing great suffering or serious injury to body or to mental or physical health.” Standards set by the Universal Declaration of Human Rights can be alluded to.
Is There a Sprinklers Club Today?
I made up the name Sprinkler and made up the crime of destroying all agricultural land. There is no such group or crime. However, there are groups that do have in mind massive destruction. These groups do not get punished; indeed, their membership is not clearly known.
An interesting legal point is that these folks are not really citizens of Nation A or B when they do their dirty work. They claim to have, so to speak, a World Passport. Also when they act in concert, it may be as giant corporations rather than as governments. Or sometimes, as foundations.
I attended a lecture at the University of Adelaide about 10 years ago by a man from the Bill and Melinda Gates Foundation. He displayed maps of “where tomatoes are growing this year” and “where tomatoes were grown four years ago.” He claimed that the Foundation had data on every 10 square miles on earth as to what crops are growing there.
Just this fact alone – that the players are no longer only individuals and governmental entities but are businesses and foundations — is enough to make us realize that the law is outdated. As an academic exercise, I propose that we use the fictitious Sprinklers Club as a model from which to see if the term “hostis humani generis” has value, legally.
Hostis Humani Generis, Here We Come
I have already said that if some “club” is deliberately destroying all agricultural land, and if you see a member of that club on the street, you can kill him per the law of self-defense (you will be arrested but may be acquitted via the defense of self-defense if you can prove imminence of the threat). And I said if you see someone committing a war crime you can deal with him under the Geneva Conventions’ style of universal jurisdiction. And if you see her committing a crime against humanity you can ask the ICC to do the needful.
Those mechanisms are plainly unsatisfactory, so I propose that such persons be declared hostis humani generis. Like pirates they can be wiped out by anyone. When the Supreme Court of Israel, in 1968, wanted to persuade the world that it had the right to try, and execute, Nazi leader Adolf Eichmann, it compared him to a pirate:
“The substantive basis underlying the exercise of universal jurisdiction in respect of the crime of piracy also justifies its exercise in regard to the crimes with which we are dealing in this case.”
As regards the Sprinklers Club, it is entirely wrong for the human race to put up with persons or organizations that endeavor to ruin all agriculture. Could there possibly be a group that has legitimacy to kill us all by destroying arable land? Of course not.
This series of articles (yet unfinished) has attempted to identify actions that can be taken. The preceding four parts were: 1. “Eight commandments” for sheriffs, 2. A treaty that we would negotiate with the dictators, 3. Prosecutions of Covid criminals, and 4. Correcting nasty court tricks by legislation. And now this idea of calling an enemy of all mankind “an enemy of all mankind.”
None of these will just happen. You are needed. Get together with any friends or neighbors and discuss what steps you can take now in this rare time of crisis. There is already a groundswell. Of course, we may be killed for taking action. But to take no action makes the likelihood of getting killed much greater.
Video from “the New G-G”
It helps that different countries and different interest groups are each trying to deal with our Covid situation in ways that suit their culture. Here is one that uses good old Aussie spunk: