Hostes humani generis: Pirates, Slavers, and Other Criminals

Hostes humani generis: Pirates, Slavers, and Other Criminals Page 1 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 Print Publication Date: Nov 2012 Subject: Law, History of Law, International Law Online Publication Date: Dec 2012 DOI: 10.1093/law/9780199599752.003.0006 Hostes humani generis: Pirates, Slavers, and Other Criminals The Oxford Handbook of the History of International Law Edited by Bardo Fassbender and Anne Peters  Abstract and Keywords This chapter notes that legal literature and States have built upon Cicero’s legacy of pi rates as hostes humani generis, extending to other acts the legal consequences attached to them (criminalization and universal jurisdiction): slave-trade or enslavement, war crimes, crimes against peace, crimes against humanity, and terrorism. Piracy, slavery, and other acts or activities that are nowadays considered criminal were not necessarily in oth er times. The theoretical distinction between piracy and privateering blurred in practice. International law provided arguments and legal foundations to address the repression of pirates, slavers, and other criminals before 1945; yet law-enforcement practice also of fered arguments to prevent their criminal prosecution on a universal jurisdiction basis. Keywords: piracy, slavery, Cicero, criminalization, international law, war crimes, terrorism 1. Introduction Despite Cicero's celebrated definition of pirates as hostes humani generis,1 there is no trace of the expression in (positive) international law. The ‘criminals against humanity’— which included enslavers and sexual slavers,2 but not (yet) pirates or terrorists—come the closest today to those ‘enemies of all humanity’. There being no mention on international treaties, what is it that scholars have meant when they referred to hostes humani generis in treatises on international law? The meaning was generally twofold: (p. 121) pirates were worthy of punishment; and, to put it plainly as did Grotius, any pirate ‘is justiciable by any State anywhere’.3 Concerning the historical legal foundations in accordance with which pirates, slavers, and others might be considered as (international) criminals, there are several questions. Since when can it be affirmed that they were such criminals? Was prohibition equal to criminalization? Provided that legality is a principle of international law—it might not have been so before 1945,4 although the principle nullum crimen, nulla poena sine lege was soon recognized afterwards in human rights law—even ‘any’ generally accepted defi Joaquín Alcaide Fernández Hostes humani generis: Pirates, Slavers, and Other Criminals Page 2 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 nition does not satisfy the requirement of specificity. Perhaps the Nuremberg trials were not the only exception aiming for substantive justice at the expense of strict legality. Fur ther questions which may be posed include: were these criminals subject to universal ju risdiction? And last but not least, was every State eventually bound to prosecute? The responses always depend upon the theory (‘positivist’ or ‘naturalist’) one adheres to relating to the foundation, nature, and scope of (criminal) international law. As the inter national law of piracy has not been universally codified (or progressively developed) until 1958, it is necessary to rely on practice and to identify the ‘proper’ law under considera tion, be it municipal or international law. States and their mentioned municipal courts whose findings were supposedly based on ‘the law of nations’ have frequently used antipiracy municipal laws as international law; municipal assertions of law have been re ceived as persuasive statements of true international law. For a long time, there had been no ‘international’ means of capturing, trying, or punish ing criminals. Not a single proposal—either governmental or non-governmental—to cre ate a criminal international court was successful before 1945. Although international law might have defined the elements of the crime (mens rea, actus reus, and locus), the recognition of the acts as constituting crimes, and the trial and punishment, were left by international customs or treaties to the municipal law and courts. Some scholars state that while piracy5 or slave trade, or enslavement,6 for instance, might have been crimes under municipal law, they were not crimes against international law, but only constituted a special basis of States’ jurisdiction, otherwise restricted to crimes committed on its ter ritory or by its nationals. States were then not obliged to prosecute and punish these criminals. It has (p. 122) been mainly since 1945—especially after the Cold War—when in ternational law admitted individual criminal responsibility, both at the municipal and at the international level. This led to the International Criminal Court (ICC). Scholars still debate whether or not the duties set forth to bring criminals to justice at the municipal level fall within the realm of what is today criminal international law. Most criminals will usually be prosecuted and punished according to international law by any State which happens to seize them, as even the ICC is only complementary to national criminal juris diction. The interrelationships between the criminal acts and the legal responses should be high lighted. Firstly, war crimes and crimes against humanity might encompass otherwise dis crete crimes (enslavement, terrorism, torture, etc.). Pirates did not renounce ‘man steal ing’, and even privateers did not merely take captives, but sold them as slaves and inter fered with the slave trade.7 Pirates/privateers became slavers, and vice versa. Secondly, willing to establish criminalization and universal jurisdiction, some States— namely the United Kingdom and the United States—were prone to equate slave trade at sea to piracy (the ‘piracy analogy’). British attempts go back to the 1822 Congress of Verona and only reached a conclusion with the codification of the law of the sea.8 By 1882, a network of more than fifty bilateral agreements permitted the search of suspect ed slave vessels on the high seas, without regard to their flag. Precisely in connection to Hostes humani generis: Pirates, Slavers, and Other Criminals Page 3 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 British arrests of foreign vessels engaged in the slave-trade, the freedom of the (high) sea(s) gained general acceptance as it was formulated by English and American courts early in the 19th century,9 once piracy had declined. Even a treaty for the abolition of the slave trade was held not to justify the arrest of a vessel of the other party, unless the treaty specifically conferred that right upon the contracting States.10 And the treaty can be interpreted as an acceptance of limits to the exercise of jurisdiction whose extension had been previously generally accepted.11 Some treaties also compared the violation of the laws of war to piracy (with the clause ‘as if for an act of piracy’).12 The same compari son has been used decades later when acts against the security of (civil) aviation have been called ‘aerial piracy’ in legal literature and municipal law,13 and recently, acts against the (p. 123) safety of maritime navigation or the taking of hostages at sea have been treated as piracy.14 2. Piracy Piracy is much older than maritime navigation, although its rise in modern times was con nected to the increase of trade with the Indies and of privateering—that is, private ves sels acting under a commission (‘letter of marque and reprisal’) issued by a State to cap ture vessels of an enemy State, and neutral States trading with it, giving to the privateer the prizes taken, with the exception of a percentage to the Crown, and providing for the speedy adjudication of claims.15 The legal recognition of pirates as criminals emerged from centuries of intermittent coop eration and conflict between States and privateers, involved in piracy-like acts, as the dif ference between privateering and piracy was usually blurred in practice. Furthermore, it has been said that many States, by not inserting in their municipal law provisions for prosecuting and punishing piracy in all circumstances even when committed by foreign ers outside the State's ordinary jurisdiction, simply assumed piracy to constitute a special basis of State's jurisdiction. It is certainly difficult to find cases of an exercise of jurisdic tion over piracy which could not be supported on one or more of the usual grounds. 2.1. Towards an Absolute Prohibition of Piracy Modern international law did not outlaw piracy absolutely (privateering included) at least until the second half of the 19th century.16 Even then, this can be determined only by indi rect references to piracy in international negotiations and treaties. (p. 124) 2.1.1. Cooperation and Conflict between States and Private Vessels: Privateers versus Pirates States began the prohibition of piracy long ago. There were a number of piracy trials be fore municipal courts. The trial R v Joseph Dawson before the High Court of Admiralty, and the charge that Sir Charles Hedges submitted to the grand jury in 1696,17 or the case United States v Smith in 1820,18 are all examples. It might follow from that, that piracy Hostes humani generis: Pirates, Slavers, and Other Criminals Page 4 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 may be considered as a violation of international law, and perhaps subject to the (crimi nal)19 jurisdiction of all States. Notwithstanding, modern States soon discovered the benefits of using privateers as ad juncts of the State's armed forces (even preceding royal navies) and, as a sign of the building of modern States, accepted licensing privateers as a prerogative of recognized States—and only of States, as was the case with resorting to war. As early as the end of the 13th century, municipal laws often authorized privateering; amongst other municipal or international legal criteria (such as validity of the commission, nationality of the cap tured vessel or its cargo, bonds furnished, respect of the temporal and material con straints of the commission, having no commissions from more than one sovereign, etc.), the commission was necessary to prevent the privateers from being treated as pirates (who, at best, governed themselves by the so-called pirate articles, mainly based on ter ror, fear, etc.). These regulations can be traced from the Pisa (1298) and Geneva (1313– 16) laws, Pedro IV of Aragon's Ordinance of 1356, the Laws of the Hanseatic League (1362–64), Charles V of France's Ordinance of 1373, the seminal prize court regulation in English Parliamentary Act of 1414, etc., to the French Ordinance of 1778 or the Spanish Ordinance of 1801, and additions. But differentiation between pirates and privateers was subtle in practice. From the 16th century onwards, cooperation and conflict between States and privateers were dependent upon the (un)friendly relationships between old European States; namely, England, France, and Spain, but also the Netherlands, hence the centrality of privateering in Grotius’ or Bynkershoek's writings. The perceptions about the status of the private ves sels differed, so piracy was not the same for each and every State everywhere and every time. History and the romantic imagination have been filled with heroes and villains (the Vikings, Barbary pirates and privateers, Sir Francis Drake, Edward Teach called ‘Black beard’, etc.), somehow anticipating the political exemption problem in the fight against terrorism in the 20th century, which permitted States not to extradite terrorists because their actions were considered political offences rather than common offences. English and Spanish legislative practices are examples of this cooperation and conflict. For instance, Henry VIII (English Offences at Sea Act 1536) and Elizabeth I (p. 125) (Proclamations of 1569 or 1575) outlawed pirates while authorizing privateers against Spanish trade. After the accession of James I and the end of the Spanish wars (1604), new anti-piracy acts were declared and commissions revoked. At the end of the wars between England and Spain (1692) and ‘King William's War’ (Treaty of Ryswick), England revoked the licences of its privateers (Piracy Acts of 1698). But during the War of the Spanish Suc cession (1702–13) England attacked the Spanish monopoly of commerce in the ‘South Sea’, where Spain had made it piracy for any but a Spanish vessel to trade there (English Act of 1707). After the Peace of Utrecht (1713), the so-called ‘Golden Age of Piracy’ declined due to one essential factor: piracy was the victim of its own success. Excess of trained sailors without employment or rebels against the established order—many of them former priva Hostes humani generis: Pirates, Slavers, and Other Criminals Page 5 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 teers—had become pirates who damaged and threatened all trade every where, and with out distinction amongst nations. More than ever before, piracy was considered an act of savagery by Western States (for instance, English acts of 1717, 1721, 1744, and 1837), so it was only accepted as ‘reasonable’ if committed by ‘savages’—even though sponsored by Western States. The next step forward was to recover the definition of pirates as ‘enemies of all humanity’, while tolerance for privateers was wearing thin by all nations. 2.1.2. The 1856 Declaration: The Abolition of Privateering When some municipal laws were eventually adopted to prohibit privateering, and when commissions were revoked (for example, by the Royal Pragmatic issued in 1498 by Fer nando ‘the Catholic’, King of Aragon), several international treaties and practices prohib ited privateering as well. England and France did so many times, starting with the diplo matic overtures of Edward III in 1324, and a number of unilateral and bilateral declara tions limiting privateering between 1785 and 1823, but none remained in force after a war broke out between the parties involved. From a French proposal, the Declaration (actually a treaty) Respecting Maritime Law was signed in Paris, in 1856.20 According to the Declaration, ‘[p]rivateering is, and remains, abolished’. None of the States parties could authorize as privateering the acts which oth erwise would be considered piracy; however, once captured, privateers commissioned by third States were still to be treated as prisoners of war. Other States acceded later to the Declaration (for example, Spain in 1908, but not the United States).21 Privateering begun to fall into disuse, and its abolition began to gain ‘objective’ authority. For example, a number of resolutions of the Institute of International Law affirmed that privateering was forbidden: if not the ‘Rules of Washington’ (1875), at least the Resolutions of Zurich (1877), Turin (1882), and Oxford (1913). (p. 126) Only under exceptional conditions could a private vessel converted into a war-ship have the rights and duties accruing to such vessels. The 1907 VII Convention22 codified, and resolutions of the Institute of International Law reaffirmed,23 the State practice (Prussia in 1870, Russia in 1877, the United Kingdom in 1887, France, Germany, United States, etc.) which indicated that those vessels should be placed under the direct authori ty, immediate control, and responsibility of the power whose flag they flew. 2.1.3. The Clause ‘As if for an Act of Piracy’ Piracy and privateering also formed the background to other treaties. Although never en tered into force because France failed to ratify, it is worth noting that signatory powers of the 1922 Treaty of Washington relating to the Use of Submarines and Noxious Gases in Warfare24 stated that any person in the service of any Power who shall violate any of [the rules set forth in article 1] … shall be deemed to have violated the laws of war and shall be liable to trial and punishment as if for an act of piracy and may be brought to trial be Hostes humani generis: Pirates, Slavers, and Other Criminals Page 6 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 fore the civil or military authorities of any Power within the jurisdiction of which he may be found. Furthermore, on 14 September 1937, during the Spanish civil war, representatives of sev eral States signed at Nyon an accord for the purpose of denouncing the attacks by sub marines against merchant ships not belonging to either of the conflicting Spanish parties25 as violations of ‘the established rules of international law’. Even though neither the clause ‘as if for an act of piracy’, nor the term ‘piracy’, are used in either of those ‘es tablished rules’, the ‘anti-piracy agreements’ of 1937 declared that the said attacks are ‘contrary to the most elementary dictates of humanity, which should be justly treated as acts of piracy’. The parties to the accord agreed as well to special collective measures ‘against piratical acts by submarines’ (or surface vessels or aircraft, according to a sup plementary agreement signed three days later at Geneva, 17 September, by the same powers).26 These agreements contained no provisions for the punishment of the officers and crews of offending vessels or craft as pirates who were caught committing ‘piratical acts’. The legal basis for declaring those attacks in the Mediterranean to be acts of piracy seems to be the lack of recognition of belligerency (p. 127) of the (thus simply insurgent) parties to the conflict in Spain.27 In its protests to Germany during the World Wars, the United States applied also the term ‘piracy’ to the acts of German submarines against merchant vessels. 2.1.4. Piracy and the League of Nations During the era of the League of Nations (LoN), an attempt was made to provide a general agreement on piracy. Following the Assembly resolution of 1924, the League appointed a sub-committee of its Committee of Experts for the Progressive Codification of Internation al Law. In the ‘Matsuda report’, the sub-committee stated that ‘according to international law, piracy consists in sailing the seas for private ends without authorization from the government of any State with the object of committing depredations upon property or acts of violence against persons’. The definition did not deal with an armed rising of the crew or passengers with the object of seizing the ship on the high sea.28 The so-called questionnaire on piracy (consisting of the ‘Matsuda report’ and Matsuda's draft provi sions for the suppression of piracy) was submitted to a number of States,29 but some of them did not acknowledge the desirability/possibility of a convention on the question. Some commentators criticized the report itself and even the transmission of the report to States because of ‘the present immature stage’ not of the subject in itself, but of the re port.30 The League's efforts fizzled out, and the subject was dropped from any conference for two reasons: piracy seemed not to be an urgent problem, and it was not likely that an agreement would be reached. Hostes humani generis: Pirates, Slavers, and Other Criminals Page 7 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 2.2. The Anti-piracy International Legal Regime around 1945: A Brief Overview A sort of syllogism may help to overcome the confusion regarding the international law of piracy. There is no doubt that the provisions enshrined in the 1958 (p. 128) Convention on the High Seas31 were based on the ILC's draft convention and later inserted in the 1982 UNCLOS.32 For its part, apparently the ILC closely followed the research carried out at the Harvard Law School which had culminated in a draft convention prepared in 1932 (in deed, all provisions contained in the rapporteur François’ draft, adopted as the ILC draft, were a French translation of the Harvard Draft Convention on Piracy).33 Finally, although it is not unanimously accepted that the 1958 Convention strictly ‘codified’ the traditional international law of piracy, there is widespread agreement that, although it still raised dif ficulties, the piracy rules contained in the UNCLOS reflect customary international law. The Harvard Draft Convention has been used by some scholars to discuss the history and development of that international law of piracy ‘as it developed over many centuries’.34 I will refer briefly to the definition of piracy and the jurisdiction over pirates, leaving aside matters such as property rights (‘pirata non mutat dominium’, etc.). 2.2.1. The Definition of Piracy: International Law and Municipal Law Over the centuries, there was no authoritative definition of piracy in general international law. Acts that are piratical under municipal law35 may not be so under international law (for example, in English criminal law it has been piracy to engage in slave trading). Al though the lack of adjudication and of pertinent instances of State practice occasioned some confusion among experts as to what international law includes, or should include, in the definition of piracy, it seemed to be accepted that it was ‘of the essence of a pirate act to be an act of violence, committed at sea or at any rate closely connected with the sea, by persons not acting under proper authority’.36 There has been and there still is debate about other elements—other than the choate or inchoate criminality37—such as the pur pose (robbery or private ends versus (p. 129) political ends)38 and the place (acts commit ted outside all territorial jurisdiction, but not on the high seas).39 After the 1856 Declaration, it was generally accepted that the proposition according to which pirates may be lawfully captured on the (high) seas by armed vessels of any State and brought within its territorial jurisdiction for trial before its municipal courts, should ‘be confined to piracy as defined by the law of nations, and [could not] be extended to of fences which [were] made piracy by municipal legislation’.40 2.2.2. Universal Jurisdiction Because piracy had to occur outside the municipal jurisdiction of any nation, it has been considered as a, if not the, quintessential crime subject to universal jurisdiction. Although this conclusion has been contested,41 it appears, for instance, from the published records of the conference where the provision ‘punishment as if for an act of piracy’ was inserted in the 1922 Treaty of Washington. The representatives assented to the following proposi tion as one of the core provisions of the treaty: under that provision, the offender would not be subject to the limitations of territorial jurisdiction, the peculiarity about the pun Hostes humani generis: Pirates, Slavers, and Other Criminals Page 8 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 ishment for piracy being that, although the act is done on the high seas and not within the jurisdiction of any country, nevertheless it can be punished in any country where the offender is found.42 Accordingly, every State might (or must)43 seize a pirate ship (later a pirate aircraft as well), or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board, pending the seizing State's court decision upon the penalties and the action to be taken with regard to the ships (or aircraft) and property.44 The seizure should only be carried out by warships (or, afterwards, by military aircraft), or other ships (or aircraft) on government service authorized to that effect45 (for in stance, a French law enacted in 1825 authorized the merchant vessels to carry out the seizure). It was generally (but not unanimously) accepted that the right of hot pursuit did not cease when the pirate ship pursued entered the territorial waters of a State other than the pursuing State, unless prohibited by the coastal State,46 the courts of which (p. 130) have, however, jurisdictional priority. There was also a provision on the liability of the pursuers or seizing State against damages to non-pirate ships or to other States,47 and a statement of the rights of persons accused of the crime.48 3. Slavers Throughout the ages, different societies and civilizations have considered slavery as a ‘natural’ state or a fair penalty, but almost always some thought of it as morally reprehen sible.49 The method of enslavement was sometimes considered legal, in other times ille gal. From the 16th century onwards, when the numbers alone exceeded any past prac tice, the native Africans (‘Negroes’) were the main victims, but in earlier times no race was exempt or ‘unenslavable’. Both enslavement and slave trade were very profitable branches of commerce, offering widespread economic benefit, and—in contrast to piracy —slavery was legal in most countries of the world. At dawn of the 19th century, when European empires were trafficking with ‘Negroes’, technical and economic circumstances changed—because the decline of the relevance of manpower—as moral and religious circumstances did, mainly under the direction of the Church of England, followed by the Pope's instructions, and the abolitionist movement, which gained strength after the famous case of James Somerset (1772),50 and drew moral and intellectual inspiration from the general proclamations of human rights. Even Haiti became independent in 1804 after a slave revolt. These were the days when Britain want ed rival colonial and maritime powers to join its ‘crusade’ against the slave trade so as to prevent trade and manpower—power itself—from passing to rivals hands.51 International cooperation began openly in 1814–15, mainly occupied with African slave trade, but the abolition of the slave trade did not entail immediately the prohibition of ownership of slaves. The British Slavery Abolition Act was passed in 1833, and emancipa tion spread throughout most new independent Latin American States, to France in 1848 Hostes humani generis: Pirates, Slavers, and Other Criminals Page 9 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 and to the United States in 1863. Firstly the enslavement and slavery-related practices were prohibited in the laws and customs of war, yet the different legal status of the slave trade and slavery is still evident in article 2 of the 1926 Slavery (p. 131) Convention.52 Furthermore, as piracy provisions, the prohibition of the slave trade transformed the law of the sea in itself—the 1958 Convention on the High Seas (article 13) and the 1982 UN CLOS (article 99). However, as opposed to the anti-piracy regime, here there is no recog nition of universal jurisdiction. The 1926 Convention was supplemented in 1956, when other main steps forward had been, or were about to be, taken (articles 1.3, 55 and 56 of the UN Charter; articles 1, 3, 4, 5, and 6 of the UDHR; articles 8 and 15 of the 1966 IC CPR; obiter dictum in the 1970 judgment of the ICJ; etc.). It should be noted however that it is difficult not only to determine when the slave trade and enslavement became a viola tion of customary international law,53 but also to find anyone tried before criminal courts for slave-trading or enslaving before 1945. 3.1. The Abolition of African Slave Trade and the Woman and Chil dren Traffic In 1807, US Congress passed the Act to Prohibit the Importation of Slaves, renewed be tween 1818 and 1820, as the British Parliament adopted the Act for the Abolition of the Slave-Trade, revised in 1824, 1843, and 1873. A number of declarations and international treaties were then designed to abolish first the African slave trade (once the Atlantic trade had declined in the last third of 19th century, there was still an active trade from Africa to the Muslim World), then the white-slave trade, trade in women, and child traf ficking. 3.1.1. The Congress of Vienna (1815) and the Treaty of London (1841) The first international instrument to deal specifically with the slave trade in general was the 1815 Declaration Relative to the Universal Abolition of the Slave-Trade (the ‘Eight Power Declaration’), signed in Vienna on 8 February 1815.54 The Declaration acknowl edged that the slave trade was ‘repugnant to the principles of humanity and universal morality’, but did not contain provisions to enforce a duty (p. 132) to prohibit, less crimi nalize, it. Elsewhere it was declared to be condemned by ‘the laws of religion and nature’ (treaty signed on 20 November 1815 among Austria, France, Great Britain, Prus sia, and Russia), whereas the Treaty of Peace and Amity, signed in Ghent, 18 February 1815 by United States and Great Britain, had declared that the slave trade was ‘irrecon cilable with the principles of humanity and justice’.55 Most of the signatories of the 1815 Declaration—which a few years later reaffirmed their opposition to the slave trade and their intention to its abolition in the Declaration Re specting the Abolition of the Slave Trade, 28 November 182256—signed in London, on 20 December 1841, the Treaty for the Suppression of the African Slave-Trade.57 The object and purpose were to give full and complete effect to the principles of the 1815 Declara tion, deeming the slave trade equal to piracy and enshrining not just duties to prohibit, Hostes humani generis: Pirates, Slavers, and Other Criminals Page 16 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 Based on the draft submitted by the Committee, two conventions were adopted at Geneva in 1937:130 the Convention for the Prevention and Punishment of Terrorism (requiring States to prosecute or extradite international terrorist offences, although it did not ex clude the offences from the political offence exception to extradition), and the Convention for the Creation of an International Criminal Court (as an alternative to domestic courts). Although States could become parties to either convention separately, neither of them ever entered into force. Terrorism would not reappear in international law until the 1970s.131 It is nowadays still pending a universally accepted definition, seemingly due to a reluctance by some to crim inalize (any) political resistance against forcible action which deprives peoples of their right to self-determination and freedom and independence, and by others for fear of im pairing the right of asylum and refugee status. 5. Conclusion Legal literature and States have built upon Cicero's legacy on pirates as hostes humani generis, extending to other acts the legal consequences attached to them (criminalization and universal jurisdiction): the slave trade or enslavement, war crimes, crimes against peace, crimes against humanity, terrorism, etc. Concepts, persons (diplomats, scholars, activists, etc.), and organizations (both intergovernmental and NGOs), and a quite ‘rela tive normativity’ (practices, treaties entered and not entered into force, public and pri vate drafts, resolutions, declarations, etc.) are involved in the assertions of the criminal character of certain acts and the establishment of universal jurisdiction. However, inter national legal foundations (ranging from principles of humanity, universal morality, jus tice, to the laws of religion and nature, etc.) posed several questions by 1945 because of the confusion regarding the law-making and law enforcement, the lack of judicial prac tice, etc., even after the ICRC had managed to convince States to invert Cicero's maxim silent enim leges inter arma. (p. 143) Piracy, slavery, and other acts or activities which are nowadays considered crimi nal were not necessarily considered so in other times. The theoretical distinction between piracy and privateering blurred in practice, and the interaction and confusion between municipal laws and the law of nations were commonplace where States’ contradictory in terests and perceptions of reality met. Hence, to find a clear internationally relevant prac tice—in the absence of an international treaty—turned out anything but easy. There have been a number of ‘positive’ international data endorsing the prohibition of the slave trade and enslavement or the laws and customs of war. Yet it is difficult—if not im possible—to find judicial practice before 1945. Curiously, the resort to the ‘piracy analo gy’ and the clause ‘as if for an act of piracy’ gives rise to two remarks. First, being includ ed in international treaties, those provisions are some of the clearest and more explicit (although indirect) historical recognition by States of piracy as an international crime subject to universal jurisdiction. Second, prohibiting acts did not always mean criminaliz ing them, extending States’ jurisdiction, and punishing perpetrators. The ‘piracy analogy’ Hostes humani generis: Pirates, Slavers, and Other Criminals Page 17 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 proved the willingness of States to accept (regarding violations of laws and customs of war at sea) or to reject (regarding slave-trade at sea, as concerned the right to seize) sub jecting the suppression of these acts to universal jurisdiction. Whether one adheres to a ‘positivist’ or a ‘naturalist’ understanding of international law conditions the determinations concerning the existence and definition of an international crime, and the title or basis of State's jurisdiction to prosecute and punish criminals; namely, bearing in mind a necessary balance between substantive justice and legality. No less important than determination on the matter, mainly from a historical perspective, is the ‘critical date’ from when one may assert that there has been an international crime, and eventually a crime subject to universal jurisdiction. Regarding the law of piracy, it has been said that [a]s a practical matter … a competent lawyer can construct a model of reality us ing legal words that will seem to justify whatever a statesmen thinks is in the po litical interest of his state. But under ‘naturalist’ theory, that justification is merely an argument with which others, believing themselves more attune to the eternal rules of morality and ‘true law’, can disagree. Under ‘positivist’ theory, no state has the legal power to determine rules of international law, but only the power to interpret those rules for itself and try to convince others that that interpretation is correct. … The arguments among lawyers and policy-makers about these matters are endless … [but] the ‘victory’ for the most articulate naturalist model builders resulted in a meaningless codification of no law.132 International law provided arguments and legal foundations to address the repression of pirates, slavers, and other criminals before 1945, yet law-enforcement practice also of fered arguments to prevent their criminal prosecution on a universal jurisdiction basis. Law as usual. Bibliography Recommended Reading Allain, Jean The Slavery Conventions. The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (Martinus Nijhoff Publish ers Leiden 2008). Azcárraga y Bustamante, José Luis de El corso marítimo (CSIC Instituto ‘Francisco de Vi toria’ Madrid 1950). Bush, Jonathan A ‘“The Supreme … Crime” and Its Origins: The Lost Legislative History of the Crime of Aggressive War’ (2002) 102 Columbia Law Review 2324–69. Dubner, Barry H The Law of International Sea Piracy (Martinus Nijhoff Publishers The Hague 1980). Hostes humani generis: Pirates, Slavers, and Other Criminals Page 18 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 Graven, Jean ‘Le crimes contre l’humanité’ (1950) 76 Recueil des cours 427–608. Greppi, Edoardo ‘The Evolution of Individual Criminal Responsibility under International Law’ (1999) 81 International Review of the Red Cross 531–3. Piggott, Francis Taylor The Declaration of Paris 1856: A Study (University of London Press London 1919). Rubin, Alfred P The Law of Piracy (2nd edn Transnational Publishers Irvington-on-Hudson NY 1998). Schwelb, Egon ‘Crimes Against Humanity’ (1946) 23 British Yearbook of International Law 178–226. Sottile, Antoine ‘Le terrorisme international’ (1938) 65 Recueil des cours 87–184. Vabres, H Donnedieu de ‘La répression internationale du terrorisme: Les Conventions de Genève (16 novembre 1937)’ (1938) 62 Revue de droit international et législation com parée 37–74. Notes: (1) Cicero used the phrase ‘communis hostis omnium’ in his De Officiis III, 29 and in Con tra Verres II, iv, 21 (cf AP Rubin The Law of Piracy (2nd edn Transnational Publishers Irv ington-on-Hudson NY 1998) at 5 fn 19 and 17 fn 61). (2) Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, art 7. (3) H Grotius De jure belli ac pacis (1625) vol 2, ch 20, para 40. (4) A Cassese International Criminal Law (OUP Oxford 2003) at 72. (5) ‘Draft Convention on the Competence of Courts in Regard to Foreign States: Part IV— Piracy’ (1932) 26 American Journal of International Law Supplement: Research in Inter national Law 739–885 at 754; The Law of Piracy (n 1) 335–45 and 360. (6) J Allain The Slavery Conventions. The Travaux Préparatoires of the 1926 League of Na tions Convention and the 1956 United Nations Convention (Martinus Nijhoff Publishers Leiden 2008) at 129. (7) WR Riddell ‘Observations on Slavery and Privateering’ (1930) 15 The Journal of Negro History 337–71. (8) WG Grewe The Epochs of International Law (M Byers trans) (de Gruyter Berlin 2000) at 554–69. (9) Le Louis (1817) 12 Dods 210, 165 ER 1464; and The Antelope 23 US 66, 10 Wheat 66 (1825). Hostes humani generis: Pirates, Slavers, and Other Criminals Page 19 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 (10) JL Brierly The Law of Nations (CHM Waldock ed) (6th edn Clarendon Press Oxford 1963) at 307. (11) ‘Articles of the Draft Code of Crimes against the Peace and Security of Mankind’ (1996-II) Yearbook of the International Law Commission 17–42 at 29. (12) See Section 2.1.3. (13) For instance, E McWhinney Aerial Piracy and International Terrorism (Martinus Ni jhoff Publishers Dordrecht 1971); Air Piracy 49 USC App § 1472(n)(1988); and United States v Fawaz Yunis 681 F Supp 896 (DDC 1988) and 924 F 2d 1086 (DC Cir 1991). (14) I Shearer ‘Piracy’ in R Wolfrum (ed) The Max Planck Encyclopedia of Public Interna tional Law (OUP Oxford 2008) at <www.mpepil.com>. (15) JL de Azcárraga y de Bustamante El corso marítimo (CSIC-Instituto ‘Francisco de Vi toria’ Madrid 1950). (16) Because proposals to define piracy referred to ‘[a]ny “illegal” act …’, AP Rubin still wondered in 1976 whether piracy was illegal. AP Rubin ‘Is Piracy Illegal?’ (1976) 70 American Journal of International Law 92–5. (17) R v Joseph Dawson (1696) 13 Howell's St Tr 451. (18) United States v Smith 18 US 153, 5 Wheat 153 (1820) at 161. See also The Magellan Pirates (1853) 1 Sp Ecc & Ad 81, 164 ER 47, cited in The Law of Nations (n 10) 307 and fn 3. (19) Notwithstanding The Law of Piracy (n 1) 61–70. (20) Declaration Respecting Maritime Law (signed 16 April 1856) (1856) 115 CTS 1. (21) While the Declaration (ibid) advocated protecting all civilian property on the high seas, the US Constitution lists issuing letters of marque as a power of the Congress (art 1, s 8, cl 10). (22) Hague Convention (IV) Concerning the Laws and Customs of War on Land (opened for signature 18 October 1907, entered into force 26 January 1910) (1907) 205 CTS 277. (23) ‘The Oxford Manual of Naval War’ in JB Scott (ed) Resolutions of the Institute of In ternational Law (OUP New York 1916) 174–201. (24) ‘A Treaty between the Same Powers, in Relation to the Use of Submarines and Nox ious Gases in Warfare’ (1922) 16 American Journal of International Law Supplement: Offi cial Documents 57–60, art 3. (25) The Nyon Arrangement, with Annexes and Map (signed 14 September 1937) 181 LNTS 137. Hostes humani generis: Pirates, Slavers, and Other Criminals Page 20 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 (26) ibid. (27) GA Finch ‘Piracy in the Mediterranean’ (1937) 31 American Journal of International Law 659–65; R Genet ‘The Charge of Piracy in the Spanish Civil War’ (1938) 30 American Journal of International Law 253–63. (28) See proceedings in LN Doc C/196/M/70/1927/V, at 116. (29) The ‘questionnaire’ is reproduced in ‘Questionnaire No. 6: Piracy’ (1926) 20 Ameri can Journal of International Law Supplement 222–9; the analysis of the States’ replies in ‘Legal Status of Government Ships Employed in Commerce’ (1926) 20 American Journal of International Law Supplement 260–78 at 273. The reply of Romania was written by V Pella, who took the opportunity to give the course ‘La répression de la piraterie’ (1926) 15 Recueil des Cours de l’Académie de Droit International de La Haye 145–268. (30) ED Dickinson ‘The Questionnaire on Piracy’ (1926) 20 American Journal of Interna tional Law 750–2. (31) Convention on the High Seas (signed 29 April 1958, entered into force 30 September 1962) 450 UNTS 82, arts 14–21. (32) United Nations Convention on the Law of the Sea (signed 10 December 1982, en tered into force 16 November 1994) 1833 UNTS 397, arts 100–7. (33) ‘Report of the International Law Commission Covering the Work of its Eighth Ses sion, 23 April–4 July 1956’ (1956-II) Yearbook of the International Law Commission 253– 302 at 282. (34) BH Dubner The Law of International Sea Piracy (Martinus Nijhoff Publishers The Hague 1980) at 37–102. (35) See the appendix (pt V) to the Harvard Draft Convention: S Morrison (ed) ‘Part V: A Collection of Piracy Laws of Various Countries’ (1932) 26 American Journal of Interna tional Law Supplement: Research in International Law 887–1013. (36) The Law of Nations (n 10) 154. The definition of piracy in the sixth edition of Brierly's Law of Nations, of 1963, was rewritten (by Waldock) to accommodate to the defi nition contained in the 1958 Convention. (37) It has been adjudicated that a frustrated attempt to commit a piratical robbery is equally piracy according to international law (In re Piracy jure gentium [1934] AC 586 (LR PC)). (38) See H Lauterpacht ‘Insurrection et piraterie’ (1939) 46 Revue Générale de Droit In ternational Public 513–49; and the debate in the ILC (Report of the International Law Commission (n 33)). Hostes humani generis: Pirates, Slavers, and Other Criminals Page 21 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 (39) For instance, Dickinson's critique of ‘Matsuda report’: The Questionnaire on Piracy (n 30). (40) WB Lawrence Wheaton's Elements of International Law (6th edn Little, Brown and Company Boston MA 1857) 184–6. See also The Law of Nations (n 10) 154. (41) The Law of Piracy (n 1) 343. (42) CP Anderson ‘As if for an Act of Piracy’ (1922) 16 American Journal of International Law 260–1. (43) Report of the International Law Commission (n 33). (44) Draft Convention on Piracy (n 5) arts 2 and 6 and the respective comments. (45) ibid art 12 and the comment. (46) ibid art 7 and the comment; see also El corso marítimo (n 15) 130. (47) Draft Convention on Piracy (n 5) arts 8–11 and the respective comments. (48) ibid arts 14 and 15 and the respective comments. (49) See the contribution by S Drescher and P Finkelman ‘Slavery’ in this volume. (50) Somerset v Stewart (1772) Lofft 1, 98 ER 499. (51) For a background, AM Trebilcock ‘Slavery’ in R Bernhardt (ed) Encyclopedia of Pub lic International Law (North-Holland Elsevier 2000) vol 4, 422–6. (52) Slavery Convention (signed 25 September 1926, entered into force 9 March 1927) 60 LNTS 253. (53) Confronting enslavement and sexual slavery during Second World War accusations, Japan has argued that there was no customary law against slavery then; UN Commission on Human Rights (Sub-Commission) ‘Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict: Final Report Submitted by Gay J. McDougall, Special Rapporteur’ (22 June 1998) UN Doc. E/CN.4/Sub.2/1998/13, para 4. (54) Declaration of the Eight Powers relative to the Universal Abolition of Slave Trade, annexed as Act XV to the 1815 General Treaty of the Vienna Congress (signed 8 February 1815) (1815) 63 CTS 473. The signatory States were Austria, France, Great Britain, Por tugal, Prussia, Russia, Spain, and Sweden; all of them, except Spain, secretly signed the Treaty of Paris of 30 May 1814, where France and Great Britain pledged to abolish the slave-trade. (55) Treaty of Peace and Amity (signed 18 February 1815) (1815) 12 TIAS 47. (56) Portugal, Spain and Sweden were absent in the Congress of Verona (1822). Hostes humani generis: Pirates, Slavers, and Other Criminals Page 22 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 (57) Treaty for the Suppression of the African Slave-Trade (signed 20 December 1841) (1841) 73 CTS 32. (58) ibid arts I, III, and X. (59) ibid arts VI, VII, X, and annex B. (60) ibid art XV. (61) The act is reproduced in ‘General Act of the Conference of Berlin Concerning the Congo’ (1909) 3 American Journal of International Law Supplement: Official Documents 7–25. (62) ibid art 9. (63) Declaration Relative to the Liberty of Commerce in the Basin of the Congo, its Em bouchures and Neighbouring Country, and Dispositions Connected Therewith, attached to the General Act (art 6). (64) General Act of the Brussels Conference Relating to the African Slave Trade (signed 2 July 1890, entered into force 31 August 1891) (1890) 173 CTS 293. (65) Convention Revising the Berlin and Brussels Acts (signed 10 September 1919) (1919) 225 CTS 500. The United States never ratified the 1919 Convention. (66) ibid art 11. (67) International Agreement for the Suppression of the White Slave Traffic (signed 18 May 1904) 1 LNTS 83; 195 CTS 326. (68) International Convention for the Suppression of White Slave Traffic (signed 4 May 1910, entered into force 14 August 1951) (1910) 211 CTS 45. (69) ibid arts 1–3. (70) ibid arts 6 and 7. (71) ibid arts 1–3, art 5 and the Final Protocol. (72) International Convention for the Suppression of the Traffic in Women and Children (signed 30 September 1921) 9 LNTS 415. (73) ibid arts 2–4. (74) International Convention for the Suppression of the Traffic in Women of Full Age (signed 11 October 1933) 150 LNTS 431. (75) arts 1–3. Hostes humani generis: Pirates, Slavers, and Other Criminals Page 23 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 (76) The 1921 and 1933 Conventions: Protocol to Amend the Convention for the Suppres sion of the Traffic in Women and Children and the Convention for the Suppression of the Traffic in Women of Full Age (signed 12 November 1947) 53 UNTS 13; International Con vention for the Suppression of the Traffic in Women and Children Amended by the Proto col (signed 12 November 1947) 59 UNTS 39; and International Convention for the Sup pression of the Traffic in Women of Full Age Amended by the Protocol (signed 12 Novem ber 1947) 53 UNTS 49. (77) The 1904 and 1910 Conventions: International Agreement for the Suppression of the White Slave Traffic Amended by the Protocol (signed 4 May 1949) 92 UNTS 19; Interna tional Convention for the Suppression of the White Slave Traffic Amended by the Protocol (signed 4 May 1949) 98 UNTS 101. (78) Approved by General Assembly resolution 317 (IV) of 2 December 1949: Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Oth ers (entered into force 25 July 1951) 96 UNTS 271. (79) International Convention for the Abolition of Slavery and the Slave Trade (signed 25 September 1926, entered into force 9 March 1927) 60 LNTS 253. The 1953 Protocol brought the Convention into the UN system (Protocol Amending the Slavery Convention (entered into force 7 December 1953) 182 UNTS 51); yet there are States which have consented to the 1926 Slavery Convention but not to the 1953 Protocol. (80) Convention for the Abolition of Slavery and the Slave Trade (n 79) arts 2 and 3. (81) ibid art 4. This general obligation was never concretize in specific bilateral or multi lateral agreements. (82) ibid art 6. (83) ibid art 7. (84) ibid art 1. (85) ibid Preamble and art 5. (86) Convention Concerning Forced or Compulsory Labour (ILO No 29) (adopted 28 June 1930, entered into force 1 May 1932) 39 UNTS 55. The 1930 Convention—which gathers many of the principles and limitations announced in the ‘1928 Bellot Rules’, adopted by the ILA in Warsaw—was modified in 1946 and complemented in 1957. (87) Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institu tions and Practices Similar to Slavery (signed 7 September 1956, entered into force 30 April 1957) 226 UNTS 3. (88) ibid arts 3, 5, and 6. (89) ibid art 1. Hostes humani generis: Pirates, Slavers, and Other Criminals Page 24 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 (90) If not covered by the 1926 Convention (n 79), the 1956 Convention (n 87) considers the victim as a ‘person of servile status’ (art 7(b)), but not a ‘slave’ (art 7(a)). (91) Such as, inter alia, the traffic in persons and the exploitation of the prostitution of others, 1949 UN Convention (n 78); or trafficking in persons, especially women and chil dren, and the smuggling of migrants, Protocols Supplementary to the Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) 2225 UNTS 209. (92) However, the definition of ‘slave-trade’ (art 7(c)) differs in an insignificant manner from the definition found in the 1926 Convention (n 79). (93) The definition of ‘enslavement’ (not of ‘slavery’) contained in the art 7.2(c) is identi cal to that of slavery in the 1926 Convention (n 79), but includes the exercise of the pow ers attaching to the right of ownership ‘in the course of trafficking in persons, in particu lar women and children’. (94) See J Hathaway ‘The Human Rights Quagmire of “Human Trafficking”’ (2008) 49 Vir ginia Journal of International Law 1–59; and AT Gallagher ‘Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway’ (2008) 49 Vir ginia Journal of International Law 789–848. (95) Namely, the ‘colonial clause’ (art 9); it is noticeable the different wording of art 12 of the 1956 Convention (n 87). (96) The proposal of 1956 Drafting Committee of the ILC concerning the regime of the high seas influenced the drafting of the 1956 Convention (n 87). (97) Hague Convention Concerning the Laws and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900) (1899) 187 CTS 429. (98) Hague Convention (IV) Concerning the Laws and Customs of War on Land (n 22). (99) arts 6, 44, and 52 of the 1899 Hague Convention (n 97), and arts 1, 6, 46, and 52 of the 1907 Hague Convention (IV) (n 22). (100) Convention Relative to the Treatment of Prisoners of War (adopted 27 July 1929, en tered into force 19 June 1931) 118 LNTS 343; arts 30–1 deal with forced labour from POWs. (101) This is the meaning of the Declaration of the US State Department in 1941 concern ing the Japanese-Americans interned in the US; CH Rosenberg ‘International Law Con cerning Accidents to War Prisoners Employed in Private Enterprises’ (1942) 36 American Journal of International Law 294–8 at 298. (102) art 6 of the Charter of the [Nuremberg] International Military Tribunal (signed and entered into force 8 August 1945) 82 UNTS 279; see also art 5 of the Charter of the Inter Hostes humani generis: Pirates, Slavers, and Other Criminals Page 25 of 27 PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com).©Oxford University Press, 2018. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy and Legal Notice). Subscriber: Universidad de Sevilla; date: 22 November 2021 national Military Tribunal for the Far East (signed and entered into force 19 January 1946) 4 Bevans 20. (103) The circumstantial evidence were the propositions in which art 3 of the 1922 Treaty of Washington (n 24) was based. (104) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (signed 12 August 1949, entered into force 21 October 1950) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (signed 12 August 1949, entered into force 21 October 1950) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War (signed 12 August 1949, entered into force 21 October 1950) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (signed 12 August 1949, entered into force 21 October 1950) 75 UNTS 287; Protocol Ad ditional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3; and Protocol Additional to the Geneva Conven tions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609. (105) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (adopted 26 November 1968, entered into force 11 November 1970) 754 UNTS 73. (106) arts 7 and 8. (107) ‘Formulation of the Nürnberg Principles’ (1950-II) Yearbook of the International Law Commission 374–8. (108) For example, the ECHR (Judgment of 26 July 2005, Siliadin v France (2006) 43 EHRR 16, para 122) and the ICTY (Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Judgment) ICTY-96-23-T & ICTY-96-23/1-T (22 February 2001) para 539 and passim; and Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Judgment) ICTY-96-23-T & ICTY-96-23/1-A (12 June 2002) paras 117–19; also Prosecutor v Milorad Krnojelac (Judgment) IT-97-25-T (15 March 2001) at 353 and fns 955–7). (109) G Schwarzenberger International Law as Applied By International Courts and Tri bunals (Stevens & Sons London 1968) vol 2 (The Law Of Armed Conflict), at 462–6; E Greppi ‘The Evolution of Individual Criminal Responsibility under International Law’ (1999) 81 International Review of the Red Cross 531–53. (110) Geneva Convention for the Amelioration of the Treatment of Wounded in the Field (adopted 22 August 1864, entered into force 22 June 1865) (1864) 129 CTS 361.