I am a Law of Nations advocate, no training, it just looks like a half-way decent way to understand how, each and every time we invent something to secure the State or Country we get a Nation and then all the rest of what happens between Nations follows. Applicable to the first City States all the way to our lovely modern world: it is a set of understandings that scale very well.
I've been reading along with Insty's links to the Dissenting Justice blog of Darren Lenard Hutchison on rendition (most recent with backlinks to previous). I am not going to hit this from the bottom-up and the self-imposed legal morass we have created. Instead I will go from first principles and reason outwards from there on the obligations of Nations to each other, Citizens to Nations and Nations to Citizens. Our modern world loves to stress the last as the pinnacle of humanity, but I find it to be a limited touchstone as it places the individual above our common creation of States, Countries and Nations. If you want to place mankind to be subject to the horrors of everyone having complete liberty, do not call it 'legal' as you don't care about legality as it is a common, agreed-upon system between individuals to commit to a work above their own. Nor is that illegal, it is just a reversion to mankind under the Law of Nature, the base state of being absent all forms of civilized behavior and limits.
Thus I start with Emmerich de Vattel's Law of Nations.
I will try to keep the quotes down, but they do need to be put down, here and there, to give the flow of logic between them. And I will skip over the first parts on Sovereignty in Book I and go right to Chapter II GENERAL PRINCIPLES OF THE DUTIES OF A NATION TOWARDS ITSELF, which is to make sure civil society can provide for itself. Hey! Simple, huh? Even better a Nation gets to preserve itself, which is why when folks try to take you over you get to fight back in an organized way. Even better this is given to all of us by the Law of Nature and we agree to place it in the Nation for our safety and preservation so we don't go around slaughtering each other in warfare all the time. Plus the Nation has to preserve all the members of the Nation whenever possible. And best of all the Nation has the right to everything necessary to preserve it and avoid doing things that would destroy it.
I'm sure most Congresscritters skip that last part.
But doing everything to promote the preservation and prevent the destruction of the Nation seems pretty damned easy to understand. That is why Nations are important to us as our constructs: they gotta keep us alive and allow us to lead good lives. Great so far, this first principles deal.
Next is Chapter III and it looks at Laws... uh-oh.
To get the Nation deal we need a public authority that has the ability to regulate affairs. Those are to be done with an eye towards the public welfare (surviving as was previously stated) and to those wanting to go against those things, the Nation needs the ability to compel obedience to its laws. That said the governing part of the Nation is a part of its society, not the other way around, and that society gets to choose the best mode for it to have.
You would think that tyrants, despots and dictators would learn about this stuff and stop trying to seize power.
From that you form a constitution, make civil laws agreeable to society so as as to ensure that it society is preserved, it has safety, perfection and happiness. You know, I wish we could get laws to do this sort of thing - which means fewer laws as my life is damned imperfect with so many of them that I can't keep track of them all. I feel neither safe, secure nor preserved by the sheer quantity of them.
Ok, big quote:
§ 29. Of political, fundamental, and civil laws.
The laws are regulations established by public authority, to be observed in society. All these ought to relate to the welfare of the state and of the citizens. The laws made directly with a view to the public welfare are political laws; and in this class, those that concern the body itself and the being of the society, the form of government, the manner in which the public authority is to be exerted, — those, in a word, which together form the constitution of the state, are the fundamental laws.
The civil laws are those that regulate the rights and conduct of the citizens among themselves.
Every nation that would not be wanting to itself, ought to apply its utmost care in establishing these laws, and principally its fundamental laws, — in establishing them, I say, with wisdom in a manner suitable to the genius of the people, and to all the circumstances in which they may be placed: they ought to determine them and make them known with plainness and precision, to the end that they may possess stability, that they may not be eluded, and that they may create, if possible, no dissension — that, on the one hand, he or they to whom the exercise of the sovereign power is committed, and the citizens, on the other, may equally know their duty and their rights. It is not here necessary to consider in detail what that constitution and those laws ought to be: that discussion belongs to public law and politics. Besides, the laws and constitutions of different states must necessarily vary according to the disposition of the people and other circumstances. In the Law of Nations we must adhere to generals. We here consider the duty of a nation towards itself, principally to determine the conduct that it ought to observe in that great society which nature has established among all nations. These duties give it rights, that serve as a rule to establish what it may require from other nations, and reciprocally what others may require from it.
Bingo!
Paragraph 29, third sub-paragraph which is a single sentence: The civil laws are those that regulate the rights and conduct of the citizens among themselves.
With that we now ask ourselves about 'extraordinary rendition': is this a civil law or fundamental law area?
When another Nation seeks to have a citizen rendered to it, that is NOT civil law.
This is an area of Nation to Nation duty and responsibility to each other as the public authority of each society, not civil law nor civil rights. A Nation may look to its civil rights, but in this instance the ties must be between Nation to Nation conduct with civil law only a regularizing procedure at the discretion of the National public authorities involved.
You just have to love Law of Nations for cutting through the smoke.
And if people want a different formulation of public authority, it is up to society to do so. No foreign power may interfere with that creation process, but once created the members of society are held accountable BY IT to other Nations.
Next I will skip Ch. IV (want to see what the Sovereign/Head of State has to do, go there), V (on elective States), VI (good government), VII (farming), VIII (commerce), IX (caring for public highways, waterways and tolls), X (money and exchange)... which gets us up to Ch. XI procuring true happiness for the Nation.
No, you can't buy it.
The Nation is to have direct knowledge of what the virtue of its citizens are and the society that is formed by them. Citizens must love their country. Really, no 'if's, 'but's or 'and's there and no 'not in my name' either. If you are fool enough to be a citizen of a country you don't like, admire or seek to help, then go to one you can do that with. That goes for your fellow man, too. You hate your fellow citizens and don't want to take part in society? Then just why, exactly, are you still hanging around? Then there is this part:
§ 123. How shameful and criminal to injure our country.
If every man is obliged to entertain a sincere love for his country, and to promote its welfare as far as in his power, it is a shameful and detestable crime to injure that very country. He who becomes guilty of it, violates his most sacred engagements, and sinks into base ingratitude: he dishonours himself by the blackest perfidy, since he abuses the confidence of his fellow-citizens, and treats as enemies those who had a right to expect his assistance and services. We sec [sic] traitors to their country only among those men who are solely sensible to base interest, who only seek their own immediate advantage, and whose hearts are incapable of every sentiment of affection for others. They are, therefore, justly detested by mankind in general, as the most infamous of all villains.
Somehow I just don't feel the love from the Left.
I will skip Ch. XII (piety and religion... really!) and get up to Ch. XIII of Justice and Polity. Justice needs to be dispensed in a certain, speedy manner that puts the lowest possible burden on those involved, which I think we have lost track of since the mid-20th century: the idea of certain, speedy and low burden justice. Instead it has gone to impossible to keep track of, slow, and maximum burden per person. Something really needs to be done about that. And there is this second paragraph there which, although this pertains to civil law, we really do need to understand as part of this rendition concept:
§159. To establish good laws.
There are two methods of making justice flourish — good laws, and the attention of the superiors to see them executed. In treating of the constitution of a state (Chap. III.), we have already shown that a nation ought to establish just and wise laws, and have also pointed out the reasons why we cannot here enter into the particulars of those laws. If men were always equally just, equitable, and enlightened, the laws of nature would doubtless be sufficient for society. But ignorance, the illusions of self-love, and the violence of the passions, too often render these sacred laws ineffectual. And we see, in consequence, that all well-governed nations have perceived the necessity of enacting positive laws. There is a necessity for general and formal regulations, that each may clearly know his own rights, without being misled by self-deception. Sometimes even it is necessary to deviate from natural equity, in order to prevent abuses and frauds, and to accommodate ourselves to circumstances; and, since the sensation of duty has frequently so little influence on the heart of man, a penal sanction becomes necessary, to give the laws their full efficacy. Thus is the law of nature converted into civil law.1 It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dispense justice. The legislator should assist the understanding of the judges, force their prejudices and inclinations, and subdue their will, by simple, fixed, and certain rules. These, again are the civil laws.
To anyone who wants a 'positivist' Constitution read that carefully: It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dispense justice.
And yet we, today, have people trying to have rights made up by judicial fiat. The most a Constitution should do is place bare limits on rights and enforce those, otherwise the State via the judicial system will become the enforcer for what it thinks is good. You are best able to determine your civil rights and laws should only be necessary to stop their infringement, not *create rights*. I do not trust government, lawyers and judges to tell me what my rights are, only to determine if I have put individuals, society or the Nation at harm by my utilization of them.
Do note that as already cited, rendition is no longer a civil law matter and this is why: if the Nation determines, by whatever means, that you have put the Nation at risk by your actions or caused another Nation harm outside of civil means, then you are not under civil law. You do not determine that: the Nation does via its public authority bodies.
From here Law of Nations goes to Supreme Courts and Executive powers of various sorts, seen in that era by Princes, but we do delegate some of those to the President. After that is execution of the laws via attributive and distributive means, followed by punishment and execution of the such punishment. Also included are the civil police and a diatribe against dueling.
I am skipping Chapter XIV (fortifying the Nation against external attacks).
On Chapter XV concerning the Glory of a Nation which is its reputation amongst other Nations and good will of its citizens, I will only point out that it is the Duty of citizens to uphold that and whenever a Nation's Glory is run down or attacked, the Nation has a right to respond. Even by force of arms. The idea is to keep Nations from getting too swell-headed and letting those who chastise others know they could get a real hurting if they go over the line. I do wish some of my fellow citizens would learn this simple concept.
Skipping Ch. XVI protection sought by a Nation and submission to another Nation, save saying that if your Nation is fool enough to do that, or suffer encroachments of other Nations through silence, then the Nation is not doing its job of protecting its citizens. This might apply if someone would make a case for it, but, I haven't heard it so far as the antecedent of a Nation publicly submitting itself hasn't happened.
Also skipped Ch. XVII (a Nation separating itself from another), XVIII (establishment of a Nation in a Country).
This then brings up Chapter XIX about a native country and things relating to it. Perfectly innocuous title to the chapter, really. Most of it is straightforward about what a country is, who its inhabitants are, Naturalization, being born on ships at sea, settlement, vagrants and so on. But of interest is if a person may quit his country. For this there is a passage (§ 222) that actually sees the use of passports as authoritarian (although not called such the indication is that from the preceding text). In this context simple travel abroad should be a liberty that is available to all citizens, but to emigrate should require the permission of the Sovereign public authority before one attempts to do so. Requiring passports so as to control travel and refusing permission to emigrate from a Nation is seen as poor government for one's own citizens.
The rightful times one may quit their country are then described (and just a touch to reformat the section):
§ 223. Cases in which a citizen has a right to quit his country.
There are cases in which a citizen has an absolute right to renounce his country, and abandon it entirely — a right founded on reasons derived from the very nature of the social compact.
1. If the citizen cannot procure subsistence in his own country, it is undoubtedly lawful for him to seek it elsewhere. For, political or civil society being entered into only with a view of facilitating to each of its members the means of supporting himself, and of living in happiness and safety, it would be absurd to pretend that a member, whom it cannot furnish with such things as are most necessary, has not a right to leave it.
2. If the body of the society, or he who represents it, absolutely fail to discharge their obligations towards a citizen, the latter may withdraw himself. For, if one of the contracting parties does not observe his engagements, the other is no longer bound to fulfil his; as the contract is reciprocal between the society and its members. It is on the same principle, also, that me society may expel a member who violates its laws.
3. If the major part of the nation, or the sovereign who represents it, attempt to enact laws relative to matters in which the social compact cannot oblige every citizen to submission, those who are averse to these laws have a right to quit the society, and go settle elsewhere. For instance, if the sovereign, or the greater part of the nation, will allow but one religion in the state, those who believe and profess another religion have a right to withdraw, and take with mem [sic] their families and effects. For, they cannot be supposed to have subjected themselves to the authority of men, in affairs of conscience;3 and if the society suffers and is weakened by their departure, the blame must be imputed to the intolerant party; for it is they who fail in their observance of the social compact — it is they who violate it, and force the others to a separation. We have elsewhere touched upon some other instances of this third case, — that of a popular state wishing to have a sovereign (§ 33), and that of an independent nation taking the resolution to submit to a foreign power (§ 195).
Now those who immigrate illegally, without the consent of the Nation they are traveling to for work, and not even bothering to address the organ of society known as the public authority are not acting lawfully nor are they renouncing their prior citizenship and pleading for a new Nation that can provide them sustenance. So while these individuals would have the pure and utter right to QUIT their prior country, that does not mean they get to force their way to another country. This came up just a few sections previously:
§ 219. Vagrants.
Vagrants are people who have no settlement. Consequently, those born of vagrant parents have no country, since a man's country is the place where, at the time of his birth, his parents had their settlement (§ 122), or it is the state of which his father was then a member, which comes to the same point; for, to settle for ever in a nation, is to become a member of it, at least as a perpetual inhabitant, if not with all the privileges of a citizen. We may, however, consider the country of a vagrant to be that of his child, while that vagrant is considered as not having absolutely renounced his natural or original settlement.
I address this so as to separate what people do from civil and military endeavors. On the civil side taking up a vagrant status and not renouncing your prior Nation to seek citizenship elsewhere affords little in the way of rights and only via the strain of law from the English Common Law does birthright of aliens infer citizenship to that child, not to the parents. Indeed our own laws are lenient compared to what is expected and how other Nations lawfully practice enforcement of who may or may not come to their society. Until they do this thing, renounce their prior Nation and citizenship and plead to a Nation for a new home, these people are vagrants. Those seeking to practice Private War, however, will be addressed later, but they are *not* vagrants.
There are two cases where a citizen can be forced out of their Nation, but still retain membership of society, and those are exile and banishment and they can either be voluntary or involuntary. Either of these may be done on a temporary or permanent basis. To-date no Nation that we have worked with on 'extraordinary rendition' has indicated that those individuals handed over are being exiled or banished from the home Nation's territory or part thereof. And while such an individual has a right to live *somewhere*, Nations may pick and choose who they let in to live in their Nation. In the case of exiles and banishments the Nation that refuses to let them in must offer good reason as to why they refuse such a person who has been denied the liberty to live in their home Nation or part thereof. Such individuals cannot be punished for faults by their home Nation for things done overseas unless those actions affect the safety of mankind. It is with this final section that we begin to glimpse where 'extraordinary rendition' sits:
§ 233. Except such as affect the common safety of mankind.
But this very reason shows, that, although the justice of each nation ought in general to be confined to the punishment of crimes committed in its own territories, we ought to except from this rule those villains, who, by the nature and habitual frequency of their crimes, violate all public security, and declare themselves the enemies of the human race. Poisoners, assassins, and incendiaries by profession, may be exterminated wherever they are seized; for they attack and injure all nations by trampling under foot the foundations of their common safety. Thus, pirates are sent to the gibbet by the first into whose hands they fall. If the sovereign of the country where crimes of that nature have been committed, reclaims the perpetrators of them, in order to bring them to punishment, they ought to be surrendered to him, as being the person who is principally interested in punishing them in an exemplary manner. And as it is proper to have criminals regularly convicted by a trial in due form of law, this is a second reason for delivering up malefactors of that class to the states where their crimes have been committed. (62)
Those who violate public security of another Nation, no matter *what* their status, are enemies of all mankind. Terrorists are in this definition as they commit crimes of public safety and that very crime is their declaration of hostility to civilization itself. By attacking the public safety of citizens, their infamy is so declared. And when a Sovereign public authority gets their hands on such actors who have acted *against* that National public authority, it has the right to seek them and those Nations holding them ought to surrender such persons to civil law. The reason that one prefers civil law is that the recourse of the Nation so attacked is via military means and that puts at threat the whole of the society and polity of the Nation that refuses to surrender such individuals.
This is 'extraordinary rendition' on the civil side and it has a sharp and lethal end to it so as to end those who threaten all of mankind for their actions. The activity to reclaim such individuals is not under the civil law until such malefactors are returned to be judged: it is fundamental law between Nations for the security of Nations and their societies to seek to bring such individuals to such justice. The getting of these individuals is a power of the Sovereign public authority as declared by the Nation as to who has such authority.
The critics of 'extraordinary rendition' are mistaking civil law (political law) and fundamental law: that law that governs interactions between members of society and that law that governs interactions between Nations. The first is amenable to what goes on within a Nation, the second is the exercise of the power of the Nation with its fellow Nations to ensure that such individuals as cited can be brought to ANY justice by those they have harmed.
For those seeking *why* 'extraordinary rendition' is outside the civil or political law and is fundamental to a Nation as a Nation, we need go no further. I will go on, however, as there is some more of interest that does appear far later in Law of Nations and are often cited pieces by me.
To continue I will skip Ch. XX (public and private property), XXI (alienation of public property), XXII (rivers, streams and lakes), XXIII (of the sea) and that ends Book I.
In Book II which starts with this resounding section:
§ 1. Foundation of the common and mutual duties of nations.
THE following maxims will appear very strange to cabinet politicians; and such is the misfortune of mankind, that, to many of those refined conductors of nations, the doctrine of this chapter will be a subject of ridicule. Be it so; but we will, nevertheless, boldy lay down what the law of nature prescribes to nations. Shall we be intimidated by ridicule, when we speak after Cicero? That great man held the reins of the most powerful state that ever existed; and in that station he appeared no less eminent than at the bar. The punctual observance of the law of nature he considered as the most salutary policy to the state. In my preface, I have already quoted this fine passage — Nihil est quod adhuc de republica putem dictum, et quo possim longius progredi, nisi sit confirmatum, non modo falsum esse illud, sine injuria not posse, sed hoc verissimum, sine summa justitia rempublicam regi non posse.1 I might say on good grounds, that, by the words summa justitia, Cicero means that universal justice which consists in completely fulfilling the law of nature. But in another place he explains himself more clearly on this head, and gives us sufficiently to understand that he does not confine the mutual duties of men to the observance of justice, properly so called. "Nothing," says he, "is more agreeable to nature, more capable of affording true satisfaction, than, in imitation of Hercules, to undertake even the most arduous and painful labours for the benefit and preservation of all nations." Magis est secundum naturam, pro omnibus gentibus, si fieri possit, conservandis aut juvandis, maximos labores molestiasque suscipere, imitantem Herculem illum, quem hominum fama, beneficiorum memor, in concilium cœlestium collocavit, quam vivere in solitudine, non modo sine ullis molestiis, sed, etiam in maximis voluptatibus, abundantem omnibus copiis, ut excellas etiam pulchritudine et viribus. Quocirca optimo quisque et splendidissimo ingenio longe illam vitam huic anteponit.2 In the same chapter, Cicero expressly refutes those who are for excluding foreigners from the benefit of those duties to which they acknowledge themselves bound towards their fellow-citizens. Qui autem civium rationem dicunt habendam, externorum negant, hi dirimunt communem humani generis societatem; qua sublata, beneficentia, liberalitas, bonitas, justitia, funditus tollitur; quæ qui tollunt, etiam adversus Deos immortales impii judicandi sunt; ab Us enim constitutam inter homines societatem evertunt.
And why should we not hope still to find, among those who are the head of affairs, come wise individuals who are convinced of this great truth, that virtue is, even for sovereigns and political bodies, the most certain road to prosperity and happiness? There is at least one benefit to be expected from the open assertion and publication of sound maxims, which is, that even those who relish them the least are thereby laid under a necessity of keeping within some bounds, lest they should forfeit their characters altogether. To flatter ourselves with the vain expectation that men, and especially men in power, will be inclined strictly to conform to the laws of nature, would be a gross mistake; and to renounce all hope of making impression on some of them, would be to give up mankind for lost.
Nations, being obliged by nature reciprocally to cultivate human society (Prelim. § 11), are bound to observe towards each other all the duties which the safety and advantage of that society require.
The duty of the Nation is to do those things which protect the society of which it is an organ. As reciprocity has been seen as an integral part of establishing society and, from that, the National public authority, so, too, is it amongst Nations to give reciprocity to each other:
§ 2. Offices of humanity, and their foundation.
The offices of humanity are those succours, those duties, which men owe to each other, as men, — that is, as social beings formed to live in society, and standing in need of mutual assistance for their preservation and happiness, and to enable them to live in a manner conformable to their nature. Now, the laws of nature being no less obligatory on nations than on individuals (Prelim. § 5), whatever duties each man owes to other men, the same does each nation, in its way, owe to other nations (Prelim. § 10, &c). Such is the foundation of those common duties — of those offices of humanity — to which nations are reciprocally bound towards each other. They consist, generally, in doing every thing in our power for the preservation and happiness of others, as far as such conduct is reconcilable with our duties towards ourselves.
This is, perhaps, the greatest failing of Leftist thought in the modern era, above just asserting civil law and civil rights above all else, is the non-recognition that the differences in culture create different societies and, from that, different National public authorities. Beyond being unable to discriminate between civil and fundamental law, the idea that one set of civil law is everywhere and that the United States ought to treat each Nation as if its laws were the equivalent of our own is lethal to society and the nature of Nations. A treaty declaring 'universal human rights' does not commit each Nation to those things that would be contrary to itself or its society. Worse still is that the civil proceedings described in any such declaration do not go over the fundamental law that makes that very treaty possible. By causing treaty to become some form of over-arching law SEPARATE from the Nations involved, those doing so are acting in a manner that is authoritarian as it indicates there is some higher level of law and right to enforce it above the National public organs of societies. That is authoritarian in the extreme and can find no enforcers for it outside of the National public organs of societies. What is attacked is the fundamental law of societies to be different, to govern themselves differently and to have regularized interaction between societies via their organs of public authority. While man is born with inalienable liberties and rights, we duly give up some of those to society and its public organs. Those liberties and rights are within each individual and the only justice that can be established is via society and its public organs. For those of the multi-cultural bent to argue that civil laws which debase humans in different societies is 'just a natural expression of those societies' and then to turn around and tell us that there is some overarching set of human rights that must be enforced without recognizing the different nature of societies is deceitful, at best, or dishonest, at worst.
What this does not mean is that any Nation has the right to consider its doctrine to be above that of all other Nations. Indeed the next two general principles examine this:
§ 3. General principle of all the mutual duties of nations.
The nature and essence of man, who, without the assistance of his fellow-men, is unable to supply all his wants, to preserve himself, to render himself perfect, and to live happily, plainly show us that he is destined to live in society, in the interchange of mutual aid; and, consequently, that all men are, by their very nature and essence, obliged to unite their common efforts for the perfection of their own being and that of their condition. The surest method of succeeding in this pursuit is, that each individual should exert his efforts first for himself and then for others. Hence it follows, that, whatever we owe to ourselves, we likewise owe to others, so far as they stand in need of assistance, and we can grant it to them without being wanting to ourselves. Since, then, one nation, in its way, owes to another nation every duty that one man owes to another man, we may confidently lay down this general principle: — one state owes to another state whatever it owes to itself, so far as that other stands in real need of its assistance, and the former can grant it without neglecting the duties it owes to itself. Such is the eternal and immutable law of nature. Those who might be alarmed at this doctrine, as totally subversive of the maxims of sound policy, will be relieved from their apprehensions by the two following considerations: —
1. Social bodies or sovereign states are much more capable of supplying all their wants than individual men are; and mutual assistance is not so necessary among them, nor so frequently required. Now, in those particulars which a nation can itself perform, no succour is due to it from others.
2. The duties of a nation towards itself, and chiefly the care of its own safety, require much more circumspection and reserve than need be observed by an individual in giving assistance to others. This remark we shall soon illustrate.
§ 4. Duties of a nation for the preservation of others.
Of all the duties of a nation towards itself, the chief object is its preservation and perfection, together with that of its state. The detail given of them in the first book of this work may serve to point out the several objects in relation to which a state may and should assist another state. Every nation ought, on occasion, to labour for the preservation of others, and for securing them from ruin and destruction, as far as it can do this without exposing itself too much. Thus, when a neighbouring nation is unjustly attacked by a powerful enemy who threatens to oppress it, if you can defend it, without exposing yourself to great danger, unquestionably it is your duty to do so. Let it not be said, in objection to this, that a sovereign is not to expose the lives of his soldiers for the safety of a foreign nation with which he has not contracted a defensive alliance. It may be his own case to stand in need of assistance; and, consequently, he is acting for the safety of his own nation in giving energy to the spirit and disposition to afford mutual aid. Accordingly, policy here coincides with and enforces obligation and duty. It is the interest of princes to stop the progress of an ambitious monarch, who aims at aggrandizing himself by subjugating his neighbours. A powerful league was formed in favour of the United Provinces, when threatened with the yoke of Louis XIV.3 When the Turks laid siege to Vienna, the brave Sobieski, king of Poland, saved the house of Austria.4 and possibly all Germany, and his own kingdom.
First you do what is necessary to secure yourself, then you help others if you have resources to do so. That is a 'scale free' rule that goes from the individual to the Nation in perfect order of type and kind. And when you see a friend or neighbor attacked you damned well go and HELP THEM. Doesn't matter if it is a home break-in of a neighbor's house of an invasion of a neighboring country or one you have deep relations and agreements with: the principle and rule is the same.
These are not written laws, and if you have to try to write them down and enforce them you are devaluing them, because it is the liberty of having freedom to express these things outside of the law, in a positive manner, that builds society and amity between Nations. It is hard to think of a worse evil than individuals being told what they must do because it is 'good' for them to do so, and doing this on an international scale is horrific. And even if you wrote down such laws, the moment that individuals needed to do works not specified by law and yet fall under the general category of helping one's fellow man, the liberty and right to do so re-appears. That goes true for Nations as well. The moment a social 'good' must be enforced by law or treaty, it is well on its way to being lost as a 'good' and perceived as coercion.
As with general scale-free rules, this one appears in our modern instance of Afghanistan where the public organ of society is rooted in the clan or tribe and not in the Nation. Thus 'Nation building' is the attempt to demonstrate that a Nation is a worthy place to invest those powers now held by tribal and clan leaders. That positive transformation has not happened in much of Central Asia, including Afghanistan and Pakistan, and has problems in the Middle East and Africa, where tribal and clan venues still can trump National venues for serving as the public organ of society. Thus those Nations that are 'failed States' are not demonstrating that their public organs serve the public well and protect individuals and society to the benefit of all in society.
The rest of the opening section in Book II is the 'good housekeeping' of what we do expect from all Nations, what Nations ought to do and not to do in various circumstances. This includes not trying to compel other Nations to do things, not force humanitarian office to be used when a host Nation does not want to use them, not to use force, to seek friendship and love amongst Nations, and to generally try to get along with each other and not give offense to each other. Very basic and common sense sorts of things when you think about yourself: if someone tries to take 'charity' from you under threat of harm that is extortion or robbery. That is why we don't compel people to 'do good' when they don't want to.
I am skipping over Ch. II (trade and treaties), III (dignity and equality of Nations, plus marks of honor).
Chapter IV of Book II brings up the Right to Security:
§ 49. Right to security.
IN vain does nature prescribe to nations, as well as to individuals, the care of self-preservation, and of advancing their own perfection and happiness, if she does not give them a right to preserve themselves from every thing that might render this care ineffectual. This right is nothing more than a moral power of acting, that is, the power of doing what is morally possible — what is proper and conformable to our duties. We have, then, in general, a right to do whatever is necessary to the discharge of our duties. Every nation, as well as every man, has, therefore, a right to prevent other nations from obstructing her preservation, her perfection, and happiness, — that is, to preserve herself from all injuries (§ 18): and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation: for, when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security.
§ 50. It produces the right of resistance;
It is safest to prevent the evil when it can be prevented. A nation has a right to resist an injurious attempt, and to make use of force and every honourable expedient against whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.
§ 51. and that of obtaining reparation;
When the evil is done, the same right to security authorizes the offended party to endeavour to obtain a complete reparation, and to employ force for that purpose if necessary.
§ 52. and the right of punishing.
Finally, the offended party have a right to provide for their future security, and to chastise the offender, by inflicting upon him a punishment capable of deterring him thenceforward from similar aggressions, and of intimidating those who might be tempted to imitate him. They may even, if necessary, disable the aggressor from doing further injury. They only make use of their right in all these measures, which they adopt with good reason: and if evil thence results to him who has reduced them to the necessity of taking such steps, he must impute the consequences only to his own injustice.
Security is the right to self-preservation and enlightened societies ensure that its citizens have recourse to their own self-preservation so as to perfect themselves and their happiness. If you cannot use recourse to defend yourself, you will find that things are uncertain as to your continued survival. That is true of individuals and of Nations, and is yet another 'scale-free' rule. To those seeking out 'why' defensive war is justifiable, it is no further than here, although it is gone into in exquisite detail later in Law of Nations. Similarly, when an individual or Nation is attacked and the evil act done to them, they have the absolute right to recourse and reparation for those acts, even to the use of force. For Nation the punishment must fit the crime so as to give others who would take similar actions pause to think about what ends they will come to.
Seen in this light 'extraordinary rendition' is telling an individual they will have no safety wherever they choose to hide. Even worse is that those who do such acts set a bar below which they can be found and brought in, or otherwise have reparation rendered from them. On an international scale when individuals act against Nations on their own without authority from any public organ of society in the Nation that can give them such authority to act, they find that there is no 'presumption of innocence' until they can be brought to a civil system which can provide them that. When cited and named they are not presumed innocent of such acts at an international scale, but worthy of being judged by those harmed by such acts. And for true offenses against mankind, such as safety of the seas and airways, those that act to endanger that common safety will find there is no 'double jeopardy' concept in the fundamental laws between Nations: they can be tried by anyone who gets their hands on them in a civil manner, save if they are in the activity of Private War itself.
It is this fine point that Conservatives and the Right have not properly understood: a harm against society that is done by individuals and involves Private War requires a civil venue when such individuals are not caught in the activity or immediately fleeing it, or are otherwise seeking to evade it being known they are participating in that action. When they are caught by soldiers, in active combat areas, these individuals fall under the Laws of War and the Laws of Peace and the fundamental laws between Nations. It is those fundamental laws are the things the Left is attacking to try and make ALL individuals fall under civil law, whilst the position and venue depends upon disposition of capture.
For those that the Head of State puts into a venue as to *always* be considered at Private War with their Nation, those individuals fall into the military venue in all cases as they are cited as committing crimes against humanity, beyond just civil injury. Currently no President of the United States has been willing to put such statement onto the 'Terror Watch List', but any that did so would clarify the venue of proceedings for those organizations and individuals cited. They would be considered Private Enemies of the Nation, not its Public Enemies (like the FBI Most Wanted list). Once brought to the territory of the US (including embassies, ships at sea under US flag, and, if my readings of the USC are right, US aircraft in similar disposition), then the initial distinction between those enemy types would hand the military venue first precedence to determine placement of individuals as the security of the Nation is fundamental while that of its civil side are political. Those engaging in war crimes and actively at war in a Private manner would be liable for that determination. Again there would be no 'double jeopardy' to then have a civil court try such individuals for more general crimes of the safety and property of the Nation and its people.
That being said, the DEFAULT is when captured these individuals go through civil means for justice upon capture outside of the Nation. A Head of State is given wide discretion in these decisions, and can only be guided by civil laws within the confines of those laws being the territory of the Nation, but has the fundamental laws of the Nation to consider when dealing OUTSIDE of the Nation. Here it is not Congress, which writes the political laws for internal actions of the Nation and its armed forces, but the Executive to determine first placement of adjudication. Determining between those who are friend and foe is the responsibility of the Head of State alone when the Nation deals with other Nations. Public Enemies we have good and substantial understanding to deal with, it is in the area of Private Enemies that the clarity brought to affairs can only arrive by Executive determination for first venue of determination. The civil courts are not set up to judge if someone is fighting Private War, just the damage they have done in those activities. The older form of Admiralty Courts prior to the founding used to do that, but had changed by the time of the founding in England. The US,, however, traces its lineage to the beginning of England not to the time of the founding, for its Sovereignty there. Thus the President by being the Head of the Armies and the Navies also has the right of choosing that venue based on being the Head of the Admiralty, which we have changed into a mere civil court jurisdiction, but the older concepts for identifying foes of the Nation still sits there.
Now that the internal part of security of a Nation is addressed, Chapter V goes to the justice between Nations and I will take the entire section here:
§ 63. Necessity of the observance of justice in human society.
JUSTICE is the basis of all society, the sure bond of all commerce. Human society, far from being an intercourse of assistance and good offices, would be no longer any thing but a vast scene of robbery, if no respect were paid to this virtue, which secures to every one his own. It is still more necessary between nations than between individuals; because injustice produces more dreadful consequences in the quarrels of these powerful bodies politic, and it is more difficult to obtain redress. The obligation imposed on all men to be just is easily demonstrated from the law of nature. We here take that obligation for granted (as being sufficiently known), and content ourselves with observing that it is not only indispensably binding on nations (Prelim. § 5), but even still more sacred with respect to them, from the importance of its consequences.
§ 64. Obligation of all nations to cultivate and observe justice.
All nations are therefore under a strict obligation to cultivate justice towards each other, to observe it scrupulously, and carefully to abstain from every thing that may violate it. Each ought to render to the others what belongs to them, to respect their rights, and to leave them in the peaceable enjoyment of them.1
§ 65. Right of refusing to submit to injustice.
From this indispensable obligation which nature imposes on nations, as well as from those obligations which each nation owes to herself, results the right of every state not to suffer any of her rights to be taken away, or any thing which lawfully belongs to her: for, in opposing this, she only acts in conformity to all her duties; and therein consists the right (§ 49).
§ 66. This right is a perfect one.
This right is a perfect one, — that is to say, it is accompanied with the right of using force in order to assert it. In vain would nature give us a right to refuse submitting to injustice, — in vain would she oblige others to be just in their dealings with us, if we could not lawfully make use of force, when they refused to discharge this duty. The just would lie at the mercy of avarice and injustice, and all their rights would soon become useless.
§ 67. It produces 1. The right of defence.
From the foregoing right arise, as distinct branches, first, the right of a just defence, which belongs to every nation, — or the right of making use of force against whoever attacks her and her rights. This is the foundation of defensive war.
§ 68.2 The right of doing ourselves justice.
Secondly, the right to obtain justice by force, if we cannot obtain it otherwise, or to pursue our right by force of arms. This is the foundation of offensive war.
§ 69. The right of punishing injustice.
An intentional act of injustice is undoubtedly an injury. We have, then, a right to punish if, as we have shown above, in speaking of injuries in general (§ 52). The right of refusing to suffer injustice is a branch of the right to security.
§ 70. Right of all nations against one that openly despises justice.
Let us apply to the unjust what we have said above (§ 53) of a mischievous nation. If there were a people who made open profession of trampling justice under foot, — who despised and violated the rights of others whenever they found an opportunity, — the interest of human society would authorize all the other nations to form a confederacy in order to humble and chastise the delinquents. We do not here forget the maxim established in our Preliminaries, that it does not belong to nations to usurp the power of being judges of each other. In particular cases, where there is room for the smallest doubt, it ought to be supposed that each of the parties may have some right: and the injustice of the party that has committed the injury may proceed from error, and not from a general contempt of justice. But if, by her constant maxims, and by the whole tenor of her conduct, a nation evidently proves herself to be actuated by that mischievous disposition, — if she regards no right as sacred, — the safety of the human race requires that she should be repressed. To form and support an unjust pretension, is only doing an injury to the party whose interests are affected by that pretension; but, to despise justice in general, is doing an injury to all nations.
On the other side of 'extraordinary rendition' is the Nation having the individual being sought within it. That Nation should, as we have examined previously, render up such individuals who are even under mere suspicion of harming other Nations: the security of all Nations requires that lawful judgment by those harmed take place. The Nation who has such a one within its boundaries must protect the whole of its society, and examine if there is more than enough indication that the individual to be rendered is likely to be culpable of those things. On the civil side of justice this is done via warrant and other devices set up via treaties. On the fundamental side, where a citizen may have taken up warfare without any given empowerment by the Nation to do so, nor leave to do so by the Head of State, the Nation that has that individual must consider that the high threat to all Nations in *not* seeing justice done is extremely high as it unravels the Nation State system when such individuals are given to no venue for justice. That is a peril to the Nation, as well.
Additionally there are the higher crimes that are against humanity in which the acts done may have impinged upon many Nations or all Nations, and that the individual so rendered may not even go to the Nation asking for the removal of that individual. The safeguard for that is to utilize a controlled portion of territory hard to get to, or otherwise have help in finding same, banish the individual there and allow multiple jurisdictions to set up in ships or provide extraterritorial enclaves to pass from Nation to Nation for each proceeding. This would give each Nation its Sovereign ability to exercise its law an a determined place secure from that individual facing flight. More commonly, if there are understood to be limited Nations involved, or only general possibility of wider inquiry, then handing such an individual over can be done with due expectation that those who have a pertinent interest to the activities cited will be taking part. That does not absolve a Nation for keeping track of its citizens so rendered, get up dates on them, and have access to them. That, too, is part of the understanding between Nations, but this devolves fully on the Nation that does the rendering of its citizen, not upon those doing the asking.
In this instance where the fundamental laws take precedence over the civil laws, any Nation trying to put pre-condition on such rendition would be attempting to put their civil law above the safety of their Nation and all Nations. Thus a Nation trying to not agree because they are not, under normal, civil proceedings, allowed to hand over individuals to Nations that have the death penalty for certain crimes would not be able to use that as an excuse on this fundamental law question. Fundamental law questions are only amenable to political law in certain circumstances, and when the safety of the Nation and rendering justice for acts taken against fundamental law are required, the full power of the Sovereign to exercise those powers cannot be abridged. That weakens the Nation and puts it in a superior position of trying to determine what it is that ALL Nations must do: it is a local prejudice of society via such law that would put all Nations at risk and places the individual who does heinous crimes against humanity in a position of NEVER having to answer for their crimes against those they wronged to the full extent of their VICTIM'S laws.
On civil law this is an understandable and necessary part of treaty and foreign policy work.
For fundamental law it weakens the entire system of Nations and gives safe haven to malefactors who have done grave injury to one or more Nations by their activities.
This is covered more fully in Chapter VI with the concern of a Nation for the action of her citizens. This goes to the heart of the matter where a citizen of one Nation harms another Nation:
§ 71. The sovereign ought to revenge the injuries of the state, and to pro
WE have seen in the preceding chapters what are the common duties of nations towards each other, — how they ought mutually to respect each other, and to abstain from all injury and all offence, — and how justice and equity ought to reign between them in their whole conduct. But hitherto we have only considered the actions of the body of the nation, of the state, of the sovereign. Private persons who are members of one nation, may offend and ill-treat the citizens of another, and may injure a foreign sovereign: — it remains for us to examine what share a state may have in the actions other citizens, and what are the rights and obligations of sovereigns in this respect.
Whoever offends the state, injures its rights, disturbs its tranquillity, or does it a prejudice in any manner whatsoever, declares himself its enemy, and exposes himself to be justly punished for it. Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which is, safety.
§ 72. He ought not to suffer his subjects to offend other nations or their cltizens.
But, on the other hand, the nation or the sovereign ought not to suffer the citizens to do an injury to the subjects of another state, much less to offend that state itself: and this, not only because no sovereign ought to permit those who are under his command to violate the precepts of the law of nature, which forbids all injuries, — but also because nations ought mutually to respect each other, to abstain from all offence, from all injury, from all wrong, — in a word, from every thing that may be of prejudice to others. If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation either in its body or its members, he does no less injury to that nation than if he injured it himself. In short, the safety of the state, and that of human society, requires this attention from every sovereign. If you let loose the reins to your subjects against foreign nations, these will behave in the same manner to you; and, instead of that friendly intercourse which nature has established between all men, we shall see nothing but one vast and dreadful scene of plunder between nation and nation.
Here civil rights are seen as secondary to the fundamental right of those things we vest liberties into for our protection. Those public organs of society that are the Sovereign of a Nation have those liberties invested in it to address the rights done to that Nation by others, not just Nations but private individuals from other Nations. Those that harm other Nations become an enemy of it by those actions, and are liable to be punished for them. Any Nation that REFUSES to give up such individuals is REWARDING THEM with SAFETY. Even worse is that in not handing such individuals over, the Sovereign is then seen as COMPLICIT in the act itself. That is not to say that the Nation is tarred by this unless its public organs condones or approves them. Only then is the entire Nation acting and liable for the offenses of the individual in question.
That is the reciprocity of power arrangement that a Sovereign has: you get the power but are also held liable for the effects of it. Thus any Nation that does NOT render its citizens via the fundamental laws puts that leader or Sovereign at risk to be considered PART of the action taken. The Nation, itself, is not part of that unless the political organs approve or condone such actions and then the entire Nation IS culpable for those actions and can be held accountable.
To make that last crystal clear: any king, president, prime minister, council, or whatever is decided by that society to have that Head of State power and the fundamental law under their guidance is put at RISK by not offering up wanted individuals to other Nations in fundamental law areas.
That is a very dicey thing to do for the next warrant that comes through will be for said individual to be rendered for judgment along WITH the original individual as an accomplice to the action. There is no Sovereign Immunity from the fundamental laws that arise between Nations. Just the opposite, there is Sovereign Accountability for those actions and the individual, rotating leader, council or whatever the form is for that Nation is held accountable for that action.
If that action is taken by the Nation wronged, the Nation that has the individual refusing to give up a citizen for judgment can then either have that action approved, or be removed (by various means) and that action repudiated and the original individual plus Sovereign handed over for justice. Of course that might be an ex-Sovereign or late Sovereign by that point in time...
Wars get started over this stuff, you know?
Thus the duty of the Sovereign is spelled out:
§ 76. Duty of the aggressor's sovereign.
And, since the latter ought not to suffer his subjects to molest the subjects of other states, or to do them an injury, much less to give open, audacious offence to foreign powers, he ought to compel the transgressor to make reparation for the damage or injury, if possible, or to inflict on him an exemplary punishment; or, finally, according the nature and circumstances of the case, to deliver him up to the offended state, to be there brought to justice. This is pretty generally observed with respect to great crimes, which are equally contrary to the laws and safety of all nations. Assassins, incendiaries, and robbers, are seized everywhere, at the desire of the sovereign in whose territories the crime was committed, and are delivered up to his justice. The matter is carried still farther in states that are more closely connected by friendship and good neighbourhood. Even in cases of ordinary transgressions, which are only subjects of civil prosecution, either with a view to the recovery of damages, or the infliction of a slight civil punishment, the subjects of two neighbouring states are reciprocally obliged to appear before the magistrate of the place where they are accused of having failed in their duty. Upon a requisition of that magistrate, called Letter Rogatory, they are summoned in due form by their own magistrates, and obliged to appear. An admirable institution, by means of which many neighbouring states live together in peace, and seem to form only one republic! This is in force throughout all Switzerland. As soon as the Letters Rogatory are issued in form, the superior of the accused is bound to enforce them. It belongs not to him to examine whether the accusation be true or false: he is to presume on the justice of his neighbour, and not suffer any doubts on his own part to impair an institution so well calculated to preserve harmony and good understanding between the states. However, if by constant experience he should find that his subjects are oppressed by the neighbouring magistrates who summon them before their tribunals, it would undoubtedly be right in him to reflect on the protection due to his people, and to refuse the rogatories till satisfaction were given for the abuses committed, and proper steps taken to prevent a repetition of them. But, in such case, it would be his duty to allege his reasons, and set them forth in the clearest point of view.
§ 77. If he refuses justice, he becomes a party in the fault and offence.
The sovereign who refuses to cause reparation to be made for the damage done by his subject, or to punish the offender, or, finally, to deliver him up, renders himself in some measure an accomplice in the injury, and becomes responsible for it. But, if he delivers up either the property of the offender, as an indemnification, in cases that will admit of pecuniary compensation — or his person, in order that he may suffer the punishment due to his crime, the offended party has no further demand on him. King Demetrius, having delivered to the Romans those who had killed their ambassador, the senate sent them back, resolving to reserve to themselves the liberty of punishing that crime, by avenging it on the king himself, or on his dominions.1 If this was really the case and if the king had no share in the murder of the Roman ambassador, the conduct of the senate was highly unjust, and only worthy of men who sought but a pretext to cover their ambitious enterprises.
§ 78. Another case in which the nation is guilty of the crimes of the citizens.
Finally, there is another case where the nation in general is guilty of the crimes of its members. That is, when, by its manners, and by the maxims of its government, it accustoms and authorize its citizens indiscriminately to plunder and maltreat foreigners, to make inroads into the neighbouring countries, &c. Thus, the nation of the Usbecks is guilty of all the robberies committed by the individuals of which it is composed. The princes whose subjects are robbed and massacred, and whose lands are infested by those robbers, may justly level their vengeance against the nation at large.(106) Nay, more; all nations have a right to enter into a league against such a people, to repress them, and to treat them as the common enemies of the human race. The Christian nations would be no less justifiable in forming a confederacy against the states of Barbary, in order to destroy those haunts of pirates, with whom the love of plunder, or the fear of just punishment, is the only rule of peace and war. But these piratical adventurers are wise enough to respect those who are most able to chastise them; and the nations that are able to keep the avenues of a rich branch of commerce open for themselves, are not sorry to see them shut against others.
Damn, the Uzbecks were already known to be a problem back then...
It is a basic restatement and goes a bit further on standard civil matters, but discriminates between those and the fundamental law areas of those doing crimes against a Nation and humanity.
And so, knowing that writing further is only of interest to the writer, not to the reader, I will sum up in saying: if you oppose 'extraordinary rendition' you are opposing Nations and the need of Nations to hold the citizens of other Nations accountable for acts against the fundamental laws guiding Nations (The Law of Nations) and for crimes that transgress the Nation State system, also known as crimes against humanity. These are not civil crimes, although they may have civil components at the political law level within a Nation. These actions go beyond that, however, and lay at the feet of the Sovereign the need to exercise the power of that Sovereign invested by the Nation so as to bring these miscreants to justice.
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