The term “homo sacer” referred to individuals subject to unique rules and lacking protection from harm. The implementation of habeas corpus made the term obsolete, but recent legal wrangling has revived it in the context of the “war on terror.” The term “illegal combatant” restores some aspects of classical homo sacer, leading to controversy over the legality of modern POW scenarios.
The phrase “homo sacer” comes from Latin and translates into English as “blessed” or “accursed” man. In ancient times, this designation had both a positive and a negative connotation, although the negative aspect prevailed over the positive one. Homo sacer is an individual apart. In classical terms, in its time of origin, the term referred to someone who was subject to certain unique rules; they didn’t have the same protection from harm as an ordinary citizen. The custom of naming these individuals, who might more generally be called pariahs, continued right up to the time of the implementation of habeas corpus in England in the 17th century.
Historians debate whether Magna Carta, a comprehensive legal document that provided the foundation for more modern judicial systems, included the “seed” of habeas corpus. Habeas corpus, a legal idea that became part of various legal systems during that period, provides for the prohibition of illegal detention and the right to trial for those considered criminals. It puts broader protection on every human citizen of a nation or region, making the designation of a homo sacer rather obsolete.
In a surprising twist on this classic legal idea, some have argued that recent legal wrangling actually revives the idea of homo sacer as undeserving of the same rights as others, when it comes to due process and representation, as well as protection from immediate Death. Many experts believe that the third Geneva Convention, established in the 20th century, denies the idea of using a homo sacer defense for the death or wrongful imprisonment of an individual. That being the case, other legal experts turn their eyes to a unique situation regarding the 21st century “war on terror,” where the homo sacer principle may be present to some extent in efforts to legalize certain types of detention, interrogation.
Experts contemplating the term “illegal combatant” in the 21st century point out that this role, as elaborated by Western lawyers, restores some of the key aspects that applied to classical homo sacer. The illegitimate combatant, in other words, is marked as undeserving of certain rights under the Geneva Convention. The ensuing controversies are sure to continue, as widespread disagreement over the legality of modern “POW” scenarios stirs nations embroiled in the largest war on terrorism, and legal professionals argue for and against various practices, using ideas such as homo sacer, the Geneva Convention, and habeas corpus as foundations.
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