Caput Gerat Lupinum: “Let His Be A Wolf’s Head”

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.

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3 responses to “Caput Gerat Lupinum: “Let His Be A Wolf’s Head”

  1. Well written, well argued article. Kudos all around.
    The way the United States uses drones, however, is markedly different from the concepts you cite. Consider Cauput Gerat Lupinum; criminals are given bounties and are fair to hunt as they are a danger similar to wild animals. That’s all well and good when the hunting ground is unclaimed territory; policing within a sovereign nation has different ramifications. A better comparison would be to fugitive slave hunters prior to the civil war. In theory these hunters would capture run away slaves in states where slavery was not legally recognized. In practice legally free black were also targets, as discrimination undermined adherence to rule of law. To the point: the enforcement of the laws of one state within another is not only readily abusable but also a refutation of state sovereignty and the rule of law.
    Better equipped to avoid this kind of abuse is the British common law Hostis humani generis; by establishing a legal definition (‘an enemy to all mankind’) on which a specific law is to apply (‘trial and execution by captors’). Unfortunately the United States has not taken this route. By failing to establish a legal definition for ‘terrorist’, the specific law to be applied (subject to drone strikes) is liberally applied as seen fit by the user. Drone strikes on US citizens within sovereign nations, drone strikes en masse against Pakistanis, all without legal process, is the result.
    The implications are dire. The US is setting the precedent for drones to become the tools for peace-time war. If elites are in conflict, why go to war when you can simply assassinate targets you deem threatenning? Consider what Ukraine would look like had Russia used drones. Consider what will happen once India possesses significant drone strike capabilities. Like nuclear power near the end of World War II, drone technology is possessed only by the richest, most advanced nations. This will not last. The precedent set by the United States is terribly short sighted, and dangerous.

  2. Well written, well argued. The difference I see between the common law precedent cited here and the use of drones is the erosion of ungoveren territory in modernity. Drone use in ungoverned territory could be justifiable through Cauput Gerat Lupinum, but when a drone’s target lies within the borders of a state distinguishing between a strike and an act of war becomes problematic. The British example works better. By creating a definition (‘enemy of all mankind’) under which a certain type of law can be applied (trial & execution by captor), sovereignty problems can be avoided through conservative use of the label. Unfortunately, the US has not done this; by failing to establish a type of law under which the definition ‘terrorist’ ought to be treated, the United States has set the precedent for liberal use of drones as a global policing tool.
    If a state polices within the territories of other states through virtue of advanced technologies, a dangerous precedent is set; what happens when drones become common place? What would Ukraine look like if Russia used drones to assassinate “terrorists”? How long will it be before India uses the precedent we’ve set to assassinate Pakistani leadership?
    Like nuclear technology during World War II, drones are currently asymetrically distributed to the riches and most advanced societies. This will not last.

  3. Disagree with a lot of your article, but nicely written! I simply cannot side with nations that simulate or behave imperialistically and of course, we have done that time and time again. I’d argue that while we cannot condone terrorism, in less developed countries they are fighting back by any means necessary in the absence of large armies funded by billions in tax payer dollars, their tactics target civilians. Guerrilla tactics and causing terror to destabilize the powers that be doesn’t achieve their precise goals, but it certainly rocks the boat. We wouldn’t have to use drones in the first place if it weren’t for our “legal” destabilizing effect on other countries. Hunt them down by any means necessary, but drones continues to be a can of worms I wish we’d never opened, and fall within the same category as nuclear weapons for me morally. It becomes an “ends justifies the means” question. People are certainly able to argue that drones are justifiable means of course. Interesting site.

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