Evan J. Wallach, Partisans, Pirates, and Pancho Villa: How International and National Law Handled Non-state Fighters in the "good Old Days" Before 1949 and That Approach's Applicability to the "war on Terror"

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 24 No. 2

PARTISANS, PIRATES, AND PANCHO VILLA: HOW INTERNATIONAL AND NATIONAL LAW HANDLED NON- STATE FIGHTERS IN THE "GOOD OLD DAYS" BEFORE 1949

AND THAT APPROACH'S APPLICABILITY TO THE "WAR ON TERROR"

Evan J. Wallach^*

The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. . . . Even assuming Congress had at some earlier point implemented the laws of war as domestic law through appropriate legislation, Congress had the power to authorize the President in the AUMF [Authorization for Use of Military Force] and other later statutes to exceed those bounds. . . . Further weakening their relevance to this case, the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid. . . . Therefore, while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks . . . their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President's war powers.¹

INTRODUCTION

Even if the dictates and application of the laws of war are indeed unfixed, contestable, and fluid,²defining war is imperative, both domestically and internationally. In some instances, the legal status of a participant in an armed conflict turns out to be more or less certain than commentators contend. On

December 8, 1941, President Franklin Roosevelt asked that "Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December

7th, 1941, a state of war has existed between the United States and the Japanese empire."³Congress responded with a Joint Resolution formally declaring a state of war.⁴The Resolution, however, did not specify whether the state of war existed from the time of the Japanese attack.⁵Was the United States at war from the moment the first bomb fell?⁶

Was the United States at war when it invaded Iraq in March 2003?⁷If so, what was the status of France?⁸What about instances in which the Security Council has not authorized action?⁹What happens when the Security Council acts in a manner that might ratify the action taken?¹⁰Can a state declare war under the Hague Conventions without abiding by U.N. Charter requirements?¹¹

Suppose the United States had declared war on the Taliban:¹²would a declaration have permitted the United States to take actions not otherwise permitted under international law?¹³

None of those questions form the underlying topic of this paper, but even making the definitional inquiries gives rise to a cascading series of additional questions that this Article discusses: Were Confederate privateers in 1861 war fighters or pirates?¹⁴Were Confederate partisans such as John Mosby¹⁵legal or illegal combatants? What was the legal status of Native American warriors (the light cavalry of arguably independent nations), or of Francisco "Pancho" Villa's raiders when they were captured in battle with armed forces of the United States?

The study of the law is the study of history. Other authors have recognized that the "Department of Defense law of war policy is deeply rooted in the history of warfare,"¹⁶and that United States military history includes "examples of combat operations conducted by the regular armed forces of states against non-state armed groups prior to the development of [the Geneva

Conventions]."¹⁷There are no new problems in the law,¹⁸only forgotten solutions, and the issues which arose yesterday will always arise again tomorrow.¹⁹

Since its declaration as an independent nation,²⁰the United States has wrestled with the applicability of international law in domestic contexts. This

Article discusses three threads recurring throughout U.S. judicial history: U.S. responses, both as a matter of law and otherwise, to piracy, irregular warfare, and other armed attacks by non-state actors.²¹

Part I examines two models offered at sea: piracy, which was outrightly criminal, and privateering, which was a quasi-state action. The United States traditionally distinguished between the two, and in its early years made extensive use of the latter as a substitute for maintenance of a regular navy.²²

Part II discusses somewhat analogous land warfare by partisans and guerillas, mostly in the context of the American Civil War. Part III deals with direct attacks by non-state actors against the United States. Principally, this Part discusses treatment of Francisco Villa's troops following their 1916 attacks on the United States, but it also discusses legal treatment of Native American combatants. This Article concludes with a brief discussion of the utility of these historical analogies in the context of current legal events.

I. PIRACY AND PRIVATEERING: HOW THE UNITED STATES DEALT WITH

SEAGOING IRREGULARS

There were two different models for seagoing irregulars: pirates and privateers. Although the actors themselves vacillated between them, the two models were quite legally distinct. Pirates were, by definition,²³non-state actors engaged in criminal depredations on the high seas.²⁴Privateers were state-licensed raiders mandated to obey the laws of war-effectively private navies or naval auxiliaries.²⁵International law devoted a good deal of analytical effort to distinguishing between the two, and the United States adopted and expanded many of those concepts.

A. Sea Brigands

There are at least six different meanings of the word piracy.²⁶Rubin's brilliant explanation of the clearly misunderstood origins of the word "pirate" is extraordinarily useful for understanding the evolution of the term in domestic and international law.²⁷For example, he explains that a common reference to piracy as acceptable conduct in Homer's works is based on a long unchallenged mistranslation.²⁸

The nascent United States largely followed an analytical model taken from the United Kingdom.²⁹This model posited a clear distinction between the treatment of pirates in domestic and international jurisdictions.³⁰Indeed, from a legal development perspective, piracy functioned largely as a vehicle for the Marshall Court to define U.S. application of international law.³¹The other

American nationality-boarded a Spanish ship, and robbed her cargo and passengers in international waters. legal role of piracy that is of interest here is that it gave rise to novel issues of procedure in the courts trying alleged pirates³²and privateers. Before the U.S. Congress provided legislative direction, courts tended to treat piracy defendants as having violated laws against treason or of then-existing international law. Thus, in mid-seventeenth century England, Sir Edward Coke defined piracy as a type of petite treason;³³in 1769, Sir William Blackstone declared giving aid to foreign pirates to be treasonous;³⁴and in Golding, in

1693, the Cabinet Council determined that privateering under a letter of marque from the deposed King James II was effectively high treason.³⁵

Under international law as it existed before the American Revolution, pirates were hostes humani generis,³⁶or enemies of all mankind.³⁷Captain

William Kidd,³⁸at his London trial for piracy, faced procedures typical of then-current standards.³⁹Kidd's trial lasted two days, before separate juries, for each of the charges of murder and piracy against him.⁴⁰Kidd asked for a delay⁴¹and moved for dismissal, both of which were denied; then, after he was refused counsel,⁴²he demanded trial "by God and my country."⁴³Without counsel, Kidd was forced to conduct his own cross-examinations of hostile witnesses,⁴⁴and to argue and testify in his own defense.⁴⁵Kidd was convicted and executed.⁴⁶These procedures were typical of an English piracy trial at the time, and they were transferred with the rest of England's common law to her American colonies.

A South Carolina court applied these procedures in the piracy trial⁴⁷of

Major Stede Bonnet.⁴⁸Bonnet was indicted before a grand jury,⁴⁹escaped,⁵⁰ and was recaptured.⁵¹Thomas Hepworth, the assistant prosecutor, discussed Bonnet's escape with the jury. His comments regarding the discussion are worth remembering:

What has been said by the king's attorney or myself upon this unexpected occasion, I hope will not be looked upon as intended to influence any of the jury. I am sure it is far from being so designed; religion, conscience, honour, common honesty, humanity, and all laws forbid such methods. There is no doubt but the judges as well as the jurymen best discharge their duty when they proceed without favour or affection, hatred or ill-will, or any partial respect whatsoever: Malice and favour (two great enemies to justice) are to be excluded [from] all courts of judicature as too partial.

Every man ought to be extremely tender of such a person as he has reason to believe is innocent; but it should be considered likewise, on the other side, that he who brings a notorious pirate or common malefactor to justice, contributes to the safety and preservation of the lives of many, both bad and good . . . .⁵²

Also worth noting are Judge Trott's comments to Bonnet at sentencing:

[T]his we all know, that besides the wounded, you killed no less than eighteen persons out of those that were sent by lawful authority to suppress you, and to put a stop to those rapines that you daily acted.

And however you may fancy that that was killing men fairly in open fight, yet this know, that the power of the sword not being committed into your hands by any lawful authority, you were not empowered to use any force, or to fight any one; and therefore those persons that fell in that action, in doing their duty to their king and country, were murdered, and their blood now cries out for vengeance and justice against you . . . .⁵³

The standard for punishing piracy, of course, evolved with time and independence. Professor Oppenheim notes the following about the United Kingdom:

In former times...