Can lawmakers look to the common law of the Middle Ages and the British Empire to provide legal precedent for drones? Recently there has been much heated debate about the legality of the US government’s drone program. The practice of employing drones to find, monitor, target, and kill an individual, even an avowed terrorist, without trial appears to contradict multiple tenets of the US Constitution, the Articles of War, and the Geneva Conventions; the international treaties which govern the conduct of nations at war. However, those treaties were drawn up to govern the conduct of war between states. As terrorists cannot be expected to behave as a state does, should lawmakers not reach further back in human history to find legal precedent to respond to terrorist threats?
The US Government argues that all those targeted by drone strikes (such as Anwar al-Awlaki) have made statements denouncing the United States, while also threatening and actively attempting to bring harm to the American people. If such individuals have chosen to live outside the law should they expect the same protections as an ordinary citizen? The current legal framework governing drones and terrorist in general was drawn up using the sections of the Geneva Convention addressing unlawful combatants. However the Articles of the convention while vaguely condemning unlawful combatants assumes that such persons are citizens of occupied territories who have chosen to take up arms to resist an occupying army. The concept of persons who can cross borders infiltrate cities and are willing to fly planes into buildings was not something the framers of the Articles considered. History can perhaps offer precedents to lawmakers on how to adjust America’s laws to deal with an advancing level of technological capability that is being aggressively deployed against an evolving array of threats.
Cauput Gerat Lupinum (“Let his be as a wolf’s head”) originated in Ancient Rome as a term for those who had been driven from the city. It was widely used during the Middle Ages when a lack of manpower made the logistics of long term imprisonment and pursuit of fugitives impractical. Cauput Gerat Lupinum dictated a declared criminal was no longer protected by the law. The criminal was regarded as a threat, just as any wolf or wild beast would be, to the entire community. Thus the bounty on the criminal was the same as that on a wolf. Those who have chosen to commit themselves to bringing harm to the world’s citizens could be regarded in the same legal context.
Hostis humani generis (“An enemy to all mankind”) originates in British Common Law. In the 18th century the transport of pirates to Courts of Law was impractical due to the vast reach of the British Empire. The British enacted legislation that pirates were considered enemies of all mankind and could be tried and executed by whoever captured them; usually this meant British warships, which served as a global precedent that other nations would follow.
It is ironic to think that in this enlightened age we would look to the legal codes of our more barbaric ancestors to find an appropriate means to deal with advancing technological capabilities and evolving global threats. But terrorists refuse to play by the familiar rules of law. They cross borders, live off the grid, and challenge even well trained militaries’ abilities to find and detain them. Drones provide a direct and expedient solution to these problems and can help make terrorist safe havens far less secure. Moreover those who take up the banner of terrorism remain a threat to all civilized society just as a wolves threatened peaceful communities in the Middle Ages and pirates threatened the safety of the seas during the British Empire’s apex as a global power. The use of drones needs to be governed by an adequate legal framework; all the better if such a framework is based on historical legal precedents.
4N Policy Now is a non- partisan, non-biased organization. All of the views expressed in the content published on this site are the sole opinions of the author, and do not necessarily reflect the views of 4N Policy Now.